Water rights

DEFINITION: Legal interests regarding the use of water resources

Laws concerning water rights are generally intended to safeguard the use, quality, availability, and enjoyment of water found underground and in streams, rivers, lakes, and ponds.

In the early years after the establishment of the United States, most Americans considered water to be an abundant resource that needed scant government regulation. As the population of the nation grew, however, this view changed. Growing numbers of disputes over access to fresh water prompted lawmakers and courts to establish various doctrines of water rights to protect water as a precious and limited resource.

English common law provided the legal foundation for decisions about water rights in the eastern states. One of its chief provisions recognized riparian, or riverside, rights. These rights entitled landowners whose lands abutted natural, free-flowing streams and rivers to use the water from those sources for ordinary purposes such as bathing and drinking. They did not have the right to pollute, stem, or divert waters from their natural paths in ways that would interfere with the water rights of other landowners downstream. With the arrival of the Industrial Revolution, riparian rights came under attack as factory owners tried to divert water from rivers for industrial purposes. Though many courts struck down such attempts, others rendered legal decisions that allowed riparian owners “reasonable use” of water for industrial purposes, providing it did not excessively harm the rights of other riparians.

Even more radical changes took place in the American West during the late nineteenth century, when growing numbers of miners, farmers, and ranchers competed for scarce water sources with little regard for riparian rights as recognized in the East. As a result, disputes over water rights multiplied. One of the more famous feuds took place along the Poudre River in Colorado when one group of settlers diverted water for purposes and deprived others downstream of sufficient water. The Colorado state legislature took up the matter in 1876 and established the Colorado doctrine, also known as the prior appropriation doctrine, which held that all water rights belonged to the first user to claim them.

Other western states quickly adopted versions of Colorado’s “first in time, first in right” approach. Eventually, however, state courts modified the doctrine by applying a “reasonable use” standard test to water disputes. Under this provision, senior water users could be forced to reduce their water consumption if a challenger proved the senior user took more than a reasonable share of water. Unlike in the East, western laws concerning water rights hold that water is a thing separate from the soil rather than an ingredient of it. This principle permits western landowners to remove water from their land and sell it as a commodity. In 1982, the US Supreme Court ruled in Sporhase v. Nebraska that an individual even has the right to export water from one state to another.

Though water rights exist in many—and often conflicting—forms across the United States, they are all subject to state and federal authority. Laws concerning water rights in the twenty-first century have begun to address water disputes arising from water shortages. While most of the feuds over water rights in the United States take place in the semiarid West, conflicts have also occurred in water-rich states with fast-growing populations, such as Florida and Georgia.

Water shortages are not unique to the United States. In 2023, the United Nations reported the results of a study that found that 2 billion people, or 26 percent of people, throughout the world lacked clean drinking water. In many developing nations, people face daily water rations and have no running potable water. The growing water scarcity is a result of human population growth, increasing agricultural demands, industrialization, urbanization, and the continuous degradation of a finite reserve of freshwater. In 2022, the United Nations predicted two-thirds of Earth’s population would face a water crisis by 2050, and the United Nations Children's Fund estimated 700 million people may be displaced due to this crisis by 2030.

Sovereign nations have the legal means and the authority to resolve disputes over water rights within their own borders. Such conflicts are harder to settle when several countries share a given body of water, however. Serious international quarrels arose among riparian nations along the Ganges, Niger, Mekong, and several other river basins during the late twentieth century. Squabbles over access to the Jordan River in the parched Middle East have, on some occasions, provoked talk of war. International law offers only limited help in solving these problems. For example, nations have the right to exercise authority over any resources under their immediate control, but a United Nations convention of 1972 and the Helsinki Rules of 1966 oblige countries to share water rights with other riparians as long as they show regard for the needs of local populations and traditional water consumption practices. Generally, riparian nations rely on international treaties and agreements to establish mutual water rights. Without effective enforcement powers, however, they have few options other than persuasion, sanctions, and even military force to ensure treaty compliance. In 2020 and 2021, conflict arose between Egypt and Ethiopia, India and China, Iraq and Turkey, and several more countries, allowing society a glimpse into the potential for conflict water scarcity and strategic water monopolization, can become. In 2023, a brief conflict arose between the Taliban of Afghanistan and Iran over water rights.

Proposed solutions to the world’s water shortages include improved water conservation and pollution reduction efforts, a community approach among riparian nations to establish equitable water rights, and the privatization of water delivery systems that are currently under government control. Water experts at the World Bank and the United Nations have called upon nations to abandon the concept of water as an abundant and cheap resource. Instead, they suggest, water should be viewed as an “economic good,” much like oil or gold, that is subject to free-market mechanisms. They assert that under such an approach, water’s proper price would match its value and assure its own protection. Critics, however, contend that water is too precious to be turned over to commerce. They argue there is an international human right to clean water.

Bibliography

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Hall, Natasha. "No Water Wars?" Center for Strategic Institute Studies (CSIS), 26 June 2023, www.csis.org/analysis/no-water-wars. Accessed 24 July 2024.

Hodgson, Stephen. Modern Water Rights: Theory and Practice. Rome: Food and Agriculture Organization of the United Nations, 2006. www.internationalwaterlaw.org/bibliography/UN/UNFAO/FAO-Hodgson-Modern‗Water‗Rights.pdf. Accessed 24 July 2024.

Milne, Sandy. “How Water Shortages Are Brewing Wars.” BBC, 17 Aug. 2021, www.bbc.com/future/article/20210816-how-water-shortages-are-brewing-wars. Accessed 24 July 2024.