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Type 2 Non-Irrigation Water Rights

Understanding Type 2 Non-Irrigation Water Rights and Their Conveyance

Type 2 non-irrigation water rights play a significant role. Among the various types of water rights, This blog post delves into what these rights entail, how they can be conveyed, and the specifics of A.R.S. 45-474, the Arizona Revised Statute that governs the transfer of these rights.

What are Type 2 Non-Irrigation Water Rights?

In Arizona, water rights are categorized based on their usage. Type 2 non-irrigation water rights are specific to non-agricultural uses, such as industrial, commercial, or residential purposes. These rights are allocated based on historic use and are typically associated with land that has a history of non-irrigation water use. A Type 2 right is not tied to the land; the certificate is the only way to determine ownership.

Characteristics of Type 2 Non-Irrigation Water Rights

Historical Use: These rights are established based on the historical use of groundwater for non-irrigation purposes. This means that the volume of water allocated is determined by the amount used historically by the right holder.
Flexibility: Unlike irrigation rights, Type 2 rights are not tied to a specific parcel of land. This flexibility makes them valuable, as they can be leased or sold independently of the land.
Transferability: These rights can be transferred between parties, making them a tradable commodity within the regulatory framework established by the Arizona Department of Water Resources (ADWR).

Conveyance of Type 2 Non-Irrigation Water Rights: A.R.S. 45-474

The conveyance, or transfer, of Type 2 non-irrigation water rights is governed by A.R.S. 45-474. This statute outlines the procedures and requirements for legally transferring these rights from one party to another. Here are the key provisions:

Application Process

Filing an Application: The process begins with the filing of an application with the ADWR. Both the seller (current right holder) and the buyer (new right holder) must be involved in this application.
Details Required: The application must include detailed information about the water right, such as the certificate number, the amount of water historically used, and the intended use by the new right holder.

Review and Approval

ADWR Review: Upon receiving the application, the ADWR reviews it to ensure compliance with all regulatory requirements. This includes verifying the historical use and ensuring that the transfer will not adversely impact other water users.
Public Notice: In some cases, the ADWR may require a public notice of the proposed transfer. This allows other stakeholders an opportunity to raise any concerns or objections.
Approval: If the application meets all requirements and no valid objections are raised, the ADWR approves the transfer. The new right holder then receives a revised certificate of water right.

Conditions and Restrictions

Beneficial Use: The new right holder must demonstrate that the water will be put to a beneficial use. This means the water must be used for legitimate non-irrigation purposes as defined by Arizona law.
Consistency with Management Plans: The transfer must be consistent with the management plans of the Active Management Area (AMA) where the water right is located. AMAs are designated areas with specific water management goals to ensure sustainable water use.
No Injury Rule: The transfer must not cause harm or “injury” to other existing water rights. This is to ensure that the transfer does not negatively affect the water supply for other users in the area.

Conclusion

Type 2 non-irrigation water rights are a vital component of Arizona’s water management strategy, providing flexibility and tradability for non-agricultural water use. The conveyance of these rights, governed by A.R.S. 45-474, involves a detailed process to ensure that transfers are conducted legally and sustainably. Understanding this process is crucial for anyone involved in buying or selling these valuable water rights.

By adhering to the guidelines set forth in A.R.S. 45-474, stakeholders can ensure that their transactions are compliant with state laws, thereby contributing to the efficient and equitable management of Arizona’s water resources.

If you are interested in purchasing a Type 2 non-irrigation water right then contact attorney Clint Dunaway at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice and does not create a lawyer-client or attorney-prospective client relationship. The law changes quickly and varies from jurisdiction to jurisdiction. As such, readers should not act upon this information without seeking advice from professional advisers. Additionally, this Firm limits its practice to the states of Arizona and New York.

Certificate of Assured Water Supply

Arizona’s Certificate of Assured Water Supply (CAWS) is a crucial component of the state’s water management strategy. Designed to ensure sustainable water use, the CAWS guarantees that new developments in Active Management Areas (AMAs) have a 100-year assured water supply. Here, we explore what it takes to obtain this certificate, the timeline involved, and the associated costs.

