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Category: Shared Well Agreements
Glossary Well Share Agreements
Arizona Association of Realtors (AAR). Arizona Association of Realtors is the largest trade Association in Arizona, representing more than 40,000 Arizona Realtors subscribing to the strict code of ethics outlined by the National Association of Realtors. In addition to providing a number of benefits and services, AAR is dedicated to the protection of private property rights and the best interests of Arizona realtors in legislation and strives to provide the best and most current legal information and education available.
Abandoned Well. An “abandoned well” is one that has been properly plugged by an Arizona licensed well driller after a Notice of Intent to Abandon (NOIA) a well has been filed with ADWR, and an abandonment authorization has been issued to the driller. This legal authorization from ADWR is required prior to well abandonment, and the landowner may be liable for any groundwater contamination or injury that results from lack of proper abandonment.
Active Management Areas (AMA). Five geographic areas designated by the Arizona Groundwater Code (1980) requiring active management of groundwater. Each AMA has a management goal, a management plan, a groundwater-rights system, restrictions on agricultural land expansion, and other requirements designed to preserve groundwater resources.
Acre-feet. A water volume unit equal to one acre with one foot of standing; or 43, 560 cubic feet; or 325,853 gallons. One acre-foot/year is approximately 893 gallons per day.
Adequate Water Supply Program. The adequate water supply program operates outside of the Active Management Areas (AMAs). It ensures that the water adequacy or inadequacy is disclosed in the public report provided to potential first purchasers and that any water supply limitations are described in promotional or advertising material. However, in a mandatory adequacy jurisdiction, adequacy of water supplies must be demonstrated prior to plat approval and issuance of a public report.
Anthropogenic Contaminants.
Anthropogenic contaminants are found in water as a result of human activities that release industrial and agricultural chemicals into the environment, and those derived from land use activities such as oils and grease flushed off of roadways. The volumes released vary widely and their fate and transport within the environment depend on their chemical and physical properties, and how each medium responds to their presence. Some contaminants are harmless or are not known to be toxic; others degrade, decomposing into harmless chemicals. Other contaminants can accumulate in our tissue and organs and be a potential danger to our health.
Aquifer. An underground geologic formation that contains and transmits groundwater.
Arizona Department of Water Resources. A state agency established by the Arizona Groundwater Code of 1980 to administer and enforce the code provisions. Its primary mission is to ensure a long-term water supply for Arizona.
Assured Water Supply Program. The Arizona assured water supply program operates within Arizona’s five Active Management Areas (AMAs). It is designed to sustain the state’s economic health by preserving groundwater resources and promoting long-term water supply planning. AMAs are those areas of Arizona where significant groundwater depletion has occurred and include portions of Maricopa, Pinal, Pima, Santa Cruz and Yavapai counties.
Assured Water Supply compared to the Adequate Water Supply Program. The assured water supply program covers subdivisions within active Management areas (AMAs), while the adequate water supply program covers developments outside of the AMAs. Four types of applications are processed in each of these roughly parallel programs: physical availability demonstration (PAD), designation of assured or adequate water supply, analysis of assured (or adequate) water supply, and either a certificate of assured water supply or a water adequacy report. Both programs are driven by the definition of a subdivision from the Arizona Department of Real Estate (ADRE) as six or more Parcels with at least one parcel having an area less than 36 Acres. Applicants are required to demonstrate an assured water supply that will be physically, legally, and Continuously available for the next hundred years before the developer can record plats or sell parcels.
Bladder Tank (Hydropneumatic Tanks). Bladder and hydropneumatic tanks are vessels that hold water and are under pressure in order to provide an efficient water supply. Compressed air creates a cushion that can absorb or apply pressure if needed. Air is held between the tank wall on the outside of a bladder, while the water is contained inside of the bladder. The air compressors as the bladder expands when the pump is running. Hydropneumatic tanks hold the air and water in direct contact and therefore require a constant replenishment of air in order to maintain a proper ratio of air and water.
Domestic Well (Exempt Well). In Arizona, an exempt well has a maximum pump capacity of 35 gallons per minute. Typical uses include non irrigation purposes, non-commercial irrigation of less than 2 acres of land, and watering stock. Most exempt Wells are used for residences (domestic well) and are more than adequate for household use, but because they are exempt from reporting water quality, the well owner is responsible for ensuring the water safe to drink.
