A creek runs across my property in Lane County, OR. I have a water right certificate for my well, only. Can I take water from the creek for landscape irrigation? If the water rights were conveyed to by a water rights conveyance agreement. You should have had this included in your purchase/sale of the property agreement.
"In Oregon, water rights are generally “appurtenant” (attached) to the specific property where the water use is authorized. Water rights are conveyed with the sale of the property unless specifically excluded from the property transaction deed or the buyer otherwise receives notice that interest in the water right was conveyed to another party, prior to the sale of the property.
To change the place of use, character of use, and/or point of diversion/appropriation of a water right, a water right transfer (transfer) application must be approved by the Department. As part of the transfer process, generally the transfer applicant must be the landowner, have consent from the landowner, or be able to demonstrate that they have sufficient interest in the water right to pursue the transfer. The standards and procedures for the Department’s review of water right transfer applications are in Oregon Revised Statute (ORS) 540.505 to 540.580 and Oregon Administrative Rule (OAR) Chapter 690, Divisions 380 and 382.
Transfer applications involving water rights located within irrigation districts (districts) and other water supply organizations can involve additional issues. In certain circumstances, districts have additional flexibility in securing authorization for changes in the location where a water right is exercised. Early contact with the district can alert the landowner or water right interest holder to potential opportunities or problems in changing a water right. In addition, transfer applications associated with irrigation districts are processed by the Department under another set of rules, OAR Chapter 690, Division 385.
The meaning of the terms “transfer” and “convey” are frequently used interchangeably and, as a result, can be confusing when used in the context of land transactions involving real property and water rights. Within this document, the terms are used as follows:
“Convey” means to change the ownership interest in real property (the land) and/or water rights through a Purchase and Sale Agreement, Quit Claim, Water Right Conveyance Agreement, or other legal instrument.
“Transfer” means to secure authorization from the Department to change the location of where water may be used (place of use), the location of the point of diversion/appropriation on a stream or from a well, and/or character (type) of use of a water right.
Conveyance of Interest in Non Irrigation District Water Rights
Transfer applications are a tool for changing water rights. Transfer applicants are generally the owner of the land to which the water right(s) proposed for change are appurtenant. However, the transfer applicant may not always be the landowner. To complete a transfer application, the applicant must be able to demonstrate that they are authorized to pursue the requested change. Pursuant to OAR(###) ###-####(5), the applicant must show, as of the time the application is to be proposed for approval that: 1. The applicant is the current owner of the lands to which the water right is appurtenant, 2. The current landowner has consented to the transfer application, or 3. The applicant holds sufficient interest in the water right to pursue the transfer application in the absence of the consent of the current landowner.
Water Right Conveyance Agreements provide a method for a water right transfer applicant to demonstrate that the applicant holds a sufficient interest in a water right to pursue the transfer. The critical elements of these agreements are: (1) a specific conveyance of the interest in the land and the water rights separately, and
(2) recordation of the document in the deed records of the relevant county. A variety of legal documents that are typically used in real estate transactions may qualify as Water Right Conveyance Agreements under OAR(###) ###-####13), including, but not limited to, Purchase and Sale Agreements, deeds, and Quit Claims.
OAR(###) ###-####13) “Water right conveyance agreement” means a purchase and sale agreement, deed or other document that has been recorded in the deed records by the relevant county describing land to which a water right is appurtenant and demonstrating that the interest in that land and interest in the appurtenant water right have been separately conveyed. <emphasis added> This should be something that was agreed to be included when you purchased the land. It should also be reflected in your deed and there would be a water rights conveyance agreement.
If the interest in a water right is not being conveyed as part of a real estate transaction but is intended to be conveyed by the seller to another party or retained by the seller, the Department recommends that an agreement that qualifies as a Water Right Conveyance Agreement be executed by the parties prior to the sale of the property (the land) being completed. If a subsequent transfer application is submitted to the Department, a copy of the Water Right Conveyance Agreement will be required as part of the transfer application process.
It is important to note that even if a Water Right Conveyance Agreement has been executed, the water rights remain appurtenant to those lands until the Department approves a water right transfer.
The Water Right Conveyance Agreement or other agreement in which interest in water rights is retained or conveyed should describe the lands to which the water rights are appurtenant sufficient to satisfy the purpose of the seller and purchaser, and in a manner consistent with typical procedures for real property transactions. However, for the reasons described below, the Department advises that there are risks in such agreements or deeds purporting to definitively describe the number of acres of water rights on the identified parcel of property.
The number of acres of water right that are available to transfer from a parcel may not be definitively established until the Department processes a transfer application. Determining the number of acres for a water right that was issued recently for a specified parcel generally is straightforward. However, it is much more difficult to precisely determine the number of acres of water rights involved in many other situations. For example, if the original water right maps are of poor quality and the lands to which right is appurtenant have subsequently been divided, the manner in which the water right overlies the properties may be unclear. If only a portion of the rights appurtenant to a land parcel are involved, or the water rights encompass several properties, then the Department will have to determine the precise number of acres of water rights on the affected properties when processing the transfer application. In cases where only a portion of the water right(s) appurtenant to a land parcel are involved, the Department recommends that a map be included as part of the recorded Water Right Conveyance Agreement illustrating the acreage (footprint) from which the water right is being conveyed and what is intended to remain.
In all cases, conveyance agreements in which a water right is retained or conveyed must clearly describe the lands to which the right is appurtenant. For the purposes of the Department processing transfer applications, the following types of legal descriptions are acceptable. However, it should be noted that such legal descriptions may not be sufficient for other purposes. The department advises that legal counsel be consulted to insure that the legal descriptions are sufficient for other purposes.
The form and content of Water Right Conveyance Agreements may be subject to additional statutory requirements. For example, a properly executed quit claim deed must meet the minimum standards for conveying and recording of property transactions as described by ORS Chapter 93. ORS 93.865 states that quit claim deeds may be made in the form included in the following example:
NOTE: The reference to appurtenant water rights in italics is added and is not included in ORS 93.865. In the context of the statutory language, the “property” quitclaimed is the water right, not the land to which the right is appurtenant.
Most Water Right Conveyance Agreements reviewed by the Department have been in the form of recorded quit claim deeds. However, other recorded deed types have and can be used to convey interest in water rights, including (not limited to) bargain and sale and special warranty deeds...
(We need to see the required language which states that Grantee recieves all right, title and interest in an to the water rights... as set out below. I do not see this unless it is contained in your deed.)
FOR EXAMPLE (name) , Grantor, releases and quit claims to (name) , Grantee, all right, title and interest in and to the water rights appurtenant to the following described real property: (Describe the property conveyed.) (Following description of property, here insert statement required under ORS 93.040(1).) The true consideration for this conveyance is $ . (Here comply with the requirements of ORS 93.030.) Dated this _____ day of , 20__
You would want to check your deed and your contract from when you purchased to see if water rights were transferred to you and there is an agreement for conveyance without this agreement, unfortunately, you would not have water rights for irrigate with the water from the creek.
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