Riparian Rights

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Riparian rights

Riparian rights are the rights of persons who own land bordering a river, bay, or other natural surface water. A riparian right entitles the property owner to the use of both the shore and the bed as well as the water upon it. Such rights, however, may not be exercised to the detriment of others with similar rights to the same watercourse. As Sir William Blackstone observed in his Commentaries on the Laws of England (1765–69), "If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow; for he hath by the first occupancy acquired a property in the current."

Riparian rights, or riparianism, is a legal doctrine used in the eastern United States to govern water claims. Riparian landowners have rights to the use of the water adjoining their property, but not to groundwater or artificial waterways such as canals. Riparian rights were once subject to the "natural flow doctrine," which held that the right-holder could use and divert the water adjoining his or her property at will unless this use diminished the quantity or quality of the natural flow to other right-holders. Since almost any use could be said to diminish the natural flow, this doctrine has given way to the "reasonable use" rule. David H. Getches explains the "reasonable use" rules in this way: "If there is insufficient water to satisfy the reasonable needs of all riparians, all must reduce usage of water in proportion to their rights, usually based on the amount of land they own."

In the arid western states, water rights are governed by the "prior appropriation" doctrine, under which rights are derived from the first use of water rather than ownership of riparian property. If someone bought land on a river and simply let it flow past, for instance, someone else could acquire a right to that water by putting it to use. The right remains in force, furthermore, unless the right-holder abandons the use of the water. Prior appropriation rights may also be transferred, and some cities in Arizona and elsewhere in the arid Southwest have recently taken advantage of this option by buying large ranches with established water rights in order to secure water supplies for their residents.

California has given its name to a hybrid system, followed in several states, that combines features of the riparian and prior appropriation doctrines. Whatever the system, water rights are limited by the "reserved rights doctrine," intended to assure adequate water for Native American reservations and public lands.

State and federal agencies have the legal right to regulate land use in the protection of riparian areas. Some states have established setbacks, or buffer zones, along shorelines or riverfronts that regulate development activities within the area. For example, in 1996, Massachusetts enacted the Rivers Protection Act that required property owners to follow a permitting procedure before developing any part of a corridor of 200 ft (61 m) along a riverfront or stream. New Hampshire, Wisconsin, and Montana are among the other states that have implemented state regulations of activity in riparian areas. Some of these state regulatory actions have been challenged in the federal court system as violating the Fifth Amendment constitutional right of citizens to be protected from "takings," by any government entity. Takings law prohibits the government from appropriating property for a non-public use, or from failing to provide the owner with suitable and just compensation. The placement of development, the destruction of wetlands , and the amounts of fair compensation to property owners are common points of contention in court cases that challenge the government's ability to control development in riparian areas. For example, the Federal Circuit Court determined that a mining company in Florida was due compensation when it was prohibited from removing minerals from a portion, but not all of its property located in a wetland. The Court ruled that the restriction placed on the company constituted a "partial takings," because it forced the company to bear an expense that was the public's responsibility.

Other issues that have been increasingly contested in the courts are the rights of private property owners to build docks on their waterfront property. In the 2001 case in New York, Stutchin vs. the Village of Lloyd Harbor, the plaintiffs charged that the action by the Village to deny them the right to build a longer dock than the regulations allowed constituted a takings because the action denied them the use of their riparian rights. Reparian rights include the right to wharf out to a navigable depth as long as navigation is not impeded. The Village was acting on the regulations developed along the guidelines of the New York Coastal Management Program, which assists communities in protection of coastal resources. In this case, a New York district court judge ruled that the municipality of Lloyd Harbor had the authority and the right to restrict the length of the private dock because the plaintiff's access to the water was not eliminated, and the local jurisdiction has the right to insure that public rights are protected. The judge saw that the construction of the planned dock would interfere with navigation and pose a threat to the natural resources of the area.

[Richard K. Dagger and Marie H. Bundy ]