Water rights in the United States can be as complicated as jurisdiction. States east of Texas (except Mississippi) inherited the riparian doctrine from the system of English common law. Under this doctrine, any landowner with property containing water frontage receives the right to use water from the body of water. These rights include domestic and agricultural use but also hunting, fishing, boating, and the right to build a dock or pier. These rights remain today because these states receive ample rainfall and water scarcity is much rarer than in the West.
Most western states follow the prior appropriation doctrine. This model gives water rights to whoever first put the water to beneficial use. Many of these doctrines are codified in the state constitutions and other statutes rather than from common law. Texas and the Great Plains states to its north, Mississippi, and states along the West Coast use a blended water rights system.
Separate from both systems is a special set of doctrines arising from Supreme Court cases specifically focused on reserved Native American water rights. The court established these rights as part of the ruling Winters v. United States (1908), which secures unalienable rights to the waters flowing through and bordering established Native American reservations through treaty. All prior appropriations claims made after the treaty are subordinate to the Native American water rights, even in case of non-use in part by the Native American nation. The Supreme Court later expanded Native American water rights to those reservations created by executive order in the decision regarding Arizona v. California (1963). The decision also guaranteed rights to the total amount of water sufficient to irrigate all of the reservation’s practical irrigable acreage.
As water rights issues arise and are taken to the courts, the law evolves and people and projects adapt. Climate change and demographic shifts are increasing water scarcity and water demand, thereby intensifying issues on water rights.
Images: “Lake Sharpe near Lower Brule, South Dakota” by NASA