What is a Certificate of Assured Water Supply?

The CAWS is a certification issued by the Arizona Department of Water Resources (ADWR). It serves as a verification that a new subdivision within an AMA has a legally, physically, and continuously available water supply for the next century. This certificate is essential for developers before they can sell or lease subdivided lands.

When is a CAWS Required?

A Certificate of Assured Water Supply (CAWS) must be obtained when land is subdivided within an active management area and is not served by a designated water provider.

Requirements for Obtaining a CAWS

1. Legal Availability of Water

Applicants must demonstrate they have the legal right to the water they plan to use. This can involve water rights, contracts, or other legal mechanisms. An applicant must demonstrate legal rights to all water supplies included in the application. (See: A.A.C. R12-15-718).

2. Physical Availability of Water

The water supply must be physically accessible and sustainable. This requires hydrological studies and models to prove that the water source will remain reliable over the 100-year period. Sources of water have specific requirements for demonstration of physical availability. A list of those specific requirements can be found in the Arizona Administrative Code. (See: A.A.C. R12-15-716).

3. Continuous Availability

The water supply must be available without interruption. This often involves proving infrastructure capacity, such as wells and storage facilities. Water providers or developers must demonstrate that the water supply is uninterruptible for the 100-year period, or that sufficient backup supplies exist for any anticipated shortages. (See: A.A.C. R12-15-717).

4. Water Quality

The water must meet quality standards set by the Arizona Department of Environmental Quality (ADEQ). Proposed sources of water must satisfy existing state water quality standards and any other quality standards applicable to the proposed use after treatment. (See: A.A.C. R12-15-719).

5. Financial Capability

The applicant must demonstrate the financial capability to construct and maintain the necessary water infrastructure. Water providers or developers must demonstrate financial capability to construct the water delivery system and any storage or treatment facilities. Financial capability for developers is typically considered through the local government’s subdivision review process. A demonstration is also required that adequate delivery, storage and treatment works will be available to the applicant or the applicant’s customers for 100 years. (See: A.A.C. R12-15-720).

6. Consistency with the Management Goal

The proposed water use must align with the AMA’s goal, which typically focuses on sustainable water use and conservation. Each AMA’s Management Plan prescribes water conservation requirements for municipal water providers. Water demand associated with proposed subdivisions is evaluated in accordance with these conservation requirements. (See: A.A.C. R12-15-721).

Type A – Type B Certificates

There are Type A and Type B Certificates of Assured Water Supply. Type A Certificates are ______________.

Type B Certificates are “The Director shall classify all certificates that do not meet the requirements of subsection (H)(1) of this Section as Type B certificates.” Ariz. Admin. Code § 12-15-704.

It is possible to submit an application to the Arizona Department of Water Resources to reclassify an existing Type Certificate.

Timeline for Obtaining a CAWS

The process of obtaining a CAWS can be lengthy. Here’s a general timeline:

1. Pre-Application Consultation

Engaging with ADWR early can help clarify requirements and streamline the process.

2. Application Submission

Once the application is complete, including all necessary studies and documentation, it is submitted to ADWR.

3. ADWR Review

The review process can take several months to a year, depending on the complexity of the application and the thoroughness of the initial submission.

4. Public Notice and Comment Period

There is a period for public notice and comments, which adds additional time to the application process. “The Director shall give public notice of an application for a certificate as provided in A.R.S. § 45-578.” Ariz. Admin. Code § 12-15-704.

5. Final of Application Determination

After considering all factors and public input, ADWR makes a final determination. If approved, the Certificate of Assured Water Supply is granted.

Transferability of Assured Water Certificate

An Arizona Certificate of Assured Water Supply (CAWS) is not automatically transferable when a property changes ownership because the Certificate is tied to the property owner listed on the certificate and the plat on which the application was based.

