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Riparian rights refer to the property rights to surface water associated with adjoining land. Riparian land is the area adjacent to a water body. Riparian rights typically include the rights to access the water body and remove surface water. Riparian water rights are considered permanently tied to the riparian land and cannot be bought or sold separately. In areas abiding by riparian rights, ownership of riparian land is necessary to take water legally. The amount of water that can be withdrawn from a water body in an area of riparian rights is typically proportional to the extent of shoreline owned and must be reasonable. A riparian water right is considered inherent with land ownership and does not require separate legal filing. Significant amounts of water cannot be diverted from the water body for separate storage and later use under riparian rights. This system originated in England as part of common law and spread to the eastern United States.
The eastern United States and England have generally humid climates with frequent precipitation and regularly distributed water bodies on the landscape. The western United States, on the other hand, receives less regular precipitation and water bodies are less frequent across the landscape. Therefore, a water rights system developed not dependent on adjacency but rather based on beneficial uses of water. The appropriative rights system allows water to be taken and used by anyone, even those without adjacent land. The appropriative system began when miners in the mid-19th century needed to divert and transport water long distances for hydraulic mining. The only requirement is that the water be put to and kept in a beneficial use. Water rights under the appropriative system are not based on proportion of shoreline, but rather first in time, first in right. Whoever made use of the water first can continue to take that amount and any later users must wait for more senior rights holders to fulfill their allotment first. Western states generally follow an appropriative rights system while eastern states follow a riparian rights system, although some western courts recognize riparian rights for certain issues and appropriative rights for others, leading to customized hybrid systems, as in California and Texas.
As populations grow and demands on water resources increase, water rights continue to evolve at the state level in courts and legislatures. Such evolution lead to the hybrid systems, and will continue to redefine who has the right to access water resources, for what purposes, and how much. In addition, as technological advances have increased understanding of groundwater resources and the connections between aquifers and surface water, surface and groundwater rights will continue to become managed as a single resource.
Water rights systems have not historically involved ecological considerations. At times of low flows, all water might be allocated among out-ofchannel uses. Maintaining instream flows is necessary for a variety of aquatic and riparian ecological communities. A variety of arguments have been used for instream flow protection. In the 1983 case National Audubon Society v. Superior Court of Alpine County before the Supreme Court of California, the city of Los Angeles was challenged over damage to Mono Lake caused by the city’s upstream diversions. Lake salinity increases were harming food supplies for migratory birds, and creating land bridges for predators to access nesting sites on islands. The court ruled in favor of the National Audubon Society, holding that the government must consider public trust duties when allocating water. Under the public trust doctrine, government has the responsibility to safeguard important uses of waterways, including commerce, navigation, and environmental amenities.
The Endangered Species Act (ESA) has also seen application toward the goal of maintaining instream flows in the face of riparian and appropriative claims on water. On the Klamath River in Oregon and California, farmers sought diversions for irrigation that threaten the federally listed endangered sucker fish and threatened Coho salmon. In 2001 farmers were restricted in their allotments to provide adequate water for fish under the ESA. In 2002, flows for fish were reduced, contributing to the deaths of tens of thousands of salmon. Native American tribes including the Yurok, Hupa, and Karok on the Klamath have been heavily impacted by lost salmon runs. Native American water rights are poorly codified, but when sufficiently documented, are often considered senior to other water rights.
- David Getches, Water Law in a Nutshell (West Publishing, 1997);
- David Gillilan and Thomas Brown, Instream Flow Protection (Island Press, 1997);
- Mark Reisner, Cadillac Desert: the American West and its Disappearing Water (Penguin Books, 1993);
- Joseph Sax et , eds., Legal Control of Water Resources: Cases and Materials (West Publishing, 1991);
- Charles Wilkinson, Crossing the Next Meridian: Land, Water and the Future of the West (Island Press, 1992).