National Drinking Water Clearinghouse
West Virginia University
PO Box 6893
Morgantown, WV

Water Wars
Whose water is it and why do I need a permit to use it?

by Jamie Knotts
On Tap Assistant Editor

Back when homesteaders were slowly moving to undeveloped areas of countryside, they simply diverted a stream or dug a well to meet their family’s water needs. If their garden was dry, they merely used all the nearby water they wanted to irrigate it. If field crops or farm animals were parched, landowners funneled the often-unlimited supply their way.

As years went by, technology gave home and farm owners new tools to tap the Earth’s underground water. Drilling rigs set up shop and tore through the soil and rock until trickles turned to torrents of flowing water. Pumps brought subsurface water skyward as landowners’ burgeoning need for water increased with each passing year.

But the days of open and unlimited access to the water landowners wanted or needed are gone in many places and have been for years. Tighter restrictions, permits, and case law dictate when, where, and how much water a user can take for consumption.
Home and landowners aren’t the only ones limited to water usage through permitting. Small and large municipalities alike also must go through the often-complicated water rights processes to secure enough flow to meet consumers’ needs.

What is a water right?

A water right is a legal authorization to use a certain amount of public water for specific beneficial purposes. Water flowing in creeks, rivers, and bays is usually state water. This surface water is public property; however, states give individuals, organizations, and municipalities the right to pump water from a stream, creek, pond, or lake, or to impound water in a lake or pond.

In many states, laws require certain public water users to receive approval from the state prior to using the water. In almost all cases, surface waters may be used only with explicit permission of the state. Water for livestock and household uses is sometimes exempted from this requirement, so long as people who live adjacent to a stream or river divert the water. Landowners with water flowing past, through, or under their property do not automatically have the right to use that water without a permit in some states.

Often, county and rural community fire departments and other similar services are allowed to divert and use state water from streams and reservoirs for emergency use without first obtaining a permit. Understanding who gets to use water is often a confusing process because no national water rights system exists. In its absence, state water laws have evolved with different traditions and conditions. Each state’s water allocation system—which defines the type and quantity of use—is based on the state’s individual approach to water rights.

Ralph Edwards, an attorney who works with water rights law in California, says that the complexity of water rights law often overwhelms his clients. “You just can’t divert water from a stream without following the prescribed legal process for using the water,” he says. “California is very specific in how a user can gain access to a water right. It can be complicated for those unfamiliar with the process. There’s no doubt about it.”

Western states follow variations on the prior appropriation doctrine, which basically means that one gets the water right by simply having used the water in the past. Eastern states generally use riparian rules and state permits for use. Riparian rights give water preferences to those who own property adjacent to the riparian or water zone from which the water is drawn. Under the riparian doctrine, only landowners with water flowing through or adjacent to their property have claims to the water.

Riparianism vs Prior Appropriation

There are many factors that must be considered in allocating water to users. The first is the traditional water law doctrine that has developed in the U.S.: the older riparian principles of the eastern states and the doctrine of prior appropriation in the arid western states.

Riparianism starts with the assumption that water is plentiful and available to all riparian and littoral property owners. Under this doctrine, all water uses are allowed as long as they do not unreasonably interfere with other uses. This means that water uses that have been in place for a long period of time and any new users have equal rights and entitlement to the water. This doctrine works well as long as water is plentiful and there are no disputes that involve “ownership” of the resource. However, in times of water scarcity, the shortcomings of the riparian system become evident.

Prior Appropriation operates on the “first in time, first in right” principle. The first or prior user’s rights are superior to later-arising uses, regardless of scarcity or social benefits. Users typically acquire rights from the state to withdraw and consume water and even in times of drought may continue to do so at the expense of subsequent users.

There is also a relative new-comer to the water rights law that is being embraced by a growing number of eastern states, that of a hybridized version of the riparian and prior appropriation doctrines.

States Handle Rights Differently
Some state water laws rely on common law doctrines and court decisions over time that resolved private disputes. In other states, the legislature developed statutory and administrative arrangements that determined water rights. Water rights laws and statutes in various states are peppered with the term “beneficial use.” Beneficial uses include domestic use, irrigation, stock watering, manufacturing, mining, hydro power, municipal use, aquaculture, recreation, and fish and wildlife. The amount of the water right is the amount of water put to beneficial use. Due to the beneficial use requirement, a water right (or a portion of a water right) may be lost if it is not used in a certain period of time in most states.