Assignment of CAWS: If certain conditions are met, the existing CAWS can be assigned to the new property owner using a Type A or Type B Assignment Application. These applications have specific requirements that need to be fulfilled for the assignment to be successful. 45-579(A) “A holder of a certificate of assured water supply issued pursuant to section 45-576 may assign the certificate, in whole or in part, to another person if the holder applies to the director for approval within ten years after the original certificate was issued and the director approves the application.” If more than 10 years have passed since the certificate was originally issued then, “An application may be filed under this section more than ten years after the original certificate was issued if a minimum of five hundred lots within the subdivision covered by the certificate have been sold to individual home buyers by the holder of the certificate and any previous holders of the certificate.”
Re-Issuance of CAWS: If the ownership has changed and the plat remains unchanged, a new CAWS can be issued to the new owner under certain conditions.
Material Plat Change Review: If changes have been made to the plat after the CAWS was issued, a Material Plat Change Review may be required to determine if the changes are substantial enough to necessitate a new CAWS application.

The Arizona Department of Water Resources (ADWR) handles the applications for the assignment or re-issuance of CAWS.

Costs Involved in Obtaining a CAWS

The costs associated with obtaining a CAWS can vary widely based on several factors, including the size of the development and the complexity of proving water availability. Here are some potential costs:

1. Application Fees

ADWR charges a fee for processing the CAWS application. As of 2014, the application fee is $1,000.

2. Hydrological Studies

Conducting the necessary hydrological studies can cost tens of thousands of dollars. These studies are essential for proving physical availability and sustainability.

3. Legal and Consulting Fees

Legal and consulting fees for preparing the application, conducting studies, and navigating the regulatory process can add significantly to the cost.

4. Infrastructure Costs

Costs for developing the necessary water infrastructure, such as wells, pipelines, and storage facilities, can be substantial. These are often borne by the developer and can run into millions of dollars for large projects.

5. Ongoing Compliance

Maintaining compliance with the CAWS requirements may incur additional ongoing costs, including monitoring, reporting, and potential upgrades to infrastructure.

Conclusion

Obtaining a Certificate of Assured Water Supply in Arizona is a complex and costly process, but it is essential for ensuring sustainable water use in new developments. As water becomes an increasingly valuable resource, the CAWS plays a vital role in balancing growth with sustainability.

For more detailed and specific guidance then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. The Firm limits its practice to the states of Arizona and New York.

Water Well Agreements Arizona

Shared Water Well Agreements

What are your rights to water that comes from a shared well that is not located on your property? For most people, the answer is in their written well share agreement.

The first question to be considered is—which state regulating body grants me the right to access and use groundwater? The Groundwater Management Act “GWMA” of 1980, established that groundwater, is common property of the citizens of Arizona and the management of it was under the Arizona Department of Water Resources, (ADWR). All groundwater withdraws in Arizona must come from a water well that was permitted by ADWR.

Owning the land or having an easement right does not give you the right to extract groundwater. The right to extract groundwater in Arizona only comes from having a permitted well.

Therefore, a well share agreement to share the water from a legal source should always refer to the well by its ADWR registration number.

On Whose Land Does is the Well Located?

The second question to be considered is: whose land is the well located on? If the well is located on land that is titled in the name of one of the members of the well share group, then that person owns the well. Drilling and constructing a water well creates a permanent change to real property and that it cannot be separated from the land, therefore, well becomes a part of the land. Groundwater is not real property. Percolating water beneath the earth in Arizona is called groundwater and in it is considered “public” property managed by the ADWR.

If the well is located on your neighbor’s lot, and they hold title to the land in their name, the well should be registered with the ADWR in their name. The ADWR recognizes that shared wells can, and should be, registered in the name of the person or party that is responsible for its management. The ADWR has created Form 55-73 , for the purpose of registering shared wells in the name of a managing or operating group. Registration of a well with the ADWR does not establish ownership of the well. A.R.S. § 45-593(c), requires that the owner of the land keep the ADWR up-to-date as to who owns the land and where the well is located. For this purpose, the ADWR created Form 55-71(a), request to change well information.

well is owned by those named on the deed

When a shared well site is situated on a parcel of land that is deeded and recorded in the appropriate Arizona county, the well is owned by the names listed on that deed. The wording of many well share agreements may grant several owners an undivided interest in into a small piece of land, and thus an undivided real property interest in the well. When this wording is used on the deed and in the shared well agreement, the assessors map should show a smart parcel of land with its own Assessor’s Parcel Number (APN). In this case, the well should be registered in the name of all parties listed on the deed.

