Landowners with large amounts of property that contain rivers, lakes, or ponds might find some potential trespassers looking to enjoy the water. Recently, a case was brought to the Colorado Supreme Court dealing with river usage between a local fisherman and a landowner with the Arkansas River running through their property.
The fisherman stated that because the Arkansas River is considered navigable waters, it should be considered public water and not private water. Ultimately, the case sided with the landowner deeming that the section of that river is on private land making it private water. The case that set the standard, – People v Emmert – 1979 stated , “that while water may be public, the public could not float through private property.”
However, there has been no set federal law that has come about from these cases. It seems that Colorado’s river access laws will continue to be court made decisions on a case-by-case basis. Unlike other states like New Mexico where the public can access rivers through private property, or like Arizona and California that have laws that allow access to navigable waters through private property only.
Defining River Usage
River usage can broadly be classified into two categories—public and private. Public river usage generally refers to navigable rivers accessible to everyone, primarily for transportation, fishing, and recreational activities. Private river usage, on the other hand, often pertains to non-navigable rivers located on private property, where the landowner may exert control over access and use.
Navigable Rivers Defined
Navigability is a key factor in determining whether a river is public or private. A river is typically considered navigable if it can be used as a highway for commerce. This definition can vary by jurisdiction, but generally, if a river supports or could support commercial activity, it’s deemed navigable and thus public.
Non-Navigable Rivers Explained
Non-navigable rivers usually fall under private river usage. These are smaller waterways that do not support commercial navigation and are often found on private land. The landowner typically has the right to control access and use of these waters, subject to local regulations and environmental laws.
Public River Access
The public generally has the right to access and use navigable rivers for various purposes. This right is protected by law and ensures that everyone can benefit from these natural resources. Activities such as boating, fishing, and swimming are commonly permitted on navigable rivers.
While the public has the right to access navigable rivers, they also bear certain responsibilities. Respecting the environment, adhering to local laws and guidelines, and ensuring safe usage are critical. Misuse or pollution of public waterways can lead to legal consequences and harm the ecosystem.
Private River Rights
Landowners with non-navigable rivers on their property often have exclusive rights to these waters. This means they can control who accesses the river and how it is used. These rights are typically protected by property laws and can include the right to fish, swim, or even divert water for personal use.
Landowners can also monetize their water rights. Selling water rights involves permanently transferring the right to use water from one party to another. Leasing water rights, on the other hand, allows the landowner to retain ownership while granting temporary usage rights to another party. Different types of water leases can be negotiated, depending on the needs of both parties involved.
Owning a non-navigable river comes with responsibilities. Landowners must ensure that their usage does not harm downstream users or the environment. They must also comply with local water laws and regulations, which can vary significantly between jurisdictions.
What are Water Rights?
Water rights are legal entitlements that grant individuals or entities the authority to use and access water resources. They are typically established and governed by laws and regulations to ensure the fair and sustainable allocation of water among various users, such as individuals, communities, industries, and agricultural operations.
Water rights can vary significantly from one jurisdiction to another, as they are influenced by local laws, traditions, and the nature of water resources in a particular region. However, some common principles and concepts underpin water rights systems:
Ownership and Control: Water rights determine who owns or controls the use of water resources. In some cases, water rights may be privately owned, while in others, they are held by the state or government.
Prior Appropriation Doctrine/Riparian Rights: Two common approaches to water rights allocation are the "prior appropriation doctrine" and "riparian rights." The prior appropriation doctrine, often used in arid regions, grants water rights to the first individuals or entities to make use of the water. Riparian rights, on the other hand, are based on the principle of water access to landowners whose properties border a water source, typically applied in areas with abundant water.
Beneficial Use: Many water rights systems prioritize the concept of "beneficial use," which means that water must be used for reasonable and beneficial purposes, such as drinking, agriculture, industrial production, or environmental preservation. Non-use or wasteful use of water may result in the loss or reduction of water rights.
Permits and Licenses: Water rights are often obtained through permits or licenses issued by water management authorities. These permits outline the conditions and limitations of water use, including the quantity, location, and purpose of water extraction or diversion.
Transferability and Trade: In some regions, water rights can be bought, sold, or leased, allowing for the transfer of water allocations between users. This enables flexibility in water allocation and facilitates efficient water use.
Conservation and Environmental Considerations: Many modern water rights systems also include provisions for environmental protection and sustainability. These may involve ensuring minimum flow levels in rivers and streams to support ecosystems, maintaining water quality standards, or implementing water conservation measures.
It's important to note that water rights can be a complex and contentious issue, particularly in regions where water scarcity is a concern or when conflicts arise between different users and stakeholders. Laws and regulations surrounding water rights aim to balance competing interests, promote equitable access, and encourage responsible water management.
Legal Considerations
The legal framework governing water rights has evolved over centuries. In many countries, historical laws form the backbone of current regulations. For instance, the Riparian Doctrine, which originated in England, gives landowners the right to reasonable use of water flowing through their property. In contrast, the Prior Appropriation Doctrine, prevalent in the western United States, allocates water rights based on a "first come, first served" principle.
Recent Developments in Water Law
Water law is continually evolving to address new challenges. Climate change, population growth, and increased demand for water are prompting legal reforms worldwide. Recent developments include stricter regulations on water usage, enhanced protections for ecosystems, and new mechanisms for resolving disputes between landowners and the public.
Key Legal Cases
Several landmark legal cases have shaped water rights. For example, the "Winters v. United States" case established federal water rights on Native American reservations. Similarly, the "Arizona v. California" case allocated water rights from the Colorado River to several states, setting a precedent for interstate water disputes.
Balancing Interests
Landowners often view their water rights as an essential aspect of property ownership. They rely on these rights for various purposes, including agriculture, recreation, and personal enjoyment. Protecting their water rights ensures that they can maintain their lifestyle and livelihood.
Public Interests
The public's interest in water rights centers around access and sustainability. Ensuring that rivers remain accessible and healthy for future generations is a primary concern. Balancing the needs of the public with those of landowners is crucial for maintaining harmony and protecting natural resources.
Potential Solutions
Several solutions can help balance the interests of landowners and the public. One approach is to establish clear, transparent regulations that protect both parties' rights. Another solution is to create collaborative management plans that involve stakeholders from both sides. Mediation and negotiation can also be effective tools for resolving conflicts and finding mutually beneficial outcomes.
Different States and Their Water Rights Specifics
Water rights can vary significantly from one state to another within the same country. In the United States, for example, water rights are primarily governed by state laws, and each state has its unique legal framework and approach to water allocation. This results in variations in how water rights are defined, allocated, and managed across different states.
One significant difference in water rights systems among states in America is the application of either the prior appropriation doctrine or riparian rights. Western states, such as Colorado, California, and Nevada, typically follow the prior appropriation doctrine, where the first person or entity to make use of water holds the senior right. In contrast, riparian rights are more commonly followed in eastern states, including those in the Northeast and Southeast, where water access is based on property ownership along watercourses.
Depending on the state a landowner lives in can determine the type of water rights they need to follow. Other aspects of water rights that vary from state to state are permitting processes, groundwater regulations, transferability and trading, environmental considerations, and tribal water rights. It is important to consult the specific laws, regulations, and water management agencies in your specific state to understand the particulars.
If you are interested in discovering the value of your land’s resources, generate your free property report on LandGate's map today! LandGate provides data and estimates for each natural resource so that landowners can discover their property’s potential for leasing water rights, developing a solar or wind farm, or even leasing their land’s carbon credits.
