Riparian water 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 heritage, such as Canada, Australia, and states in the eastern United States.

Common land ownership can be organized into a partition unit, a corporation consisting of the landowners on the shore that formally owns the water area and determines its use.

General principle

Under the riparian principle, all landowners whose properties adjoin a body of water have the right to make reasonable use of it as it flows through or over their properties. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land and only in reasonable quantities associated with that land. The water cannot be transferred out of the watershed without due consideration as to the rights of the downstream riparian landowners.

Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations; the right to exclusive use if the waterbody is non-navigable. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.[1]

England and Wales

The Environment Agency lists the riparian rights and duties in England and Wales.[2]

The rights include ownership of the land up to the centre of the watercourse unless it is known to be owned by someone else, the right for water to flow onto land in its natural quantity and quality, the right to protect property from flooding and land from erosion subject to approval by the agency, the right to fish in the watercourse unless the right is sold or leased if an angler has a valid Environment Agency rod licence. They also include the right to acquire accretion and the right to boomage (a fee charge for securing a boom, generally for the retention of logs).

Duties arising from the model include the following:

  • Pass on the flow of water without obstruction, pollution or diversion affecting the rights of others.
  • Maintain the bed and banks of the watercourse and to clear any debris, whether natural or artificial, to keep any culverts, rubbish screens, weirs and mill gates clear of debris.
  • Be responsible for protection of land from flooding and cause no obstructions, temporary or permanent, preventing the free passage of fish.
  • Accept flood flows even if caused by inadequate capacity downstream, but there is no duty to improve the drainage capacity of a watercourse.

United States

The United States recognizes two types of water rights. Although use and overlap varies over time and by state, the western arid states generally follow the doctrine of prior appropriation,also known as first come first serve, but water rights for the eastern states follow riparian law.

Riparian rights

Under riparian law, water is a public good like the air, sunlight, or wildlife. It is not "owned" by the government, state or private individual but is rather included as part of the land over which it falls from the sky or then travels along the surface.

In determining the contours of riparian rights, there is a clear distinction between navigable (public) waters and non-navigable waters. The land below navigable waters is the property of state,[3] and subject to all the public land laws and in most states public trust rights. Navigable waters are treated as public highways with any exclusive riparian right ending at the ordinary high water mark. Like a road, any riparian right is subordinate to the public's right to travel on the river, but any public right is subject to nuisance laws and the police power of the state. It is not an individual right or liberty interest. Because a finding of navigability establishes state versus federal property, navigability for purposes of riverbed title is a federal question determined under federal law. The states retain the power of defining the scope of the public trust over navigable waters.[4] A non-navigable stream is synonymous with private property, or jointly-owned property if it serves as a boundary.

The state could choose to divest themselves of title to the streambed, but the waters and use of the waters remains subject to the Commerce Clause of the United States Constitution which holds an easement or servitude, benefiting the federal government for the purpose of regulating commerce on navigable bodies of water.[5]

The reasonable use of the water by a riparian owner is subject to the downstream riparian owners 'riparian right' to receive waters undiminished in flow and quality. Since all surface waters eventually flow to the public ocean, federal regulatory authority under the Clean Waters Act, like the Clean Air Act, extends beyond only public (navigable) waters to prevent downstream pollution.

States' involvement

Federal courts have long recognized that state laws establish the extent of the riparian and public right. In the case of navigable waters, title goes to the average low water mark. The Pennsylvania Supreme Court defined it as the "ordinary low water mark, unaffected by drought; that is, the height of the water at ordinary stages."[6] Land below the low water mark on navigable rivers belongs to the state government in the case of the 13 original states.

Lands between the high and low water marks on navigable rivers are subject to the police powers of the states.[7] In the case of the original 13 states, upon ratification of the US Constitution, title to these submerged lands remained vested in the several states similar to the public or common roads.

As new lands were acquired by the United States, either by purchase or treaty, title to the highways and the beds of all navigable, or tidal, water bodies became vested in the United States unless they had been validly conveyed into private ownership by the former sovereign.[8] During the territorial period, the United States held these title "in trust" for the benefit of the future states that would be carved out of the territory.[9] Each of the states were to come into the Union on an "equal footing" with the original 13 states. Under the equal footing doctrine, territorial states are vested with the same sovereign title rights to navigable submerged lands as the original 13 states.[10] However, during the territorial period, the United States could convey certain of these lands under the limited circumstances of promoting commerce.[11]

Ownership of lands submerged by navigable waters was resolved by Congress passing the Submerged Lands Act,[12] which confirmed state title to the beds of all tidal and navigable bodies of water. While the act conveyed land title to the states, non-navigable stream beds remained treated like dry lands and contiguous to the adjoining estates. Waters subject to the ebb and flow of the tides, even if non-navigable, also passed to the states, but the continued ownership and public use of these tidal/marsh lands are based on state laws.

