Surface water: riparian vs prior appropriation

Why this matters: These 2 doctrines answer the same question (“who gets the water when there isn’t enough?”) with opposite logic. Knowing which one you’re standing in tells you what your land is worth in a dry year.

The core difference in one table

Riparian doctrine

If your land abuts a watercourse, you’re a riparian ownerriparianThe eastern US rule, and Wisconsin's rule. If your land touches a lake or stream, you get reasonable use of that water, shared with everyone else whose land touches it. The rights come with the land and generally cannot be sold separately from it. and you get a bundle of rights that came over from English common law.

What’s in the bundle:

• Reasonable usereasonable useYou can use the water however you like until it unreasonably harms someone else's use. This is Wisconsin's groundwater rule. The catch: it is enforced by a lawsuit after the harm, not by a permit beforehand. of the water for domestic, agricultural, and other purposes
• Access to the water from your land
• The right to build a pier or wharf, subject to permits
• The right to accretionaccretionSoil that slowly builds up along your shoreline over time. It becomes yours. (soil slowly deposited) and relictionrelictionLand that gets exposed when water permanently recedes. It also becomes yours. (land exposed by receding water)
• The right to use the entire surface of a lake for boating and recreation, not only the part in front of your lot
• A right to the water’s natural flow and quality, though heavily modified by statute

The limiting principle is reasonableness, and it’s relative. Your use is legal until it unreasonably interferes with another riparianriparianThe eastern US rule, and Wisconsin's rule. If your land touches a lake or stream, you get reasonable use of that water, shared with everyone else whose land touches it. The rights come with the land and generally cannot be sold separately from it.’s use. That means you can’t know if you’re in violation until somebody sues you and a court balances the factors: purpose, economic value, social utility, harm caused, practicality of avoiding it.

That’s genuinely uncomfortable if you’re planning a large withdrawal. It’s fine if you’re running a house and a garden.

Two flavors historically:

Natural flow was the older, stricter rule. Every riparian is entitled to the stream flowing “undiminished in quantity and unimpaired in quality.” Taken literally, it prohibits nearly all use. Courts abandoned it.

Reasonable use replaced it everywhere and is what governs today. It’s the Restatement (Second) of Torts sections 850 and 850A standard.

Regulated riparianism is the modern overlay. Most eastern states now require permits for withdrawals above a threshold, layering an administrative permit system on top of common law rights. Wisconsin does this for high capacity wellshigh capacity wellIn Wisconsin, a well (or all wells on 1 property combined) capable of pumping 100,000 gallons a day or more. These need DNR approval. An ordinary house well does not. (100,000 gallons per day) and for anything requiring a Chapter 30 permitChapter 30 permitWisconsin DNR permission to build or change anything on navigable water: piers, dredging, rock riprap, or grading near the shoreline. on navigablenavigable in factWisconsin's test for whether a waterway is public. Roughly: can a small recreational boat float on it on a regularly recurring basis. A lot of modest creeks qualify. water. The common law right still exists underneath, and the permit is the practical gate.

Prior appropriation

Born in the California gold fields and hardened in Colorado. The rule is brutal and clear.

How a right is created (historically):

1. Intent to appropriate
2. DiversiondiversionMoving water out of the Great Lakes basin. The Compact bans new ones except in a few narrow cases. from the source
3. Application to beneficial usebeneficial useActually using water for something productive: farming, drinking, industry, and in most western states now, keeping fish alive. In the West it is what earns you a water right and what caps how much you get.

Modern versions replaced step 1 and 2 with a state permit application, but the priority datepriority dateThe date your water right got in line. In a western drought, older dates get their full amount and newer dates get nothing. It is the single most valuable number in a western water deal. usually relates back to the application date.

How shortage works: In a bad year, the state water commissioner or “watermasterwatermasterThe official who enforces the priority order on a western river, shutting off newer users so older ones get their full amount.” administers a call. The most senior right holder gets their full decreeddecreeThe court order at the end of an adjudication, spelling out exactly who gets how much water and in what order. amount. Then the next. When the water runs out, everyone below the line gets nothing. There’s no proration and no sharing.

This is why a priority datepriority dateThe date your water right got in line. In a western drought, older dates get their full amount and newer dates get nothing. It is the single most valuable number in a western water deal. is the single most valuable number in a western water deal. An 1870s right on a Colorado stream is a different asset class than a 1975 right on the same stream.

Colorado is the purest version. It’s the only state where water rights are adjudicatedadjudicationA court proceeding that sorts out every water claim on a river system at once. Arizona's has been running since 1974 and still is not finished. exclusively by specialized water courts, 7 of them, one per major basin. No permit agency, just decreesdecreeThe court order at the end of an adjudication, spelling out exactly who gets how much water and in what order..