Drawdown. The difference in elevation between the static water level and the pumping water level in a well.
Exempt Well.
Gallons Per Minute. Gallons per minute is an instantaneous measurement (GPM) of the flow rate of water from a well. It may or may not be the true value of the long-term sustainable pumping rate of the well. A measurement of gallons per day (GPD) that the well can produce would be a better method to compare and classify the productivity of a given well.
Hydraulic Fracturing. The process in which water or other fluid is pumped with sand under high pressure into a well to fracture and clean-out the rock surrounding the well bore thus increasing the flow to the well.
Irrigation Well. Irrigation Wells are not exempt from regulation, and the Arizona Department of Water Resources requires reporting extracted volumes of water used in commercial agriculture. Irrigation wells typically have a capacity greater than 35 gallons per minute and irrigate more than two acres. Under the Arizona groundwater code, there are several locations in Arizona or expansion of irrigated land is prohibited, and within the AMAs, operation of irrigation Wells total annual pumpage may be restricted.
Land Subsidence. The pressure exerted by liquid. Hydrostatic pressure increases with depth because of the increasing weight of fluid.
Non-exempt Wells. In Arizona, a non-exempt well must report the volume pumped (irrigation, industrial, and Municipal Wells) and monitor and Report water quality for water used for drinking water purposes (Municipal well and some industrial Wells). Wells exempt from these reporting requirements are limited to less than a maximum capacity of 35 gallons per minute and include non-irrigation purposes, non-commercial irrigation of less than 2 acres of land, and watering stock (livestock well).
Notice of Intent (NOI). The name of four different forms prescribed by the ADWR to be completed and filed prior to drilling a water well, an exploration borehole, or a monitoring well, or prior to abandoning any well.
Pitless Adapter. A special fitting installed in the side of the well casing that allows the water from the pump to exit the well groundwater and below the freeze line.
Potable Water. Water which is satisfactory for drinking, culinary, and domestic purposes.
Pressure Switch. An electrical device that turns a well or booster pump on and off at specified pressure settings measured in pounds per square inch (PSI).
Recharge. The means by which the aquifer is filled with water, usually by rainfall or snowmelt infiltrating into the ground.
Reclaimed Water. Or recycled water, is former wastewater that is treated to remove solids, reduce organic matter, and disinfected enough to meet reuse standards. In Arizona parks and gold courses must use reclaimed water for sustainable landscaping irrigation. It is also used to recharge groundwater aquifers; to sustain some riparian habitats; to meet commercial and industrial water needs; and, with additional treatment, for drinking.
Registrar of Contractors (ROC). The Arizona Registrar of Contractors issues licenses for commercial and residential work and dual licenses that covers both commercial and residential for each particular trade or field of the construction profession.
Shock Chlorination. A procedure whereby a strong oxidizing agent (typically chlorine) is mixed into the water of a well or a storage tank to inactivate or kill microorganisms that might be harmful to humans.
Static level. Stabilized water level in a non-pumped well beyond the area of influence of any pumping well.
Sustained Yield. Attempts to limit groundwater pumping have been commonly based on the concept of say field, defined as the attainment and maintenance of a long-term groundwater Supply, typically by limiting the rate of extraction to the rate of recharge. Sustainable development of groundwater resources must meet the needs of the present without compromising the ability of future generations to develop and use groundwater in a manner that can be maintained for an indefinite time without causing unacceptable environmental, economic, or social consequences.
Water Well Logs. Also known as borehole logging, is the practice of making a detailed record (a well log) of the geologic formations penetrated by a borehole. Many logs will include the ‘as-built’ diagram of the well dept, screen length, and pump placement.
Testing Well Water
To keep your well water clean and well operating at peak performance, regular water testing is a must. Private well owners are solely responsible for the quality of their drinking water. So, it is up to you, how and when to test your water.
Initial Water Testing
When a new well is drilled.
If there is no record of testing.
You’re buying a home with a well.
2. Annual Water Testing
At a minimum, well water should be tested every year.
3. Intermediate Testing of Well Water: The well water should be tested immediately if;
You install a treatment system.
There is a sudden change in taste, color, or odor.
Someone in the home is pregnant or nursing.
