Water Rights Generally
Water rights is a broad reference to the legal rights of landowners to access and use bodies of water on or adjacent to the land they own. And water rights vary from state-to-state (and sometimes with municipal laws or regulations) and among different forms of water (lake, river, pond, stream, sea, ocean, groundwater, surface water, etc.).
Water rights are appurtenant—meaning they run with the land and are transferred with ownership of the land—they do not belong to any one landowner.
Riparian Water Rights
Riparian rights are water rights that give landowners access to and use of flowing bodies of water, such as rivers and streams. Landowners generally have the right to use such waters as long as the use does not harm upstream or downstream landowners.
Navigable waterways (as defined by federal law) are under the jurisdiction of the federal government—rather than states or municipalities—based on the Commerce Clause (Article I, Section 8) of the U.S. Constitution. But waterways that do not meet the definition of navigable waters under federal law are under the jurisdiction of states and municipalities and may be considered navigable waters under state and municipal laws. Waterways that are unnavigable under both federal and state law may be subject to the control of the streamside landowner.
Lakes and rivers are generally navigable waters, and smaller bodies of water such as streams may also be navigable. The U.S. Supreme Court has created four tests for determining what constitutes navigable waters under federal law: (1) whether the body of water is subject to the ebb and flow of the tide; (2) whether the body of water connects with a continuous interstate waterway; (3) whether the body of water has navigable capacity; and (4) whether the body of water is actually navigable.
An owner of land that includes a riverbank that borders a flowing river or stream, for example, can make domestic use of the water for drinking, bathing, watering plants, or providing water for animals—but riparian rights granted by the applicable laws may not allow the water to be pumped, diverted, or otherwise removed from the flowing river or stream.
Some states and municipalities may allow for the diversion of such water for irrigation purposes, for example. A landowner may apply for these and other water diversion rights that would allow for the transport of the water away from its source for mining and agricultural operations. But some state and local laws may not allow for diversion of water for irrigation or other commercial uses.
If the water is nonnavigable (unnavigable), the owner of the adjoining land generally owns the land beneath the water to the center of the waterway.
Littoral Water Rights
Littoral rights are water rights that guarantee access to lakes, seas, and oceans. Landowners whose lands are adjacent to these bodies of water generally have unrestricted access to the waters but own the land only to the median high-water mark—the maximum rise of the body of water over land and often the result of a flood.
In Hawaii, water rights are governed by a combination of state statutes and common law principles. Water rights in Hawaii are unique due to the state's historical and cultural context, with a strong emphasis on the public trust doctrine and traditional Hawaiian rights. The Hawaii State Constitution recognizes the state's obligation to protect, control, and regulate the use of Hawaii's water resources for the benefit of its people. Water rights are considered appurtenant, meaning they are attached to the land and transfer with land ownership. Riparian rights, which pertain to landowners' access to and use of flowing bodies of water like rivers and streams, are subject to the principle that such use should not harm other landowners' rights. In Hawaii, the use of water for domestic purposes is generally prioritized, and any diversion for other uses may require a permit from the Commission on Water Resource Management. Navigable waterways are under federal jurisdiction, while non-navigable waters are under state control. Littoral rights in Hawaii grant access to the ocean and other tidal bodies of water, with land ownership extending to the high-water mark. It's important to note that specific regulations and permitted uses can vary, and an attorney familiar with Hawaii water law should be consulted for detailed guidance on water rights issues in the state.
