Water rights involve the right to use water and may be an appurtenant right tied to land ownership. Because water is so important, water rights may be treated different than you might assume.
Water can be thought of as being on the surface or below the surface. Surface water is either confined — such as a pond or channel — or unconfined — such as runoff.
Surface water is identified as either riparian or appropriative property rights.
- Riparian rights refer to water that flows through or adjacent to a landowner’s land. A riparian landowner has a right to make reasonable use of a stream’s natural flow and has the right to use stream water for domestic uses, such as drinking, bathing, and watering a personal-use produce garden. Upstream landowners aren’t allowed to use the water in ways that could deprive downstream owners of its use; they must not substantially diminish the stream’s flow in quantity, quality, or velocity.
- Appropriative rights do not depend on land ownership, rather depend on priority of use (“first in time, first in right”). Historically, appropriative rights were based on the legal doctrine of prior appropriation, which held that the first person to take (appropriate) water from a stream or lake and put it to use had the right to continue that use. Other users might also appropriate available water from the stream or lake, but during periods when there wasn’t enough water to meet the needs of all users, earlier users had priority over later users. The first user could take as much water as needed for his established use, even if that meant there wouldn’t be any left over for the other users.