In Texas, state law requires a water right document for all other surface water uses, aside from household needs or for irrigating
a yard or home garden. Residents may impound up to 200 acre-feet of water in stock tanks for domestic and livestock use. Texas’ various water right documents—including certificates of adjudication, permits, term permits, and temporary permits—do not guarantee that water will always be available. But some of them provide more certainty than others do. Each such document has a priority date assigned to it.

Under Oregon law, all water is publicly owned. With some exceptions, cities, towns, farmers, factory owners, and other users must obtain a permit or water right from the state’s Water Resources Department to use water from any source, whether it is underground, or from lakes or streams. Oregon’s water laws, like many states, are based on the principle of prior appropriation. Usually the first person to obtain a water right on a stream is the last to be shut off in times of low stream flow. In water-short times, the water right holder with the oldest date of priority can demand the water specified in their water right regardless of the needs of junior users.

If there is a surplus beyond the needs of the senior right holder, the person with the next oldest priority date can take as much as necessary to satisfy needs under their right and so on down the line until there is no surplus. The date of application for a permit to use water usually becomes the priority date of the right. The appropriation doctrine has been law since 1909 in Oregon when passage of the first unified water code introduced state control over the right to use water. Before then, water users had to depend on themselves or local courts to defend their rights to water.

Edwards says that in Calif-ornia, there are two general classes of rights to surface water: riparian and appropriative. “Within the appropriative category, there are four main sub-groups of rights: pre-1914 rights, small domestic use, small stock ponds constructed prior to 1969, and general appropriative rights obtained through the application, permit, and license process,” he says. “In order to have a right to divert and/or store water, whether it be for domestic use or for commercial use, the person or group using the water must generally have either a riparian right or one of the types of appropriative rights. There are also certain miscellaneous water rights, including prescriptive rights and rights to a spring. Each type of right has its own nuances and required documentation.”

Water Rights Glossary

Appropriative rights
Rights to or ownership of a supply of water which is appropriated, independent of land ownership, and put to beneficial use. Appropriative rights are allocated based on priority of use, and are subject to loss by non-use or abandonment.

Beneficial use
Beneficial use is the use of a reasonable amount of water necessary to accomplish the purpose of the appropriation, without waste. Some common types of beneficial use are domestic use, irrigation, municipal, wildlife, recreation, and mining.

Correlative rights
Water rights where all users of water on an irrigation canal or an acequia have the same priority date of use and there is only one point of diversion for a common ditch or canal.

Prior appropriation

A doctrine of water law which allocates the right to use water on a first-come, first-served basis. The doctrine was developed out of the system of administrative disposition of land grant. Disputes were settled in favor of the party with the oldest grant.

Priority date
The priority date is the official time a claim or right to water is recognized by the state. This is used to determine which users with claims have senior and junior water rights for a given river, stream, or aquifer. The older the priority date, the more senior rights a user has.

Water right permit
This represents permission given to a water right applicant by the state to develop a water right. Water rights are considered ”developed” when applicants follow provisions outlined in their permits. A developed water right permit remains in effect until a water right certificate is issued.

Water right certificates
These certify that water users have authority to use a specific amount of water under certain conditions. The certificate is linked to the land, not the individual, and is subject to relinquishment for lack of use (“use it or lose it”). Certificates are legal documents recorded at county offices.

Water appropriation
A water appropriation is an authorization granted by the state to make a private, beneficial use of the state’s water resources. An approved appropriation authorizes use of either ground or surface water and is issued as either a water right permit for a new water use or as a vested water right for an existing water use pre-dating a certain time (depending on the state in question).

How is a water right established?
Because water rights laws vary so widely from state to state, the process for obtaining rights is also different. In Idaho, there were two ways a surface water right could be established prior to May 1971, according to the Idaho Department of Water Resources’ Web site, the agency that oversees water rights in the state. The first way was to simply divert water and apply it to a beneficial use. These water rights are called “beneficial use,” “historic use,” or “constitutional” water rights. The priority date for a water right established by this method is the date that water was first put to beneficial use.

The second way to establish a surface water right was to comply with the statutory method in effect at the time the water right was established. The current statutory method is an application/permit/ license procedure. The priority date for a water right established by this method is the date that a person files an application with the state.

