What it means
Cornell's Legal Information Institute describes two main doctrines. Riparian doctrine deals mainly with a body of water bordering a piece of land.
Under it, the legal water right belongs to the landowner if the water flows within the land border and the owner uses it for reasonable and beneficial use. Wex notes that mainly Eastern states adopt riparian rights.
These rights cannot be sold or bought, and they are permanently attached to the land. Not using the water does not take the rights away from the landowner.
The prior appropriation doctrine works differently. Wex says water rights are determined by priority of beneficial use.
The first person to use or divert water for a beneficial purpose can acquire individual rights to it. Beneficial use is the key idea in the West.
Wex says it is most commonly associated with water rights in the western United States, and many state statutes describe it as the basis, measure and limit of a water right. Non-riparian landowners can acquire a right when they put the water to a beneficial use, but the extent of the right is limited by that use.
Texas is given as an example. Wex says Texas defines beneficial use as the amount of water economically necessary for a permitted purpose, when reasonable intelligence and reasonable diligence are used in applying it.
Wex also explains that riparian use must be reasonable. A use that unreasonably interferes with the use of others may not be allowed.
Some jurisdictions that do not recognise riparian rights may treat any body of water as state property. Water law is state law, so a buyer needs the local statutes and any permits.
In practice
Real-world examples.
Example
A fictional farmer owns land along a river in an eastern state that follows riparian rules. The farmer may make reasonable and beneficial use of the water. The right stays with the land and cannot be sold apart from it.
Example
A fictional rancher in a western state diverts water from a stream to irrigate pasture, years before a neighbour does. Under prior appropriation, the first use for a beneficial purpose gives the rancher priority.
Example
A fictional buyer is told the land comes with water rights. The buyer asks to see the permit and the record of use. The right is limited by the beneficial use, so the paperwork decides what is being bought.
Formula
Calculation
Annual use = units per day x days of use.
Worked example with assumed figures: an irrigation right of 2 units per day, used for 100 days.
Annual use = 2 x 100 = 200 units.
If a later user holds a junior right and the stream is short, the senior user is served first. In that case, suppose the stream can supply only 3 units per day while a senior right of 2 units per day and a junior right of 2 units per day both want water. The senior user receives all 2 units and the junior user receives the remaining 1 unit, so the junior user is short by 2 - 1 = 1 unit each day.
The figures are assumptions, since each right states its own limits.Case study
Seen in the real world.
This case study is fictional and illustrative. A buyer wants a 100-acre farm that advertises irrigation water. The seller says the water comes with the land. The buyer's adviser checks which doctrine the state uses.
In a state that follows prior appropriation, the right depends on a permit and on beneficial use. The adviser asks for the permit, its priority date and the history of use. The records show the right was used for part of the acreage only. Because the extent of the right is limited by the beneficial use, the buyer adjusts the price and writes the permit transfer into the contract.
The lesson is that water rights should be verified like any other title item before closing. The adviser also advises the buyer to check whether the permit allows the water to be moved to another field and whether any change needs approval. The seller agrees to supply the permit documents and a written statement of how the water has been used in recent seasons. Closing is delayed until the paperwork is complete, which the buyer accepts as cheaper than discovering a gap after purchase.
Watch out
Common mistakes.
- Assuming land always comes with water rights, when the rule depends on the state and the doctrine it follows.
- Treating riparian and prior appropriation rights as the same, when one attaches to the land and the other rests on priority of use.
- Ignoring beneficial use, since it is the basis, measure and limit of a right in many western states.
Questions
People also ask.
What are water rights?
They are legal rights to use water from a source such as a river or stream. In the US they are mainly based on riparian doctrine or prior appropriation.
What is prior appropriation?
It is a doctrine under which water rights follow priority of beneficial use. The first person to put water to a beneficial use can acquire rights to it.
Can riparian rights be sold?
Wex says riparian rights cannot be sold or purchased. They are permanently attached to the land.
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