The no-injury ruleno-injury ruleYou can sell or move a water right only if the change does not hurt anyone else who depends on that water. This shrinks nearly every deal and is why they take years. governs transfers. You can sell and move a water right, but only the “historical consumptive usehistorical consumptive useThe slice of a water right you are actually allowed to sell: the water you truly used up, not the part that seeped back into the river for someone downstream.” portion, and only if the change doesn’t injure any other right holder. Return flowsreturn flowWater you withdrew that finds its way back to the river or aquifer. Downstream users depend on it, which is why you usually cannot sell that portion. matter: if you irrigated and 40 percent seeped back into the stream where a downstream junior relied on it, you can’t sell that 40 percent. This shrinks nearly every transfer and it’s the main reason water deals take years.

AbandonmentabandonmentLosing a water right by not using it and showing you meant to give it up. and forfeitureforfeitureLosing a water right automatically after a set number of years of non-use, commonly 5. Unlike abandonment, what you intended does not matter.. Stop using it and you can lose it. Most states have a statutory forfeitureforfeitureLosing a water right automatically after a set number of years of non-use, commonly 5. Unlike abandonment, what you intended does not matter. period, commonly 5 years of non-use. Colorado maintains a published “abandonmentabandonmentLosing a water right by not using it and showing you meant to give it up. list” every 10 years. “Use it or lose it” is real, and it perversely encourages waste, which several states have patched with temporary fallowing and conserved-water statutes.

The hybrid states

California, Texas, Oklahoma, Nebraska, Kansas, North and South Dakota, Oregon, and Washington recognize both, usually because they had riparian rights on the books before appropriation arrived and had to reconcile them.

Lux v. Haggin (Cal. 1886) is the famous fight. Cattle baron Henry Miller (riparian) against James Ben Ali Haggin (appropriatorprior appropriationThe western US rule. Whoever first took water and put it to use has the strongest claim, no matter where their land sits. The shorthand is "first in time, first in right."), over the Kern River. Riparians won, sort of, and California ended up with a dual system where riparian rights are senior to appropriations but can’t be lost by non-use, which makes California water accounting a permanent headache.

Where Wisconsin sits

Wisconsin is riparian, with 2 unusual features that make it stronger than the typical eastern state:

1. A constitutional public trust doctrinepublic trust doctrineThe state holds navigable waters and the land beneath them for everyone, and cannot sign that away. Wisconsin's version is written into the state constitution and is among the strongest in the country. (Wis. Const. art. IX, sec. 1) that applies to all navigablenavigable in factWisconsin's test for whether a waterway is public. Roughly: can a small recreational boat float on it on a regularly recurring basis. A lot of modest creeks qualify. waters, with navigability defined generously. This limits what riparian owners can do and gives the public rights on the water in front of your land.
2. The Great Lakes CompactcompactA binding agreement between states that Congress approves. Once approved it becomes federal law and overrides conflicting state rules. The Great Lakes Compact is one., federal law since 2008, which bans moving water out of the basin with narrow exceptions.

The practical consequence: your riparian rights in Wisconsin are real and valuable, and they are more constrained by public rights than in most states. You own to the ordinary high water markordinary high water markThe physical line on a shoreline showing where water regularly reaches. On a Wisconsin lake your private property stops there and the state owns the bed below it. The DNR decides where the line is, not your deed. on a lake and the public owns the water and the bed below it.

Full treatment in ../03-wisconsin-great-lakes/01-wisconsin-water-law.md.

Interstate rivers are a third system

When a river crosses a state line, neither doctrine controls by itself. Three mechanisms allocate:

1. Interstate compact. States negotiate, Congress consents, and it becomes federal law. The Colorado River CompactcompactA binding agreement between states that Congress approves. Once approved it becomes federal law and overrides conflicting state rules. The Great Lakes Compact is one. of 1922 is the famous one, and it famously over-allocated the river based on an unusually wet measurement period.
2. Equitable apportionmentequitable apportionmentThe US Supreme Court dividing an interstate river between states that cannot agree. The evidence bar is very high. Florida spent over a decade and lost.. The Supreme Court divides the river in an original-jurisdiction suit. Kansas v. Colorado (1907) established it. The bar is high: the complaining state must prove “real and substantial injury” by clear and convincing evidence. Florida spent over a decade and reportedly north of $50 million losing Florida v. Georgia in 2021.
3. Congressional apportionment. Congress does it by statute, as in the Boulder Canyon Project Act, which the Court read as controlling in Arizona v. California (1963).

Case briefs for all of these are in ../01-cases/.

Next

03-groundwater.md, where the real risk is.