Failure of a septic system.
After a flooding event.
Someone in the home has a sudden, unexplained illness.
what contaminants should be tested
In Arizona, private well owners are responsible for the upkeep of their well and the quality of water it produces. While a loan provider or real estate company may require a water quality test, there are no federal or state laws that require a well owner to have their well tested. This means that Arizona well owners are solely responsible for testing their water, in order to protect the health of anyone who drinks it.
CONTAMINANTS IN your WELL WATER
Contaminants in well water may be present due to a variety of sources. Some may be present due to human sources, while others may occur naturally. Some contaminants, such as dissolved metals and nitrates, may be present due to both human and natural sources. It is important to remember that the presence of a contaminant in groundwater does not necessarily mean it will impact human health. The duration of exposure (i.e., how long you have been drinking and/ or cooking with the water), the concentration of the contaminant, your health, and many other “puzzle pieces” factor into whether a contaminant can make you ill.
Bacteria in Your Well Water
Coliform bacteria can be found naturally in the environment. They can also be present in the digestive systems of animals and humans. The bacteria themselves are unlikely to cause illness; instead, they are used to indicate the presence of other bacteria, viruses, or parasites that could make you ill. The specific presence of E. coli in well water is usually an indicator of fecal or sewage contamination, which can make you sick. It is important to discuss sampling and analyzing your well water for bacteria.
Nitrates in Your Well Water
Nitrates can occur naturally in groundwater and are usually found at levels that do not cause health problems. However, high levels of nitrates found in well water may be present due to contamination. This contamination may be from an over-application fertilizer, a leaking septic system (or one that is too close to the well), and animal waste. Nitrates can interfere with the body’s ability to properly distribute oxygen. This can be particularly concerning for infants or young children. “Blue Baby Syndrome” can occur when an infant ingests high concentration of nitrates, which can cause the skin to become discolored to a pale gray or blueish color). At high enough concentrations, nitrates can affect the nervous system or even cause death.
Arsenic in Your Well Water
Arsenic occurs naturally in the environment and can also be present in groundwater due to human activities. Arsenic is one of the most commonly occurring contaminants in Arizona’s groundwater and long-term exposure can cause skin problems and cancer. Many of the highest known concentrations of arsenic are located in the Southwestern portion of the Arizona.
Fluoride in Your Well Water
Fluoride is found in elevated concentrations across Arizona, particularly in some aquifers in the southern parts of the state. Though floride promotes healthy bones and teeth, too much fluoride in water can damage bones and cause tooth discoloration.
Radon in Your Well Water
Radon is an odorless, tasteless gas that cannot be seen or smelled. It forms when a radioactive metal, like radium, decays in rocks. The gas can dissolve into groundwater and could be present in drinking water from a private well. Radon gas can be released into the air when the water is used for domestic purposes. When inhaled, radon can increase the risk of lung cancer, and is the number one cause in non-smokers.
Salinity of Your Well Water
Many parts of Arizona’s groundwater sources have elevated levels of total dissolved solids that adversely affect household uses. Recommended water treatment options are also provided that may help manage well water quality.
INDICATIONS THAT YOUR WELL WATER NEEDS TREATMENT
Well owners may select water treatment options based on one, or more, of the four general symptoms shown in has a detailed contaminant-specific list of water quality issues with causes and suggested treatments. These symptoms affect water quality, are nuisances, and usually require some form of water treatment. But other more serious health-threatening contaminants may be present in well water such as arsenic, nitrate, and pesticides that cannot be seen, tasted or smelled.
TREATMENTS
To assist in the well water treatment selection, each with options depending on the quality of the water. The treatment sequence is important, and in most cases only one treatment step will be needed, but in others two or more steps may be needed and should be installed in order. For example, the water may first need to be filtered prior to chemical treatment. Aside from the symptoms described, it is important to test and measure the concentration of the contaminant to properly size the treatment option. After the installation of the system, a follow-up water test should be done to evaluate efficiency of contaminant removal. For example, arsenic treatment systems may remove only 80 percent of the contaminant, but the initial concentration may be such that you may need two systems in-line to assure safe water.
