5.4  Water rights

Water rights raise many of the same issues as for fisheries, but with some twists. These include such basic issues as the need to consider the science of hydrology rather than fish-stock replenishment and a focus on the flow of resources rather than an underlying stock. There are also, however, quite distinct issues such as whether a water right is based on priority (eg, the upstream user gets their full entitlement first) or is proportional to flow, how to deal with return flows of water after it has been used, whether the area of origin of the water has any preference in its allocation, and how to fund and manage the infrastructure necessary to supply the water and monitor its use and impacts (Rosegrant and Gazmuri, 1995).[37]

In addition, externalities take on a particular importance for water rights, given that water can be used multiple times. Important factors for downstream users include the level and consistency of flow, and the quality of the water (including temperature and other forms of pollution). Water also has residual users in the flora and fauna at all points of its flow, which rely on environmentalists and governments to protect their interests, and which produce positive externalities for water users and the general population. The interdependence of water users result in a “common property feature” with “far less exclusivity than a land right” (Scott and Coustalin, 1995, p822).

There are also often stronger social and environmental perspectives in the discussion of water rights than for fisheries, and a more entrenched arrangement of existing rights, legal or customary. Water rights can be administrative, statutory or contractual; can be quantitative or limited only by impact on others, and can be conditional on continued use.

A fundamental difference in nature and source of rights (see Table 11) is between riparian rights based on ownership of land and protected by property law, and use rights protected by the law of torts. Overlaying these historically have been the concepts of prescription or adverse possession where actual use becomes a right of use, and seniority where chronological priority can be enforced by damages (Scott and Coustalin, 1995).

Source: Scott and Coustalin (1995)

Under Roman law, only temporary usufructuary rights could be acquired in running water, lasting as long as use continued, independent of land ownership but requiring legal access to the banks. The right could become prescriptive by unchallenged action over a period of years. Easements could be obtained to access a river across land.

Medieval common law treated a stream as static, so landowners owned their portion of a stream and had full rights to the water. However, upstream diversion deprived the landowner of property allowing damages to be sought. Non freeholders had no right to damages and no ability to enforce a use right except by a claim of prescription. A prescriptive easement went with the land and could be asserted against any other user of the flow. These easements were initially based on a grant of a use right but over time could also be based on simple prior use. Rights gradually evolved from land-based to use-based, linked to the flow of the river rather than the presence of water on land. This allowed non landowners to hold enforceable water rights. Prior use rights could also be quantifiable and transferable. It was also argued at times that equal riparian rights existed but that damages could only be sought by those damaged by a change in quality, quantity or manner of the flow.

These approaches evolved to a reasonable use theory, allowing reasonable use or diversion by riparian landowners, and a right to continued receipt of a flow, but only to seek damages once they began to use it. Ordinary and domestic users could take as much water as needed, while certain uses such as pollution, ornamental use or extraction from the river basin were per se unreasonable. Extraordinary use was permissible as long as other reasonable uses were not hindered. Seniority continued to apply to extraordinary use.

In the eastern United States, reasonable use evolved into a permit system. In the western United States, a system of prior appropriation evolved with use rights to take water at a specific location, but not tied to land ownership. Rights are transferable within restrictions (eg, to protect uses of return flows) and subject to seniority, beneficial use and outside regimes dealing with pollution and groundwater. Rights tend to be perpetual or at least long, and require compensation for expropriation.

The concepts of seniority and prescriptive rights clash with riparian rights, but offer advantages in terms of certainty and transferability, making them more valuable. The legal regime surrounding water is a network of private riparian and use rights, contracts, rights of navigation, fishing and foreshore access, and the government’s right of expropriation (taking) and increasingly includes an ecological aspect (Scott and Coustalin, 1995).

The drivers behind changes to water rights regimes are scarcity (among agricultural, urban, industrial and in-stream use), capital cost of water delivery, and the consequences of wider economic liberalisation, which increases the economic cost of inflexible and inefficient water allocation systems (Rosegrant and Gazmuri, 1995). Systems that require users to pay for water use signal its scarcity value and provide revenue to fund measures to reduce water wastage.