Edited by Clifford S. Russell and Duane D. Baumann
Appendix 6.1: Overview of American Law for Allocation of Water
Water, like other natural resources, is considered a form of property under American law and its use is governed primarily by state law. Because water is in motion and its benefits are widely shared, it is not readily susceptible to private ownership. Thus, state laws generally regard water as owned by the public or the state and establish rules providing for both its public and private use. Rights of use, which may themselves be treated as property rights or may be allocated by permit, are regarded as enabling enjoyment of the benefits of water and providing certain legal protections for those uses. English law separated waterways that were navigable from those that were not. Non-navigable waterways were regarded as under the exclusive control of the riparian landowners and rights to the use of water were simply an extension of the rights of ownership of land. Riparian land ownership also carried rights to the use of water in navigable waterways, but public access for certain public uses such as travel, trade or fishing was to remain open. English law respecting use of groundwater similarly treated this resource as an extension of the ownership of land. Water extracted from underneath one’s property was treated as owned in the same manner as any other physical aspect of one’s property. Riparian law principles were imported to the American colonies as part of English common law. Such principles worked reasonably well in this relatively humid part of the country in which coastal rivers were important...
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