See also

References

  1. ^ Guerin, K (2003). "Property Rights and Environmental Policy: A New Zealand Perspective". Wellington, New Zealand: New Zealand Treasury.
  2. ^ Living on the Edge – Environment Agency website, retrieved 10 December 2008
  3. ^ 43 USC § 1311(A)
  4. ^ PPL Montana v Montana 132 S.Ct. 1215 (2012)
  5. ^ Borax Consolidated, Ltd. v. City of Los Angeles, 29 U.S. 10, 56 S. Ct. 23, 80 L.Ed 9 (1935.)
  6. ^ Appeal of York Haven Water & Power Co., 212 Pa. 622, 62 A.97 (1905)
  7. ^ (See United States v. Pennsylvania Salt Mfg. Co., 16 F.2d 476 (E.D. Pa., 1926))
  8. ^ McKnight v. Brodell, 212 F.Supp 45
  9. ^ Hymes v. Grimes Company, 165 F. 2d 323
  10. ^ Pollard v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845)
  11. ^ Brewer Elliot Oil and Gas Co. v. U S., 260 U.S. 77, 43 S.Ct 60, 67 L.Ed. 140 (1922)
  12. ^ 43 U.S.C.A. 1301

External links

2012 term United States Supreme Court opinions of Sonia Sotomayor

== References ==

Air rights

Air rights are the property interest in the "space" above the earth's surface. Generally speaking, owning, or renting, land or a building includes the right to use and develop the space above the land without interference by others.

This legal concept is encoded in the Latin phrase Cuius est solum, eius est usque ad coelum et ad inferos ("Whoever owns the soil, it is theirs up to Heaven and down to Hell."), which appears in medieval Roman law and is credited to 13th-century glossator Accursius; it was notably popularized in common law in Commentaries on the Laws of England (1766) by William Blackstone; see origins of phrase for details.

Crown land

Crown land (sometimes spelled crownland), also known as royal domain or demesne, is a territorial area belonging to the monarch, who personifies the Crown. It is the equivalent of an entailed estate and passes with the monarchy, being inseparable from it. Today, in Commonwealth realms such as Canada and Australia, crown land is considered public land and is apart from the monarch's private estate.

In Britain, the hereditary revenues of Crown lands provided income for the monarch until the start of the reign of George III, when the profits from the Crown Estate were surrendered to the Parliament of Great Britain in return for a fixed civil list payment. The monarch retains the income from the Duchy of Lancaster.

Head v. Amoskeag Manufacturing Co.

Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885), was a U.S. Supreme Court case considering whether a dam constructed on privately owned land served a public purpose and whether having the owner of the dam compensate any adjacent landowner was a legal form of eminent domain.

Irrigation management

Irrigation is the artificial exploitation and distribution of water at project level aiming at application of water at field level to agricultural crops in dry areas or in periods of scarce rainfall to assure or improve crop production.

This article is about organizational forms and means of management of irrigation water at project level.

Little Charity Island

Little Charity Island is a small island in Saginaw Bay, Lake Huron. The 5.4-acre (0.02 km2) island is located in Sims Township, Arenac County in the U.S. state of Michigan. Acquired by the U.S. Fish and Wildlife Service in 1999, it is administered by staff from the Seney National Wildlife Refuge as a unit of the Michigan Islands National Wildlife Refuge.

Little Charity Island is located in the middle of the bay, inland from its larger neighbor, Big Charity Island. It rises approximately halfway between "Point Lookout" to the northwest and "Sand Point" to the southeast. The island is home to some riparian tree life, and is home to colonial-nesting waterbirds, including double-crested cormorants. Many bay fishermen use the island as a navigation point.

Little Charity Island was once called Ile de Traverse, according to an 1839 map of Michigan. In the 19th century and early 20th century Little Charity was owned by Bay Port Fish Company, a commercial fishing company in Saginaw Bay, for its riparian water rights. After the 1940s, when Michigan law changed, the island was sold as were other islands in the bay.

London Stone (riparian)

London Stone is the name given to a number of boundary stones that stand beside the rivers Thames and Medway, which formerly marked the limits of jurisdiction (riparian water rights) of the City of London.

Lux v. Haggin

Lux v. Haggin, 69 Cal. 255; 10 P. 674; (1886), is a historic case in the conflict between riparian and appropriative water rights. Decided by a vote of four to three in the Supreme Court of California, the ruling held that appropriative rights were secondary to riparian rights.

Maryland v. West Virginia

Maryland v. West Virginia, 217 U.S. 1 (1910), is a 9-to-0 ruling by the United States Supreme Court which held that the boundary between the American states of Maryland and West Virginia is the south bank of the North Branch Potomac River. The decision also affirmed criteria for adjudicating boundary disputes between states, which said that decisions should be based on the specific facts of the case, applying the principles of law and equity in such a way that least disturbs private rights and title to land.

Morris v. United States

Morris v. United States, 174 U.S. 196 (1899), is a 5-to-2 ruling by the United States Supreme Court which held that the bed under the Potomac River between the District of Columbia and the Commonwealth of Virginia belonged to the United States government rather than nearby private landowners on the District of Columbia side.

