Water Rights Law and Legal Resources

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Though water covers two-thirds of the Earth’s surface, fresh water that is safe for drinking, bathing, and irrigation is a limited resource. The right to use water – which body of water, who can use it, and for what purpose – is a frequently contested issue, with big business fighting government intervention and neighbors challenging one another on who has water rights and the extent of those rights.

Water rights is the area of law that aims to regulate the use and enjoyment of water in lakes, ponds, rivers, streams, underground, and on the surface of land.

In the early days of the United States, rights to water were liberal, permitting free unlimited use to anyone. But as the population grew and spread and the demand for fresh clean water rose, disputes about water access and use increased – especially in states where the climate was arid and water less abundant, such as states in the southwestern United States.

Over time, as the water rights disputes worked their way through the courts, a few doctrines were developed to help resolve disagreements over water.

  • Natural flow
  • Reasonable Use
  • Prior appropriation

The doctrines are applied in three areas concerning water rights:

  • Riparian: A person who owns land abutting a stream, river, pond, or lake is a riparian owner, who has certain kinds of rights to the water associated with possessing the adjacent land
  • Surface water: Water that gathers and pools on the Earth’s surface due to melting snow, drainage, rain, and natural springs
  • Underground water: Moisture that collects in sand, springs, rocks, gravel, and wells

Natural Flow Doctrine

Under the natural flow doctrine an owner with riparian water rights is entitled to:

  • Unlimited amount of water
  • Water whose condition has not been tampered with, altered, or diminished
  • A right equal to his or her neighbor’s to water for everyday purposes such as drinking, bathing, watering plants

A riparian owner is not, however, permitted to divert or remove the water away from its natural course or use it for commercial or irrigation purposes.

Reasonable Use Doctrine

A riparian owner may have reasonable use of water to the extent that his or her use does not excessively interfere with other riparian owners’ rights and interests. The reasonable use doctrine allows for commercial enterprises that are productive and reasonable, i.e. industrial use, unlike the natural flow doctrine, which aims to preserve the natural condition of water.

Prior Appropriation

This doctrine recognizes a superior legal right of the first riparian owner who makes a beneficial use of the water and requires the owner to show that she or he is economically and efficiently using the water. The rights of a riparian owner under this doctrine are subject to the rights of other owners who demonstrate a more economically efficient use.

Surface Water Issues

Problems with surface water often arise when someone tries to remove the water or control it, by building a dam, for example. Two rules have evolved to address such cases.

Common law rule: Allows owners to remove surface water, using any method of choice without being liable should flooding to a neighboring property result.

Civil law rule: An owner is strictly liable for damage caused when the owner alters the natural flow of water. Under this rule, neighbors must yield to nature and accept the outcome that may result from accumulation of standing surface water.

Courts also may apply the reasonable use doctrine to allow owners make reasonable changes to their land to drain the surface water as long as the change does not unduly interfere with a neighbor's right to do the same.

The courts try to balance:

  • Neighbors' competing needs
  • Availability of other, less onerous, drainage methods
  • Degree of damage each method may likely cause

Underground Water Rights

When an owner depletes the underground water supply, other owners with rights to the water may sue for damages. One of the following doctrines may be applied in such matters.

  • Absolute ownership: Owners have the right to draw as much underground water as they want for any purpose, and their neighbors must fend for themselves
  • American rule: Owners can draw as much underground water as they want if not for a malicious or wasteful use. The American rule is applied in a majority of states.
  • Correlative theory: Each owner has an equal right to use underground water for a beneficial purpose, but he or she cannot deplete a neighbor's water supply. When there are water shortages, a court may allocate portions of the underground supply among owners.

State Courts Apply Different Rules and Doctrines

Courts attempt to satisfy the demand for water according to the laws of the state where a water supply is located. In some states the most productive use is rewarded; in other states first use is protected; and others still apply rules of reasonable appropriation.

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