Water Law Fundamentals
Riparian vs Prior Appropriation Water Rights
Water rights doctrine splits the US into two systems: eastern riparian states and western prior appropriation states. This distinction appears on both national and state exam portions.
The Two Water Rights Systems
Riparian Rights (Eastern States)
'Reasonable use' doctrine. Landowners adjacent to a waterway have the right to use water from that waterway. The right is attached to land ownership and cannot be sold separately. Cannot unreasonably interfere with other riparian owners.
Prior Appropriation (Western States)
'First in time, first in right.' Water rights are separate from land ownership and are granted by state permit for a specific use and quantity. Water rights can be bought, sold, and leased independently of land.
Why This Matters for the Exam
In western states, when a buyer purchases agricultural or rural land, water rights may or may not be included in the sale. An agent must know to ask whether appurtenant water rights are included and ensure this is properly documented.
The value of water rights in prior appropriation states can exceed the value of the land itself in some agricultural areas. Senior water rights (established earliest) are the most valuable because they are the last to be curtailed in drought conditions.
The 100th Meridian (running roughly through the center of the Dakotas, Nebraska, Kansas, Oklahoma, and Texas) is the approximate dividing line. Some states use a hybrid system combining elements of both doctrines.
Water Rights FAQ for the Exam
Which states use prior appropriation?
Western states: Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming use pure prior appropriation. Oregon, Washington, California, and others use hybrid systems.
What is a water right permit?
In prior appropriation states, a water right is established by filing an application with the state water agency, putting water to beneficial use, and receiving a permit specifying the priority date, quantity, point of diversion, and approved uses.
What is 'use it or lose it' in water law?
In prior appropriation states, a water right that is not exercised for the permitted beneficial use may be forfeited. The specific non-use period that triggers forfeiture varies by state (typically 5–10 years).