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Water Rights - What Are They?

In most states, one cannot divert and use either surface water or ground water without the legal permission to do so. The legal authority to divert and capture water is called a water right. Within the United States it is generally necessary to have the legal right to divert and capture either surface or ground water. The legal right to divert and capture water is called a water right.

In the United States there are two systems of water rights administration and management. The Eastern part of the United States generally east of the Mississippi is the modified American Riparian Rights System that derives from the English Common Law as practiced in Old England. Under this system, a land owner has the right to divert water from streams that pass through his property, in reasonable amount for use on the land. The water must not be wasted and any excess water must be returned to the stream. In riparian rights states, the owner of the surface estate also owns in fee everything beneath the surface including water, oil and gas, and minerals and the surface owner has the right to divert and capture the water without limitation for beneficial use while not wasting it. Under the modified American riparian rights system, the water can be removed from the land for beneficial use.

Examples of riparian right states are Connecticut and Texas. Once captured the water is no longer real property but becomes personal property. So water in lakes, bottles, and pipelines is personal property.

In the 17 western states the Doctrine of Prior Appropriations is the law where the first to divert and capture and beneficially use water has the senior right to the water. So, in the event of water shortages, the person with the oldest priority date can issue a call and require those with more junior priority dates to curtail their use of the water.

All 17 western states and many eastern states regulate the diversion and use of water through a permit system. The permit system in the eastern states has come into being, in many cases for specific reasons. In New Jersey, sea water was invading the ground water aquifers because of over pumping of the Magothy, Patomic and Raritan Aquifers in southern New Jersey. To reduce ground water withdrawal New Jersey controls ground-water pumping through the permit system. In Connecticut, their legislature enacted water use legislation in 1982 such that permits are required on new appropriations and the permits must be renewed every 10 years. Those who were extracting surface or ground water prior to 1982 were grandfathered. Those who propose to use water must check with state agencies or knowledgeable consultants as to the regulatory requirements that control water diversion and use.

By Dr. William M. Turner
Water Rights Valuation and Water Law Nationally and Internatonally
ABOUT THE AUTHOR: Dr. William M. Turner
Dr. Turner holds advanced degrees in Geology, Hydrology, Aqueous Chemistry. He is a licensed real estate broker, business man, consultant, and water resource valuation expert with 40+ years of experience both nationally and internationally.

Copyright Dr. William M. Turner

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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