Water Use - Right To Water Use

The off-stream water-use categories described above are generally recognized as representing the most essential human uses of water. Sometimes there is not enough water available at a given location to meet all the demands for it. In those situations, who owns the water?

Water rights are held in trust by the states and may be assigned to individuals and corporations according to statutes regulating water use. A state may also challenge water uses to ensure public access to water that lies within or along its boundaries. State laws, regulations, and procedures establish how an individual, company, or other organization obtains and protects water rights. When TABLE 2.6
Acres of land being irrigated, by state, 2000
[Figures may not sum to totals because of independent rounding]
SOURCE: Adapted from Susan S. Hutson, Nancy L. Barber, Joan F. Kenny, Kristin S. Linsey, Deborah S. Lumia, and Molly A. Maupin, "Table 7. Irrigation Water Withdrawals, 2000," in Estimated Use of Water in the United States in 2000, U.S. Department of the Interior, U.S. Geological Survey, March 2004 (revised February 2005), http://water.usgs.gov/pubs/circ/2004/circ1268/ (accessed March 30, 2005)

	Irrigated land (in thousand acres)
	By type of irrigation
State	Sprinkler	Micro-irrigation	Surface	Total
Alabama	68.7	1.30	0	70.0
Alaska	2.43	0	.07	2.50
Arizona	183	14.0	779	976
Arkansas	631	0	3,880	4,510
California	1,660	3,010	5,470	10,100
Colorado	1,190	1.16	2,220	3,400
Connecticut	20.6	.39	0	21.0
Delaware	81.1	.71	0	81.8
District of Columbia	.32	0	0	.32
Florida	515	704	839	2,060
Georgia	1,470	73.8	0	1,540
Hawaii	16.7	105	0	122
Idaho	2,440	4.70	1,300	3,750
Illinois	365	0	0	365
Indiana	250	0	0	250
Iowa	84.5	0	0	84.5
Kansas	2,660	2.14	647	3,310
Kentucky	66.6	0	0	66.6
Louisiana	110	0	830	940
Maine	35.0	.95	.03	36.0
Maryland	57.3	3.32	0	60.6
Massachusetts	26.6	2.35	0	29.0
Michigan	401	8.67	4.87	415
Minnesota	546	0	26.9	573
Mississippi	455	0	966	1,420
Missouri	532	1.43	792	1,330
Montana	506	0	1,220	1,720
Nebraska	4,110	0	3,710	7,820
Nevada	192	0	456	647
New Hampshire	6.08	0	0	6.08
New Jersey	109	15.7	3.70	128
New Mexico	461	7.17	530	998
New York	70.0	8.73	1.84	80.6
North Carolina	193	3.70	0	196
North Dakota	200	0	26.7	227
Ohio	61.0	0	0	61.0
Oklahoma	392	1.50	113	507
Oregon	1,160	4.02	1,000	2,170
Pennsylvania	28.9	7.17	0	36.0
Rhode Island	4.48	.29	.05	4.82
South Carolina	166	3.66	17.5	187
South Dakota	276	0	78.3	354
Tennessee	51.2	5.35	3.96	60.5
Texas	4,010	89.4	2,390	6,490
Utah	526	1.68	880	1,410
Vermont	4.95	0	0	4.95
Virginia	64.3	13.9	0	78.2
Washington	1,270	49.9	252	1,570
West Virginia	2.21	0	.98	3.19
Wisconsin	355	0	0	355
Wyoming	190	4.73	964	1,160
Puerto Rico	15.5	33.0	5.35	53.8
U.S. Virgin Islands	.20	0	0	.20
Total	28,300	4,180	29,400	61,900

water rights are disputed, particularly in the West, the question is often resolved through a judicial determination known as adjudication. According to the U.S. Fish and Wildlife Service (http://www.fws.gov/policy/403fw2.html, April 29, 1993), adjudications may determine "all rights to use water in a particular stream system or watershed to establish the priority, point of diversion, place and nature of use, and the quantity of water used among the various claimants." When the water involved crosses state boundaries, states enter into agreements for water sharing. When agreement cannot be reached between states, the matter is usually settled in the federal courts, or in some cases by an act of Congress.

Riparian Rights

The right of private landowners to use the water adjacent to their property in streams, lakes, ponds, and other bodies of water is known as a riparian right, and this right underlies the laws regulating water in most states in the eastern part of the country. While local statutes are often written to pertain specifically to the bodies of water they regulate, the riparian system generally assigns each landowner an equal right to "reasonable use" of the water. Defining reasonable use can lead to disputes among neighboring landowners, but it typically allows common agricultural and private uses that do not involve holding water in storage.

