Homesteaders Guide to Water Rights: Ground-Surface-Rainwater

Understanding water rights

 

When homesteading, water is the most critical consideration. You need it to grow a garden, farm, raise pasture, and raise livestock. I can’t think of any of the many homestead types that don’t require adequate water. Water is essential.  Not only is it is vital for raising plants and produce for your family. It makes it possible to raise livestock on pastures and helps animals regulate their body temperatures in extreme weather.

But, water can be confusing. There are many types of water, including rivers, ponds, natural springs, groundwater (aquifers), and rainwater. And you may assume that if your property has access to water, you have the right to use it. But, in most of the United States, water is a much fought-over commodity.

Just because you buy a homestead with a pond on it will not ensure that you have legal rights to the pond water. Aquifers are heavily guarded with usage rules. And some states restrict the collection of rainwater.

It’s important that you understand when you can use the water on your land and what questions to ask before you purchase a homestead, so you don’t get stuck up a creek without water. I’ll also cover dry farming and how some homesteaders function without water access.

Surface Water, Ponds, and Rivers

In the Eastern United States, many homesteaders get their water from groundwater runoff. Rainfall is plentiful and as a result, rivers, streams, and natural ponds abound. And in some areas, the soil composition makes drilling wells extremely difficult.  In these areas, many homesteaders can use ponds to clean their surface water or pull potable water off of springs located around the homestead.

If you have a stream or river running through your property, make sure you understand your rights to that water. You may be able to put water-powered generators into their streams and create power for your homestead. You may have full, partial, or restricted access to water usage, and it’s important to understand what rights you have.

You may also have restrictions regarding animal usage of the water. Some states protect waterways by restricting cattle and other herds from gathering around a river or lake. Instead, homesteaders may be responsible for siphoning water off via ditches to bring to livestock.

In some states, the lack of water isn’t a concern; annual flooding is the concern. Make sure you check your flood zone and understand the lay of the land. If you are building on your new homestead, pay attention to the lay of the land and the layers of rock and clay underground. You’ll want to build in an area less likely to be flooded. You will also want to make sure your septic system isn’t located in a place that will runoff into water supplies because of an underground layer of silt that blocks ground drainage.

Irrigation Water Rights

Irrigation water rights are common in the Western, Southern, and Midwestern  United States. Irrigation water rights allow homesteaders and farmers access to a specific amount of surface water per acre. A standard measurement is by the inch.

For example, you may have one inch of water right per acre per month. That would mean that you could flood and irrigate your property with one inch of water once a month. Other water rights may measure the quantity of water you can pull off of a ditch, river, or out of a reservoir.

Because water is especially limited in the Southern and Western United States, abusing your water rights by pulling too much water can be punishable with hefty fines. So it’s crucial that you understand how much water you have access to and how often.

It’s also essential to understand the order of your water rights and that the amount of water you get can vary from year to year. I’ll demonstrate with an example.

Water Rights Order of Priority

In Idaho, where I live, my homestead came with water rights that supersede newer water rights given out over the last 80 years. We have had insufficient snow and rainfall for the last several years to replenish the reservoirs. While many farmers in the area have had their water reduced due to less water, the older water shares had additional access to water to a certain point. This has enabled me to keep my fruit trees alive without hand porting water to them weekly.

It’s important to understand what order of priority your water rights give your homestead. It’s imperative when you are homesteading. While a regular homeowner won’t financially suffer from brown grass, a homesteader will when they can’t water livestock or grow crops.

Water Rights Based on Water Supply

Nearly everywhere your water rights will be based on the amount of water available. When water is plentiful, you may have unrestricted access to water. But, when water is scarce, your portion of the water will be less.

Some years, you may have access to surface water weekly, but you may get a set number of watering turns in other years. This year, my neighbors and I may face receiving only one or two watering turns the entire summer.

If you understand the historical water levels, you can make better decisions regarding how you will homestead. If needed, you can grow pasture grass and hay that is drought resistant or raise animals that do well on lower-quality forage.

Questions to ask about surface water rights: 

  • Do I have legal water rights to the surface water on my property?
  • Does my state provide legal water rights that are transferred into my name?
  • What state, local, or zoning restrictions impact my water uses?
  • Does the homestead already have water access? What kind? Well, surface or municipal water access?
  • In addition to surface water rights, do I have rights for groundwater through a well?

Groundwater and Aquifers

Because surface water can dry up, some areas allow access to groundwater and aquifers. Much of the U.S. has underground aquifers. In drier areas, groundwater is more stable and dependable. And, having a well is vital. Most of the Midwest, West, and much of the Southern United States depend on wells that tap into large aquifers for homesteads. 

Without wells, homesteaders wouldn’t have all-year access to water.  

Often groundwater rights are given for home and personal use in rural areas. Inside municipalities, wells are often restricted in favor of a city water system. If your homestead is connected to city water, it will impact the cost of your water and may impact the quantity of water you receive. But, city water is usually convenient and requires little maintenance from a homeowner.

Wells, on the other hand, usually provide unmetered water.

Drilling a Private Well

Of course, drilling a well comes with some challenges. The soil composition can make it difficult and expensive to drill depending on where you homestead. The deeper your well needs to be, and the rockier the soil, the more expensive the well. Most states require certified drillers, so its not something you can do yourself. That’s because it’s essential to your health and the aquifer’s health that the well is done correctly.

