Riparian water rights

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 water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, and states in the eastern United States.

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.

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 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.^[1]

England and Wales

The Environment Agency lists the riparian rights and duties in England and Wales:^[2] 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 but 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 these:

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 generally follow the doctrine of prior appropriation, but water rights for the eastern states follow riparian law.

Riparian rights

Under riparian law, water is a 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,^[3] 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 residual power to define navigability for the purposes of defining the public trust over water within their borders.^[4] 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 themselves of title to the streambed, but the waters and use of the waters remains subject to the "Commerce Clause" of the US Constitution which holds an easement or servitude, benefiting the federal government for the purpose of regulating commerce on navigable bodies of water.^[5]

The reasonable use of the water by a riparian owner is subject to the downstream riparian owners 'riparian right' to receive waters undiminished in flow and quality. Since all surface waters eventually flow to the public ocean, federal regulatory authority under the Clean Waters Act, like the Clean Air Act, extends beyond only public (navigable) waters to prevent downstream pollution.

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 defined it as the "ordinary low water mark, unaffected by drought; that is, the height of the water at ordinary stages."^[6] Land beyond the low water mark belongs to the state government in the case of the 13 original states.

Lands between the high and low water marks are subject to the police powers of the states.^[7] In the case of the original 13 states, upon ratification of the US Constitution, title to these lands remained vested in the several states.

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 lakes, or rivers became vested in the United States unless they had been validly conveyed into private ownership by the former sovereign.^[8] 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.^[9] 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 as the original 13 states.^[10] However, during the territorial period, the United States could convey certain of these lands under the limited circumstances of promoting commerce.^[11]

Ownership of the submerged lands was resolved by Congress passing the Submerged Lands Act,^[12] which confirmed state title to the beds of all tidal and navigable bodies of water. While the act conveyed title to lands below tidal and navigable waters to the states, non-navigable stream beds are treated like dry lands and are part of 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

^ Guerin, K (2003). "Property Rights and Environmental Policy: A New Zealand Perspective". Wellington, New Zealand: New Zealand Treasury.
^ Living on the Edge – Environment Agency website, retrieved 10 December 2008
^ 43 USC § 1311(A)
^ PPL Montana v Montana 132 S.Ct. 1215 (2012)
^ Borax Consolidated, Ltd. v. City of Los Angeles, 29 U.S. 10, 56 S. Ct. 23, 80 L.Ed 9 (1935.)
^ Appeal of York Haven Water & Power Co., 212 Pa. 622, 62 A.97 (1905)
^ (See United States v. Pennsylvania Salt Mfg. Co., 16 F.2d 476 (E.D. Pa., 1926))
^ McKnight v. Brodell, 212 F.Supp 45
^ Hymes v. Grimes Company, 165 F. 2d 323
^ Pollard v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845)
^ Brewer Elliot Oil and Gas Co. v. U S., 260 U.S. 77, 43 S.Ct 60, 67 L.Ed. 140 (1922)
^ 43 U.S.C.A. 1301

External links

(P)

[Guerin,_K._2003-1] Guerin, K (2003). "Property Rights and Environmental Policy: A New Zealand Perspective". Wellington, New Zealand: New Zealand Treasury.

[2] Living on the Edge – Environment Agency website, retrieved 10 December 2008

[3] 43 USC § 1311(A)

[4] PPL Montana v Montana 132 S.Ct. 1215 (2012)

[5] Borax Consolidated, Ltd. v. City of Los Angeles, 29 U.S. 10, 56 S. Ct. 23, 80 L.Ed 9 (1935.)

[6] Appeal of York Haven Water & Power Co., 212 Pa. 622, 62 A.97 (1905)

[7] (See United States v. Pennsylvania Salt Mfg. Co., 16 F.2d 476 (E.D. Pa., 1926))

[8] McKnight v. Brodell, 212 F.Supp 45

[9] Hymes v. Grimes Company, 165 F. 2d 323

[10] Pollard v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845)

[11] Brewer Elliot Oil and Gas Co. v. U S., 260 U.S. 77, 43 S.Ct 60, 67 L.Ed. 140 (1922)

[12] 43 U.S.C.A. 1301

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