Water Rights: Everything Homeowners Need To Know
Molly Grace6-minute read
June 29, 2021
When you buy waterfront property, you might assume that, just like the home you purchased, that water is yours to enjoy as you see fit.
Not so fast. Every state and locality has its own rules regarding the use of its water. Though individuals and entities typically don’t own sources of water, they may have certain rights to use, enjoy, divert, or sell water from a particular source.
These rights are known as water rights.
What Are Water Rights?
If you own property adjacent to a body of water, such as a lake house or a home with a stream running through the backyard, it’s important that you understand your rights to that water.
Can you build a dock on the shore of the lake in your backyard? Can you go swimming? Fishing? Can you use the water to irrigate your garden, or supply your home with drinking water? Are other people allowed to walk along a shoreline that goes through your backyard?
These are important questions that water rights laws and court decisions throughout the country attempt to answer.
Your rights to a water source may also differ depending on whether you’re talking about surface water or groundwater. Surface water is water located on top of the earth’s surface – think lakes, rivers or oceans. Groundwater is water that exists beneath the surface of the earth.
Because water rights are so area-specific, you’ll need to look to your state and local regulations to be certain about what your rights are when it comes to bodies of water adjacent to property you own. In the next few sections, we’ll go over some general rules about how water rights typically work in the U.S.
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How Do Water Rights Work?
Water rights dictate who can use a particular body of water and the ways in which rightsholders can use that body of water.
Water is vital to all life, and we use water for a variety of different, essential purposes: we supply it to our homes for drinking and bathing, we use it to water livestock and irrigate crops, we allocate it for industrial purposes and we even enjoy it recreationally.
Since we typically don’t just own bodies of water outright, water rights laws create a legal structure to determine who has the right to use our waters and to put limits on how bodies of water can be used.
Water rights laws might limit a rightsholder’s ability to sell the water they have a right to, or to divert it for commercial or industrial purposes, for example.
How can we determine who has rights to a particular body of water? It depends on the framework your state uses.
What Are The Different Types Of Water Rights?
There are two basic systems used in the U.S. to determine who gets the rights to a body of water.
In the eastern half of the U.S., water rights are typically decided based on a riparian doctrine. In the western half of the U.S., water rights are usually granted based on a prior-appropriation doctrine.
With riparian water rights, rights to a body of water are determined by who owns the land adjacent to the water. Riparian water rights give riparian owners (those who own property adjacent to a body of water) the right to reasonable use of the water adjacent to their properties.
So, in a state that uses a riparian system of water rights, if you owned a lake house that sat directly on the shore of a lake, you’d likely have a right to reasonable use of that lake.
Reasonable use means that you can’t unreasonably impede another riparian owner’s right to use the water, because each riparian owner has equal rights to that body of water. Each state has its own rules for how individuals and entities can use particular bodies of water. What constitutes a reasonable or unreasonable use is often decided by the courts on a case-by-case basis.
The riparian water rights framework is common in the eastern half of the U.S.
The term “riparian rights” is often used as a general term to refer to water rights being tied to adjacent land ownership. However, the word “riparian” technically refers specifically to rights to flowing water, such as a river or stream.
Littoral water rights refer to land-based rights to non-flowing bodies of water, such as a lake or pond.
So, in states that utilize a riparian system of water rights, lake house owners with property on the edge of a lake might actually have littoral water rights. Property owners with littoral rights are granted the right to reasonably use the water adjacent to their properties – just like with riparian rights.
In spite of these distinctions, you might see all riparian-style water rights referred to as riparian, even if they’re technically littoral.
In the western half of the U.S., many states follow a prior appropriation doctrine regarding water rights. Within a prior appropriation framework, water rights aren’t granted based on who owns the land adjacent to a body of water. Instead, water rights are granted based on who first laid a claim to a particular water source.
This system of water rights originated with the miners who settled in the west during the Gold Rush, according to the Water Education Foundation. Water was needed for mining, but since the mines weren’t adjacent to bodies of water, the miners would have to divert the water from a nearby body of water to where they needed it.
To let other miners know they had claimed a body of water and to avoid water disputes, they’d post a notice at the point of diversion to stake their claim.
Essentially, whoever called “dibs” first got the rights to the water.
Nowadays, prior appropriation water rights generally mean that permit holders are the ones with rights to a given body of water – regardless of whether they own land adjacent to it – and that the individual or entity with the oldest active permit has priority over all other permit holders.
Prior appropriation mainly comes into play when water is scarce, such as during a drought. More senior permit holders get priority over permits that were issued more recently.
In states that use this framework, entities who want the right to use a body of water typically have to specify where and how they plan to use it (water must be diverted for what the state considers to be a “beneficial use”) and how much they plan to use.
Some states have a hybrid system that recognizes both riparian and prior appropriation water rights.
In California, for example, riparian owners may have rights to water adjacent to their land as long as it hasn’t already been appropriated to another entity.
Water Rights And Buying A Home: How Might These Laws Impact Your Purchase?
If you’re planning to buy waterfront property, it’s natural to want to know if and how you’ll be able to use that water.
After all, you don’t want to buy a lake house with the intention of spending all your summer weekends enjoying the lake, only to find out that you won’t be able to dock your boat in it or go fishing.
Since water rights laws vary so much by state, your best bet is to read up on your state’s laws on water rights in addition to any regulations specific to the body of water you’re looking to buy property near.
How To Learn More About Your Local Water Rights
If you’re looking to learn more about water rights in your state, the state’s water or environmental regulatory authorities or its department of natural resources are good places to start looking.
These entities should have information regarding how water rights are granted in your state, and exactly what those rights include.
If you’re wondering about water rights on a specific property you’re considering purchasing, your real estate agent will likely be able to help you get the information you need.
The Bottom Line
If you plan on purchasing a home next to a body of water, it’s important to understand your rights to that water, so you can both enjoy the rights you have and avoid overstepping those rights and ending up in legal trouble.
If you want to learn more about how local or state laws can impact homeownership, check out our article on zoning laws.
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