According to Public Trust, water is a public resource that can and should be used for the benefit of the People. Water rights grant the right to use a specified allocation of water but do not denote ownership.
Water rights vary widely from state to state, with stark differences between the eastern and western United States. In the East, they are almost uniformly riparian, while in the West, they tend to be either appropriative or a hybrid of the two. These systems play a key role in determining whether or not a piece of land is suitable for agriculture, and what kinds of crops can be grown on it.
As a report from Oklahoma State University explains:
“In areas where there is plenty of water and low demand, there is not much controversy; but where demand is high, conflict over water can determine success or failure of agricultural enterprises, limit growth and development of cities, and determine profitability of industries.”
Most water regulations make a distinction between surface and groundwater resources, and in many cases, freshwater resources are governed by interstate compacts. That’s why it’s so important to understand the connection between water rights and water risk in your region before entering into a land deal or agricultural investment.
Simply transferring ownership of a property doesn’t guarantee that a water right will be attached to it, and even properties with a valid water right may not be the first in line to access those resources in times of severe water stress.
In this guide, we’ll take a close look at water rights by state, as well as how you can look up additional information on a parcel-by-parcel basis. Check back often to find out how new technologies and regulations are impacting water rights in your state.
Riparian vs. Appropriative Rights
It is important to note that under Public Trust, water resources “belong” by the public; property owners can’t “own” water, but they may have the right to use, sell, or divert water resources, depending on the laws in the state. The two main types of rights are riparian and appropriative.
As a general rule of thumb, most states east of the Mississippi River use a system of riparian water rights based on English Common Law. This system grants a water right to property owners “whose land physically touches a river, pond, or lake.” The right is transferred when the land is sold and remains valid even if the right is never exercised and the water isn’t used.
Appropriative rights, on the other hand, allocate water based on historical usage, rather than land ownership. Rights are based on seniority, or “priority date,” and can be lost if they aren’t used on a regular basis. Senior rights holders are first in line and can use their allocation even if there isn’t enough left over for junior rights holders.
This system is used in most of the states west of the Mississippi River, although some, like California, use a hybrid of the two systems. Appropriative rights can usually be transferred with or without the land, and some regions have set up smart water markets to buy and sell water rights.
This guide takes a look at how water rights are handled in the states below, and how they impact water risk and the agricultural systems in those states.