Doctrine of Prior Appropriation

The relative scarcity of water in the West has led to a unique set of laws regulating water use, based on what is known as the doctrine of prior appropriation. Covering both surface and groundwater, the appropriation doctrine determines water rights by applying two standards: the timing of water claims and the nature of the water use. Rather than assigning rights based on landownership, the doctrine of appropriation considers both when and why water is used. The earliest water user is considered to hold a claim to the water, and the extent of those rights are judged by whether or not that use is considered "beneficial." To determine beneficial use, two areas are considered: the purpose of the use and its efficiency (that is, that the use is not wasteful). Individual states define the scope of beneficial uses within their boundaries.

A notable difference from the riparian (landownership) system is that under the doctrine of appropriation, water rights may be forfeited if the rights holder fails to use the water in a manner approved by the state or discontinues beneficial use for a designated length of time.

Another feature of the appropriation system is that rights are not shared equally among all users of a body of water. According to the Fish and Wildlife Service, "Priority determines the order of rank of the rights to use water in a system.… [The] person first using water for a beneficial purpose has a right superior to those commencing their use later." Therefore, when water shortages occur, all rights holders are not affected equally TABLE 2.7
Livestock water withdrawals, 2000
[Figures may not sum to totals because of independent rounding]
SOURCE: Susan S. Hutson, Nancy L. Barber, Joan F. Kenny, Kristin S. Linsey, Deborah S. Lumia, and Molly A. Maupin, "Table 8. Livestock Water Withdrawals, 2000," in Estimated Use of Water in the United States in 2000, U.S. Department of the Interior, U.S. Geological Survey, March 2004 (revised February 2005), http://water.usgs.gov/pubs/circ/2004/circ1268/ (accessed March 30, 2005)

	Withdrawals (in million gallons per day)			Withdrawals (in thousand acre-feet per year)
	By source			By source
State	Ground water	Surface water	Total	Ground water	Surface water	Total
Alabama	—	—	—	—	—	—
Alaska	—	—	—	—	—	—
Arizona	—	—	—	—	—	—
Arkansas	—	—	—	—	—	—
California	182	227	409	204	255	458
Colorado	—	—	—	—	—	—
Connecticut	—	—	—	—	—	—
Delaware	3.70	.22	3.92	4.15	.25	4.39
District of Columbia	—	—	—	—	—	—
Florida	31.0	1.51	32.5	34.7	1.69	36.4
Georgia	1.66	17.7	19.4	1.86	19.9	21.7
Hawaii	—	—	—	—	—	—
Idaho	27.7	7.20	34.9	31.0	8.07	39.1
Illinois	37.6	0	37.6	42.1	0	42.1
Indiana	27.3	14.6	41.9	30.6	16.4	47.0
Iowa	81.8	27.1	109	91.8	30.4	122
Kansas	87.2	23.5	111	97.7	26.3	124
Kentucky	—	—	—	—	—	—
Louisiana	4.03	3.31	7.34	4.52	3.71	8.23
Maine	—	—	—	—	—	—
Maryland	7.18	3.18	10.4	8.05	3.56	11.6
Massachusetts	—	—	—	—	—	—
Michigan	10.2	1.15	11.3	11.4	1.29	12.7
Minnesota	52.8	0	52.8	59.2	0	59.2
Mississippi	—	—	—	—	—	—
Missouri	18.3	54.1	72.4	20.5	60.6	81.1
Montana	—	—	—	—	—	—
Nebraska	76.0	17.4	93.4	85.2	19.5	105
Nevada	—	—	—	—	—	—
New Hampshire	—	—	—	—	—	—
New Jersey	1.68	0	1.68	1.88	0	1.88
New Mexico	—	—	—	—	—	—
New York	—	—	—	—	—	—
North Carolina	89.1	32.3	121	99.9	36.2	136
North Dakota	—	—	—	—	—	—
Ohio 8.20	17.1	25.3	9.19	19.2	28.4
Oklahoma	53.6	97.2	151	60.0	109	169
Oregon	—	—	—	—	—	—
Pennsylvania	—	—	—	—	—	—
Rhode Island	—	—	—	—	—	—
South Carolina	—	—	—	—	—	—
South Dakota	16.9	25.2	42.0	18.9	28.2	47.1
Tennessee	—	—	—	—	—	—
Texas	137	172	308	153	192	346
Utah	—	—	—	—	—	—
Vermont	—	—	—	—	—	—
Virginia	—	—	—	—	—	—
Washington	—	—	—	—	—	—
West Virginia	—	—	—	—	—	—
Wisconsin	60.3	6.02	66.3	67.6	6.75	74.4
Wyoming	—	—	—	—	—	—
Puerto Rico	—	—	—	—	—	—
U.S. Virgin Islands	—	—	—	—	—	—
Total	1,010	747	1,760	1,140	838	1,980

