Do you have a body of water adjacent to your property?
Well, before you start using it as your own personal oasis, you need to know whether you have water rights on your property.
Water rights are dependent on several factors that vary from place to place, but they ultimately limit or grant permission for certain entities to utilize water sources.
In the United States, these rules and regulations are primarily up to the state, and there are a number of special considerations that can also determine who can access bodies of water and when.
Whether you’re already a homeowner with a water source on or near your parcel of land or you’re looking to purchase a property with a nearby body of water, understanding your local laws is crucial.
Fortunately, water rights are usually easy to comprehend and digest, but sometimes, they can get a bit complicated.
So, let’s break down seven things every property owner that has access to a water source should know about water rights.
We’ll cover the different types of rights, what can impact your ability to access water, and the little nuances that may catch you by surprise.
Then let’s go!
1. What Are Water Rights?
Water rights determine property owners’ legal accessibility to water sources adjacent to or on their properties (rights are categorized into surface water rights, including things like rivers and streams, and groundwater rights, including water found beneath the surface, like underground reservoirs).
Although laws are dependent on each state, as a general rule of thumb, western states utilize the prior appropriation doctrine, and Eastern states utilize the riparian doctrine (some states use a hybrid of both)
So, let’s check each doctrine and point out their differences.
A majority of the states west of the 100th Meridian solely rely on the prior appropriation doctrine.
The doctrine is based on the first in time, first in right principle (or, in other words, finders keepers) that was developed in the 19th century.
Whoever the first entity is to make beneficial use of a water source is granted the right to continue using the source.
The federal government still has the ability to slap down new legislation, such as for land rehabilitation, that could change or revoke entities’ water rights.
The riparian doctrine is used by the majority of the states east of the 100th Meridian, and it’s a bit more diplomatic than the prior appropriation doctrine.
Under this doctrine, owners of properties that are adjacent to flowing bodies of water have the equal right to use them.
However, they cannot interfere with the natural flow of the water or harm anyone up or downstream.
In some cases, the riparian doctrine also includes the first in time, first in right principle to settle certain disputes.
In addition to these broad doctrines, there are several nuanced factors that impact water rights on a property.
So, let’s look at these influential conditions.
2. What Factors Determine Water Rights on a Property?
Sometimes water rights are as simple as one-two-three, and other times they’re like a tangled necklace.
There are a handful of factors that determine a property’s water rights, ranging from the type of water source to permits and licenses.
In case someone challenges your water access, knowing these determinants is important.
So, here are the main factors that determine water rights on a property:
Each state and municipality has its own jurisdiction on water rights.
The first thing to consider is whether the state abides by the prior appropriation or riparian doctrine or a hybrid of the two.
Then, local water management policies have to be taken into consideration, which may claim rights to sources of water for the benefit of the community.
Lastly, local environmental policies can also influence landowners’ water rights.
The specific type of water source plays a big part in determining rights.
Depending on whether the source is categorized as surface water or groundwater will determine the specifics of a landowner’s rights.
Some states and municipalities have more lenient or stricter policies based on the type of water source.
Many jurisdictions give priority to entities that first had access to sources of water.
Seniority doesn’t always determine water rights; however, it is quite influential in times of droughts or changes in water accessibility.
If you live somewhere that implements the prior appropriation doctrine, then seniority will hold more weight than somewhere that uses the riparian doctrine.
Most places will require landowners to have a permit or license to use bodies of water adjacent to their properties.
These permits and licenses will express regulatory guidelines and dictate what property owners can do with the sources of water, such as maximum usage limitations (see next section).
Some states and municipalities will put a cap on the amount of water landowners can divert or pump.
For example, if you have a well on your property, your permit may specify the maximum amount of acre feet per year you can pull to prevent overexploitation.
Likewise, if you are along a flowing body of water, diverting the flow in a way that affects the downstream neighbors’ access to the water will likely be prohibited.
3. How Do You Determine If You Have Water Rights on Your Property?
So, how do you know if you have water rights on your property?
Well, determining that takes a bit of due diligence.
You are more than capable of uncovering the information on your own; however, it’s always wise to work with a professional to get the full scope of your water rights and what you can do to protect them.
So, let’s look at a few steps you can take to determine your water rights:
The deed of a property that has a nearby water source will often express the rights landowners have in accessing the source.
It may also include details about local regulations and specific conditions impacting water rights.
Because these rights can be different for each piece of property, checking your deed is a great first place to start.
Familiarize yourself with state and local regulations.
This information should be accessible online, and it will give you a general understanding of landowners’ water rights that are based on city plans and policies.
Keep in mind that regulations related to specific areas and water sources may differ.
Contact the local water authority and request details on the water laws and regulations for your area.
