Conveying Water Rights

1. Conveying Water Rights Division of Water Rights By Randy Tarantino Title Program Specialist Telephone: (801) 538-7387 randytarantino@utah.gov April 2013 Rural Water Users Association

2. Topics of Discussion • Understanding Basic Water Rights • Water Right Basic’s • Resources • Terms • Website • Common Conveyance Problems • Water Rights are confussing • Documents on the Water Right file • Discrepancies on the Division’s records • Rule or Policy issues • Water Addendums • Questions

3. Water Right Basic’s Proposals to appropriate surface water after 1903 (diligence claims) and underground water after 1935 (underground water claims) from any available un-appropriated water supply must be initiated through the filing of an Application to Appropriate Water with the state engineer. Applications to appropriate that are approved are subject to specific periods in which to develop the proposed projects and place the water to beneficial use. During the period that an application is being developed, the rights may be conveyed by assignment or by deed. Upon proof of development of the approved used, certificates are issued, and the rights are “perfected” and must be conveyed by deed.

4. Water Right Resources • Utah Code: • Title 73, Chapter 1, Sections 10-12http://le.utah.gov/~code/TITLE73/htm/73_01_001000.htm • Title 57, Chapter 3, Sections 109 http://le.utah.gov/~code/TITLE57/htm/57_03_010900.htm • Utah Administrative Code: • Rule R655-3http://www.rules.utah.gov/publicat/code/r655/r655-003.htm • Training Manual for Preparing a Report of Water Right Conveyance http://www.waterrights.utah.gov/titleInfo/trainman.pdf

5. Water Right Terms • Beneficial Use: All water rights are based upon and limited by the beneficial use(s) of the water right. • Diversion Limits: The Division authorizes specific maximum quantities of water that can be diverted to achieve the beneficial use. • Point of Diversion:The location were the water is diverted from a source. • Place of Use: The land where the water is authorized by the Division to be used. The location of the place of use is critical in determining the appurtenance of water rights to land when evaluating ownership documents.

6. More Terms • Unperfected: A water right that has been approved but not perfected • Perfected: A water right that has been legally established or perfected for use upon a particular parcel of land • DecreedRights - are described in and confirmed by an official court decree • Diligence Rights – are water rights that have been legally established prior to 1903 for surface sources (Diligence Claims) and 1935 for underground water sources (Underground Water Claims). • Appropriated Rights - are established by filing an application, proof, and obtaining a certificate from the State Engineer

7. Water Rights Website

9. Understanding the Water Right Hydrographic Map

10. Scanned Documents Application to Appropriate January 1976 Approved Application (A45919) 24 May 1976 Election Filed 27 July 1978 Water User’s Claim 5 January 1979 Approved Change a35830 28 January 2010

11. Water Right Problems • Not understanding the Water Right being conveyed. • Is the water right Appurtenant to the land it’s used on? • Is the water right a member of a Supplemental Group? • Is the water right based on shares in a Private Water Company?

12. Is the Water Right Appurtenant? • May 4, 1998 • Prior to this date only perfected water rights can be conveyed by appurtenance. • Land conveyances executed on or after this date may convey the associated perfected or unperfected water right by appurtenance.

13. Is the Water Right part of a Supplemental Group? • If you find any errors in the database in supplemental water use groups, contact the Regional Office, and they can help. • Be prepared to submit a written description of the problem with supporting documentation.

14. Hydrographic Survey Maps

15. Private Water Companies? • Water Shares issued by a private water company • The private water company owns the water right. Therefore, the water is not appurtenant to the land. Water shares are conveyed as securities under the Uniform Commercial Code (UCC 70A-8). The Division cannot update ownership based solely on shares. • Change Applications based on shares • The water company is the owner of the water right. The shareholder is a party to the change application. • A change based on shares is valid only if the shares are maintained in good standing with the water company. A copy of the stock certificate in the name of the new owner should be provided with the ROC. • The change application can be conveyed as an appurtenance.

16. Document Problems • Not understanding what the documents mean within the water right file. • What is a No Claim Filed (NCF)/Pending Adjudication Claim? • What is an Unpublished Water User’s Claim (WUC)? • Decreed Rights not in the State Engineer’s records

17. No Claim Filed (NCF) or Pending Adjudication Claims • Claim collected during a general adjudication on which no proposed determination has been published • Currently has no supporting legal basis • The claim itself has no legal standing other than as evidence of the manner of use at the time taken

19. Pending Adjudication Claim

20. No Claim Filed (NCF)

21. What does a No Claim Filed (NCF) or Pending Adjudication Claims mean for Conveyance? • Title can be updated from the owner shown on the claim, but the claim still as yet has no supporting legal basis. • A diligence claim must be submitted before any action can be taken on applications for changes on these rights. NCF or Pending Adjudication Claim Resources: • Hydrographic map (shows location of claim) • Documents in the water right file

23. Unpublished Water User’s Claims (WUC) • The underlying water right’s legal basis is actually another document such as a decree, application to appropriate, diligence claim, etc… and may not match the WUC in all respects. • The database often reflects the WUC, not the actual basis of the water right. • The claim itself has no legal standing other than as evidence of the manner of use at the time it the claim was collected. • Title work must extend back to the document the WUC is based upon.

24. Unpublished Claims

25. Water User’s Claim

26. Provo River Decree

27. Decreed Rights not in the State Engineer’s Records • Not all rights have a water right number assigned to them. • Title must be updated from the owner listed in the decree. • Decrees are available online, or at the courthouse. The courthouse is the best location to research for decrees. • A water right number can be assigned to decreed water rights upon request, but the State Engineer’s office may decide to assign numbers to all rights in the decree at the same time, which may take considerable time.

28. Water Right Decrees

29. Decrees by County

30. General Adjudications

31. Errors that Create Problems Discrepancies on the Divisions Records • If it is believed that the Division has made an error associated with the water right on the division records and appurtenance cannot be established, the Regional Office can be contacted to determine the action required to correct the State Engineer’s records. The correction will need to occur prior to filing the ROC.

32. Establishing Appurtenance • Problem • Appurtenance cannot be established for the land conveyed in the SE ¼ SW ¼, Section 10 T10N, R5E, SLBM. • Application to appropriate and the hydrographic survey map lists place of use in the S½SW¼, Sec. 10, T10N, R5E, SLBM. • There is a discrepancy on the Division’s records. Contact the Regional Office for assistance.

33. Example of a Discrepancy

34. Evidence of Discrepancy Election Filed 27 July 1978 Application to Appropriate POU: S½SW¼, Sec 10, T10N, R1E, SLBM13 January 1976 Approved Application (A45919) 24 May 1976 Water User’s Claim No POU listed 5 January 1979 Approved Change a35830 POU: SW ¼ SW ¼, Sec 10, T10N, R1E, SLBM 28 January 2010 The water became appurtenant to the land on this date

35. Conveyance Problems • Problems with the rules or policies • Internal Title Board • Water Task Force

36. Land Deed Water Deed Water Addendum’s These Forms are Available on the Divisions Website

37. Water Addendum’s • When deed is recorded in the county recorders office and a water addendum is attached, Utah Code Section 57-3-109 requires the recorder to forward a copy of the deed and addendum to the State Engineer. • The County Recorders office can mail, fax, or e-mail the addendums to the Division of Water Rights (WaterRights_Title@utah.gov) • The title section will review the addendum as if it were a ROC submittal and update the records if additional clarification is not required. • The Division will notify the grantee, of an identified water right, whether or not ownership has been updated on the State Engineer’s Records. • The letter, deed, and addendum will be posted to the water right file the addendum references.

38. Questions?