If your well share agreement is worded in the same manner as the deed, you own an undivided piece of this land which means that you are also subject to a portion of the yearly property taxes or improvement assessments on this parcel.

Once water is pumped to the surface from a registered well, and placed in the storage tank, it becomes the personal property of the owners of the land. So, if you own a percentage of the land via the deed, then you also own a percentage of the water stored on it.

easement rights & ownership rights

Some well share agreements are structured such that the participants receive only an easement right to access the land where the well is located. There is a major difference between owning an undivided interest in a piece of real estate, partial ownership, versus having just a vested interest in someone else’s real property granted by an easement. An easement is a vested interest in someone else’s real property and not an undivided fraction of title to the land into the well.

An easement will typically state that it was granted for a specific purpose. If your well share agreement is an easement right of entry you should verify that you have a right to do more than merely access someone’s land. The wording of that easement may, by exclusion, not grant you are right to receive and share the water, located on that property. An easement is a vested interest only in someone else’s real property for a specific purpose and groundwater is not a part of real property.

arizona water well agreements- pre-1980

Many well water agreements in place today were written prior to 1980, when groundwater was more loosely considered to be a part of the real property. These older versions often refer strictly to the land and not to the water or the registered well. Well share agreements that refer strictly to a piece of real estate, and do not state the registration number of a well, may not be granting you a legally defensible right to the groundwater. A registered water well is the only legal right to the public groundwater resource and it is granted only to the permitted owner of the land. This is a very compelling reason why all well share agreements should refer to the water well being shared by the registration number.

Well share agreements should define a legal right to groundwater from a registered well. A well share agreement is a legal contract between two or more persons and it can be enforced by the courts. Not complying with the well share agreement can constitute a breach of contract.

If you are considering the purchase of a home with a shared well then read on post of what to expect when living in a home with a shared well. Also, review what a website that will help you schedule and record maintenance records and other important information.

If you would like to amend an existing water well agreement or would like to create a water well agreement then contact the Dunaway Law Group, PLC at 480-702-1608 or [email protected].

The information provided in this blogpost is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.

Arizona Well Registry Numbers

The Arizona Groundwater Management Act of 1980, mandated that all property owners register their wells with the Arizona Department of Water Resources. Additionally, the Act requires all property owners with a well to maintain accurate ownership information. Regardless of whether the well is shared or not.

However, frequently properties with wells are sold or transferred without informing the ADWR that there was a change in ownership. FYI, recording a deed of title with the county recorder does not notify the ADWR that the well has changed ownership. As such, many original property owners are still listed with the ADWR as the current owner.

Well Registry Numbers– The Arizona Department of Water Resources (ADWR) assigns a well registry number to each well when it is drilled. The well registry number is a unique number assigned to only one well. They are similar to a car’s Vehicle Identification Number (“VIN”) in that no two cars have the same numbers.

Well Registry Number’s “55-“. Well registry numbers all begin with 55- and then are followed by six numerical digits. Well Registry Numbers do not change even if well changes ownership.

verifying well ownership with the adwr

Well ownership can be checked by visiting the ADWR’s website. Click HERE. You can search by using the Well Registry Number, Property Owner Name or Search of Location (Township/Range, Parcel, Cadastral, Basin or Sub-basin). If you want help using the ADWR’s website you can watch a YouTube video I made explained the process in detail. Click HERE to watch my video.

REGISTERING a WATER WELL

If your water well is not registered in your name, you may not have a “known or definable” source of water for your home. Arizona does not consider groundwater to be private property belonging to the landowner. Exempt well water rights are more like an operating permit to withdraw a state managed natural resource.

Additionally, if a well is not registered in the owner’s name the ADWR cannot provide important notices of changes in groundwater laws that may affect their water rights.

ADWR Forms Mandated by A.R.S § Title 45

Form DWR 55-71A can be used to update the ADWR of the new owner. That same form can also be used to correct or change well location information, the name of the well drilling company to be used to drill or deepen the well, or any other pertinent information about the well.

Escrow officers will often use this form to record a transfer of well ownership with the Arizona Department of Water Resources at the time of escrow closing.

