Water Rights

The short version

Water rights determine who can use water from rivers, lakes, and underground sources. These rights are crucial for farming, industry, and daily life, and are often managed at state and federal levels to ensure water quality and availability. Federal laws like the Clean Water Act play a major role in protecting water quality, which indirectly affects the value and usability of water rights. Understanding these rules helps you know what you can and cannot do with water.

The law this is built on

Every point below comes from the authority named next to it. Verify the current text before relying on it.

• 33 U.S.C. § 1251 (Clean Water Act)

  This law states that its goal is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. It also aims to eliminate the discharge of pollutants into navigable waters.

  Why it matters: This law sets the main rules for water quality across the United States, affecting whether water is clean enough to use for various purposes.

• 33 U.S.C. § 1251(g)

  This part of the Clean Water Act says that the Act does not stop states from allocating (giving out) water rights. States still have the power to decide who can use how much water.

  Why it matters: Even though federal law protects water quality, the actual right to take and use water usually comes from your state government.

• 42 U.S.C. § 7401 (Clean Air Act)

  This law aims to protect and improve air quality. It states that air pollution control is primarily the responsibility of state and local governments.

  Why it matters: While not directly about water, this law shows how federal laws work to protect natural resources. Protecting air quality can indirectly affect water quality by reducing acid rain or other airborne pollutants that fall into water.

Words you need to know

Surface Water Rights

These are rights to use water found in rivers, lakes, streams, and other bodies of water that are visible on the land's surface. Rules for surface water vary greatly by state, often following either 'riparian' or 'prior appropriation' systems.

Groundwater Rights

These are rights to use water found underground in aquifers. Rules for groundwater also vary by state and can be complex, sometimes linked to the land above the water source.

Riparian Rights

In some states, if your property borders a body of water, you have a right to use that water. This right is tied to the land and is generally for reasonable use without harming downstream users.

Prior Appropriation (First in Time, First in Right)

In other states, especially in the Western US, the first person to put water to a beneficial use (like farming) gets the first right to continue using that amount of water. This right can be separated from the land.

Clean Water Act (CWA)

A federal law that sets quality standards for surface waters and regulates the discharge of pollutants into them. It aims to make waters swimmable and fishable. (33 U.S.C. § 1251)

Navigable Waters

Under the Clean Water Act, this term refers to waters that are, have been, or could be used for interstate commerce, including their tributaries. The scope of 'navigable waters' determines where federal water quality protections apply.

Your rights

• ✓You have a right to clean water, protected by federal laws like the Clean Water Act.
• ✓Your state government has the authority to grant you specific rights to use water, whether from surface or underground sources.
• ✓If you own land next to a river or lake in a 'riparian' state, you likely have the right to reasonably use that water.
• ✓If you are the first to put water to a beneficial use in a 'prior appropriation' state, you may have a senior right to that water.
• ✓You have the right to receive information about water quality in your area from state and federal agencies.

How the process actually works

1. 1
   Federal Water Quality Protection

   Continuously monitored by EPA and states.

   The Clean Water Act (33 U.S.C. § 1251) establishes national goals for water quality and limits on pollution discharged into 'navigable waters.' This ensures water is clean enough to be used.

2. 2
   State Water Allocation

   Varies by state; typically an ongoing process of application and permitting.

   States maintain primary authority over who gets to use water and how much. They create systems for granting water rights, often based on historical use or land ownership (33 U.S.C. § 1251(g)).

3. 3
   Identifying Your Water Source

   When you acquire land or plan a project involving water use.

   Determine if the water you want to use comes from a river, lake, stream (surface water) or an underground aquifer (groundwater). Different rules apply to each.

4. 4
   Understanding State Law

   Before you begin using water or when disputing water use.

   Research your state's specific water laws. Your state will follow either a riparian doctrine, prior appropriation doctrine, or a mix of both, for surface water. Groundwater rules are often separate.

5. 5
   Applying for Water Rights (if needed)

   Varies by state, often before beginning substantial water use.

   Many states require permits or licenses to divert or withdraw certain amounts of water, especially for non-domestic uses like irrigation or industrial processes.

6. 6
   Complying with Environmental Regulations

   Ongoing for any water user or discharger.

   Even with water rights, you must ensure your use does not violate federal or state water quality laws. For example, you cannot discharge pollutants without a permit (33 U.S.C. § 1311).

Deadlines that can end your case

• Permit Application Deadlines
  Varies by state

  Missing a deadline can delay your project, cause you to lose your place in line for water rights, or result in penalties for unpermitted water use.

• Pollution Discharge Permit Renewal (NPDES)
  Every 5 years (federal standard)

  If you discharge pollutants into navigable waters, your permit (issued under 33 U.S.C. § 1342) must be renewed. Failure to renew means you cannot legally discharge pollutants.

• Responding to Violation Notices
  Varies by agency (often 30-90 days)

  If you receive a notice that you are violating water use or quality rules, you must respond within the given timeframe to avoid further enforcement actions or penalties.

Common questions

How this changes by state

Water rights laws vary significantly from state to state. Eastern states often follow 'riparian rights,' meaning if your land touches a water body, you can use that water reasonably. Western states more commonly use 'prior appropriation,' meaning the first person to use water for a beneficial purpose has the strongest right, regardless of land ownership. Groundwater rules are also unique to each state, sometimes tied to surface water, sometimes regulated separately. To find your state's specific rules, contact your state's department of water resources, environmental quality, or natural resources. Their websites will provide detailed information on permits, laws, and how to apply for water rights.

When you need a lawyer

You should consider getting a lawyer if you are buying or selling property with significant water use, if you are planning a project that requires new or changed water rights, or if you face a dispute over water use with a neighbor or government agency. A lawyer can also help if your existing water rights are challenged, or if you receive a notice of violation related to water quality or usage from state or federal regulators.

Do this today

• →Identify your state's primary water agency (e.g., Department of Water Resources, Environmental Quality).
• →Visit your state water agency's website to learn about their specific water rights doctrines and permitting processes.
• →If you own property with water access or use, review your property deeds for any existing water rights. (Note: These are often not explicitly listed.)
• →If planning new water use, contact your state water agency for guidance on necessary permits or applications.