If you are homesteading outside the U.S., you may be able to drill yourself. It is critical that you choose the right pump to draw water, know how to set up your system, and have access to parts. (Home Depot doesn’t usually stock all the needed supplies)

As part of your well system, you’ll need to ensure adequate pressure to your property. Many larger homesteads will use a water tank nestled on the property’s highest point to create water pressure for the farm. Smaller homesteads and parcels often use a pressure tank in the house to maintain pressure.

insert photo of Clark’s water tank (and maybe the pressure tank also)

Either system you purchase will need to be maintained. If you aren’t familiar with the process, you’ll need to learn. One of my colleagues had to learn how to drain her system in the winter whenever they left town so that it didn’t bust the pipes in sub-zero weather.

Groundwater Water Rights

Often groundwater doesn’t require separate water rights. In other words, you won’t have a legal document granting you access to the groundwater. But, you may still have local restrictions on how you use your groundwater. Groundwater may be restricted to home and garden use in areas that offer surface water rights.

I can use my well for my home, 1 acre of yard, and garden in my area. But, I can’t use my well water for watering my fields or the rest of my homestead.

These restrictions are usually meant to prevent the rapid depletion of aquifers.

Rainfall

Collecting rainwater has become a popular craze in recent years. But, some cities and counties are cracking down on homesteaders who illegally collect and use rainwater. That’s because rainwater often ends up in surface water collections or becomes groundwater. And many local governments oversee those waterways.

If you choose to collect your rainwater, make sure you understand your local laws and ordinances. If your area restricts the use of rainwater, consider getting involved and changing the laws. Rainwater used for gardening requires much fewer resources than processed water or drilled water, so it helps the environment.

Gray Water Usage Rights

Gray water is home wastewater that doesn’t contain human extraction. It’s water from your sinks, dishwasher, and showers.

Usually, it goes back into municipal water systems to be cleansed and recycled. Or it goes back into the ground via a septic system.

Some homesteaders have harnessed the power of gray water to water their gardens and lawns. When I lived in Arizona, certain areas had restrictions on greywater usage. But, since then, the state has reversed those regulations and now offers a tax credit to homeowners who convert to a greywater conservation system.

Using gray water can save you a lot of money and give you greater access to water. But, it can be challenging to convert your house and labor-intensive to manually save gray water. Check your local agencies to find out what’s allowed in your area.

Understand Your Water Rights

Water rights vary by region, and it’s important to understand your water rights. There are 13 common forms of water rights found in the United States. It’s important to check your local laws and regulations to find local nuances, but here are the common rights around the USA. 

  1. Riparian Water Rights: Landowners are legally allowed to use water from waterways that touch their properties. However, they cannot alter the natural course or water flow. They cannot alter the water in a way that affects the use of other riparian owners. Owners can use riparian water for their domestic uses. These water rights are often in place in the Eastern United States.  
  2. Non-Riparian Water Rights: Landowners have non-exclusive rights to use the water. Others in the community whose properties do not touch the water may also use the water. This usually happens when access to the water is limited. Examples include a community pier or other access to the water located on an owner’s property. 
  3. Prior Appropriation: Only persons with a permit may use water from a specific source. If the water is limited, such as in a drought, water is first given to the oldest permits. Usually, water rights can be sold separately from property ownership. Owners who don’t use the water can lose their water rights. Many the Western States use this type of water right (Idaho, Utah, Arizona, etc.)
  4. Hybrid Water Rights: A combination of Riparian and Prior Appropriation water rights. California, Texas, and Oklahoma have created hybrid laws to merge various water rights around their states. 
  5. Absolute Dominion: Unrestricted access to groundwater. 
  6. Correlative Rights: Landowners who share a water source are only limited to a reasonable amount of the water instead of unlimited. 
  7. Community Water Rights: The landowners who live the closest to the water get the first priority in using the water. Appropriation rights come after close-proximity users. This is not commonly found in the USA.
  8. Littoral Rights: Provides owners unrestricted access to navigatable waters like lakes, seas, and oceans. Littoral rights transfer with property ownership. 
  9. Navigable Servitude: The Federal Government’s ability to protect navigable waterways for commerce use. Landowners are restricted from limiting access for freight, boats, and other use on major waterways. 
  10. Overlying Rights:  Correlative rights as it pertains to groundwater. Landowners may draw groundwater from the ground for a well, but those rights transfer with the property. If an owner sells the property, they have sold the right to draw groundwater out to the new owner. 
  11. Public Trust: The government owns the water used for the public interest. This can include major waterways, lakes, or reservoirs. It also includes water that is preserved as a natural resource. 
  12. Right to Clean Water: The right of the government to protect downstream waters from contamination because high water quality is essential to human life. 
  13. Tribal Water Rights: Tribal water rights are given to American Indian Tribes through treaties. Tribal rights cannot be taken away for nonuse. 

Dry Farming

In areas where the soil evaporation is greater than the rainfall in an area, dry farming is practiced for water conservation. Farmers use dry farming methods to preserve the moisture in the soil. Dry farmers use the moisture in the soil for plant growth. Plants are spaced farther apart and often planted at different times of the season than with traditional farming. 

Annemaria Duran

Hi, I’m Annemaria Duran. I moved out to the country 6 years ago, mainly so I could have more land. I love all aspects of country living. First, we got chickens, then ducks. Now we have sheep, goats, and rabbits. I'm always learning and love sharing it!

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