When purchasing waterfront property, many landowners are surprised to find that their right to that water may be governed by rules and regulations, called riparian rights.
In this blog, we’ll discuss what having “riparian rights” means and how you can navigate using the water on your land under this doctrine.
Let’s get started.
1. What are riparian water rights?
Riparian rights refer to a system for allocating water among those who possess land along its path.
Riparian rights have an origin in English common law, and thus they can typically be found in jurisdictions with common law heritage (Canada, Australia, and eastern states in the U.S.).
Under riparian rights, owners of waterfront property have the right to make reasonable use of it as it flows through or over their properties.
If water is limited, then it is generally allocated in a fixed proportion to frontage on the water source.
Furthermore, water cannot be transferred out of the watershed without consideration of the rights of downstream riparian landowners.
Here are some of the rights that riparian rights include:
Right to water to flow onto land in its natural quantity and quality
Right to fish in the watercourse unless the right is sold or leased if an angler has a valid Environment Agency rod license
Right to acquire accretion (or the right to additional land that is created as water deposits soil on the shoreline)
Right to boomage (a fee charge for securing a boom, generally for the retention of logs)
2. Who has riparian rights?
While we have attempted to define “riparian rights” above, it should be acknowledged that the term has evolved to create a variety of implications for property owners whose property borders water and who want to make use of that water.
A property owner generally has riparian rights if their property borders a body of water or water flows through their property.
This body of water could be a creek, stream, or river.
In most situations, artificial bodies of water like reservoirs and drainage canals are also included in this.
Above all, what’s most important in riparian rights is that the body actually touches the water.
Property owners that have land abutting water are commonly referred to as “riparian owners.”
Even if your property is in close proximity to water (but does not touch it), then there are no riparian rights associated with it.
3. What happens if the body of water changes shape or recedes?
One common issue with riparian rights over the years involves the changing boundaries of surface water.
For example, if there is a dry year, then a lake or pond may recede from its banks or a stream may diminish in size.
While this can be temporary, it may also permanently alter its physical boundary.
How has this been handled in the past in terms of riparian rights?
In general, if new land is revealed due to water receding, then the riparian owner’s property rights will be extended to include ownership of the land up to the new water line.
The property owner will gain title to the newly exposed land.
This is often termed “rights of accretion” — as has been referenced above.
4. What do riparian rights allow a property owner to do?
Riparian rights have been historically determined by the “natural flow” theory.
This theory states that riparian owners must ensure that water would continue along its natural course of flow or existence.
Riparian owners can use the water as long as they do not interfere or prohibit other riparian owners’ rights to maintain the water in its natural flow or existence.
In this way, each riparian owner is guaranteed that their water will be maintained in its natural integrity.
That is to say, they never have to worry about the quantity or quality of water present.
With that said, most jurisdictions have moved away from the natural flow theory, particularly in the eastern half of the United States.
Now, they favor the reasonable use theory, which states that a riparian owner is guaranteed reasonable use of the water.
While water volume is not necessarily guaranteed, reasonable use is guaranteed as long as it does not substantially interfere with the use of another riparian owner.
Each riparian owner must balance his or her use with the other riparian owners’ uses.
Western states have generally moved to the prior appropriation doctrine because of the arid climate.
This is essentially a “first come, first serve” attitude, and we’ll address this briefly later.
5. What is a reasonable use of water by a riparian owner?
After reading the last section, you may wonder…what exactly is reasonable use?
After seeing your neighbor water their lawn with their garden hose for hours or turn on their sprinklers every day, you may doubt the landowner’s ability to regulate their own “reasonable use.”
What does the law say about this?
Under the reasonable use theory, a use is reasonable if it doesn’t interfere with the reasonable use by another riparian owner.
Unfortunately, this doesn’t exactly clarify the term.
The determination of “reasonable use” requires a careful analysis of each specific situation.
