Riparian water rights: Difference between revisions

'''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]]. [[riparian zone|Riparian]] [[water right]]s exist in many jurisdictions with a common law heritage, such as [[Canada]], [[Australia]], [[New Zealand]], and states in the eastern [[United States]].<ref>{{Cite web|title=Riparian right {{!}} law|url=https://www.britannica.com/topic/riparian-right|access-date=2021-08-31|website=Encyclopedia Britannica|language=en}}</ref>

[[Common land]] 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.<ref>{{Cite web|title=Riparian doctrine|url=https://www.law.cornell.edu/wex/riparian_doctrine|access-date=2021-08-31|website=LII / Legal Information Institute|language=en}}</ref>

== General Principleprinciple ==

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

Under riparian law, water is a [[public good (economics)|public good]] 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,<ref>43 USC §&nbsp;1311(A)</ref> 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]]. 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]] 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]] over navigable waters.<ref>PPL Montana v Montana 132 S.Ct. 1215 (2012)</ref> A non-navigable stream is synonymous with private property, or jointly-owned property if it serves as a boundary.

The reasonable use of the water by a riparian owner is subject to the downstream riparian ownersowner's '"riparian right'" to receive waters undiminished in flow and quality. SinceFederal environmental regulation of non-navigable waters under the [[Clean Water Act of 1972]] was possible, because all surface waters eventually flowflowed to the public ocean,. federalThis regulatoryhas authority underbeen the Cleansubject Watersof Actpolitical controversy, likefor theexample Cleanover Airimplementation Act,of extendsthe beyond[[Clean onlyWater publicRule]].<ref>{{Cite (navigable)web|title=Riparian watersRights|url=https://www.watereducation.org/aquapedia/riparian-rights|access-date=2021-08-31|website=Water toEducation preventFoundation|date=22 downstreamJune pollution.2020 |language=en}}</ref>

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.<ref>''McKnight v. Brodell'', 212 F.Supp 45</ref> 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.<ref>''Hymes v. Grimes Company'', 165 F. 2d 323</ref> Each of the states were to come into the Union on an "[[equal footing]]" with the original 13 states. Under the [[equal footing doctrine]], territorial states are vested with the same sovereign title rights to navigable [[wetlands|submerged lands]] as the original 13 states.<ref>''Pollard v. Hagan'', 44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845)</ref> However, during the territorial period, the United States could convey certain of these lands under the limited circumstances of promoting commerce.<ref>''Brewer Elliot Oil and Gas Co. v. U S.'', 260 U.S. 77, 43 S.Ct 60, 67 L.Ed. 140 (1922)</ref>

Ownership of lands submerged by navigable waters was resolved by Congress passing the [[Submerged Lands Act]],<ref>43 U.S.C.A. 1301</ref> 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.

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