Wa­ter rights of prop­erty own­ers

The Progress-Index - At Home - - DEAR MONTY - By Richard Mont­gomery

Reader ques­tion: What kind of rights does a prop­erty owner have if their prop­erty bor­ders a mov­ing body of wa­ter? — Wil­liam G.

Monty’s an­swer: Hello Wil­liam, and thanks for your ques­tion. It is not clear what a mov­ing body of wa­ter rep­re­sents in your ques­tion. Is it a river or a lake? Is it the tide ris­ing and fall­ing? Is it an un­der­ground river or aquifer? Or even a sea­sonal stream?

Wa­ter rights fall into three ba­sic cat­e­gories with dif­fer­ent rights and re­spon­si­bil­i­ties in each.

1. Sur­face wa­ter: rain­wa­ter or snowmelt.

2. A wa­ter­course: a river, lake or un­der­ground stream.

3. Ground­wa­ter: aquifers ac­cessed by a drilled well.

Prop­erty own­ers with a source of wa­ter have ac­cess to the wa­ter, but they do not “own” the wa­ter. The source, scarcity, dif­fer­ent the­o­ries and the lo­ca­tion by the state will dic­tate the rights ap­ply­ing to their use of the wa­ter. States where wa­ter is scarce tend to ex­er­cise more con­trol over landowner wa­ter rights. Here are the the­o­ries by source of wa­ter:

Sur­face wa­ter

The com­mon en­emy: The wa­ter is the com­mon en­emy, and each prop­erty owner must pro­tect him­self or her­self from it. The lower landowner is at risk.

The rea­son­able­ness rule: If the party that al­tered the land was un­rea­son­able, they may be li­able for dam­ages if dam­ages can be proven.

The civil law so­lu­tion: The up­per landown­ers, are re­spon­si­ble for dam­age to lower landown­ers. The up­per landowner is at risk.

Sur­face wa­ter can be an is­sue with landown­ers ev­ery­where in the United States. The fre­quency and cause of dis­agree­ments vary with the geog­ra­phy and pre­cip­i­ta­tion. Moun­tains have sea­sonal melt­ing and deserts have “washes,” known as ar­royos, which are most of­ten as dry as a bone. New sub­di­vi­sions gen­er­ate new con­struc­tion and with con­tin­u­ing con­struc­tion di­rect­ing the sur­face wa­ter flow can take years to sort out. Rivers and streams over­flow their banks.

Wa­ter­courses

With Ri­par­ian Rights, the phi­los­o­phy is equal rights with other landown­ers own­ing prop­erty con­nected to the body of wa­ter. Each state is dif­fer­ent with the de­tails, but an owner can­not take more wa­ter than they need, and the wa­ter must fill a ben­e­fi­cial use. While prop­erty own­ers with wa­ter have ac­cess to the wa­ter, they do not “own” the wa­ter.

The Prior Ap­pro­pri­a­tion Doc­trine, which means the state con­trols the wa­ter, and the state, not the ri­par­ian own­ers, de­cide the use of the wa­ter,

and by whom. The state will dic­tate which the­ory ap­plies to your prop­erty. West­ern states are prone to the Prior Ap­pro­pri­a­tions Doc­trine be­cause of the scarcity of wa­ter.

Ground­wa­ter

An aquifer owner can be a public or pri­vate en­tity. If the owner is a public en­tity, such as the state, the state de­cides who has ac­cess to the wa­ter and how much wa­ter they can use. A pri­vate en­tity can reg­u­late the pro­duc­tion of wa­ter on state li­a­bil­ity law or land own­er­ship. An ex­am­ple of this sys­tem is the num­ber and ca­pac­ity of wells a prop­erty owner over the aquifer owned by oth­ers could drill.

Re­gard­less of the own­er­ship, the type of aquifer, the eco­nomics and the hy­drol­ogy in the area will de­ter­mine the ef­fec­tive­ness of the rules.

Other considerations

There is an­other legal the­ory that can come into play with wa­ter prop­erty called a me­an­der line. The me­an­der line is a high wa­ter el­e­va­tion that de­ter­mines the amount of prop­erty be­tween it and the wa­ters edge at its low. The Bureau of Land Man­age­ment has a plethora of in­for­ma­tion re­gard­ing me­an­der lines.

In ad­di­tion to th­ese legal the­o­ries im­pact­ing the prop­erty, states have reg­u­la­tions about what a prop­erty owner can, and can­not do near or on the wa­ter. State and fed­eral agen­cies such as Fed­eral Emer­gency Man­age­ment Agency or the state’s Depart­ment of Nat­u­ral Re­sources pro­mul­gate and en­force the rules. An in­ter­net search for a state will re­veal a web link.

Many en­ti­ties want a say with uti­liz­ing our nat­u­ral re­sources and wa­ter is at the top of the list. Wa­ter of­ten cre­ates En­vi­ron­men­tally Sen­si­tive Ar­eas near the wa­ter’s edge that har­bor cer­tain plants and wildlife. There may be lim­its on the use of cer­tain ar­eas called wet­lands.

Con­sider check­ing with the county as it may have re­stric­tions on the use of the wa­ter or land near wa­ter’s edge. Ex­am­ples of this may be how close to shore you could build a struc­ture, or whether or not you could build a pier. Search for more in­for­ma­tion us­ing the key­words above on­line.

DEAR MONTY

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