Series: Colorado Water Law Basics #6 - Prior Appropriation Water Rights vs. Riparian Water Rights

This USGS map of streamflow conditions can also convey the greater density of water resources available in the eastern U.S., and the along the Mississippi River Basin, as compared to the western U.S.

The difference between riparian water rights and prior appropriation water rights is the difference between the west and the east. In the Eastern United States, water is generally much more plentiful. In the east precipitation is generally over 40 inches per year, and river flows are consistently measured in flows of tens of thousands of cubic feet per second (cfs); while in the West, precipitation is generally 20 inches per year or less, and river flows hit peaks of thousands of cfs for a few weeks when snowfall melts before dropping considerably to a more lower baseflow. These two water climates call for two very different water law approaches.

Riparian Water Rights

Riparian water rights are more akin to land rights than prior appropriation rights. In many states with riparian water rights, owning land de-facto means you also own the water on or below that land. This means you can drill a well and pump that well as much as you need or pull water from a stream or lake on your property to use it how you wish on the property. These water rights cannot be separated from the land they sit on.

This system works very well in areas where everyone has enough water to go around, aquifers are recharged more than they are pumped, and most water issues are related to having too much in the form of flooding instead of drought. In riparian rights, permits may not even be needed to put the water to use, but always check your state and local laws before you begin a water project. The water itself is not owned by the person who owns the land, but they do have the right to use it as they wish.

Flooded street in New Orleans

Hoover Dam at Lake Powell, drought conditions.

Prior Appropriation Water Rights

As with any resource, scarcity drives up cost and increases the overall complexity of the system. Water in the west is no different, and in the west the doctrine of prior appropriation was developed to distribute this scarce resource. Similar to riparian rights, prior appropriation water rights owners in the west do not own the water itself, but they do own a right to use the water. That is where the similarities end.

Prior appropriation water rights are “first in time, first in right.” The water right that has been around the longest is first in line to get the water. So if a water right 150 miles downstream is one day older, or 100 years older, than your water right and they need more water, you get nothing. Once they have enough to satisfy their right, then you can also take water. Additionally, since water is such a valuable commodity in the west, you must also show that you are putting that water to beneficial use. If you do not use your water right for an extended period of time, say 20 years, the State will likely abandon your water right, so that the water can be claimed by other water rights users for beneficial use.

Prior appropriation water rights are a property interest separate from the land and, therefore, can be separated from the land to be bought and sold. This makes sense relative to riparian rights, which only allow use of the water flowing through your land, whereas prior appropriation water rights may have to be delivered 50 or more miles via canals to reach the land where it will be used.

Of course there is a lot of additional complexity added when considering groundwater rights, or larger surface water right systems, but the rule of “first in time, first in right” is the foundation of water law in the western United States.

Hopefully this gives you a basic understanding of the difference between riparian water rights and the doctrine of prior appropriation. If you would like to understand more about the doctrine of prior appropriation, click this link for our more in-depth blog on the topic.

If you are in need of any water resources engineering services, please give Lytle Water Solutions a call at 303.350.4090 and ask for Chris or Bruce. We will be happy to talk to you about your water resources challenges and develop a proposal tailored to your needs, free of charge. And stay tuned to our blog page for new weekly blog posts!

Chris Fehn, P.E., P.G. chris@lytlewater.com

Bruce Lytle, P.E. bruce@lytlewater.com

Anna Elgqvist anna@lytlewater.com