as they are under the riparian system. Prior claims take precedence. However, because water shortages in the West can have an impact on community water needs, priority may be awarded to some vital uses regardless of the date of first claim.

Conflicts over Federal Water Rights

Sometimes conflicts over water rights arise that involve the federal government, and since the 1990s the federal government has been involved in several lengthy court battles to determine the precedence of water claims TABLE 2.8
Industrial water use, by state, 2000
[Figures may not sum to totals because of independent rounding]
SOURCE: Susan S. Hutson, Nancy L. Barber, Joan F. Kenny, Kristin S. Linsey, Deborah S. Lumia, and Molly A. Maupin, "Table 10. Industrial Self-Supplied Water Withdrawals, 2000," in Estimated Use of Water in the United States in 2000, U.S. Department of the Interior, U.S. Geological Survey, March 2004 (revised February 2005), http://water.usgs.gov/pubs/circ/2004/circ1268/ (accessed March 30, 2005)

	Withdrawals (in million gallons per day)									Withdrawals (in thousand acre-feet per year)
	By source and type
	Ground water			Surface water			Total			By type
State	Fresh	Saline	Total	Fresh	Saline	Total	Fresh	Saline	Total	Fresh	Saline	Total
Alabama	56.0	0	56.0	777	0	777	833	0	833	934	0	934
Alaska	4.32	0	4.32	3.80	3.86	7.66	8.12	3.86	12.0	9.10	4.33	13.4
Arizona	19.8	0	19.8	0	0	0	19.8	0	19.8	22.2	0	22.2
Arkansas	67.0	.08	67.1	66.8	0	66.8	134	.08	134	150	.09	150
California	183	0	183	5.65	13.6	19.3	188	13.6	202	211	15.3	226
Colorado	23.6	0	23.6	96.4	0	96.4	120	0	120	135	0	135
Connecticut	4.13	0	4.13	6.61	0	6.61	10.7	0	10.7	12.0	0	12.0
Delaware	17.0	0	17.0	42.5	3.25	45.7	59.4	3.25	62.7	66.6	3.64	70.3
District of Columbia	0	0	0	0	0	0	0	0	0	0	0	0
Florida	216	0	216	74.7	1.18	75.9	291	1.18	292	326	1.32	328
Georgia	290	0	290	333	30	363	622	30.0	652	698	33.6	731
Hawaii	14.5	.85	15.4	0	0	0	14.5	.85	15.4	16.2	0.95	17.2
Idaho	35.8	0	35.8	19.7	0	19.7	55.5	0	55.5	62.2	0	62.2
Illinois	132	0	132	259	0	259	391	0	391	438	0	438
Indiana	99.7	0	99.7	2,300	0	2,300	2,400	0	2,400	2,690	0	2,690
Iowa	226	0	226	11.7	0	11.7	237	0	237	266	0	266
Kansas	46.6	0	46.6	6.74	0	6.74	53.3	0	53.3	59.8	0	59.8
Kentucky	95.2	0	95.2	222	0	222	317	0	317	356	0	356
Louisiana	285	0	285	2,400	0	2,400	2,680	0	2,680	3,010	0	3,010
Maine	9.90	0	9.90	237	0	237	247	0	247	277	0	277
Maryland	15.9	0	15.9	49.9	227	277	65.8	227	292	73.8	254	328
Massachusetts	10.7	0	10.7	26.2	0	26.2	36.8	0	36.8	41.3	0	41.3
Michigan	110	0	110	589	0	589	698	0	698	782	0	782
Minnesota	56.3	0	56.3	97.8	0	97.8	154	0	154	173	0	173
Mississippi	118	0	118	124	0	124	242	0	242	271	0	271
Missouri	29.2	0	29.2	33.5	0	33.5	62.7	0	62.7	70.3	0	70.3
Montana	31.9	0	31.9	29.3	0	29.3	61.3	0	61.3	68.7	0	68.7
Nebraska	35.5	0	35.5	2.60	0	2.60	38.1	0	38.1	42.7	0	42.7
Nevada	5.29	0	5.29	5.00	0	5.00	10.3	0	10.3	11.5	0	11.5
New Hampshire	6.95	0	6.95	37.9	0	37.9	44.9	0	44.9	50.3	0	50.3
New Jersey	65.3	0	65.3	66.2	0	66.2	132	0	132	147	0	147
New Mexico	8.80	0	8.80	1.67	0	1.67	10.5	0	10.5	11.7	0	11.7
New York	145	0	145	152	0	152	297	0	297	333	0	333
North Carolina	25.6	0	25.6	267	0	267	293	0	293	329	0	329
North Dakota	6.88	0	6.88	10.7	0	10.7	17.6	0	17.6	19.7	0	19.7
Ohio	162	0	162	645	0	645	807	0	807	905	0	905
Oklahoma	6.83	0	6.83	19.1	0	19.1	25.9	0	25.9	29.1	0	29.1
Oregon	12.1	0	12.1	183	0	183	195	0	195	218	0	218
Pennsylvania	155	0	155	1,030	0	1,030	1,190	0	1,190	1,330	0	1,330
Rhode Island	2.19	0	2.19	2.09	0	2.09	4.28	0	4.28	4.80	0	4.80
South Carolina	50.9	0	50.9	514	0	514	565	0	565	633	0	633
South Dakota	3.16	0	3.16	1.96	0	1.96	5.12	0	5.12	5.74	0	5.74
Tennessee	56.3	0	56.3	785	0	785	842	0	842	944	0	944
Texas	244	.50	244	1,200	906	2,110	1,450	907	2,350	1,620	1,020	2,640
Utah	34.3	5.08	39.4	8.38	0	8.38	42.7	5.08	47.8	47.8	5.69	53.5
Vermont	2.05	0	2.05	4.86	0	4.86	6.91	0	6.91	7.75	0	7.75
Virginia	104	0	104	365	53.3	419	470	53.3	523	526	59.7	586
Washington	138	0	138	439	39.9	479	577	39.9	617	647	44.7	692
West Virginia	9.70	0	9.70	958	0	958	968	0	968	1,090	0	1,090
Wisconsin	83.0	0	83.0	364	0	364	447	0	447	501	0	501
Wyoming	4.31	0	4.31	1.47	0	1.47	5.78	0	5.78	6.48	0	6.48
Puerto Rico	11.2	0	11.2	0	0	0	11.2	0	11.2	12.5	0	12.5
U.S. Virgin Islands	.22	0	.22	3.12	0	3.12	3.34	0	3.34	3.74	0	3.74
Total	3,570	6.51	3,580	14,900	1,280	16,200	18,500	1,280	19,700	20,700	1,440	22,100

