water right conveyances

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Water Right Conveyances

Division of Water RightsBy Randy Tarantino

Title Program SpecialistTelephone: (801) 538-7387randytarantino@utah.gov

March 2011 Utah Water Users Workshop

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Topics of Discussion

Water Right BasicsNavigating the Division of Water Rights WebsiteProblems commonly encountered and suggestions to fixQuestions

The ROC review process (Handout)

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Water Right BasicsBeneficial 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.

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.

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Water Right Resources

Utah Code:Title 73, Chapter 1, Sections 10-12 http://www.le.state.ut.us/~code/TITLE73/TITLE73.htm

Utah Administrative Code:Rule R655-3 http://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

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The Division’s Website

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Navigation Tips

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Known Water Right (25-6742)

Hydrographic Map

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25-6742: Scanned Documents

Election Filed 27 July 1978

Approved Change a17300 POU:S½SW¼ Sec 10, T10N, R1E, SLBM

22 October 1993

Lapsed Change a17300

30 September 1997

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

Approved Application

(A45919) 24 May 1976

Application to Appropriate POU: S½SW¼, Sec 10, T10N, R1E,

SLBM13 January 1976

The water became

appurtenant to the land on this

date

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Property Boundary

SWSW of Section 10, T10N, R1E, SLBM

POD – well location

25-6742: Supporting Documentation

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Unknown Water Right Number

Deeded Property

Search> POD> a) Section/Township Search> or b) Traverse Area Search>

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Coordinates after digitizedSW ¼, Sec 8, T4S, R5E, SLBM

Digitized view w/acreage approximately 2 acres

SW ¼, Sec 8, T4S, R5E, SLBM with County Parcels

SW ¼, Sec 8, T4S, R5E, SLBM County Plat Map

Known Parcel

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Suspected Water Right Number

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1st Important DateMay 5, 1997

As of May 5, 1997, ownership interest granted to two persons, who are designated as husband and wife in the granting documents, is presumed to be a joint tenancy interest, unless expressly declared in the grant to be otherwise

Every ownership interest that does not qualify for the joint tenancy presumption is presumed to be a tenancy in common interest, unless expressly declared in the grant to be otherwise

Prior to this date, the tenancy is considered to be in common, unless specified otherwise in the granting document

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Joint Tenancy?Problem

The water right lists one owner.The land the water is used on was owned by joint tenants.

Solution: Required documentsThe deed conveying the land to the Joint Tenants.• Land with water rights by appurtenance

to the Joint Tenants, will establish joint tenancy.

The death certificate and a survivors affidavit will terminate Joint Tenancy.

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2nd Important DateMay 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.

Problem (refer to deed handout)Appurtenance cannot be established for the land conveyed in the SE ¼ SW ¼, Sec. 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

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Discrepancy Suggestions

Discrepancies or errors in the water right records of the division can in some limited instances be corrected through agency action.

Begin by consulting with the Regional Engineer for directions and requirements.Additional evidence may be required by the requesting party to support the agency action.

ROC processing is independent of agency action to correct division records.

**NOTE: The State Engineer’s jurisdiction to correct water right records by agency

action may be limited.**

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Supplemental Groups

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Private Water Companies

Water Shares issued by a private water company

The private water company is the owner of the water right.Water shares are not appurtenant to the land they are used on. Water shares are conveyed as securities under the Uniform Commercial Code (UCC 70A-8).The stock certificate represents an interest in the company.The Division cannot update ownership based solely on shares.

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Private Water Companies

Change Applications based on shares

The water company is the owner of the water right. The share holder 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.

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Things to ConsiderWater rights may have many types of owners including individuals, partnerships, trusts, companies, financial institutions, and political entities.Title to a water right may be in a different name than is the land upon which it is used.A water right is conveyed silently as an appurtenance to the land upon which it is used, if title to both the land and the water right are in the same entity at the time of conveyance of the land. A right may be conveyed with land in a specifically described amount, or it may be conveyed separately without any land involved. Land can be sold without its appurtenant water rights if the rights are expressly reserved or have been conveyed prior to the conveyance of the land.

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Questions?

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Tips to Remember

All documents that pertain to the chain of title (deed, assignment, marriage certificate, probate document, death certificate, affidavit, map, etc.) must be attached to each of the ROCs submitted.The chain of title must begin with the owner of record on the Division’s records.The new owner and the professional must sign the ROC and submit contact information.A ROC is not filed until the filing fee is paid.Search other indexes and deeds to assure no conflicting water right ownership documents exist.Follow the county ownership index to establish chain of title for land and water right appurtenance.

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Chain of TitleThe conveyance documents must follow a logical sequence

The first conveyance document must list the owner of record with the Division of Water Rights as grantor, assignor, etc., and all subsequent conveyance documents must “link” back in the same manner to the previous conveyance documentDeeds must be recorded in orderPay special attention to deeds addressing water rights. They can affect transfer by appurtenance to land.

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BASIC: 100% ROC ChecklistFee

Completed ROC formCopy of recorded DeedsWater Right Number is mentioned on the deed

ROC may be prepared by an individual

Water Right Number is not mentioned on the deed

ROC must be prepared by an authorized professionalMap of appurtenance is requiredAppurtenant parcel highlighted on the mapMaps must match the legal description on the deed, and must be the same as the authorized place of use

The appurtenant parcel is highlighted on the deedThe purported conveyance actually represents 100% of the water right or 100% of the grantor’s portion

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BASIC: Portion ROC ChecklistIn addition to the 100% checklist:

Only a portion of the water right is being conveyedThe portion of the water right conveyed has been clearly defined in the conveyance document OR the professional’s statement on the ROC is reasonableIf the water right, or associated change application has more than one use and the uses to be conveyed have not been defined in the conveyance document, a professional must sign the ROC and specify the uses; the professional may only define what has already been definedIf the water right or associated change application has more than one owner, and their interest has not been defined, the owners of record will need to define their interest with a deed or affidavit in order for the uses to be definedVerify that the uses quantifyVerify that the grantor has the interest s/he has declared to convey