New South Wales

New South Wales (abbreviated as NSW) is a state on the east coast of Australia. It borders Queensland to the north, Victoria to the south, and South Australia to the west. Its coast borders the Tasman Sea to the east. The Australian Capital Territory is an enclave within the state. New South Wales' state capital is Sydney, which is also Australia's most populous city. In March 2018, the population of New South Wales was over 7.9 million, making it Australia's most populous state. Just under two-thirds of the state's population, 5.1 million, live in the Greater Sydney area. Inhabitants of New South Wales are referred to as New South Welshmen.The Colony of New South Wales was founded as a penal colony in 1788. It originally comprised more than half of the Australian mainland with its western boundary set at 129th meridian east in 1825. The colony also included the island territories of New Zealand, Van Diemen's Land, Lord Howe Island, and Norfolk Island. During the 19th century, most of the colony's area was detached to form separate British colonies that eventually became New Zealand and the various states and territories of Australia. However, the Swan River Colony has never been administered as part of New South Wales.

Lord Howe Island remains part of New South Wales, while Norfolk Island has become a federal territory, as have the areas now known as the Australian Capital Territory and the Jervis Bay Territory.

Ordinary watercourse

An ordinary watercourse is one of the two types of watercourse in statutory language in England and Wales. Ordinary watercourses include every river, stream, ditch, drain, cut, dyke, sluice, sewer (other than a public sewer) and passage through which water flows and which does not form part of a main river. An internal drainage board where relevant, or lead local authority has permissive powers to carry out flood defence works for ordinary watercourses at their discretion.

Prior-appropriation water rights

Prior appropriation water rights is the legal doctrine that the first person to take a quantity of water from a water source for "beneficial use" (agricultural, industrial or household) has the right to continue to use that quantity of water for that purpose.

Subsequent users can take the remaining water for their own beneficial use if they do not impinge on the rights of previous users.

The doctrine developed in the Western United States and is different from riparian water rights, which are applied in the rest of the United States. Water is very scarce in the West and so must be allocated sparingly, based on the productivity of its use. The right is also allotted to those who are "first in time of use."

Riparian zone

A riparian zone or riparian area is the interface between land and a river or stream. Riparian is also the proper nomenclature for one of the terrestrial biomes of the Earth. Plant habitats and communities along the river margins and banks are called riparian vegetation, characterized by hydrophilic plants. Riparian zones are important in ecology, environmental resource management, and civil engineering because of their role in soil conservation, their habitat biodiversity, and the influence they have on fauna and aquatic ecosystems, including grasslands, woodlands, wetlands, or even non-vegetative areas. In some regions the terms riparian woodland, riparian forest, riparian buffer zone, riparian corridor and riparian strip are used to characterize a riparian zone. The word riparian is derived from Latin ripa, meaning river bank.

Ripuarian

Ripuarian may refer to:

Ripuarian Franks, a subset of Frankish people who lived in the Rhineland

Ripuarian language, a West Central German dialect group

Riparian water rights (or simply riparian rights) a system for allocating water among those who possess land along its path

Riparian zone (or riparian area), the interface between land and a river or stream

Riparian-zone restoration, the ecological restoration of riparian zone habitats of streams, rivers, springs, lakes, floodplains, and other hydrologic ecologies

River island

A river island is any exposed land surrounded by river water. Properly defined it excludes shoals between seasonally varying flows and may exclude semi-coastal islands such as in deltas.

These islands result from changes in the course of a river such as interactions with a tributary or the opposing fluvial actions of deposition and/or erosion such as forming a natural cut and meander. Nascent vegetation-free sandbars and mudflats may dissipate and shift or build up into such islands through deposition and which may be assisted through artificial reinforcement or natural factors such as, reeds, palms, evergreen trees or willows, to large examples covering many square kilometers, examples of which are given below.

Taonga

A taonga is now a treasure in Māori culture; it can be anything from a word to a memory. The current definition differs from the historical definition, noted by Hongi Hika as "property procured by the spear" [one could understand this as war booty or defended property].

Tangible examples are all sorts of heirlooms and artefacts, land, fisheries, natural resources such as geothermal springs and access to natural resources, such as riparian water rights and access to the riparian zone of rivers or streams. Intangible examples may include language and spiritual beliefs.

The varying definitions and interpretations have implications for policies regarding such things as intellectual property and genetic engineering.

Water in California

California's interconnected water system serves over 30 million people and irrigates over 5,680,000 acres (2,300,000 ha) of farmland. As the world's largest, most productive, and most controversial water system, it manages over 40 million acre feet (49 km3) of water per year.Water and water rights are among the state's divisive political issues. Due to the lack of reliable dry season rainfall, water is limited in the most populous U.S. state. An ongoing debate is whether the state should increase the redistribution of water to its large agricultural and urban sectors, or increase conservation and preserve the natural ecosystems of the water sources.

Water in Colorado

Water in Colorado is of significant importance, as the American state of Colorado is the 7th-driest state in America. As result, water rights generate conflict (for example, see Colorado River Water Conservation District v. United States), with many water lawyers in the state.

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