29-Prior Appropriation Water Rights-What Really Matters Legal Issues!

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Riparian

images (2)Under riparian water rights, when an adjacent body of water is not navigable by commercial boat traffic, landowners technically own the land beneath the water, up to the center of the body of water. Conversely, if the body of water does provide commercial uses, littoral rights apply only to the privately owned land leading up to the water’s edge (that is, up to the mean (average) high-water mark). In these instances, the submerged land is owned by states.  When interpreting water right law, it should be noted that states have broad authority and discretion to recognize or refuse to acknowledge riparian and littoral rights. In modern water law, because water supplies generally do not keep pace with human demand, state legislatures recognize the ever-increasing need to modify water right law. As a result, riparian and littoral rights are increasingly not recognized at all or require costly permits. Riparian and littoral landowners continue to have rights, but they are being transformed from their ancient form.

In United States law, Littoral rights refer to rights concerning properties that abut an ocean, sea or lake, rather than a river or stream  ( riparian).

Prior Appropriation Water Rights

In the arid western states, water law often follows the appropriation or “Colorado” doctrine that developed due to the scarcity of water in these regions. The legal maxim of “First in Time, First in Line” points to the appropriation of water use to the first person claiming the right.

Quick Quiz

Fill in the Blank:
When interpreting   right law, it should be noted that states have broad authority and discretion  to recognize or  to acknowledge riparian and littoral .

Different than riparian and littoral rights, the general principle behind appropriation rights is that water rights are unconnected to land ownership, and therefore can be sold, mortgaged, or otherwise encumbered like other property. Water law is quite complicated, and in constant change, so a property owner should seek the appropriate advice from a water law expert.

 Avulsion 

The amount of land that a property owner has title to can be both positively and negatively affected by natural occurrences of nature. In real estate, these natural occurrences are referred to as avulsion. Avulsion is defined as a sudden loss or gain of land as the result of the action of water or a shift in a shoreline or bed of a river that has been used as a boundary by property owners. In most instances, these natural outcomes are the direct result of:

  • Accretion
  • Reliction
  • Erosiondownload (3)

Accretion

Accretion is the gradual addition to a shore or bank of a waterway by deposits of sand or silt.  Because these results add to land, accretion has been referred to as nature’s gift to landowners.

 

 

download (4)Reliction

With reliction, a land is acquired when a shoreline increases in size as a result of water receding.

 

 

 Erosion  

Where accretion and reliction “gift” land to property owners, erosion does just the opposite.  It takes land away, sometimes very quickly. Although erosion commonly results in a gradual wearing away of land, through fierce storms, it can dramatically alter a landscape overnight. An earthquake or a mudslide can cause an individual’s landholding to become much smaller very quickly. When land is lost as a result of avulsion, the riparian owner does not lose a title to the land that has been lost; the boundary lines remain the same. However, this is not the case when land is lost by erosion.

Quick Quiz

Fill in the Blank:
With reliction, is acquired when a shoreline increases in size as a result of water.

Beyond the restrictions covered so far, other specific standards define how property can be used, such as with building codes which regulate how a building can be built, including its size and its location on the property. These specifications are commonly identified in municipality regulations or in building codes. To ensure compliance with building codes, some states, cities, subdivisions, and other municipalities require that property owners acquire building permits before they begin any type of construction or development.

For example, on shorelines such as beaches or river edges, state codes add special regulations regarding size and shape of buildings, as well as their lot locations. These subsequent regulations are created to prevent an adverse impact on the environment that would otherwise result from construction. Along these lines, other land-use regulations serve to protect the environment.

For instance, construction that would otherwise jeopardize an environment must conform to local, state and federal regulations. The National Environmental Policy Act (NEPA) of 1970 that was enacted by the federal government requires federal agencies to create environmental impact statements and give permission to developers who are planning projects that could harm a natural environment.

Quick Quiz

Fill in the Blank:
These specifications are   identified in municipality regulations or in building.

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