Tag: Well Share Agreements

All Arizona water wells must be registered with the Arizona Department of Water Resources (ADWR).

REGISTERING THE WATER WELL IN YOUR NAME

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, the State of Arizona cannot notify you of pending changes in groundwater law that might affect you water rights.

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. Therefore, keeping your well records current with the ADWR and up to date for your own personal use is important to protecting your domestic water well. Nevertheless, it is important to have your well information current and accurate for maintaining your water rights and for any future real estate sales and re-financing transactions. Buyers and lenders will be asking for it.

WATER WELL REGISTRATION REQUIREMENTS

The Arizona Groundwater Management Act of 1980 mandated that everyone register their wells with the newly formed ADWR. All wells, public, domestic, agricultural, mining, etc. were to have been registered with ADWR and accounted for during the early 1980’s. A large majority of the wells were registered by 1985. Since that time, however, many of the properties that these wells were located on were sold and transferred without informing ADWR that there was a change of registered well ownership.

The recording of a deed of title transferring the real estate does not notify ADWR that the well ownership was transferred. Therefore, there are many registered wells in Arizona that are still listed with ADWR as being owned by the person who first registered the well in 1981 through 1985 as the law required.

VERIFYING THE REGISTRATION OF A WATER WELL

The first thing that any private well owner should do is check with ADWR to see if their well is actually registered in their name. You can do this by logging on to the ADWR Imaged Records web site, http://www.azwater.gov/azdwr/ seeking and verifying your well records.

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

Form DWR 55-71A- Request to Change Well Information

Form DWR 55-71A can be used to correct or change well location information, the registered well owner’s name and address, the name of the well drilling company to be used to drill or deepen the well, or any other pertinent item about the well.

Arizona escrow officers use this form to record a transfer of well ownership with the ADWR at the time of escrow closing.

LOCATING WATER WELL RECORDS

There are three basic ways to locate Arizona water well records. You can access well file data in the ADWR Imaged Records Data Base 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 http://www.azwater.gov 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.

WELL LOCATION CADASTRAL

Well Location Cadastral: You can enter the cadastral location of your well in the Location box under Image Record drop down of Well Registry or Wells 35 document. The steps below illustrate how to enter the location of a well located in Section(S) 21 of Township(T) 13South(S) and Range(R) 15West(W), which is usually abbreviated: S21, T13S, R15W.

An alternative way to locate the records of a particular well is to use the ADWR home page http://www.azwater. gov/azdwr. This will direct you to an image of a topographic relief map of the State of Arizona. If you choose the Wizard method, you are given three choices of methods to search for your well records, Well Registry number, Owner Name Search, Location Cadastral, Basin or Sub Basin.

If you choose the Map method of searching, you will see a map of the State of Arizona with thousands of little red dots that indicate the approximate location of a registered well. You can zoom into a location on the map that may contain a red dot for your well. When you think you have located your well, click on the red dot and this will open the imaged record file.

steps to register water well

1. Step One– The first step to registering a water well is to .
2. Step Two– The second step to registering a water well is to .
3. Step Three– The third step to registering a water well is to .

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

* These blog posts are not intended nor shall it be deemed to be the rendering of legal advice. Reading these blog posts does not create an attorney-client relationship, nor shall it impose an obligation on the part of the attorney to respond to further inquiry.

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 improvement cannot be separated from the land, therefore, well becomes a part of the real property. 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 you’re 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 shared agreements are structured such that the participants receive only an easement right to access the land where the well was 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 would like to amend an existing water well agreement or would like to create a water well agreement then contact attorney Clint Dunaway 480-702-1608 or send an email to: Clint@DunawayLG.com.