LOCATING WELL RECORDS

There are three basic ways to locate Arizona water well records. You can access well file data in the ADWR Imaged Records database the following ways;

1. Using the well registration number (55-000000), 2) by entering the file or cadastral (registry of real state property) designation of your well, or 3) by finding and clicking on a red dot a topographic map of the state of Arizona where your well is located. After locating your well records, you can download them in a pdf file format.

The first step is logging on to the ADWR web site as explained below. Log on to the ADWR Home Page and scroll down to Quick Links: and click on the Imaged Records logo, which will direct you to a page with a box named Search ADWR’s Imaged Records. Change the Imaged Record: field from “Groundwater Document” to “Well Record Document” using the scroll down menu on the right.

steps to registering a well

First Step to Register a Water Well– The first step to registering a water well is to visit Change of Well Ownership (azwater.gov) and enter the well’s 55- number.
Second Step to Register a Water Well– The second step to changing well ownership is to provide the new owner’s name and contact information.
Third Step to Register a Water Well– The third step to registering a water well is to provide proof of ownership. Lastly, you must pay a $30 fee.

If you need assistance with your water well then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* These blog posts are not intended, nor shall they be deemed to render legal advice. Reading these blog post does not create an attorney-client relationship, nor shall it impose an obligation on the part of the law firm to respond to further inquiry. The Dunaway Law Group limits its practice to the states of Arizona and New York.

Evictions and Claims of Ownership

Claims of Ownership in Justice Court Evictions

Eviction lawsuits are designed to address the issue of possession and not ownership. Eviction lawsuits are to provide a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the tenants were permitted to deny the landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law.

The merits of the title may not be inquired into in eviction actions, otherwise the action would not afford a summary, speedy and adequate remedy for obtaining possession of the rental property. The limited scope of eviction cases is explained in A.R.S. § 22-201(D) which states;

Justice Court Judges, “have jurisdiction to try the right to possession of real property when title or ownership is not a subject of inquiry in the action. If in any such action the title or ownership of real property becomes an issue, the justice shall so certify in the court record, at once stop further proceedings in the action and forward all papers together with a certified copy of the court record in the action to the Superior Court, where the action shall be docketed and determined as though originally brought in the Superior Court.”
A.R.S. § 22-201(D)

transfer to the superior court

Notice of Transfer to Superior Court. If the Justice Court judge rules that the eviction case should be transferred to the Superior Court then the Justice Court will file a Notice of Transfer and send the complete file to the Superior Court.

Beginning of the Eviction in the Superior Court. Once an eviction lawsuit has been transferred from the Justice Court to the Superior Court, it’s as if the case was re-starting. For instance, the filing fee of $333 (as of 2024) must be paid and the tenants must be re-served with the date and time of the upcoming hearing.

Initial Eviction Hearing in the Superior Court. The initial eviction hearing in the Superior Court will be fairly quick, similar to that of the Justice Court. If the tenant appears and presents legal arguments of ownership then the Superior Court judge will set the matter for trial.

Eviction Trials in the Superior Court. At the eviction trial, both parties will present their legal arguments, documentation and testimony that support their positions. At the conclusion of the trial the Superior Court judge will decide whether or not there is a landlord-tenant relationship between the two parties or a buyer-seller relationship. If the judge determines that there is a landlord-tenant relationship then he or she will enter judgment in favor of the landlord. However, if the judge finds that there is a buyer-seller relationship then he or she will dismiss the eviction lawsuit at which point the party seeking the eviction is free to file a quiet title action to settle the dispute of ownership.

Landlord Frustration. Often, when an eviction case is transferred from the Justice Court to the Superior Court, a landlord will respond, “But my tenant doesn’t own the property! It’s mine! They’re just lying! Why does the judge believe them?”

The frustration is understandable, but it is important to remember that the Justice Court Judge is just following the law, it does not mean that he or she necessarily believes the tenant. So, it should not be interpreted as a sign that the landlord did something wrong or the tenant made some brilliant legal maneuver. It simply means the Justice Court Judge is following the law.

If you need help from an experienced eviction attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.