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Understanding ‘Water Rights’ first requires consideration of the context and origin of the ‘right’ being discussed, or asserted. Traditionally, a water rights refers to the utilization of water as an element supporting basic human needs like drinking or irrigation. Water Rights could also include the physical occupancy of waterways for purposes of travel, commerce and even recreational pursuits. The legal principles and doctrines that forms the basis of each type of water rights are not interchangeable and vary according to local and national laws. Therefore, variations among countries, and within national subdivisions, exist in discussing and acknowledging these rights.
Often, water rights are based on ownership of the land upon which the water rests or flows. Under English Common law, any rights asserted to 'moveable and wandering' water must be based upon rights to the 'permanent and immovable' land below.
On streams and rivers these are referred to as
Where water is more scarce (like in the Western United States), allocation of the flowing water is premised upon prior appropriation. “The appropriation doctrine confers upon one who actually diverts and uses water the right to continue to do so provided that the water is used for reasonable and beneficial uses,” regardless of whether that person owns land contiguous to the watercourse. "[A]s between appropriators, the rule of priority is 'first in time, first in right.'" The modern system of prior appropriation water rights is characterized by five principles:
Beneficial use is defined as agricultural, industrial, or urban use. Environmental uses, such as maintaining a body of water and the wildlife that use it, were not initially regarded as beneficial uses in some states but have been accepted in some areas. Every water right is parameterized by an annual yield and an appropriation date. When a water right is sold, it maintains its original appropriation date.
In some jurisdictions appropriative water rights can be granted directly to communities. Here, water is reserved to provide sufficient capacity for the future growth of that particular community. For example,
Due to the dependence upon clean water, many nations, states and municipalities have enacted regulations to preemptively protect water quality and quantity. This right of a Government to regulate water quality is premised upon protecting downstream navigable waters from contamination which are publicly owned and include the right to receive these waters undiminished under both the riparian and appropriation doctrines.
The Commerce Clause of the U.S. Constitution gives Congress the power to regulate and occupy Navigable Waters; this is referred to as a
Public Trust Rights to access and recreate upon navigable-in-fact waters may also exist. These rights are often based on local laws over property held in trust for the public. In the United States, each States holds the land submerged by navigable waters in trust for the public and can establish a public right to access or recreate within these public waterways. Again, this 'water right' is not an individual right, but rather a public right and individual privilege which may include restrictions and limitations based on local laws.
The Fifth and Eleventh Amendment to the U.S. Constitution limits the power of state or federal governments to impinge upon any exclusive use of water by prohibiting the enactment of any laws or regulations that amount to a "taking" of private property. Laws and regulations that deprive a riparian owner of legally cognizable water rights constitute an illegal governmental taking of private property for which just compensation is owed to the water right holder.