If your water comes from a shared well that is not located on your property, then you must take steps to protect your legal right to the water. For most people, the answer is in the words written in your well share agreement.
All groundwater withdraws in Arizona must come from a water well that was permitted by the Arizona Department of Water Resources. Owning the land free and clear, or owning an undivided interest in the land or having an easement right does not give you the right to extract groundwater. That comes only from a permitted well.
Just Owning Land Does Not Give You Right to the Groundwater Beneath Your Land
Drilling and constructing a well creates a permanent change to real property and those improvements cannot be separated from the land, therefore, the well becomes a part of the real property.
Groundwater is not real property. Percolating water beneath the earth in Arizona is called “groundwater” and it is considered “public” property managed by the Arizona Department of Water Resources.
The Arizona Department of Water Resources 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 a form (ADWR form 55 – 73) for the purpose of registering a shared well in the name of a managing or operating group.
Once water is pumped to the surface and placed into a storage tank, it becomes the personal property of the landowners.
limitations on use of the well water
A properly drafted well share agreement specifically limits how the water can be used. For example, “The Well water shall only be used for bona fide domestic purposes. The water shall not be used for watering crops, orchards, livestock, or extensive gardening. Additionally, the water cannot be sold or used for any commercial activities.”
The purpose behind these limits is logical. Wells do not produce an infinite supply of water. Overuse can leave the other homeowners without sufficient water for their use. The Well simply cannot produce enough water for all homeowners to water orchards, large animals, or grow extensive gardens. This will put additional strain on the well system and the other users will be stuck with a higher electricity bill and low water pressure.
shared well easements
Some well share agreements are drafted such that the parties 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 versus having just an easement.
If you would like to draft or amend a shared well agreement, then contact the Dunaway Law Group by phone 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.
