Riparian water rights

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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 law Law developed by judges

In law, common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

Riparian zone interface between land and a river or stream

A riparian zone or riparian area is the interface between land and a river or stream. Riparian is also the proper nomenclature for one of the terrestrial biomes of the Earth. Plant habitats and communities along the river margins and banks are called riparian vegetation, characterized by hydrophilic plants. Riparian zones are important in ecology, environmental resource management, and civil engineering because of their role in soil conservation, their habitat biodiversity, and the influence they have on fauna and aquatic ecosystems, including grasslands, woodlands, wetlands, or even non-vegetative areas. In some regions the terms riparian woodland, riparian forest, riparian buffer zone,riparian corridor and riparian strip are used to characterize a riparian zone. The word riparian is derived from Latin ripa, meaning river bank.

Water right in water law refers to the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and ground water in the same manner, while others use different principles for each.

Contents

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.

Common land land owned collectively

Common land is land owned collectively by a number of persons, or by one person, but over which other people have certain traditional rights, such as to allow their livestock to graze upon it, to collect wood, or to cut turf for fuel.

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.

Drainage basin Area of land where precipitation collects and drains off into a common outlet

A drainage basin is any area of land where precipitation collects and drains off into a common outlet, such as into a river, bay, or other body of water. The drainage basin includes all the surface water from rain runoff, snowmelt, and nearby streams that run downslope towards the shared outlet, as well as the groundwater underneath the earth's surface. Drainage basins connect into other drainage basins at lower elevations in a hierarchical pattern, with smaller sub-drainage basins, which in turn drain into another common outlet.

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 Environment Agency (EA) is a non-departmental public body, established in 1995 and sponsored by the United Kingdom government's Department for Environment, Food and Rural Affairs (DEFRA), with responsibilities relating to the protection and enhancement of the environment in England.

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 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 the following:

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,also known as first-come, first-served, but water rights for the eastern states follow riparian law.

Prior appropriation water rights is the legal doctrine that the first person to take a quantity of water from a water source for "beneficial use" has the right to continue to use that quantity of water for that purpose.

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 the power of defining the scope of the public trust over navigable waters. [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 itself of title to the streambed, but the waters and use of the waters remains subject to the Commerce Clause of the United States 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 below the low water mark on navigable rivers belongs to the state government in the case of the 13 original states.

Lands between the high and low water marks on navigable rivers 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 submerged lands remained vested in the several states similar to the public or common roads.

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. [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 submerged lands 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 lands submerged by navigable waters 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 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.

See also

Related Research Articles

In property law, a title is a bundle of rights in a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.

Water resources law

Water resources law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is older than and distinct from laws governing water quality.

Navigability body of water, such as a river, canal or lake, is navigable if it is deep, wide and slow enough for a vessel to pass or walk

A body of water, such as a river, canal or lake, is navigable if it is deep, wide and slow enough for a vessel to pass or walk. Preferably there are few obstructions such as rocks or trees to avoid. Bridges must have sufficient clearance. High water speed may make a channel unnavigable. Waters may be unnavigable because of ice, particularly in winter. Navigability depends on context: A small river may be navigable by smaller craft, such as a motorboat or a kayak, but unnavigable by a cruise ship. Shallow rivers may be made navigable by the installation of locks that increase and regulate water depth, or by dredging.

Public trust doctrine public right to certain territorial waters

The public trust doctrine is the principle that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership.

Air rights

Air rights are the property interest in the "space" above the earth's surface. Generally speaking, owning, or renting, land or a building includes the right to use and develop the space above the land without interference by others.

Navigable servitude is a doctrine in United States constitutional law that gives the federal government the right to regulate navigable waterways as an extension of the Commerce Clause in Article I, Section 8 of the constitution. It is also sometimes called federal navigational servitude.

Robert Gillespie James is a Senior United States District Judge of the United States District Court for the Western District of Louisiana, and was one of the judges involved in a 2006 water rights legal case, Normal Parm v. Sheriff Mark Shumate.

The Supreme Court decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), reaffirmed that each state in its sovereign capacity holds permanent title to all submerged lands within its borders and holds these lands in public trust. This is a foundational case for the public trust doctrine. The Supreme Court held a four to three split decision that the State of Illinois did not possess the authority to grant fee title to submerged lands held in the public trust as navigable waters.

A great pond in the United States is a pond or lake that is held in trust by the state for public use. Generally, any natural body of water that is larger than 10 acres (40,000 m2) in size is public water. In certain New England states, this legal definition exists at both common law and statutory law.

Abandoned Shipwrecks Act

The Abandoned Shipwrecks Act is a piece of United States legislation passed into law in 1988 meant to protect historic shipwrecks from treasure hunters and salvagers by transferring the title to the wreck to the state whose waters it lies in.

Tidelands are the territory between the high and low water tide line of sea coasts, and lands lying under the sea beyond the low-water limit of the tide, considered within the territorial waters of a nation. The United States Constitution does not specify whether ownership of these lands rests with the federal government or with individual states. Originally little commercial value was attached to tidelands, so ownership was never firmly established, but the coastal states generally proceeded as if they were the owners. Some states, such as Mississippi, directly administer these lands under the public trust doctrine.

St. Louis v. Myers, 113 U.S. 566 (1885), was a motion to dismiss for want of a federal question to give jurisdiction regarding Acts that admitted Missouri into the Union while leaving the rights of riparian owners on the Mississippi River to be settled according to the principles of state law and relinquishing to the City of St. Louis the rights of the United States in wharves and thoroughfares, which did not authorize the city to impair the rights of other riparian proprietors by extending streets into the river.

Water in California Water supply and distribution in the U.S. state of California

California's interconnected water system serves over 30 million people and irrigates over 5,680,000 acres (2,300,000 ha) of farmland. As the world's largest, most productive, and most controversial water system, it manages over 40 million acre feet (49 km3) of water per year.

The equal footing doctrine, also known as equality of the states, is the principle in United States constitutional law that all states admitted to the Union under the Constitution since 1789 enter on equal footing with the 13 states already in the Union at that time. The Constitution grants to Congress the power to admit new states in Article IV, Section 3, Clause 1, which states:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with:

The Tidelands Resource Council is a body of twelve members appointed by the Governor. The Council meets monthly and makes decisions to sell or rent state tidelands. All of the decisions must then be approved by the Commissioner of the Department of Environmental Protection, the Attorney General and the Governor. The council meets the first Wednesday of every month, with the exception of January, at NJ Civil Service Commission, 44 S. Clinton Ave., Trenton, NJ. Council meetings begin at 10 am and are open to the public.

<i>National Audubon Society v. Superior Court</i>

National Audubon Society v. Superior Court was a key case in California highlighting the conflict between the public trust doctrine and appropriative water rights. The Public Trust Doctrine is based on the principle that certain resources are too valuable to be privately owned and must remain available for public use. In National Audubon Society v. Superior Court, the court held that the public trust doctrine restricts the amount of water that can be withdrawn from navigable waterways. The basis for the Public Trust Doctrine goes back to Roman law. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. In essence, the public trust doctrine establishes the role of the state as having trustee environmental duties owed to the public that are subsequently enforceable by the public. There is judicial recognition of this, dictating that certain rights of the public are key to individual common law rights. Judicial recognition of the public trust doctrine has been established for tidelands and non-navigable waterways, submerged land and the waters above them, and preservation of a public interest.

Lux v. Haggin, 69 Cal. 255; 10 P. 674; (1886), is a historic case in the conflict between riparian and appropriative water rights. Decided by a vote of four to three in the Supreme Court of California, the ruling held that appropriative rights were secondary to riparian rights.

References

  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