Particle and Microfiltration
Gravity-fed sand filters are capable of filtering soil particles and some types of pathogens when the filter is properly designed and maintained. ‘Natural’ filtration occurs as water infiltrates through the soils to the aquifer through a combination of physical, chemical, and biological processes within the environment. Well water filters may combine several layers of sand and coarser material to reproduce this natural process. Sand filters can be scaled to filter large volumes of well water but require periodic maintenance and monitoring to assure constant flows and water quality. Particle sand filters can also be effective in reducing the levels of bacteria and viruses in water.
Closed system (pressurized) sand filters are used in swimming pools to remove lime scale residues, but these are typically not used for drinking water treatment. Cartridge-based filters offer a practical solution of well water filtration since these can be installed in line without exposing the water to air and remain under pressure. Surface or screen filters, such as alumina and ceramic filters, can be used for particle and microfiltration depending on their pore size. Depth filters have a thick filter medium mostly made from synthetic polymeric materials fibers spun in different patterns to produce different size openings. These filters can also be used for particle and micro filtration. When possible, filters should be located indoors to avoid extreme temperature changes and cleaned or replaced regularly to prevent the formation of unwanted biofilms that can quickly clog fiber filters. Micro filters are usually rated using an absolute size cut-off, usually 1 micron or less. They are used to filter out pathogens like Giardia and Cryptosporidium, bacteria, some types of viruses, and fine soil and plant matter particles. These filters are not recommended for outdoor use and require frequent back flushing to control membrane fouling. They should be used after particle filtration to prevent early clogging.
Activated Carbon
This popular method of home water treatment is a form of ultrafiltration. Activated carbon filters lower the levels of dissolved organic contaminants from water but the mechanism of removal is a combination of physical and chemical processes. Activated charcoal filters contain cylinders of finely ground and compacted, chemically treated coconut shell (or other hardwood) charcoal. Carbon filters are commonly used to reduce the levels of residual chlorine taste if you are on municipal water, but are efficient in reducing odors, pesticides, solvents, and emerging contaminants from well water.
Some activated carbon filters may also reduce the levels of radon gas and some metals like lead from water. Carbon filters will not remove or lower the levels of salts like sodium or calcium, nitrates, or chlorides from water. Activate carbon filters will not soften or disinfect water. Particle-free water should be passed through carbon filters to avoid reduced efficiency and clogging. These point-of-use filters may be used in faucet attachments or in under the sink filter adaptors with a separate faucet. When treating potable well water, these filters may lower already very low levels, or dampen a temporary surge of some contaminants. If well water has elevated levels of a contaminant consistently above drinking water standards, these filters must be sized professionally and tested regularly. It is important to replace these filters at manufacturer recommended intervals.
Reverse Osmosis
Reverse Osmosis filters can also reduce the levels of many types of organic contaminants. The core of the system consists of a semi-porous membrane that filters out many types of soluble constituents, depending on its manufacture. The Reverse Osmosis process is a complex combination of sieving (filtering by size exclusion) and chemical reactions that occurs at the surface of the membrane. Membranes are rated according to their ability to exclude or retain certain types of ions; thus, the filtering efficiencies vary with constituent and membrane type.
Some pollutants may be prevented from passing 50 percent of the time while others more than 95 percent. Because the filtering efficiencies of these membranes can also be affected by the overall water quality, testing should be done after the RO treatment to establish system efficiency. This is particularly important when using RO systems to treat constituents that are consistently above drinking water standards in well water. Although RO systems can filter particles, bacteria and viruses, they are not recommended for particle filtration or water disinfection. As with all filter media, microbial biofilms can develop, which can plug and shorten the life of these membranes, especially when not used regularly.
Nano filtration
This process is similar to RO but uses membranes that block calcium and magnesium and many other water constituents but allow salts (sodium and potassium) to pass through. The “softening” membranes are more energy efficient since they work at lower pressures to produce equal volumes of water to RO units. The filtering capabilities of nano filtration systems may be similar to that of RO. Further development of this process may eventually lead to consumer nano filtration units that integrate the benefits of RO with those of water softeners.
