December 08, 2023
It’s one of the most confusing types of California law: water rights. But developers and land buyers would do well to pay attention, especially keeping riparian water rights in mind. While California employs a wide variety of water rights to serve its people and its environment, riparian water rights offer significant benefits to their owners.
Riparian rights are the legal principles that apply when a property owner’s land shares a surface connection to a body of water, such as a lake or creek. In those circumstances, the owner is granted a riparian right to use the water that flows within that body. These rights are subject to other conditions, such as the requirement under Article X, Section 2 of the California Constitution, which requires that all water be used for “reasonable and beneficial” purposes. Which leads to another question: what does that mean?
Water usage is “reasonable” if its intended use and usage amount are generally accepted within social norms. To make this determination, one may look at local customs of water use, the efficiency of the use, whether alternative means of use exist, and the environmental effects of the use. Water usage is “beneficial” if its use serves the highest needs of a community. For example, a beneficial use might be when water is diverted for agricultural, mining, urban, industrial, or environmental purposes. This means that while it would be reasonable and beneficial for a right holder to use some of the water source to water their crops, it would not be reasonable or beneficial to drain the water source to fill in their swimming pool.
Riparian water rights are significantly different from their counterparts in the water rights world. Riparian rights take priority over other forms of water rights and are outside the scope of the State Water Resources Control Board’s permitting process. Riparian water rights also generally cannot be lost through lack of exercise. Because the right is tied to the land, simply holding the title to the land is enough to keep the right in good standing. Further, because the right is attached to the title of land, riparian rights generally cannot be transferred to other parties outside of a land sale. Even so, the rights can be severed from the land. A seller could opt to convey only land, with no water rights. And the right arises from the water itself. If land is subdivided or otherwise cut-off from the waterbody, those parcels may lose their riparian rights. Once lost, riparian rights are rarely regained.
Other forms of water rights in California include appropriative and prescriptive rights. Unlike riparian water rights, these usage rights are permit-based and are not attached to a land title. So even though other means of acquiring the rights to water usage in California may exist, only with riparian rights can you be sure the water you use will be coming from your backyard.