Riparian

Riparian (pronounced ri-pair-ee-uhn or rahy-pair-ee-uhn)

(1) Of, relating to, or situated or dwelling on the bank of a river or other body of water.

(2) In law, a person who owns land on the bank of a natural watercourse or body of water; denoting or relating to the legal rights of the owner of land on a river bank, such as fishing or irrigation

1849: From the Latin rīpārius (feminine rīpāria, neuter rīpārium) (of the banks of a river) from riparia (shore), later used in reference to the stream flowing between the banks, from ripa ((steep) bank of a river, shore)), probably understood literally as "break" (and indicating the drop off from ground level to the stream bed), or else "that which is cut out by the river", from the primitive Indo-European root rei- (to scratch, tear, cut), source of the Ancient Greek ereipia (ruins) & eripne (slope, precipice), the Old Norse rifa (break, to tear apart), the Danish rift (breach), the Middle High German rif (riverbank, seashore) and the English riven & rift.  Riparian is a noun & adjective and riparianism is a noun; the noun plural is riparian.

For technical reasons etymologists treat the construct as rīpāri(us) +‎ -an rather than rīpār(ius) +‎ -ian although ian was a euphonic variant of –an.  The suffix -an was from the Middle English -an (regularly -ain, -ein & -en), from the Old French –ain & -ein (or before an “i”, -en (used in modern French as –ain & -en (feminine –aine & -enne))), from the Latin -ānus (feminine -āna), used to form adjectives of, belonging or from a noun (and cognate with the Ancient Greek -νος (-nos), preceded by a vowel, from the primitive Indo-European -nós).  It was cognate with the English -en.  In English, it was an adjectival suffix widely appended (most frequently to nouns) and most associated with words of Latin origin; when a word ends in "a", a -n is instead appended.  It can also be used to form agent nouns and historically the male forms were constructed with -an, the females with -(i)enne but increasingly the male formations are treated as gender-neutral.  The suffix -ian was a euphonic variant of –an & -n, from the Middle English -an & -en.

In English law riparian rights and liabilities evolved over centuries, both arising as a consequence of the ownership of land abutting natural water and it matters not whether the water is tidal or non-tidal, all that is critical is that the physical property has some contact with the water course during the day.  The operation of law applied most obviously to the flows which occur naturally by riparian ownership can arise when streams and watercourses are channeled through artificial constructions although different aspects of the law may need to be applied to determine the ownership of the riparian rights.

As a general principle, a riparian owner is entitled access to the water, certainly for what are (in the context of place) ordinary purposes which may be for domestic or agricultural purposes.  This right of access may also include the ability to pass over the foreshore or a river bed to get to the water and even to temporarily moor vessels adjacent to riparian land to load or unload them.  Interestingly, this does not of necessity confer a right permanently to moor a vessel, reflecting the ancient common law position in England that the right of anyone to proceed along the nation’s highways and byways does not always imply a similar right to stay in any one place.

In the case of natural channels, such as streams and rivers, where water flows from one riparian owner’s property to another, the downstream owner is entitled to the flow of water in its natural state, both as to quality and the quantity, a specific expression of a concept in English law known as “natural enjoyment of a right”.  This means the upstream owner may take water or construct a dam but in so doing may not materially interfere with the flow and quality of water enjoyed by the downstream owner.  A special riparian right is the ability to drain land to a watercourse which can impact significantly on downstream rights holders and is thus often subject to separate negotiation.  In the case of natural flows, all downstream owners are obliged to accept the flow of water onto their land.  These well-established principles in English domestic law are used often as the basis for negotiations between nations where rivers cross borders; the results of these discussions can vary between amicable agreement and declarations or war.

There are also riparian liabilities.  Apart from not unduly interfering with the flow of water, riparian owners can be required to accept flooding on their land, even if that is caused by natural obstructions downstream and, again dependent on place, a liability can be imposed on riparian owners to manage the risk of flooding.  Because flood risks in England is managed nationally by statutory authorities such as regional drainage boards, the liabilities can very geographically, the power vested in these organisations to require riparian land to be used for flood management and mitigation.  Where water is artificially channeled, some interplay of different laws may be required to determine ownership of fights and liabilities.  As with just about any property rights, a riparian owner can take actions in court to prevent interference with rights, such as by requiring the removal of an obstruction or to stop an adjoining riparian owner from drawing too much water.

Lindsay Lohan, pondering riparian rights in Georgia Rule (2007).

Most associated with the US, riparianism was a doctrine of property rights, based on the principle that the owners of riparian land (riparians) had the right to remove reasonable amounts of water from the river, but others did not.  Because of the various property of rivers (moving in a sense, static in a sense, abutting land, able by natural action to increase and decrease the size of that land, used also as (often pubic) waterways for transportation etc), riparian rights have frequently been considered by courts and the gradual path has been one of a retreat from the classic position such rights accrued absolutely to the land owner as a property right.  An illustrative example was the decision of the High Court of Australia (HCA) in Commonwealth v Tasmania (HCA 21, (1983) 158 CLR 1) which concerned an attempt by the Commonwealth to prevent the state government of Tasmania building a dam on the Gordon River which would have flooded a large area of wilderness, including part of the Franklin River.  The HCA held the Commonwealth had the power to prevent the construction of the dam, based on its constitutional powers: (1) to regulate interstate trade and commerce and (2) its “external (foreign) affairs” power triggered by an obligation to protect sites declared by the United Nations (UN) to be “World Heritage” (by virtue of the Commonwealth having entered into certain treaties).  Also considered were riparian rights and the court held that riparian rights were not absolute and they could be limited by the public interest.  The reasoning was because the construction of the dam would interfere with the natural flow of the river and the ecology of the area, the court had to consider competing interests and in this case the public interest in preserving the area's natural values outweighed the riparian rights of the Tasmanian Government.  Use of the external affairs power was controversial but so was the expansion of the scope of the public interest in relation to riparian rights because it limited the rights of landowners to use waterways for their own purposes.  It was a case with significant implications for environmental law in Australia and beyond, overseas courts citing the judgment when holding that (public) environmental considerations can outweigh (private) property rights.