Riparian Reasonableness

by Curt Burnett on July 31, 2009

“Under the riparian doctrine rights attach to riparian land, i.e., land bordering on a natural stream or lake, by virtue of its location”

Water Law, 3d Ed. D.H. Getches “Nature of Riparian Rights”

Twenty-nine states (primarily Eastern) follow the riparian approach to water rights. The fundamental doctrine that water rights derive from ownership of land which is on the river bank or lakeshore dates back to European and especially English law. Early American settlers brought over the common law concepts and further developed them, particularly around the key concept of “reasonable use”. This is the main limitation on riparian rights. Not only must the water use itself be reasonable (however defined), it must not injure the reasonable use of other riparians.

As with beneficial use, discussed in the last post, the range of reasonable uses is broad. However, some uses are more readily accepted under law as reasonable than others. So-called “natural” uses, which include domestic consumption and garden irrigation, are generally preferred to “artificial” uses such as industry, mining, or agricultural irrigation. Some of the criteria used to determine reasonableness are:

  • Suitability to the body of water
  • Economic value
  • Social value
  • Potential for harm to society
  • Protection of other existing users

Most states which use the riparian doctrine also limit water rights through a permit system. Permits typically are restrictive with regard to the nature of the use, the volume or rate of flow that can be taken, and the location of diversion from the body of water.

One key difference between riparian and appropriation-based rights is the the latter is a fundamentally “use it or lose it” system, ie the beneficial use must continue in order to retain the right. Since riparian rights derive from ownership of waterfront land, they typically continue whether exercised or not. (The one caveat is that permits once granted may lapse if not used.)

On the face of it, appropriation and riparian systems seem radically2009 different in key respects:

  • Use it or lose it vs. perpetuity
  • Not tied to land ownership vs. deriving from riparian ownership
  • Senior rights dominate vs. all rightholders share

It’s interesting then that ten states have hybrid systems which however uneasily try to combine the two systems. I’ll take a stab at describing the typical hybrid system in a near-future post.

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