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 Montana (MT), water rights are governed by the doctrine of prior appropriation, which differs from riparian rights common in other states. Under this doctrine, water rights are not automatically appurtenant to the land but are instead based on a 'first in time, first in right' principle. This means that the first person to put water to beneficial use has priority over others. These rights can be sold or transferred separately from the land. Montana recognizes both surface water and groundwater rights, which must be legally documented and can be subject to complex adjudication processes. Navigable waterways are under federal jurisdiction, but Montana has authority over non-navigable waters. Landowners adjacent to non-navigable waters may own the land beneath the water to the center of the waterway. For navigable waters, the state holds the land beneath the water in trust for the public. Littoral rights, pertaining to landowners adjacent to bodies of water like lakes and seas, grant access to the water but typically extend only to the high-water mark. It's important for landowners to understand their specific water rights and any applicable state statutes or regulations, as well as federal law, and to consult with an attorney for legal advice tailored to their situation.