Understanding Water Rights: 12 Types of Water Rights

Water rights refer to legal rights to use water from a specified source. Water rights authorize particular entities—like property owners or private companies—to use, sell, divert, or manage the water. Laws governing water rights vary from state to state, and water permits are issued in accordance with state laws and mandates. The two main types of water rights followed in the US are riparian rights—which refers to the right of a property owner to use water that touches the borders of their property—and prior-appropriation water rights—in which the state grants a party the right to use certain waters.

Water rights can dictate the use of surface water or groundwater from a specified source. Although it varies by state water laws, surface waters like lakes, streams, and coastal waters are publicly owned, and therefore accessible to the public unless during a drought crisis. Groundwater refers to water that comes from an underground aquifer. Most water rights doctrine limits water users to “reasonable use” of a water source, meaning that they cannot exhaust the water source or prevent other peoples’ access to it.

Various types of water rights grant owners jurisdiction over either surface water or groundwater. Here is more information about the difference between surface water and groundwater.

• Surface water: Surface water is the water that flows atop the Earth’s surface, which refers to water in oceans, lakes, rivers, streams, and other water sources that are not underground. Many private surface water rights are subject to riparian, hybrid, or appropriative clauses, determined by state law.
• Groundwater: Groundwater is water that comes from an underground source that can be used for domestic purposes, as well as agriculture and irrigation. Groundwater is often privately owned, though public groundwater rights are often appropriated through an allocation system—in which water is pumped to various destinations based on acreage.

Water rights depend on which US state you live in and which doctrine it follows. Most eastern states follow a riparian doctrine, which dictates that the landowner has rights to the body of water that touches the borders of their property. Most of the western states follow a prior appropriation doctrine which gives permit-holders the right to divert a specified amount of water for an approved, beneficial use.

California, Oklahoma, and Texas all follow a hybrid of water regulations—which are a mixture of prior appropriation doctrine and riparian doctrine, allowing permit-holders to divert water from a source, except in cases of a water shortage. The US Constitution prevents the state or federal government from imposing any laws or restrictions that may infringe on a property rights owner’s accessibility or use of their water source.

Riparian water rights and prior appropriation water rights are the two main types of water rights. However, there are other water rights that exist in some states and not others, because water rights vary significantly depending on location. A variety of water rights exist across the United States, which include the following.

1. 1. Riparian water rights: The riparian doctrine states that landowners are legally allowed to use the watercourse that touches their land. This is a form of surface water rights usually referring to the water in a body of water. Property owners may use their water for domestic needs, as long as it does not obstruct the natural flow of water for other riparian owners.
2. 2. Non-riparian water rights: Non-riparian rights refer to a landowner’s non-exclusive access to the water adjacent to their property. In cities, towns, or municipalities where waterfront access is limited, this can be a common occurrence, as exclusive use of the water can severely limit the access of water by others. A landowner is considered non-riparian if there is community access to a body of water or a community pier on their property.
3. 3. Prior appropriation: The doctrine of prior appropriation dictates that only those with a permit may divert water from a specific water source. In the case of a water shortage, priority access to the water is given to the holder of the oldest permit. In some states, appropriative water rights means that permit holders can sell their water rights separate from the land. However, unlike riparian rights, rights holders can eventually lose access through non-use.
4. 4. Hybrid water rights: Hybrid water rights refer to a combination of riparian rights and prior appropriation rights. This doctrine is typically followed in states that experience water shortages, like California, Oklahoma, and Texas.
5. 5. Absolute dominion: Absolute dominion gives a landowner unrestricted access to a groundwater source.
6. 6. Correlative rights: Groundwater rights in some states are also subject to the Correlative Rights doctrine, which states that landowners who share a common source of water are limited only to a reasonable share of the water, as opposed to as much as they want.
7. 7. Community water rights: Community water rights allow users who live closest to a water source priority use of water over appropriators.
   
8. 8. Littoral rights: Littoral rights pertain to the ownership of navigable waters like lakes, seas, and oceans which allows the owner unrestricted access to the source of water. Littoral rights are transferred to the new property owner upon the sale of the land.
9. 9. Navigable servitude: Navigable servitude refers to the federal government’s ability to protect navigable waterways for commerce, like freight ships. Rights may also extend to those who own luxury boats or other types of recreational vessels.
10. 10. Overlying rights: States like California follow the doctrine of Correlative Rights when regulating groundwater, which provides property owners the right to draw water from underneath their property. In some cases, the appropriator may transport water outside a basin, but the overlying rights holder gets priority.
11. 11. Public trust: Under the public trust doctrine, the government owns a water source that is managed for the public interest. This pertains to waters used for recreational purposes like swimming, boating, or preserving natural resources.
12. 12. Right to clean water: All humans depend on water for drinking, sanitation, hygiene, and agriculture. The government has a responsibility to protect public downstream waters—in both riparian and appropriative cases—from contaminants, as high water quality is essential for survival.

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