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Water has and will remain an essential element of life. It does not recognize local, state or national boundaries; traveling instead along courses determined by ancient geologic forces. Yet water law is relatively new, evolving and governed by a patchwork of laws and regulations on the federal, state and local levels.
This article provides a broad overview of surface water law in the United States. As a threshold matter it should be noted that water law in the United States is treated differently based on the type of water being governed. Surface water, water flowing in rivers, streams and similar watercourses, is governed by one body of law, while groundwater is treated quite differently. This article addresses the development and basic principles of surface water law in the United States.
The riparian doctrine is one of the oldest and most common legal standards for determining surface water rights and is employed by all states east of the Mississippi River except Mississippi. France and England each employed a version of riparian rights which granted water rights to riparian landowners, those persons owning property bordering a river, stream or other waterway. The doctrine evolved in the early 19th century to address water use issues raised by the Industrial Revolution. The riparian doctrine is suited to the eastern United States where rainfall, rivers and streams are relatively plentiful.
The central feature of the riparian doctrine is the ownership of land bordering a river, stream or similar watercourse. Ownership of land bordering a watercourse grants the landowner rights to use the water flowing by or through his property. Historically riparian owners were allowed to make use of such water for irrigation, mills, and other similar uses. Over time, the riparian doctrine evolved so that present day riparian landowners are allowed to use water from rivers or steams abutting their property subject to the corollary rights of fellow riparians.
The first limitation placed on the riparian doctrine was the "natural flow" theory. Under the natural flow theory a riparian landowner could make use of a stream in its natural course but could not create any diversion that materially reduced the flow of the watercourse to a fellow riparian. David H. Getches, Water Law in a Nutshell, pg. 20 (4th ed. 2008).
Today, riparian rights are subject to the reasonable use doctrine first espoused by Justice Story in Tyler v. Wilkinson, 24 F.Cas. 472 (C.C.R.I. 1827). The reasonable use doctrine holds that riparian landowners are entitled to make a reasonable use of the waters in a stream so long as such use does not interfere with the reasonable use of other riparians. This limitation on riparian rights has been adopted in one form or another by all riparian states.
Riparian doctrines have been further modified by statute and case law so that there are no longer any states governed simply by common law riparian doctrines. David H. Getches, Water Law in a Nutshell, pg. 5 (4th ed. 2008). Many states now employ statutory and permit based systems which incorporated the above described common-law principles.
Unlike the riparian doctrine which was imported from Europe and is more suited to the climates and geology of the eastern United States, the prior-appropriation system developed in the arid western United States where rivers and streams are less plentiful and settlement occurred on federally owned lands. The prior-appropriation doctrine relies upon a basic rule of property law, namely "first in time is first in right". Under this approach the first user to put water to a beneficial purpose gains priority over subsequent users. By satisfying the test set forth in the following paragraph an individual establishes an appropriative water right which entitles him to a specific amount of water, for a specified use, at a specific location with a definite date of priority. Water Appropriation Systems, National Science & Technology Center Bureau of Land Management, http://www.blm.gov/nstc/WaterLaws/appsystems.html. This appropriative right depends upon continued use of the water and, unlike riparian rights, may be lost through non-use. Id.
There are four essential elements of the prior appropriation doctrine: intent, diversion, beneficial use, and priority. Id. In all states using the prior appropriation doctrine, the acquisition of water requires that the appropriator demonstrate the intent to appropriate the water, divert the water, and apply it to beneficial use. Id. Historically intent was shown by physical acts such as land clearing or the preparation of diversion point such as a canal. Presently intent is most likely shown by filing a permit for water use. Depending upon state law, diversion may no longer require an actual physical diversion, such as a dam or canal, as many states have recognized in-stream flows as satisfying this requirement. Arguably the most important element of the prior appropriation test, beneficial use, includes those uses that do not waste water. While prior appropriation states vary on what constitutes a beneficial use; domestic, municipal, agricultural, and industrial uses are considered beneficial uses in all states.
By establishing intent, diversion and beneficial use, an appropriator gains priority over subsequent water users. This is particularly important in the western United States where water resources are scarce. Priority gives the first or "senior" appropriator on a water source the right to use all the water in the system necessary to fulfill his water right. Id. A subsequent or "junior" appropriator cannot use water to satisfy his water right if it will injure the senior appropriator. Id.
The states utilizing the prior appropriation doctrine include Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah and Wyoming.
The states of California, Kansas, Nebraska, North and South Dakota, Oklahoma, Oregon, Texas, and Washington each utilize a hybrid approach to surface water rights which blends aspects of both the riparian and prior-appropriation doctrines. States using the hybrid system historically recognized riparian rights, but have since changed to an appropriation system. Hybrid states integrate riparian rights into the doctrine of prior appropriation by converting historic riparian rights into appropriative rights. Id.
About the Author
Matthew L. Crowell is an attorney with Cox Smith Matthews Incorporated in San Antonio, Texas. His principal areas of practice are Energy and Natural Resources.