Water right in
water law
Water resources law (in some jurisdictions, shortened to "water law") is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from Water quality law, l ...
refers to the
right
Rights are law, legal, social, or ethics, ethical principles of Liberty, freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convent ...
of a user to use
water
Water (chemical formula ) is an inorganic, transparent, tasteless, odorless, and nearly colorless chemical substance, which is the main constituent of Earth's hydrosphere and the fluids of all known living organisms (in which it acts as a ...
from a water source, e.g., a river, stream, pond or source of
groundwater
Groundwater is the water present beneath Earth's surface in rock and soil pore spaces and in the fractures of rock formations. About 30 percent of all readily available freshwater in the world is groundwater. A unit of rock or an unconsolidate ...
. In areas with plentiful water and few users, such
systems
A system is a group of interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundaries, structure and purpose and express ...
are generally not complicated or contentious. In other areas, especially
arid
A region is arid when it severely lacks available water, to the extent of hindering or preventing the growth and development of plant and animal life. Regions with arid climates tend to lack vegetation and are called xeric or desertic. Most ar ...
areas where
irrigation
Irrigation (also referred to as watering) is the practice of applying controlled amounts of water to land to help grow Crop, crops, Landscape plant, landscape plants, and Lawn, lawns. Irrigation has been a key aspect of agriculture for over 5,00 ...
is practiced, such systems are often the source of conflict, both legal and physical. Some
systems
A system is a group of interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundaries, structure and purpose and express ...
treat
surface water
Surface water is water located on top of land forming terrestrial (inland) waterbodies, and may also be referred to as ''blue water'', opposed to the seawater and waterbodies like the ocean.
The vast majority of surface water is produced by prec ...
and
ground water
Groundwater is the water present beneath Earth's surface in rock and soil pore spaces and in the fractures of rock formations. About 30 percent of all readily available freshwater in the world is groundwater. A unit of rock or an unconsolidated ...
in the same manner, while others use different principles for each.
Types of water right
Understanding ‘Water Rights’ first requires consideration of the context and origin of the ‘right’ being discussed, or asserted. Traditionally, a water rights refers to the utilization of water as an element supporting basic human needs like drinking or irrigation. Water Rights could also include the physical occupancy of waterways for purposes of travel, commerce and even recreational pursuits. The legal principles and doctrines that forms the basis of each type of water rights are not interchangeable and vary according to local and national laws. Therefore, variations among countries, and within national subdivisions, exist in discussing and acknowledging these rights.
Utilization of water as an element
Based on ownership of the land
Often, water rights are based on ownership of the land upon which the water rests or flows. For example, under English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, any rights asserted to 'moveable and wandering' water must be based upon rights to the 'permanent and immovable' land below.
On streams and rivers these are referred to as
riparian rights
Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law herit ...
, or
littoral rights In United States law, littoral rights are rights concerning properties that abut static water like an ocean, bay, delta, sea or lake, rather than a flowing river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment ...
, which are protected by
property law
Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual pro ...
. Legal principles long recognized under Riparian principles, involve the right to remove the water – for drinking or irrigation- or to add more water into the channel – for drainage or effluence. Under riparian law, rights the water is subject to the test of ‘reasonable use’. The judiciary has defined ‘reasonable use’ principle as follows: “the true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.” Because of the limits on use, the doctrine of riparian rights is often known as the "downstream user rule"—the downstream users have rights to the water which the upstream users may not abridge.
Based on previous use or prior appropriation
Where water is more scarce (like in the Western United States), allocation of the flowing water is premised upon prior appropriation. “The appropriation doctrine confers upon one who actually diverts and uses water the right to continue to do so provided that the water is used for reasonable and beneficial uses,” regardless of whether that person owns land contiguous to the watercourse.
[United States v. State Water Res. Control Bd., 182 Cal.App.3d 82 (1986)] "
between appropriators, the rule of priority is 'first in time, first in right.'"
[United States v. State Water Res. Control Bd., 182 Cal.App.3d 82 (1986) (citing Irwin v. Phillips, 5 Cal. 140, 147 (1855)).]
The 20th century system of prior appropriation water rights is characterized by five principles:
# Exclusive right is given to the original appropriator, and all following privileges are conditional upon precedent rights.
