There is a complicated body of law that applies to access to and use of water running through or alongside a property in Georgia. The legal phrase that describes these legal rights and issues is called riparian rights. In Georgia, water rights are considered to be property rights. They are protected by:
- The United States Constitution
- Georgia law
- Common law
Property owners rely on the legal protections of their water rights provided by law. Only adjacent landowners have the right to use the surface water on abutting lakes and rivers. Although the state of Georgia does not own waterways on or adjacent to private land, it has the power to regulate the use of the water. Non-navigable waters are not considered to be held in public trust. Only a small proportion of tidal marshlands are considered to be a public resource.
Reasonable Use of the Water Subject to Limitations
The general legal concept that applies in Georgia is “natural flow subject to reasonable use.” In other words, this concept blends the private right to use the water with the simultaneous rights of other people to their own use. When water, such as a river or lake, is adjacent to private property, owners have a reasonable right to use the water. They are forbidden to divert the flow of the water to create a new body of water. Although they may access the water for reasonable use, they do not automatically acquire the right to swim and fish. Most importantly, a property owner cannot use the water to the detriment of other adjacent property owners and their legal rights.
There is a fine line between reasonable and unreasonable use of the water. In one Georgia Supreme Court case, the justices held that it was illegal for an upstream property owner to build a dam that would affect a factory located on the lower part of the river. In contrast, the same court has also held that using water to irrigate non-riparian land is a reasonable use of that water. Nonetheless, property owners must be prepared for courts’ ever-evolving interpretations of property rights if their cases end up in litigation.
Common Examples of Riparian Disputes
Courts are often asked to balance the competing interests of two property owners. There is not a large body of riparian law in Georgia courts, so property owners must be prepared to deal with some type of uncertainty in these kinds of legal disputes. For example, in a 2010 case, the Georgia Supreme Court held that the use of surface water for recreational purposes was superior to another owner’s right to use the water for irrigation purposes.
Here are some examples of riparian disputes that may require the intervention of a court:
- A neighbor’s dock extends too far into a lake, interfering with your use and enjoyment of the water
- A neighbor’s dock extends onto your property
- There is a parallel road between a lake and your property, and someone claims you no longer have the right to use the lake because the road cuts off your access
- Someone else uses too much water, drastically reducing the amount that is available to you
- Neighbors disagree over where the low-water mark in the river is that forms the boundary between their two properties
Although use of water is often a property right, there is also a public interest in regional and local water management plans. In some cases, the use of water must be consistent with regional water plans.
Even if a Georgia property owner has a legal right to use water for purposes such as irrigation, it does not come without limits in the law, consistent with Georgia’s right to regulate water rights as described above. Property owners must comply with the requirements set forth by the Georgia Water Quality Control Act mandating that they obtain permits prior to new surface withdrawals of water. If they propose to withdraw more than a certain amount on a daily basis, they must also obtain a permit from the Georgia Environmental Protection Division.
A Georgia Real Estate Attorney Should Handle a Riparian Rights Dispute
Riparian rights disputes are fact-intensive, and as mentioned above, there is often little precedent for courts to rely on in reaching a decision. Like any dispute that involves a property right, you are always best off when you try to negotiate and resolve the matter with your neighbor(s) so you can avoid the expense of litigation. You may consider engaging with them through an attorney and potentially using some form of alternative dispute resolution, such as mediation.
Riparian matters can be complex, and they require the assistance of an experienced access and easement rights lawyer. This is a unique area of the law; and not all lawyers possess the necessary experience to help you.
The experienced land use attorneys at the Law Offices of Mark Weinstein, P.C. can help you resolve riparian rights disputes and other real estate controversies. We work with our clients on creative problem-solving, and we can handle the matter in court if necessary.