Water Softeners
These systems use ion exchange resins (beads) to replace calcium and magnesium with sodium or potassium ions. Water softeners may also remove varying amounts of other water constituents such as uranium, but they do not remove most other contaminants found in water. These units typically consist of two tanks one for the resin and the other for the brine solution. Modern water softeners are automated with timed cycles that regenerate the resin with sodium or potassium, based on water hardness and household water consumption. This process is usually done at night and can be water intensive typically using more than 50 gallons per cycle. Installing a water softener will increase household water use and the wastewater load to the septic system. Do not use soft water in household or vegetable garden plants. Saline soft water may degrade the performance of septic fields and increase the chances of groundwater contamination. Many communities in Arizona prohibit the use of sodium-based water softeners since they degrade the quality of reclaimed wastewater and add to the amount of sodium salts entering the environment.
Distillation
Steam distillation effectively removes inorganic contaminants including suspended matter, salts, metals, and arsenic from water. It also removes most non-volatile organic contaminants. Volatile constituents, such solvents, may not be removed unless the unit has a venting system or an activated carbon post filter, as shown in Figure 9.10. Distilled water is corrosive and has a flat to sweet taste. Steam distillation also kills pathogens, effectively disinfecting the water. The steam distillation process is energy intensive and tabletop consumer units can use as much electricity as a toaster that is left on 24/7. The daily energy consumption may vary (usually increases) with water salinity and gallons of water produced. Consumers that plan extended or exclusive use of distilled water in their diets should consult with their physician.
Chemical Filters
Well water that is too acidic or contains abnormal levels of iron, manganese, and sulfides, can be treated with an alkaline filter to raise the water pH. After the pH is adjusted, the water is passed through a manganese (green sand medium) filter to precipitate iron and manganese and to convert sulfides to sulfate. Well water low in oxygen needs aeration to facilitate the oxidation and precipitation of iron and manganese. Aeration consists of bubbling air from the bottom of the water storage tank. Strong chemicals (oxidants such as hypochlorite) can be used to complete the oxidation process. This type of treatment is often used to remove dissolved hydrogen sulfide gas, the rotten-egg odor, from well water. Another source of hydrogen sulfide gas is a water heater with an electric anode made of magnesium.
The magnesium reacts with the sulfate in the water. If you detect the rotten egg odor from the hot- but not the cold-water faucets, the source is likely the water heater. To reduce gas production, a licensed plumber can replace the magnesium anode with a zinc anode, but the change may void the warranty. Well water that has high levels or iron, manganese, sulfides should be tested to determine the filter types and sizes required to treat the desired volume of household water. Balancing the required water pH changes and oxygen demand for the removal of iron and manganese from water can be difficult and usually requires professional assistance.
Iron Filter
Iron filters may offer a simpler alternative to the more complex RO systems when used to lower arsenic levels in well water. Since some iron minerals readily absorb arsenic from water, these filters are usually composed of tightly packed iron, or iron coated particles (beads), as shown in Figure 9.11. These filters are installed in-line and do not use electricity or extra water. Iron filters do not lower the levels of salts (TDS) or soften water. However, besides arsenic, they may also trap fluoride and selenium.
Chlorination
Chlorine-based chemicals are commonly used to disinfect potable water by public water utilities. These chemicals destroy, or inactivate, most waterborne pathogens with some exceptions (some viruses and parasites). The most common chemicals are chlorine and chlorine dioxide gases, which are too dangerous for home use. However, liquids and solids that contain sodium or calcium hypochlorite can be used for household disinfection. UV light (see next section) can also be used to disinfect well water. Water chlorination systems can be continuous using chlorine pumps, suction devices, and solid feed units and batch disinfection. Continuous feed systems are automatic and flow-dependent with auto-shut off.
Chemical disinfection often produces toxic disinfection by-products when chlorine-based chemicals react with residual organic matter present in all water sources including groundwater. Continuous chlorination systems should be professionally sized and installed since they usually require a holding tank to allow for sufficient contact time to disinfect the water, and a booster pump. As with other forms of chemical treatment, water should be particle-free before disinfection, including chlorination. Since excessive levels of disinfection by-products in drinking water can be harmful to your health, chlorine disinfected water should be tested and, if needed, filtered through an activated carbon system to reduce the levels of these chemicals.
