Water Rights 101: What To Look For When Buying Land
With over 71% of the Earth’s surface covered in water, the casual observer may never think about water rights. But consider this: according to the US Bureau of Reclamation, if that entire water supply were represented by 26 gallons, just one half teaspoon of that would be usable for drinking, recreation, and agriculture.
Whether you’re buying land for agricultural use or something else, the fact is that water and who owns it should be one of the main things you think about. In this article, you’ll learn the basics of water rights. If you have specific questions about water rights in your area, connect with an experienced local land agent.
What are Water Rights?
Water rights are the legal rights that regulate who can access, manage, sell, and use water. These rights can preserve a buyer's access to water on their property, whether it’s for recreational or agricultural use. This is an important consideration and can affect the entire land transaction.
But water rights are not as simple as who can dip a toe in a stream or pull a fish from a lake. There are differences in water law across the U.S. Some of these originated with the settling of the west, while others were put in place to protect farms and property owners downstream from overconsumption upstream.
Types of Water Rights
There are three types of water rights that buyers need to consider when looking for land. Which is most important varies depending on the intended use of the land. These include:
- Surface water rights
- Groundwater rights
- Water harvesting rights
Public water rights are another type, but they may be less important to buyers. These rights protect public access to waterways for things like navigation, and they protect certain bodies of water (or entire watersheds) for access that benefits the public good.
Additionally, federally reserved water rights do exist in certain situations. It’s important to be aware if any of these impact the land you are considering, but most people will not be affected by these limited areas.
Surface Water Rights
Private surface water rights are generally set by states, and they vary depending on the region of the country. Within this category there are three main categories: riparian/littoral, prior appropriations doctrine, and a hybrid approach.
Riparian Water Rights
Riparian water rights are those granted to a landowner who has a flowing waterway like a river or stream next to their property. Landowners can make “reasonable use” of this water as long as it doesn’t interfere with how someone else downstream is affected.
What’s “reasonable” is determined by taking a historic view and generally includes:
- Natural Uses: Drinking, watering animals, and watering a garden
- Artificial Uses: Irrigation, industrial, and other business uses
Closely related to riparian rights are littoral water rights. Whereas riparian rights cover flowing water use, littoral rights consider the use of still bodies of water such as oceans, lakes, and ponds.
These days, the riparian doctrine is more regulated, with governing bodies placing some guardrails on the amount of water that is considered reasonable use. It is still the most common type of water rights in the eastern U.S.
Prior Appropriation Doctrine for Water Rights
The prior appropriations doctrine is the “first-come, first-served” rule that still governs water rights in the following states:
- New Mexico
- North Dakota
- South Dakota
This gives priority use to landowners, or “appropriators,” who first used the groundwater for a beneficial purpose. There are three requirements that senior (or first) appropriators must meet:
- The use must be beneficial.
- Water must be diverted from its original course.
- Water must be applied (not held or stored).
Senior appropriators can “call the river” and take a “junior appropriator” to court if they feel that the junior is violating their prior appropriation doctrine water rights.
Hybrid Water Rights
In California, getting great water is becoming more complicated as serious drought in the west threatens both surface and groundwater. The hybrid approach combines riparian and prior appropriation doctrines to allocate water access and more equitably distribute resources.
Groundwater rights are governed by three doctrines and five rules. Most of these are divided by on-tract and off-tract uses. The first uses the water where it is pumped, and the second diverts it to another location. Key groundwater regulations you may encounter are:
- Absolute Dominion Rule: Landowners can use as much water as they like.
- Correlative Rights Doctrine: Water is divided equitably among users for both on-tract and off-tract uses, with on-tract getting priority.
- Prior Appropriation Doctrine: Whoever uses groundwater first owns it, similarly to the surface water appropriation doctrine.
- Reasonable Use Doctrine: Only on-tract reasonable use is allowed.
- Restatement of Torts Rule: This is a complicated approach used by Wisconsin and Ohio that determines water use based on various factors.
Water Harvesting Rights
Water harvesting rights refer to collecting rainwater in barrels or other containers for storage and personal use. This used to be legal in all 50 states in the U.S., but some states have begun to regulate the amount of rainwater it is legal to harvest.
Why Water Rights are Important to Buyers
Water rights are not as simple as they seem at first glance, and buyers need to look carefully at who owns the water on the land they are considering for purchase. The last thing you want is to find out your water rights are limited by uses upstream or are regulated in where and how you can access it.
Water Permitting Considerations
Even when a landowner's water rights are riparian, with little regulation by the state, they may still have to file for a permit that documents their use. This is especially true in states that have instituted regulated riparian water rights, with permits that only extend for a period of years.
This includes filing for a permit for well drilling or otherwise accessing, using, or storing groundwater (including water from a natural spring).
Questions to Ask about Water Rights
Buyers need to consider a few questions as they look for land.
- What is your intended use?
- Do you want recreational or agricultural access? Both?
- Will you use water commercially?
- Will you use water on the land or move it to another site?
- Are there prior claims to water, and how do those affect your planned use?
- If water restrictions are put in place, how do they affect your access?
- If a water lease or permit is in place, can it be legally transferred to a new buyer?
You may have additional concerns depending on your intended use, but these questions can get you a better understanding of who owns the water on the land you are considering.
Navigating water rights
When buying property, your land agent can help you negotiate water rights. They have experience in the specific concerns in your area and can help you ensure your access to water is protected.