WATER WARS, Chapter 6, "Riparian Law"

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As we have noted, riparian doctrine gives land owners adjacent to a stream the right to an undiminished quantity and quality of water. Another statement of this is, “[its] guiding principle is that the right to draw water from a stream must be shared equitably by all adjacent property owners.” (Owen, 2017) A similar summary is, “riparian law allows one residing on property that borders a waterway to divert as much water as they need with the caveat that they do not injure users downstream.” (Gallagher, 2017)

As it applied to California’s Mono Lake, Anderson and Libecap (2014) summarized the doctrine as, “The landowners held riparian water rights under California law that gives all landowners whose property is adjoining to a body of water the right to make reasonable use of it. If there’s 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 water normally cannot be transferred out of the watershed because of impairment to downstream rights holders.” They note that there is limited flexibility in transferring this right; it moves with the property.

EXPLANATION OF RIPARIAN RIGHTS

A detailed discussion of riparian rights was presented by Ben Gutshall (2009) of the Attorneys’ Title Guarantee Fund, Inc. [https://www.atgf. com/tools-publications/pubs/riparian-rights]:

What Does the Term “Riparian Rights” Mean?

These are the rights to use the water of a flowing river or stream that is adjacent to one’s property and includes withdrawing some of the water and using it for recreation. “Riparian” relates to the water in streams or rivers or lakes the property borders on or are wholly contained within it.

Who Has Riparian Rights?

“Generally, a property owner has riparian rights if the property borders a body of water or water flows through the property.” The property must touch the water. For shared flowing waters, the limits are often midway in the stream, between opposite shores. For lakes, various states have made various definitions. The owners of such rights all have the right to “reasonable use,” without preventing each other’s “reasonable use.”

What Happens If the Body of Water Changes Shape or Recedes?

Generally, the newly exposed land is acquired “by rights of accretion” by the landowner on its border.

What Do Riparian Rights Allow a Property Owner to Do?

Originally, laws allowed the owner to use the water if it was not diverted from its “natural flow.” This has changed to become “reasonable use theory…. Not the guarantee of water volume, but rather that the riparian owner is guaranteed the reasonable use of the water.” One owner’s reasonable use must not interfere with another owner’s. This doctrine is typical of the eastern U.S., but it is in contradistinction to the “prior appropriate” doctrine typical in the West. Disputes over water usage in the East usually center on the definition of “reasonable use.”

What Is a “Reasonable Use” of Water by a Riparian Owner?

In a somewhat circular fashion, “a use is reasonable if it does not interfere with the reasonable use of the water by another riparian owner…. There are few, if any, concrete rules….” (Gutshall goes on to list many of these considerations.) Because of their closed geometry, lakes and ponds, when shared, raise some issues if extending ownership to the “middle” of the body of water.

Recreational Use of Water

The various states have tried to encourage recreational use of their water by giving non-owners of riparian rights some access and limiting the owners’ liability lawsuits due to accidents during such use.

Are Riparian Rights Transferable?

Generally, such rights are transferable, but some states have enacted some limitations. In one instance a developer created many four-byfive-by-six-inch “lock boxes” with keys that ostensibly entitled the owners thereof to full use of the Lake Geneva water. The court found this abusive of the concept of riparian rights.

RIPARIAN LAW

Gutshall (2009) sums it up as follows: the cure for violations of these rights is generally an injunction to stop the use, and sometimes a requirement to fix any damage. The law requires determining who are the riparian owners and then whether their use is reasonable. “State legislators are starting to pass statutes that encourage pubic use of water, always with the underlying goal tha