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 Iowa, water rights are governed by the doctrine of riparian rights, which allows landowners whose property abuts a natural body of water, such as a river or stream, to make reasonable use of it. This includes the use for domestic purposes like drinking, bathing, and watering livestock. Iowa law recognizes that water rights are appurtenant, meaning they are attached to the land and transfer with land ownership. For navigable waters, which are larger bodies of water that can support commerce, the federal government has jurisdiction under the Commerce Clause of the U.S. Constitution. However, Iowa has authority over waterways that are not considered navigable under federal law. The state determines whether smaller waterways are navigable under state law, which affects the extent of the riparian rights. If a waterway is non-navigable, the landowner typically owns the land beneath the water up to the midpoint of the waterway. Littoral rights pertain to landowners adjacent to lakes, seas, and oceans, granting them access to the water but not ownership beyond the high-water mark. In Iowa, the use of water for irrigation or other commercial purposes may require specific permits or be subject to state and local regulations.