Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

Riparian A riparian zone or riparian area is the interface between land and a river or stream. In some regions, the terms riparian woodland, riparian forest, riparian buffer zone, riparian corridor, and riparian strip are used to characterize a ripar ...

water right Water right in water law is the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In ot ...

s exist in many jurisdictions with a common law heritage, such as

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Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...

New Zealand New Zealand () is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and List of islands of New Zealand, over 600 smaller islands. It is the List of isla ...

, and states in the eastern

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

Common land Common land is collective land (sometimes only open to those whose nation governs the land) in which all persons have certain common rights, such as to allow their livestock to graze upon it, to collect wood, or to cut turf for fuel. A person ...

ownership can be organized into a partition unit, a corporation consisting of the landowners on the shore that formally owns the water area and determines its use.

General principle

Under the riparian principle, all landowners whose properties adjoin a body of water have the right to make reasonable use of it as it flows through or over their properties. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land and only in reasonable quantities associated with that land. The water cannot be transferred out of the

watershed Watershed may refer to: Hydrology * Drainage divide, the line that separates neighbouring drainage basins * Drainage basin, an area of land where surface water converges (North American usage) Music * Watershed Music Festival, an annual country ...

without due consideration as to the rights of the downstream riparian landowners. Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations; the right to exclusive use if the waterbody is non-navigable. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.

England and Wales

The

Environment Agency The Environment Agency (EA) is a non-departmental public body, established in 1996 and sponsored by the United Kingdom government's Department for Environment, Food and Rural Affairs, with responsibilities relating to the protection and enha ...

lists the riparian rights and duties in England and Wales. The rights include ownership of the land up to the centre of the watercourse unless it is known to be owned by someone else, the right for water to flow onto land in its natural quantity and quality, the right to protect property from flooding and land from erosion subject to approval by the agency, the right to fish in the watercourse unless the right is sold or leased if an angler has a valid Environment Agency rod licence. They also include the right to acquire accretion and the right to boomage (a fee charge for securing a boom, generally for the retention of logs). Duties arising from the model include the following: * Pass on the flow of water without obstruction, pollution or diversion affecting the rights of others. * Maintain the bed and banks of the watercourse and to clear any debris, whether natural or artificial, to keep any culverts, rubbish screens, weirs and mill gates clear of debris. * Be responsible for protection of land from flooding and cause no obstructions, temporary or permanent, preventing the free passage of fish. * Accept flood flows even if caused by inadequate capacity downstream, but there is no duty to improve the drainage capacity of a watercourse.

United States

The United States recognizes two types of water rights. Although use and overlap varies over time and by state, the western arid states that were once under

Mexico Mexico, officially the United Mexican States, is a country in North America. It is the northernmost country in Latin America, and borders the United States to the north, and Guatemala and Belize to the southeast; while having maritime boundar ...

and

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generally follow the doctrine of prior appropriation, also known as "first-come, first-served", but water rights for the eastern states follow riparian law.

Riparian rights

Under riparian law, water is a

public good In economics, a public good (also referred to as a social good or collective good)Oakland, W. H. (1987). Theory of public goods. In Handbook of public economics (Vol. 2, pp. 485–535). Elsevier. is a commodity, product or service that is bo ...

like the air, sunlight, or wildlife. It is not "owned" by the government, state or private individual but is rather included as part of the land over which it falls from the sky or then travels along the surface. In determining the contours of riparian rights, there is a clear distinction between navigable (public) waters and non-navigable waters. The land below navigable waters is the property of state, and subject to all the public land laws and in most states public trust rights. Navigable waters are treated as public highways with any exclusive riparian right ending at the

ordinary high water mark A high water mark is a point that represents the maximum rise of a body of water over land. Such a mark is often the result of a flood, but high water marks may reflect an all-time high, an annual high (highest level to which water rose tha ...