# All privileges are conditional upon beneficial use.
# Water may be used on riparian lands or non-riparian lands (i.e. water may be used on the land next to the water source, or on land removed from the water source)
# Diversion is permitted, regardless of the shrinkage of the river or stream.
# The privilege may be lost through non-use.
Beneficial use is defined as agricultural, industrial, or urban use. Environmental uses, such as maintaining a body of water and the wildlife that use it, were not initially regarded as beneficial uses in some states but have been accepted in some areas.
Every water right is parameterized by an annual yield and an appropriation date. When a water right is sold, it maintains its original appropriation date.
Community-based allocation of water
In some jurisdictions appropriative water rights can be granted directly to communities. Here, water is reserved to provide sufficient capacity for the future growth of that particular community. For example,
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
provides communities and other water users within watersheds senior status over appropriative (use-based) water rights solely because they are located where the water originates and naturally flows.
A second example of community-based water rights is pueblo water rights. As recognized by
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
, pueblo water rights are grants to individual settlements (i.e. pueblos) over all streams and rivers flowing through the city and to all groundwater
aquifer
An aquifer is an underground layer of water-bearing, permeable rock, rock fractures, or unconsolidated materials (gravel, sand, or silt). Groundwater from aquifers can be extracted using a water well. Aquifers vary greatly in their characterist ...
s underlying that particular city. The pueblo's claim expands with the needs of the city and may be used to supply the needs of areas that are later annexed to the city. While California recognizes pueblo water rights, pueblo water rights are controversial. Some scholars and courts have argued that the pueblo water rights doctrine lacks a historical basis in Spanish or Mexican water law.
Right to clean water
Due to the dependence upon clean water, many nations, states and municipalities have enacted regulations to preemptively protect water quality and quantity. This right of a government to regulate water quality is premised upon protecting downstream navigable waters from contamination which are publicly owned and include the right to receive these waters undiminished under both the riparian and appropriation doctrines under the
Clean Water Act
The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters; recognizing the responsibiliti ...
.
The right to access and physically occupy water
The Commerce Clause of the U.S. Constitution gives Congress the power to regulate and occupy Navigable Waters; this is referred to as a
Navigable Servitude
Navigable servitude is a legal doctrine, doctrine in United States constitutional law that gives the federal government of the United States, federal government the right to regulate navigable waterways as an extension of the Commerce Clause in A ...
. The US Congress has exercised this power in a variety of ways, including the construction of dams, diverting water from a stream and blocking and restricting use of waterways. The servitude is a Federal power, not an individual right.
Public Trust Rights to access and recreate upon navigable-in-fact waters may also exist. These rights are often based on local laws over property held in trust for the public. In the United States, each States holds the land submerged by navigable waters in trust for the public and can establish a public right to access or recreate within these public waterways. Again, this 'water right' is not an individual right, but rather a public right and individual privilege which may include restrictions and limitations based on local laws.
The Fifth and Eleventh Amendment to the U.S. Constitution limits the power of state or federal governments to impinge upon any exclusive use of water by prohibiting the enactment of any laws or regulations that amount to a "taking" of private property. Laws and regulations that deprive a riparian owner of legally cognizable water rights constitute an illegal governmental taking of private property for which just compensation is owed to the water right holder.
Finnish water rights
In
Finland
Finland ( fi, Suomi ; sv, Finland ), officially the Republic of Finland (; ), is a Nordic country in Northern Europe. It shares land borders with Sweden to the northwest, Norway to the north, and Russia to the east, with the Gulf of B ...
,
waterbodies
A body of water or waterbody (often spelled water body) is any significant accumulation of water on the surface of Earth or another planet. The term most often refers to oceans, seas, and lakes, but it includes smaller pools of water such as ...
are generally privately owned, but Finland also applies the
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
principle of ''aqua profluens'' (flowing water), according to which the freely flowing water in waterbodies cannot be owned or possessed. This means that the owners of waterbodies cannot prohibit diversion of water for agricultural, industrial, municipal, or domestic use according to the provisions of the Finnish Water Law.
[Available online only i]
Finnish
available in English from email address liste
here
/ref> A separate act regulates provision of water.There also exists public easement over rivers.
History of water rights
In Roman times, the law was that people could obtain temporary usufructuary rights for running water. These rights were independent of land ownership, and lasted as long as use continued. Under Roman law, no land was "owned" by citizens, it was all owned by the "republic" and controlled by politicians.
Under English common law all tidal waters were held by the crown and all freshwater streams were included with title to the lands, with full accompanying rights. However, under the riparian doctrine, Landowners had the right to receive water undiminished by upstream landowners.
