Water Rights – Early Water Rights in the United States
Water Rights in Eastern United States since the late 1700’s/early 1800’s have been governed by a system know as riparian water rights. Since water is more abundant in the East, riparian water rights only require that the user have “reasonable use” for the right that they own. When it comes to water rights, the owner of the right does not actually “own” the water, just the right to use it. So riparian rights holders only have to show that they have a reasonable use for the water they have a right to. Once they have established a reasonable use for the water they have right to, they are entitled to have the right to unpolluted water, to prevent erosion of the stream bank, to access the watercourse, and to fish the water.
Another type of water rights, prior appropriation water rights, developed in the 1800’s as a way to treat mineral claims amongst the settlers of the west. The three guidelines that governed mineral claims were that the claim must be officially recorded and posted, that it must be continually used and kept up or else it would be lost, and that all disputes were settled on a first in time, first in right basis. This practice was then used to settle claims on water rights to surface water in the West.
The climate in the Western United Sates was nowhere near as generous for water rights as that of the East; therefore, prior appropriation water rights were implemented. In the beginning, the first eight states to abide by prior appropriation water rights included Wyoming, Utah, New Mexico, Nevada, Montana, Idaho, Colorado, and Arizona. Other western states developed water rights laws that were a mixture of the two systems – riparian and prior appropriations often called a “hybrid system”. California was the first state in which to do so. Since then, some states with the hybrid system have changed or modified how they govern their water rights. To know more about which system your state abides by, it is best to contact your State’s Division of Water Resources.
Another system governing water rights is that of federal reserved water rights. Federal reserved water rights are water rights guaranteed to the Federal Government or Indian tribes and reservations. Federal rights or Indian rights are allocated by tribal treaties with the federal government, executive orders, and statutes. The biggest difference between reserved water rights and all other water rights is that they can never be terminated or declared as forfeited as a result of non-use. So the quantity of water that was appropriated will never be forfeited even if it continually is not used in its entirety.
The diversity of the systems that govern water rights are as diverse as they state in which they are applied. In each case, no one truly “owns” the water itself, just the right to use it through property rights. Individuals and agencies from domestic, municipal, agricultural and industrial backgrounds rely on water rights in order to function. Water rights are so complex and diverse that one should research as much information as possible regarding water rights for their particular state. State agencies, water brokerages, water lawyers, and water engineers can all help you understand, acquire, and properly use your water right.
Water Colorado is a water rights brokerage based out of Fort Collins, Colorado that specializes in buying, selling, and renting water rights in each of Colorado’s seven water basins. Water Colorado is well versed on the ins and outs of water rights and has the resources to assist you with your water rights needs. For more information regarding water rights in Colorado contact Water Colorado at 970.493.4227.
Sources for information found in this article include “Western Water Rights” by Mary Ellen Wolfe, produced by The Watercourse; and the Colorado Division of Water Resources.