This document provides an overview of water law in the United States. It discusses the major doctrines governing surface water rights - riparian doctrine, prior appropriation doctrine, and mixed approaches. Riparian doctrine bases water rights on land ownership and requires reasonable and non-injurious use. Prior appropriation follows a "first in time, first in right" approach. The document also examines groundwater governance models and provides brief summaries of water governance approaches in California, Texas, and Missouri.

1. LEGAL PERSPECTIVES IN THE
BUSINESS OF WATER
KIRBY B. DRAKE
AUGUST 26, 2019

2. WATER LAW IN US
• MANAGEMENT OF PUBLIC WATERS
• REGULATION OF OTHER SURFACE WATERS
• ENVIRONMENTAL REGULATIONS
• PUBLIC AND PRIVATE RIGHTS TO WATER
• WATER PROJECTS

3. SURFACE WATER GOVERNANCE
 RIPARIAN DOCTRINE
 APPROPRIATION/PRIOR USE DOCTRINE
 MIXED APPROACHES

4. RIPARIAN DOCTRINE
• LAKES, NATURAL CHANNELS, UNDERGROUND RIGHTS
• CONTIGUOUS TO LAND (WATER RIGHT CAN NOT BE SEPARATED FROM
LAND OWNERSHIP; TRANSFER OF LAND = TRANSFER OF RIGHT)
• USE - REASONABLE (ECONOMIC NEED; BENEFIT TO SOCIETY) — OR —
MAINTAIN NATURAL FLOW (QUANTITY AND QUALITY BEFORE AND AFTER
USE)
• NO INJURY TO DOWNSTREAM USERS
• SHARED PRIORITY - SHARE SHORTAGES EQUITABLY ACCORDING TO
PROPORTION OF LAND OWNERSHIP

5. APPROPRIATION OR PRIOR USE DOCTRINE
• WATER FLOWING IN NATURAL CHANNELS; SUBTERRANEAN STREAMS
• “FIRST IN TIME, FIRST IN RIGHT” – NO LAND OWNERSHIP REQUIRED
• SENIOR APPROPRIATOR ENTITLED TO FULL AMOUNT OF REASONABLE
AND BENEFICIAL USE
• USE IT OR LOSE IT (DUE DILIGENCE)
• SHORTAGES SHARED UNEQUALLY: SENIOR RIGHTS RECEIVE ALL THEIR
WATER BEFORE JUNIOR RIGHTS RECEIVE ANY
• TRANSFER OF RIGHT APART FROM LAND

6. BLUE states generally use riparian doctrine.
GREEN states generally are considered regulated riparian.
RED states generally use the prior appropriation doctrine.
GRAY states use mixed approaches.

7. GROUND WATER GOVERNANCE
• ABSOLUTE OWNERSHIP (ENGLISH) – EACH LANDOWNER HAS ABSOLUTE
RIGHT TO GROUNDWATER, UNLIMITED RIGHT TO PUMP
• CORRELATIVE RIGHTS- LANDOWNERS HAVE CO-EQUAL RIGHTS TO
REASONABLY USE A SHARED GROUNDWATER SOURCE; SIMILAR TO
RIPARIAN RIGHTS
• REASONABLE USE (AMERICAN) - LANDOWNER MAKES REASONABLE USE
OF GROUNDWATER ON OVERLYING LAND; REASONABLE IS ANY
TRADITIONAL USE
• PRIOR APPROPRIATION

8. WATER GOVERNANCE – STATE-SPECIFIC
• CALIFORNIA
• TEXAS
• MISSOURI

9. KIRBY B. DRAKE
KLEMCHUK LLP
KIRBY.DRAKE@KLEMCHUK.COM
THANK YOU!