in the West. In Tulare Lake Basin Water Storage District v. U.S. 49 Fed. Cl. 313 (2001) Judge John Wiese found that while the federal government had a right to withhold water to preserve salmon and smelt in California, by doing so the government had deprived farmers in the San Joaquin Valley of their rightful use of water. The government was ordered to pay $24.7 million to compensate the farmers, although the precise sum of the settlement was still being negotiated in December 2004. The case was considered to have negative implications for FIGURE 2.5
Water withdrawals (fresh and saline) for thermoelectric power, by state, 2000
SOURCE: Susan S. Hutson, Nancy L. Barber, Joan F. Kenny, Kristin S. Linsey, Deborah S. Lumia, and Molly A. Maupin, "Figure 12. Thermoelectric-Power Withdrawals by Water Quality and State, 2000," in Estimated Use of Water in the United States in 2000, U.S. Department of the Interior, U.S. Geological Survey, March 2004 (revised February 2005), http://water.usgs.gov/pubs/circ/2004/circ1268/ (accessed March 30, 2005) environmental projects in the West, where the high costs associated with preservation efforts might make them untenable. Previously the protection of endangered species was considered a higher priority than individual rights to water access.

In another case involving the federal government, Trout Unlimited v. U.S. Department of Agriculture, a conservation organization challenged the approval by the U.S. Forest Service of access to the Long Draw Reservoir in Colorado that did not establish by-pass flow regulations for water projects. A by-pass flow is the minimum amount of water needed to flow freely around a dam or diversion in order to sustain the area's aquatic life. On April 30, 2004, a federal judge determined that the Forest Service had not only the authority but also a responsibility to consider the protection of wildlife when issuing permits for water projects on federal lands.