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River Usage: Public or Private?

Updated: Oct 24, 2023

Landowners with large amounts of property that contain rivers, lakes, or ponds might find some potential trespassers looking to enjoy the water. Recently, a case was brought to the Colorado Supreme Court dealing with river usage between a local fisherman and a landowner with the Arkansas River running through their property.

The fisherman stated that because the Arkansas River is considered navigable waters, it should be considered public water and not private water. Ultimately, the case sided with the landowner deeming that the section of that river is on private land making it private water. The case that set the standard, – People v Emmert – 1979 stated , “that while water may be public, the public could not float through private property.”

However, there has been no set federal law that has come about from these cases. It seems that Colorado’s river access laws will continue to be court made decisions on a case-by-case basis. Unlike other states like New Mexico where the public can access rivers through private property, or like Arizona and California that have laws that allow access to navigable waters through private property only.

What are Water Rights?

Water rights are legal entitlements that grant individuals or entities the authority to use and access water resources. They are typically established and governed by laws and regulations to ensure the fair and sustainable allocation of water among various users, such as individuals, communities, industries, and agricultural operations. Water rights can vary significantly from one jurisdiction to another, as they are influenced by local laws, traditions, and the nature of water resources in a particular region. However, some common principles and concepts underpin water rights systems:

  • Ownership and Control: Water rights determine who owns or controls the use of water resources. In some cases, water rights may be privately owned, while in others, they are held by the state or government.

  • Prior Appropriation Doctrine/Riparian Rights: Two common approaches to water rights allocation are the "prior appropriation doctrine" and "riparian rights." The prior appropriation doctrine, often used in arid regions, grants water rights to the first individuals or entities to make use of the water. Riparian rights, on the other hand, are based on the principle of water access to landowners whose properties border a water source, typically applied in areas with abundant water.

  • Beneficial Use: Many water rights systems prioritize the concept of "beneficial use," which means that water must be used for reasonable and beneficial purposes, such as drinking, agriculture, industrial production, or environmental preservation. Non-use or wasteful use of water may result in the loss or reduction of water rights.

  • Permits and Licenses: Water rights are often obtained through permits or licenses issued by water management authorities. These permits outline the conditions and limitations of water use, including the quantity, location, and purpose of water extraction or diversion.

  • Transferability and Trade: In some regions, water rights can be bought, sold, or leased, allowing for the transfer of water allocations between users. This enables flexibility in water allocation and facilitates efficient water use.

  • Conservation and Environmental Considerations: Many modern water rights systems also include provisions for environmental protection and sustainability. These may involve ensuring minimum flow levels in rivers and streams to support ecosystems, maintaining water quality standards, or implementing water conservation measures.

It's important to note that water rights can be a complex and contentious issue, particularly in regions where water scarcity is a concern or when conflicts arise between different users and stakeholders. Laws and regulations surrounding water rights aim to balance competing interests, promote equitable access, and encourage responsible water management.

Different States and Their Water Right Specifics

Water rights can vary significantly from one state to another within the same country. In the United States, for example, water rights are primarily governed by state laws, and each state has its own unique legal framework and approach to water allocation. This results in variations in how water rights are defined, allocated, and managed across different states. One significant difference in water rights systems among states in America is the application of either the prior appropriation doctrine or riparian rights. Western states, such as Colorado, California, and Nevada, typically follow the prior appropriation doctrine, where the first person or entity to make use of water holds the senior right. In contrast, riparian rights are more commonly followed in eastern states, including those in the Northeast and Southeast, where water access is based on property ownership along watercourses. Depending on the state a landowner lives in can determine the type of water rights they need to follow. Other aspects of water rights that vary from state to state are permitting processes, groundwater regulations, transferability and trading, environmental considerations, and tribal water rights. It is important to consult the specific laws, regulations, and water management agencies in your specific state to understand the particulars. If you are interested in discovering the value of your land’s resources, generate your free property report on LandGate's map today! LandGate provides data and estimates for each natural resource so that landowners can discover their property’s potential for leasing water rights, developing a solar or wind farm, or even leasing their land’s carbon credits.


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