Spring 2009

Water Rights Summary

Riparian Water Right
A riparian water right is a right to use the natural flow of water on riparian land.  Riparian land is land that touches a lake, river, stream, or creek. 

Most western states either never recognized riparian rights or no longer do so.  California is the only western state that continues to recognize riparian rights.  The California Legislature has enacted very few laws regarding riparian rights.  As a result, riparian rights have been frequently litigated. As a result of these lawsuits, the courts have clarified rules that apply to riparian rights. Water can only be diverted under a riparian right when that water is used on land that drains back to the lake, river, stream, or creek from which the water was taken. 

A riparian right exists on the smallest piece of land that touches a water source.  If riparian land is subdivided so that some parts of the land do not touch the water, those lands will lose their riparian rights unless steps are taken to preserve them when the subdivision takes place. Riparian rights that attach to a small parcel cannot be used on adjacent parcels, even if those parcels touch the riparian parcel. Water obtained through a riparian right must be used on the parcel connected to the riparian right.

A riparian right can be lost even if land is not cut off from the water source. This can happen when the owner of the riparian land sells or transfers the land to someone but chooses not to transfer the water right. Once it is lost, a riparian right can almost never be restored. Riparian water rights cannot be sold or transferred other than with the riparian land.

However, riparian rights are not lost by non-use. A person who has a riparian right, but is not currently using water, has a “dormant” riparian right. He or she can begin using water under that dormant right at any time. If the new riparian use results in a junior water right holder not having enough water, the junior water right holder must decrease his or her diversion and use of water until the senior water right holder has enough water to meet his or her reasonable needs.  Riparian right holders on a stream course all have the same priority. If there is not enough water available for competing riparian users, they must share the available supply according to their needs. Generally in this situation, water used for interior domestic purposes, such as drinking, cooking and bathing, has the highest priority.

Prescriptive Water Right
A prescriptive right is a right that is acquired through adverse possession of someone else’s water right.  It is similar to a “squatter’s right” to land. Prescriptive rights are difficult to obtain and can only be granted by a court. Most people in California do not have and cannot acquire a prescriptive right. The courts have clarified that since 1914, the only way to acquire a new water right is to apply for and receive a water right permit from the State Water Board.

Appropriated Water Right
Someone who takes water for use on non-riparian land or who uses water that would not be there under natural conditions on riparian land appropriates water. Water right permits and licenses issued by the State Water Board and its predecessors are appropriative water rights.

Pre-1914 Water Rights
An appropriative water right that was acquired before 1914 is called a pre-1914 appropriative water right. If one has a pre-1914 right they do not need a water right permit unless they have increased their use of water since 1914.  If one has increased the amount of water over the amount used in 1914, they must get a water right permit for the new amount, unless they can prove that they had a plan in place before 1914 to use the additional water after 1914. If one can show that they began planning to use water before 1914 but did not begin using the water until after 1914, they may not need a water right permit if they diligently took steps to construct their project and to reasonably and beneficially use water.  ■

Return to the Losing the Family Farm index

Home | Top