Over time, rights evolved from being strictly land-based to also include use based, allowing non-landowners to hold enforceable rights to receive clean water. A reasonable use rule __NOTOC__
Reasonable may refer to:
* Reason, the capacity for rational thinking
* Reasonable accommodation, an adjustment made in a system to accommodate an individual's need
* Reasonable and non-discriminatory licensing, a licensing requirement ...
evolved in some countries.
See also
* California State Water Resources Control Board
The California State Water Resources Control Board (SWRCB) is one of six branches of the California Environmental Protection Agency.
History
This regulatory program has had the status of an official government department since the 1950s. The Sta ...
* ''Clean Water Report''
* Colorado River Water Conservation District v. United States
''Colorado River Water Conservation District v. United States'', 424 U.S. 800 (1976), was a case in which the Supreme Court of the United States extensively refined the abstention doctrine to prevent duplicative litigation between state and federal ...
* Drainage law
Drainage law is a specific area of water law related to drainage of surface water on real property. It is particularly important in areas where freshwater is scarce, flooding is common, or water is in high demand for agricultural or commercial pu ...
* Grazing rights
Grazing rights is the right of a user to allow their livestock to feed (graze) in a given area.
United States
Grazing rights have never been codified in United States law, because such common-law rights derive from the English concept of the ...
* Optimum water content for tillage
The optimum water content for tillage (OPT) is defined as the moisture content of soil at which tillage produces the largest number of small aggregates.
Overview
The Optimum Water Content of soil is the water content at which a maximum dry unit w ...
* Permanent water rights (Alberta)
Permanent water rights, within the Canadian province of Alberta, are rights acquired from the crown that give the holder rights to use a body of water
Water (chemical formula ) is an inorganic, transparent, tasteless, odorless, and nearl ...
* Human right to water and sanitation
The human right to water and sanitation (HRWS) is a principle stating that clean drinking water and sanitation are a universal human right because of their high importance in sustaining every person's life. It was recognized as a human right b ...
* Rio Grande border disputes
The Rio Grande (Río Bravo del Norte) has changed course several times in recorded history, leading to a number of border disputes and uncertainties, both international (involving Mexico and the United States) and between individual U.S. states:
...
* Water conflict
Water conflict is a term describing a conflict between countries, states, or groups over water the rights to access water resources. The United Nations recognizes that water disputes result from opposing interests of water users, public or privat ...
* Water law
Water resources law (in some jurisdictions, shortened to "water law") is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from Water quality law, l ...
* Water law in the United States Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend wit ...
* Water privatization in Bolivia The privatization of water supply and sanitation in Bolivia took place during the second mandate of Bolivian President Hugo Banzer (1997-2001) in the form of two major private concessions: one in La Paz/El Alto to Aguas del Illimani S.A. (AISA), a s ...
* Water quality
Water quality refers to the chemical, physical, and biological characteristics of water based on the standards of its usage. It is most frequently used by reference to a set of standards against which compliance, generally achieved through tr ...
* Water resources
Water resources are natural resources of water that are potentially useful for humans, for example as a source of drinking water supply or irrigation water. 97% of the water on the Earth is salt water and only three percent is fresh water; slight ...
* Water trading
Water trading is the process of buying and selling water access entitlements, also often called water rights. The terms of the trade can be either permanent or temporary, depending on the legal status of the water rights. Some of the western stat ...
* Ocean privatization Ocean privatization is the sale of the oceans to private individuals or companies.
'' The Market for Liberty'', published in 1970, stated that "as companies drilling for off-shore oil have proved, there is no reason why a piece of land cannot be o ...
* Indus Waters Treaty
The Indus Water Treaty (IWT) is a water-distribution treaty between India and Pakistan, arranged and negotiated by the World Bank, to use the water available in the Indus River and its tributaries. It was signed in Karachi on 19 September 1960 ...
References
Further reading
* deVilliers, Marq. ''Water: The Fate of Our Most Precious Resource''. Mariner Books, 2001. .
Idaho Department of Water Resources: Water Rights Primer
Nevada Water Law Overview
* ttp://www.wrd.state.or.us/OWRD/PUBS/aquabook.shtml Water Rights in Oregon
Information Pertaining to Water Rights in California
* United Nations General Comment 15. 2002. "Substantive Issues Arising in the Implementation of International Covenant on Economic, Social, and Cultural Rights: The Right to Water. New York.
School resource on water rights.
External links
Idaho Snake River Basin Adjudication
The Water Report
{{Authority control
Water law
Property