Regulated Rivers - Hydro-Environmental Analysis: Freshwater Environments - page 73

test); or (2) lands contiguous to the abutting tract are entitled to water use if they are all under single
ownership, regardless of when they were acquired (unity of title rule). Since the rights go with the
land, the rights transfer with the land when it is sold, subject to the aforementioned deinitions of
“la nds abutting.”
Riparian rights are based on the English rule of natural low under which each landowner has the
right to have the water low past his lands undiminished in either quantity or quality. However, in the
United States, rather than unrestricted rights, the use of water rights is limited to some “reasonable
use,” and that such use also must not signiicantly limit or damage the use by other riparians. So, for
example, some downstream user could sue an upstream user if that use harms or prevents him or
her from making use of the water, but the downstream user would have to prove not only that he or
she was harmed, but also that the upstream water use was unreasonable. Riparian rights then view
water as a public resource; however, in times of conlict, the problem may be to determine what
areasonable use is.
One problem associated with riparian rights is how to determine reasonable use and how to
regulate and allocate water during times of shortage and water uses removed from their source. One
of the tactics taken by a number of states is to implement a permit system, where a water user must
obtain a permit from the state and where the permit system establishes by law what areasonable use
is. So, since riparian rights view water as a public resource, the waters then become the property
of the state and are allocated by the state using permits, rather than the property of the riparian
landowner.

3.6.2.1.2 Prior Appropriation
The water law of a number of Western states, where water is a scarce commodity, was based on
water uses (gold mining, irrigation, etc.), which required large amounts of water for activities
removed from the watercourse (not necessarily adjacent to it). So, the water rights went to those
who irst physically took the water (diverted it) from the watercourse for some beneicial use, and
for however much water was needed for that use rather than some reasonable use. Thus, the owner-
ship of water was not based on the ownership of the land but the use of the water. The irst to use
the water became the user with senior rights, and the use could be removed from the source (not
necessarily riparian). Those with “senior” rights must then be satisied before other users, who have
“junior” rights. Since the ownership then goes with the user, rather than the land, water rights can be
sold. An old saying in the Western United States is that “water lows uphill—towards money,” since
under this system water can be bought, sold, and leased for a proit and the person holding the water
right gets to set the price and transfer the right to the highest bidder. Also, under this rule, removing
water from one watershed to be used in another, or interbasin transfer, is generally permitted.

3.6.2.1.3 Hybrid Rights
Hybrid rights are somewhere in between the aforementioned water doctrines. For example, California
is a hybrid state, which incorporates prior appropriation for allocating water rights among users on
public land and riparian rights between landowners.

3.6.2.1.4 Public Trust Doctrine
The Public Trust Doctrine originates from Roman, Spanish, and English common law (Blumm
1995) based on the principle of public and state ownership of certain natural resources, such as
water, that beneit all, with the state being the trustee to manage those resources. The state can then
allocate those resources, commonly through permits. The Public Trust Doctrine is included in the
water laws of a variety of states, stating for example that all waters:

• “belong to the public” (New Mexico)

• “are the property of the state for the use of its people” (Idaho)