When a client purchases land we are oftentimes asked the basic, but very important question, of what, if any, water rights accompany the transfer. It is very common in a land transaction to include only very straightforward information in the purchase contract: a description of the land, the purchase price, details regarding closing, associated costs, and perhaps a reference to title insurance. Most deeds also only contain a description of the land as well. In the event water rights are associated with the land, those water rights may be ignored in the transaction and the contract will be silent on that important issue. Thus, clients ask us in this scenario what water rights are inherent in the transfer. This question also comes up frequently in a probate context.
There are a variety of ways to track down water rights. Surprisingly, there are actually several online tools that are quite useful in obtaining the basics on a water right. With these tools, you can actually see water rights associated with a given parcel of land and actually discover the number associated with a water right. Once an assigned number is determined, one can then learn basic attributes of the water right including the priority date, the location of the point of diversion, the authorized rate and quantity, and the associated place of use. This is a vital first step in learning about a water right.
However, these online tools are not foolproof and only provide basic information. The online information may not have been recently updated and only reveals a “surface level” picture of the water right. To obtain more information, the next step should be to complete an open records request to track down the complete water right files. Once this information is obtained, the practitioner can examine items such as the original certificate of appropriation and any important changes made to the water right. Oftentimes, there are details about a water right than can only be discovered after conducting a thorough review of the full water right files.
Additionally, there may be information that can be gleaned from an actual title search. It is possible that a previous owner of land sought to sever the water right from the land and only filed something with the office of the local register of deeds. In other words, proof that the water right is no longer intact may not have been properly submitted to the Kansas Division of Water Resources (DWR).
Finally, a diligent practitioner may want to visit with members of various agencies that govern the water rights. For example, if a local groundwater management district is involved, it is very useful to contact an employee of the district about a water right. We have also found the staff of DWR to be quite helpful and knowledgeable.
With these important steps, one can properly learn what water rights are actually associated with a land transfer. However, because this can become very technical in nature, it can be beneficial to contact a qualified professional to help with this analysis.