UV Radiation
Ultraviolet (UV) light may be used to disinfect particle-free, clear water on a continuous flow mode using follow-through glass tubes with an enclosed UV light source. UV is damaging to living organisms and viruses that contain RNA and DNA material, stopping their ability to reproduce or infect other cells. Therefore, waterborne organisms like bacteria, viruses, and even some parasites may be quickly inactivated (killed) when exposed to a concentrated source of UV light. UV light disinfection systems are simple and relatively maintenance-free but their efficiencies depend on the design and UV light source type and power, the water flow rate, and the amounts and types of pathogens and other microorganisms present in the water source.
UV light disinfection systems are rated by the NSF as Class A for more aggressive treatment of clear, but contaminated water (not wastewater). UV light Class B systems may be used to further lower contaminants in safe drinking water. Both systems require particle-free water (Turbidity no greater than 5 NTU). UV light disinfection does not change the taste of water or produce any known disinfection by-products. Unlike chlorination, it does not provide any residual disinfection protection to the disinfected water. If the well water is contaminated, pre and post water testing for waterborne pathogens should be done determine the disinfecting power of the UV light system.
Other Well Water Disinfection Methods
In emergency situations water may be boiled vigorously for at least two minutes to kill all organisms. Household chemicals, such as bleach or iodine, may be used to disinfect water under emergency. For more details and guidelines for the use of bleach, and other chemicals, to disinfect water under emergency situations, visit EPA website: https://www.epa.gov/ground-water-and-drinking-water/emergency-disinfection-drinking-water.
finding someone to test the well water
There are several companies across Arizona that have been accredited and certified to test well water. Search Arizona Certified Commercial Drinking Water Laboratories by clicking HERE.
SCHEDULE PHYSICAL INSPECTIONS OF THE WELL
Regularly inspect your wellhead for damage to the casing or well cap. Repair any damage immediately to reduce the potential for contamination. Store all chemicals at least 100 feet from your well. Keep heavy equipment and vehicles off your lawn and away from your well to avoid damage to buried water lines. Other than grass, do not let plants grow near your well as plant roots can cause damage to your well casing.
If you need help from an experienced shared well 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 State of Arizona.
How to Make a Shared Well Agreement
I. VERIFY the WELL INFORMATION
The first step in creating a Shared Well Agreement is verify that the information is correct. Otherwise, making a new well share agreement with bad information is like trying to make a gourmet meal using rotten food. It can create more problems than it helps.
- Verify Well Ownership Information with the ADWR
Arizona Department of Water Resources (ADWR) requires that all property owners register and update the ownership information each time there is a change to ownership.
Recording of a deed with the county recorder, transferring title of the real estate does not notify ADWR that the well ownership has been transferred. Therefore, the new water well owner must take steps to register the well in their name.
Verify the APN Numbers
Counties assign APN numbers to parcels for tax purposes and each parcel has a unique number assigned to it by the county. But what happens to a parcel number with the property is split?
- Well share agreements are often inaccurate and outdated. Land parcels have changed. For example, the lot has been divided.
- A new homeowner has begun using the well, with permission, but the well share agreement was never modified naming the new homeowner.
- The property was sold but never updated with the new homeowner’s information.
- A new home will be built, and the agreement is not modified naming the new owners.
II. CUSTOMIZING THE SHARED WELL AGREEMENT
Every situation is different, every property is different.
- What about swimming pools;
- What about electricity meters;
- What about water meters;
- What about establishing a bank account to save money;
- What if someone doesn’t pay;
- Should a property owner without a home on her property be required to pay for maintenance even when they are not drawing water;
- Buy-in for ‘later comers’? Drilling a new well can cost upwards of $40,000, so is it fair that someone builds a house and begins using the well without contributing to the cost of its construction.
The list could go on and on.
UPDATING OWNERSHIP WITH THE SHARED WELL AGREEMENT
A well share agreement protects people. Each person is obligating themselves to abide by the agreement. For instance, they are committing to pay for all repairs, maintenance, upkeep, and electricity. When an agreement is signed, that person is obligated to abide by the promises made in the agreement. However, if a new homeowner does not sign an amended agreement, then they have not obligated themselves to the terms of the agreement.
AMENDMENTS PROVIDE AN OPPORTUNITY TO CORRECT ERRORS
I’m continually amazed at the inaccuracies found in many well share agreements. I’ve seen some where the well share number was incorrect, the legal descriptions were incorrect, and so were <<insert>>.
