Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path.
The English water law first adopted in the United States was premised on the natural flow doctrine, pursuant to which a riparian owner has the right to a natural water flow of undiminished quantity and unimpaired quality.
In general, the right of a riparian owner to appropriate the water is
limited to his use for such purposes, to such an extent and in such a
way as will not be inconsistent with a similar use by the lower owners.
Since the effect upon the lower riparian proprietor is made the test,
it would make little difference whether the water was taken for use on
riparian or non-riparian lands, just so long as it did not essentially
interfere with the exercise of the common right by the other riparian
owners.If the use is lawful and beneficial, it must be deemed to be
reasonable, and not an infringement of the right of other riparian
owners to whom it occasions no actual and perceptible damages either
as to the present or future use of the riparian land. The question in
such a case is not whether the diversion being for a legitimate use
and in quantity such as is reasonable, having regard to all the
circumstances, but only whether it causes actual damage to the
person complaining.
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 water body 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.
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, 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.
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. Land beyond the low water mark belongs to the state government.
The doctrine
of equitable apportionment is oriented toward satisfying equally the interests of all riparians. The
doctrine of equitable apportionment alone, however, establishes only the
equal right of each riparian to an equitable share in the benefits of the
river. The total benefits of the river have to be shared equitably by all the riparians is apt to engender the incentive for enlarging the opportunities to be shared through joining in a regional project.
Whenever new state were to come into existence will be on an "equal footing" with the original states.
Also see Water Appropriation Systems
