Maine Real Estate Exam Guide: Water Rights and Riparian Law

With nearly 3,500 miles of tidal coastline, over 6,000 lakes and ponds, and countless rivers and streams, Maine's geography makes water rights one of the most critical and heavily tested topics for aspiring real estate professionals. Whether you are dealing with a rustic camp on Moosehead Lake or a luxury oceanfront estate in Kennebunkport, understanding the nuances of water law is essential for protecting your clients and passing your licensing exam.

This comprehensive guide breaks down the complexities of riparian and littoral rights, Maine's unique public trust doctrines, and shoreland zoning regulations. To ensure you are fully prepared for all aspects of your test, be sure to review our Complete Maine Exam Guide alongside this material.

Riparian vs. Littoral Rights: The Foundation

In real estate law, water rights are generally categorized based on the type of water body adjacent to the property. The Maine Real Estate Commission expects you to know the distinct difference between these two terms:

• Riparian Rights: These rights apply to properties bordering flowing bodies of water, such as rivers and streams. A helpful memory trick for the exam is that Riparian equals River.
• Littoral Rights: These rights apply to properties bordering stationary bodies of water, such as lakes, ponds, seas, and oceans. Remember that Littoral equals Lake.

In Maine, the extent of a property owner's riparian or littoral rights largely depends on whether the water is considered "navigable" or "non-navigable," as well as whether the water is subject to tidal shifts.

Navigable vs. Non-Navigable Rivers

If a river is navigable (meaning it can be used for commercial water traffic), the riparian owner generally owns the land only up to the ordinary high-water mark. The state owns the land beneath the water to ensure public use for navigation.

If a river or stream is non-navigable, the riparian owner typically owns the land beneath the water all the way to the centerline of the waterway. If a buyer purchases property on both sides of a non-navigable stream, they own the land underneath the entire stream.

Maine's Unique Coastal Laws: The Intertidal Zone

Maine is one of only a few states (along with Massachusetts) that operates under the Colonial Ordinance of 1641-1647 regarding coastal properties. This is a highly testable concept on the state portion of the exam.

In most coastal US states, private property ends at the high-water mark, and the state owns the beach down to the ocean. In Maine, however, littoral property owners own the land down to the low-water mark (or up to 100 rods/1,650 feet from the high-water mark, whichever is closer).

However, this private ownership is subject to the Public Trust Doctrine. The public retains an easement to access the intertidal zone (the wet sand area between high and low tide) for three specific historical purposes:

1. Fishing
2. Fowling (hunting birds)
3. Navigation

Exam Scenario: A buyer purchases an oceanfront home in Maine and wants to put up a fence extending into the ocean to keep the public off "their" beach. As their agent, you must inform them that while they own the intertidal zone, they cannot block the public from fishing, fowling, or navigating in that space. Understanding these limitations is a crucial part of Maine buyer vs. seller representation.

The Great Ponds Act

Another uniquely Maine law rooted in the Colonial Ordinance is the concept of "Great Ponds." The state defines a Great Pond as:

• Any naturally occurring body of water that is 10 acres or more in size.
• Any artificially formed or increased body of water that is 30 acres or more in size.

The state owns the water and the land beneath Great Ponds. Littoral owners on a Great Pond own land only down to the natural low-water mark. Crucially, the public has a right to cross private unimproved land on foot to access a Great Pond for hunting, fishing, or swimming, provided they do not damage the property.

Maine Shoreland Zoning Act

Water rights are inextricably linked to land use limitations. The Maine Mandatory Shoreland Zoning Act (Title 38, Chapter 3) requires municipalities to regulate land use activities within specific distances of water bodies to protect water quality and wildlife habitat.

Key shoreland zoning metrics to memorize for the exam include:

• 250 Feet: The shoreland zone generally extends 250 feet inland from the normal high-water line of any Great Pond, river, or saltwater body, and from the upland edge of coastal and freshwater wetlands.
• 75 Feet: The shoreland zone extends 75 feet inland from the normal high-water line of certain streams.
• Vegetation Clearing: Within 100 feet of a Great Pond (or 75 feet of other water bodies), property owners cannot create cleared openings greater than 250 square feet in the forest canopy, and a well-distributed stand of trees must be maintained.

Common Water-Related Property Disputes

When studying for the exam, it helps to understand how these laws apply in real-world transactions. The chart below illustrates the most common water rights and zoning disputes that arise during Maine real estate transactions.