Prior to 1903, Idaho used a “posted notice” statute, which allowed water users to post notice at the point of diversion and record the notice at the county recorder’s office. The user then had to actually divert and use the water, among other things. If the statutory requirements were met then the priority date for a water right established under the posted notice statute was the date of posting the notice. Water rights established under the old statutory method are called “posted notice” water rights, but are considered beneficial use rights because they are not confirmed by a permit, license, or decree.

In May 1971, the state changed its procedures, resulting in only one way to establish a right to water, which is to follow the application/permit/license procedure the state put into effect. The one exception to this rule is for water rights used solely for watering domestic livestock instream.

The process for gaining a groundwater right closely resembles the surface water procedure in Idaho. There is one exception to this rule. A “beneficial use” right to groundwater may still be established for domestic purposes. “Domestic purposes” is defined by statute as “water for household use or livestock all other purposes, including irrigation of up to one-half acre of land in connection with said household where total use is not in excess of thirteen thousand (13,000) gallons per day.” The state limits the “domestic purpose” statute by not including water for multiple ownership subdivisions, mobile home parks, and commercial or business establishments. Idaho interprets the rule of domestic exception for single-family domestic purposes only.

In California, Edwards says anyone wanting to establish a water right for small domestic use must do two things. “First, the appropriator must register with the state’s water board. Second, the appropriator must apply the water to reasonable and beneficial use with due diligence,” he says. “It is important to remember that both requirements must be satisfied. A small domestic use right cannot be acquired simply by using the water; you must also register with the Water Board. Similarly, a registration alone does not give the registrant a water right. The registrant must also make reasonable and beneficial use of the water in a timely fashion.

“Once an appropriator acquires a right to appropriate water for small domestic use, the appropriator must comply with the conditions established by the Water Board in order to maintain that right,” Edwards notes. “The Water Board is required to give registrants a written document setting forth the conditions. An appropriator must also renew his or her registration prior to the expiration of each five-year period following the completed registration. If the registration is not timely renewed, the Water Board may revoke the registration.”

Federal Rights Complicate Matters
Not only do landowners and other groups wanting water need to understand state water rights doctrine, but in some cases, they must also follow specific federal laws. Federal reserved water rights are based on the U.S. government’s case law, presidential executive order, or an act of Congress. In some cases, the federal government exerts its role in water rights to protect native fish and wildlife on the threatened or endangered species list.

Native American’s claims to water rights have customarily been granted through federal laws, notably through a 1908 Supreme Court decision that gave Native American reservations enough water at the time they were created to meet the needs of the reservation. Based on the western states’ prior appropriation doctrine, Native American water rights are generally senior to rights held by non-Indian users because Native Americans were often the first inhabitants of an area.

Until recent years, states and courts have made little effort to determine the quantity of water reserved for Native Americans. As
a result, Indian water rights still remain largely unused and unquantified. Because these rights are not quantified, non-Indian water users with junior water rights face considerable uncertainty when planning their long-term water use. Settling or adjudicating Indian water rights can help both Indian and non-Indian water users to plan future water resources development.
But tribes have multiple interests in water. Water development is important for tribal economic development on reservations. Conversely, tribes also strongly support the protection methods of instream flows for fish and wildlife resources downstream.
Indian rights could have a significant effect on water rights established under state law. Disputes occasionally arise regarding whether the state or a Tribe (or both) have jurisdiction over non-Indian use of water on Indian reservations. Case law is mixed on this issue; so more case law may be necessary over time to provide clarity. State, tribal, and federal negotiations over water rights are currently underway on numerous reservations.

Growing Needs Cause Disputes
As population growth hits various regions of the country, local community leaders must strive to maintain adequate water supplies. Couple human and industrial growth with drought conditions and you’ve got the makings of a large-scale problem. And that’s exactly what happened in the southeastern states of Georgia, Alabama, and Florida.

The so-called “tri-state water war” between the three states kicked off in 1990 when Atlanta sought a permit from the U.S. Army Corps of Engineers to create reservoirs on the Chattahoochee, Flint, and Coosa Rivers. City leaders cited anticipated growth and future water needs as the reason to increase its withdrawals of up to 50 percent from the Chattahoochee and Flint Rivers by 2010. The proposal set off a dispute between Georgia and its downstream neighbors, Alabama and Florida. Alabama saw the plan as a threat to its own water supply, possibly stunting industrial and population growth in the state and resulting in degraded water quality due to the decrease in water flow.