In some cases, they will be able to look up your property and determine whether or not you have water rights and what permits and licenses you’ve been granted.
*If you are purchasing a property that is adjacent to a body of water, make sure to verify its water rights before finalizing the deal.
The water rights can greatly affect its value.
4. Can Water Rights be Transferred or Sold?
Water rights can be transferred or sold, but, of course, local jurisdictions will dictate the specificities of the deal.
The transfer of water rights is a normal occurrence when a property is sold from one owner to another.
As soon as the sale is finalized, the new owner takes on all the same water rights unless the deal specifies that the previous owners get to keep certain rights.
Selling water rights is a bit more complicated.
However, landowners in certain states are sometimes able to sell their water rights separately from the land.
If your state operates under the riparian doctrine, you will not be able to separate the water rights from the land, preventing you from selling them.
Check with the local water authority to learn about the rules regarding transferring and selling water rights in your area.
5. Can Water Rights be Affected by Changes in Land Use or Zoning?
Water rights are subject to change due to alterations in zoning or land use.
Changes in these areas can be caused by factors such as environmental protection, population growth, community planning, new infrastructure, and updated regulations.
These events have the potential to alter a landowner’s water rights.
For example, if population growth impacts water availability, it could lead to a reduction in the quantity of water people with water rights are allowed to use.
Additionally, if zoning changes are implemented to protect bodies of water and the ecosystems within them, it could also impact a property’s water rights.
Oftentimes, landowners will have to apply for new permits and licenses when drastic alterations have been made.
But changes don’t always mean that water rights will be affected.
Sometimes, property owners can seek exceptions or take legal action to protect their water rights (see later sections for more ways to protect your rights).
6. Can Your Rights Be Challenged or Revoked?
Even if your property has water rights, they can still be challenged or revoked.
Different jurisdictions have different reasons that could lead to property owners having to defend their water rights.
Here are the most common circumstances that cause water rights to be challenged or revoked:
Water sources change over time, and if there are major alterations in water availability or an increase in water demands, such as in a drought, the local government may challenge landowners’ water rights.
This would have to be done through a legal process, and, depending on the circumstances, it could be fought in water court.
If there are growing environmental concerns related to a body of water, landowners’ water rights may be altered or revoked.
This typically happens if there are endangered species within the ecosystems of rivers, lakes, and streams.
Certain activities may be prohibited to protect habitats and ensure the natural flow of the water source is not disturbed.
Water rights can be revoked if landowners fail to make use of a water source within a certain time.
Each jurisdiction will have its own non-use policies, but the time limit can range from a few years to several decades, but there’s usually the ability to extend.
So, landowners should have plenty of time to act before having their water rights revoked due to lack of use.
If landowners don’t abide by the rules and regulations of the area, their water rights may be challenged or revoked.
For example, if a property owner is taking more water than the amount they were allocated, then the local government or water authority could go after their rights, either restricting or taking them away altogether.
7. How Can You Protect Your Rights?
Some water rights are more vulnerable than others.
If you live in a community with a growing population, near endangered species, or in an area that experiences frequent droughts, you should be prepared to protect your water rights.
Before we talk about ways to protect your rights, keep in mind that being proactive and acting before your water rights are threatened will help you in the long term.
Here are the best ways to protect your water rights:
Staying informed on potential changes will help you know what’s going on in the community and be prepared to protect your rights.
You can do this by periodically contacting the local water authority and attending community meetings.
If you hear something is being proposed that will impact your water rights, you can then work with the community and come up with a plan to protect your rights.
You should be very familiar with the specifics of your water rights.
Read over your property deed, permits, licenses, and other legal documents, and speak with the local water authority to obtain a strong understanding of your rights.
Knowing what you can and can’t do will make it easier to defend your rights if they are ever challenged.
Playing by the rules is one of the best ways to ensure the local government or water authority doesn’t come after your water rights.
Make sure that you have all the necessary permits and licenses and that everything is up to date.
You could also document your water use to prove that you have been following limitations and regulations.
When your water rights are being threatened, working with a legal professional can be hugely beneficial.
A lawyer that specializes in water rights will know what steps you need to take in various scenarios and be able to represent you if the matter goes to court.
Lawyers can get expensive, but if you are at risk of losing your water rights, you need to weigh out the pros and cons.
Water rights are a tricky business, but knowing what you can do with a water source that falls on your land is important.
Take the time to familiarize yourself with the water rights associated with your property and the rules and regulations of the area.
There are several factors that could put your rights at risk, so be proactive and keep an ear out for potential changes.
If you ever have doubts about your specific water rights or the municipality’s rules and regulations, contact your local water authority or hire a legal professional to receive definite answers.
Good luck, and enjoy using the water!
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.