. Like a road, any riparian right is subordinate to the public's right to travel on the river, but any public right is subject to nuisance laws and the police power of the state. It is not an

individual right Individual rights, also known as natural rights, are rights held by individuals by virtue of being human. Some theists believe individual rights are bestowed by God. An individual right is a moral claim to freedom of action. Group rights, also k ...

or liberty interest. Because a finding of navigability establishes state versus federal property, navigability for purposes of riverbed title is a federal question determined under federal law. The states retain the power of defining the scope of the

public trust The concept of public trust relates back to the origins of democratic government and its seminal idea that within the public lies the true power and future of a society; therefore, whatever ''trust'' citizens place in its officials must be respe ...

over navigable waters. A non-navigable stream is synonymous with private property, or jointly-owned property if it serves as a boundary. The state could choose to divest itself of title to the streambed, but the waters and use of the waters remains subject to the

Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...

of the

United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...

which holds an

easement An easement is a Nonpossessory interest in land, nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" ...

or servitude, benefiting the federal government for the purpose of regulating commerce on navigable bodies of water. The reasonable use of the water by a riparian owner is subject to the downstream riparian owner's "riparian right" to receive waters undiminished in flow and quality. Federal environmental regulation of non-navigable waters under the

Clean Water Act of 1972 The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters; recognizing the primary respo ...

was possible, because all surface waters eventually flowed to the public ocean. This has been the subject of political controversy, for example over implementation of the

Clean Water Rule The Clean Water Rule is a 2015 regulation published by the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to clarify water resource management in the United States under a provision of the ...

. In 2023 the United States Supreme Court ruled in ''Sackett v. EPA'' by a 5–4 decision that the EPA could only regulate waters in the United States which have not been isolated from larger bodies of water.

States' involvement

Federal courts have long recognized that state laws establish the extent of the riparian and public right. In the case of navigable waters, title goes to the average low water mark. The

Pennsylvania Supreme Court The Supreme Court of Pennsylvania is the highest court in the Commonwealth of Pennsylvania's Unified Judicial System. It began in 1684 as the Provincial Court, and casual references to it as the "Supreme Court" of Pennsylvania were made offici ...

defined it as the "ordinary low water mark, unaffected by drought; that is, the height of the water at ordinary stages." Land below the low water mark on navigable rivers belongs to the state government in the case of the 13 original states. Lands between the high and low water marks on navigable rivers are subject to the police powers of the states. In the case of the original 13 states, upon ratification of the US Constitution, title to these submerged lands remained vested in the several states similar to the public or common roads. As new lands were acquired by the United States, either by purchase or treaty, title to the highways and the beds of all navigable, or tidal, water bodies became vested in the United States unless they had been validly conveyed into private ownership by the former sovereign. During the territorial period, the United States held these title "in trust" for the benefit of the future states that would be carved out of the territory. Each of the states were to come into the Union on an "

equal footing The equal footing doctrine, also known as equality of the states, is the principle in United States constitutional law that all states admitted to the Union under the Constitution since 1789 enter on equal footing with the 13 states already in ...

" with the original 13 states. Under the

equal footing doctrine The equal footing doctrine, also known as equality of the states, is the principle in United States constitutional law that all states admitted to the Union under the Constitution since 1789 enter on equal footing with the 13 states already in t ...

, territorial states are vested with the same sovereign title rights to navigable submerged lands as the original 13 states. However, during the territorial period, the United States could convey certain of these lands under the limited circumstances of promoting commerce. Ownership of lands submerged by navigable waters was resolved by Congress passing the

Submerged Lands Act The Submerged Lands Act of 1953 is a U.S. federal law that recognized the title of the states to submerged navigable lands within their boundaries at the time they entered the Union. They include navigable waterways, such as rivers, as well as m ...

,43 U.S.C.A. 1301 which confirmed state title to the beds of all tidal and navigable bodies of water. While the act conveyed land title to the states, non-navigable stream beds remained treated like dry lands and contiguous to the adjoining estates. Waters subject to the ebb and flow of the tides, even if non-navigable, also passed to the states, but the continued ownership and public use of these tidal/marsh lands are based on state laws.

References

External links

Western States Water Laws: Water Approciation System

Is Lake View one of your Riparian Rights

What Are Riparian Rights – Eastern United States
{{Authority control Riparian zone Water law Environmental economics Water and the environment