Factors that may be considered include
- the size of the body of water
- the season of the year
- the size of the diversion
- the place and method of diversion
- the type of use
- its importance to society
- the needs of other riparian owners
- the suitability of the use of the stream
- the fairness of the use in relation to the cost the use will impose on other riparian owners
While this isn’t exhaustive, it can give you guidance in what to look for when determining “reasonable use” in your specific jurisdiction and case.
As always, it’s a good idea to get legal advice from a local land use or real estate attorney to understand how reasonable use applies in your situation.
6. How do riparian rights apply to the recreational use of water?
One common dispute involving riparian rights involves the recreational use of water.
In recent years, outdoor recreation has surged, and some states have passed legislation aimed at riparian owners.
This legislation encourages the owners to allow public access to water under their control for recreational purposes and eliminates the liability that owners may face for allowing this type of use of their water resources.
7. Are riparian rights transferable?
Because they are grounded in common law doctrine, riparian rights can be granted, prescribed, and licensed to other owners, especially when those others are existing riparian owners.
However, in some states, there are laws and regulations that limit the transferability of riparian rights.
Check your local laws and regulations for more information about the best way to transfer if you’re interested in doing so.
One common illustration of the transfer of riparian rights involves owners forming contracts or agreements among themselves to build dams, levees, embankments, or flood gates to manage the water.
Additionally, like any other property rights, a riparian owner can divest all of his or her riparian rights (subject to whatever statutory limitations may apply) if the owner desires to do so.
8. What is the remedy for the violation of riparian rights?
If your riparian rights are being violated, most often the remedy is an injunction to halt the violating use.
The injunction will restore the riparian rights to the owner, and if the violation has severely diminished the value of the riparian right or completely eliminate it, then compensatory damages will be awarded.
9. Do riparian rights allow you to build your property out into the water?
Naturally, when we say “build out or expand property” we’re referring to a dock or pier.
The answer is generally: yes, but….
Now, each situation is different, but navigable water is ultimately owned by the state.
Thus, it is the state’s responsibility to make sure that landowners don’t build out into the water in a way that interferes with the water’s navigability.
While riparian rights may afford the owner the ability to build a dock, the state’s rights also give them the ability to veto the project if the dock is obtrusive to the navigability of the water or if it intrudes on another landowner’s ability to build.
10. What other types of water rights exist?
In the United States, there are two types of water rights.
There are riparian rights and prior appropriation rights.
Often, use and overlap vary over time and by state.
Generally, you’ll find that the doctrine of prior appropriation is used by western arid states and eastern states tend to follow riparian laws.
Prior appropriation is a doctrine of “first-come, first-served.”
This means that the first person to use the water has the right to it, and to qualify for this protection, the user must make beneficial use of the water source for industry, agriculture, or the home.
11. What other vocabulary might I hear when researching water rights as a landowner?
We don’t often give you a vocabulary lesson here at Gokce Capital, but water rights can get complicated.
Riparian rights are just one of the many terms you’ll hear as you learn what type of rights come with the land you’re purchasing.
Here are some other terms you may hear as well.
Littoral rights: Concern properties abutting an ocean, sea, or lake rather than a river, stream, or creek
Correlative use: Allows a property owner the use of underground water or water from a river for irrigation purposes
Accretion: Occurs when soil is deposited by the natural action of water and may increase the size of the property
Reliction: The gradual change of the water line on real property, which gives the owner drier land
Erosion: The wearing away of land or soil by the action of wind, water, currents, or ice
Avulsion: The sudden tearing away of land by violent action of natural causes, such as a river or other watercourse (for example, a damn breaking)
In the end, riparian rights all come down to being reasonable.
The doctrine of riparian rights allows reasonable use of water.
You’ll be afforded riparian rights if you have land or property that borders the water.
While it may be difficult to discern what qualifies as “reasonable,” as long as you are not interfering with your neighbor’s water use, you should be good to go.
Also, please feel free to leave us a comment if you have any additional questions.
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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.