Alabama argued that the downstream flow already brings with it Atlanta’s pollution and that a decrease in the water flow would mean more pollutants that would not get diluted. Florida joined the dispute contending that the plan to siphon off more water from the Chattahoochee and Flint rivers would deplete the flow into Florida’s Apalachicola Bay and would critically injure the state’s $70 million oyster industry.

Unable to convince Atlanta to halt its plans, Alabama filed a lawsuit in federal court to prevent the Corps from implementing the siphoning plan. Florida later joined the suit. In 1992, the lawsuit was suspended pending a comprehensive study of the future water needs of the three states. Worried about what the study results might show, the three states entered into two interstate water compacts that would allow the governors of each state and one federal appointee to analyze the study’s finding and divide the water supplies accordingly.

The compacts cover two separate river systems: the Alabama-Coosa-Tallapoosa river basin and the Apalachicola-Chattahoochee-Flint river basin. The two river systems serve a wide variety of municipal, industrial, and recreational uses, and support a complex natural ecosystem. The two compacts are the first of their kind in the southeast. While water compacts are commonplace in the water-scarce west, prior to this dispute only one other compact was in place outside the western region.

Is the water being stolen?
While various permits, laws, and court decisions dictate how water should be delegated in a given area, the reality is that not everyone follows the rules. Water being used without a permit becomes a growing problem in times of drought and low stream or river flows. In Texas, the honor system governs compliance with water rights, according to the Texas Natural Resource Conservation Commission’s (TNRCC) Web site. However, when rainfall is low, some users may not realize that the river conditions do not allow them to divert the water flowing past their property. For example, the flow may represent stored water that has been released for downstream buyers or to satisfy environmental flow requirements for wildlife, or the flow may need to pass because downstream users have senior rights and need the water.

During 1996’s dry summer, some users complained to the TNRCC that stored water from upstream reservoirs released to supply downstream buyers had been diverted by other users. Because of low rainfall, pumping demands had increased. To satisfy downstream purchasers, river authorities, water districts, and other water suppliers had released substantial amounts of stored water from reservoirs. In some cases, those downstream users complained that the water they had purchased never reached the intended destination.

In response to complaints, the TNRCC set up a temporary water rights protection program. The agency increased its streamflow monitoring in the river basins to detect unauthorized diversions. In addition, the TNRCC stopped granting temporary water use permits in several key river basins. Where low streamflows rendered normal pumping sites high and dry, the agency also allowed water right holders to amend their permits temporarily to change diversion points in order to gain better access to their water. These amendments did not adversely affect other water right holders.

In Oregon, state law allows Water Resources Department personnel to enter private land to inspect well and water diversion systems to ensure that water laws are obeyed. “Watermasters” and well inspectors—who are employees of the Department—usually conduct inspections. The Department’s groundwater geologists also make inspections.

The state’s watermasters respond to complaints from water users and determine in a time of water shortage who has the right to use water. They may shut down junior users in periods of shortage. Watermasters work with all of the water users on a given water system to ensure that the users voluntarily comply with the needs of more senior users. Occasionally, Oregon’s watermasters take more formal actions to force compliance of unlawful water users or those who are engaged in practices which “waste” water, or continually use more water than needed to satisfy the specific beneficial use for which the right was granted.

What does the future hold?
Some say that increasing population growth will put even more stress on water utilities to provide enough water for customers in the future. Critics of the current mish-mash of water rights laws from state to state say that without changes in policy, Americans could be short of water in the next 25 years.

Current regulations encourage inefficient agricultural water use. For example, the “use-it-or-lose-it” rule forces water rights holders to use their entire water allotment or risk forfeiting it. In some states, rules prohibit farmers from storing or selling water they have a right to, but is beyond their agricultural needs. While many cities search for water, critics say these regulations discourage farmers from practicing water conservation. As a result, in many areas, municipal water users suffer or will suffer chronic shortages, and governments react with severe water use restrictions.

For more information about water rights in your state, contact your state primacy agency. For the number and address of your state primacy agency, call the National Drinking Water Clearinghouse at (304) 293-4191. and ask to speak with a drinking water technical assistant.