Water Right Title Information
Revised: May 2, 2019
A complete Report of Water Right Conveyance, including all supporting documentation, must be submitted for EVERY water right number requiring title update.
Note: If you are interested in a training on the basics of updating water right files, Please contact either Sue Glenn or Dana Dredge. Please note: you need to at least have five participants and we like to limit the training to twenty (this makes for a good round table discussion).
State statutes provide that all water is the property of the public. Rights to use water are administered through the Division of Water Rights. Much of the State of Utah is closed to new appropriations of water, so people proposing new projects may have to obtain existing rights and amend them for new developments. The following material highlights a few general considerations and is provided for information purposes only. As in all legal and financial transactions, expert professional counsel is advisable.
Water 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 may be 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). Or, a right may be conveyed with land in a specifically described amount, or it may be conveyed separately without any land involved. Also, land can be sold without its appurtenant water rights if the rights are expressly reserved or have been conveyed or changed away prior to the conveyance of the land.
Appurtenance must be established if any of the deed(s) fail to mention the water rights by number. An appurtenance map(s) will need to be submitted showing the property as described on the deed. Each map will need to have the property description for the parcel (often the parcel will already be detailed on a county recorder's ownership plat) outlined or highlighted exactly the way the deeds describe, and a Section, Section Corner, Township and Range indicated. The maps submitted show how the above-mentioned water right(s) were conveyed by appurtenance with the land. A professional who is licensed in Utah as an attorney, a professional engineer, a title insurance agent, or a professional land surveyor are the only professionals authorized to submit maps establishing appurtenance (R655-3-5).
Statutorily, the appropriate county recorder's office is the location of title record for perfected water rights. All deeds should be filed with the appropriate county recorder. The records of the Division of Water Rights may or may not accurately reflect ownership. The procedure for updating ownership in records of the Utah Division of Water Rights is described in Utah Code Section 73-1-10 and Administrative Rule R655-3.
All water rights include specific restrictions. There is a limited amount of water that may be diverted from a defined source for certain uses during a defined period of time each year. Each right also has a priority date in relationship to other rights in the area and/or from the source. Should a scarcity of water occur, rights could be cut off or reduced for a period of time based on seniority alone, regardless of the type of use. Also, perfected rights must be consistently placed to beneficial use by the owner or an authorized party, or otherwise protected during an idle period of seven years or more by filing of a nonuse application with the State Engineer. Otherwise, unused rights may be challenged as having ceased for nonuse.
Since all rights have specific attributes, it is recommended that any conveyance document carefully define what is being conveyed. Documents should recite the water right number(s), any pending change applications being conveyed, the amount(s) of water, and the beneficial use(s) being transferred. Then the buyer (grantee) is aware of exactly what has been obtained, and the seller (grantor) is aware of what use(s) must be retired to accommodate the new owner.
Each type of beneficial use has an associated maximum amount of water ("duty") which may be diverted to meet those purposes. Each use will also have an associated percentage or rate at which water is depleted from the hydrologic system under such use. Buyers should evaluate water rights in terms of these defined amounts to be sure that enough right is obtained for their proposed projects. If the new party plans to utilize the same source and nature of use and place of use, more paperwork may not be needed. If a buyer plans to amend the right or a portion of the right to include a new source and/or nature of use and/or place of use, a change application will need to be filed with and approved by the State Engineer to authorize such alterations. Change applications will be advertised in a local newspaper so that other water users in the area can be notified of the proposed amendments and express any concerns about the effects of changes upon their existing rights. Generally, obtaining a water right as close and as similar as possible to the proposed project lessens concerns about a change application being approved.