III. AFTER THE SHARED WELL AGREEMENT IS COMPLETE
RECORD THE AGREEMENT WITH THE COUNTY
Once the Shared Well Agreement is completed and signed by all parties it must be recorded with the county recorder.
REGISTERING YOUR WELL WITH THE ADWR
In Arizona, private well owners are left strictly on their own to manage and protect their water well. There are no standards for the performance of private or shared water wells during the sale and transfer of the real estate upon which the well is constructed.
Even though the Arizona Department of Water Resources (ADWR) does not get involved in Shared Well Agreements it is still a best practice to record the agreements with them. They will put it in the permanent file for the well and so it can always be referenced. However, well share agreements are completely unregulated and not required by Arizona law.
Contact water law attorney Clint Dunaway at 480-702-1608 or by email at Clint@DunawayLG.com. * The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. The Dunaway Law Group, PLC limits its practice to the State of Arizona.
Benefits of Shared Well Agreements
There are many benefits to having an accurate shared well agreement. A well (pun intended) written well agreement provides well owners (“Grantors”) and the shared well water recipients (“Grantees”) assurances that their interests will be protected.
It gives the well owner an enforceable contract against the Grantees that they pay their portion of the maintenance, repairs, water and electricity.
grantor rights under the agreement
Grantors have an enforceable contract that requires the Grantees to pay their equal share of well maintenance, repairs, water and electricity.
grantee rights under the agreement
Shared well agreements give certain assurances to Grantees–the people receiving the water–that they will have access to the well water. Without a written shared well agreement, a well owner could deny access to anyone wishing to access the water. Grantees have an enforceable contract that they will have access to water.
amend or rewrite the well share agreement
Many of existing well share agreements are old, inaccurate, and do not reflect the current goals of the Grantor and Grantees. Most agreements have a provision that addresses the issues of amendments to an existing well agreement.
Property descriptions are often inaccurate and outdated. When parcels are divided, they are given new parcel i.d.’s and if the shared well agreement is not updated then the descriptions will be inaccurate.
For example, it might read: “This agreement can only be modified in writing with a majority of the parties agreeing to the changes.” Or the agreement might require all parties to approve any modifications to the agreement.
Once the required number of parties to the existing agreement have approved the changes then they can be made. Or the parties may agree that now is the time to create an entirely new agreement. Negotiating a new agreement allows the parties to remove portions of the existing agreement, clarified, or entirely new provisions can be added.
inacurrate ownership information
When a property containing the well is sold then the ownership information must be updated with the Arizona Department of Water Resources. Often a property will be sold many times without the new ownership information being submitted to the ADWR.
latecomers to the shared well agreement
Occasionally, when a new home is built on a previously empty lot the shared well agreement is not updated to reflect the new user. Ideally, when a parcel is sold, the original shared well agreement is re-written. Some of the benefits of rewriting the shared well agreement. First, the buyer’s names are actually written into the agreement and their signatures reflect their personal acceptance/commitment to the agreement.
Second, when re-drafting the agreement, you can make adjustments to it. For instance, maybe you want to prohibit certain actions like filling a swimming pool or watering fruit trees. Maybe the property owner wants to increase or decrease the amount of money paid into the reserve bank account.
Additionally, there is a psychological benefit to drafting the latecomers into the agreement. This way, they are personally committing themselves to the agreement versus just referencing something that someone else agreed to.
maintenance schedule
Create a maintenance schedule. Proper maintenance of the well and its components will make it last longer and ultimately save the Parties money.
Shared Well Agreements with neighbors are complex and potentially messy relationships. In Humphries v. Becker, the parties entered into a Shared Well Agreement, but did not properly identify the well. The property was conveyed to a purchaser who, based on representations of the seller, believed that the well subject to the Shared Well Agreement would be sufficient to provide water to both the house and their irrigation system. In reality, the well serving the irrigation system was on a farmer’s adjacent property and was only used with his permission. The farmer cut off the irrigation water usage when a conflict arose between the purchaser and the farmer. As a result, the purchaser sued the seller for misrepresentation. The original parties’ failure to sufficiently identify the well in the Shared Well Agreement caused the seller to incur the expense of costly litigation that could have been avoided. Humphries v. Becker, 159 Idaho 728, 366 P.3d 1088 (2016).
If you need help from an experienced shared well 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, limits its practice to the State of Arizona.