Water Easements

November 5, 2014

A common document for which I have not see a standard form is the water easement.  The laws of the various states different in the treatment of these easements but nonetheless there are some common technical issues that the drafter should consider.  The term “water easement” commonly means one of two things.  First, it might transfer the right to draw water from a site.  The phrase is also used to describe the right to convey water by pipe or trough across or beneath the land of another.  A water easement of either sort should also contain an access easement and auxiliary rights related to the maintenance, repair, replacement and possibly construction of improvements.

The easement may either be given to the owner of land so that the easement rights pass automatically with the transfer of title to the land or given to a person or entity.  The first type of easement is called an appurtenant easement, even though in Washington the two parcels are not necessarily required to have a common boundary.  The second mentioned type of easement is somewhat awkwardly called an easement in gross.  (American law is derived from English law but easements in gross are not recognized in England.  This concept is derived from Roman law.) It should be clear which of these alternatives is intended and if the easement is intended to benefit a person or entity, then the drafter has to be concerned that the easement is valid under state law.

If the intention is merely to give a person permission to draw water or convey it across land, then consideration should be given to calling the right a license, rather than an easement.  Licenses are less formal and less likely to impact title.  They are also usually revocable.  An irrevocable license requires consideration and is best treated with the formality of a commercial easement in gross.

In any case the instrument should always contain all intended conditions on the use.  For example, there might a set duration, a limit on amount of water, limitations on access, size of pipe, licensing, type of use, who may use the easement, a condition related to the land owner’s use of the property.  From the land owner’s perspective rather than having a long list of conditions, it might be best to use a nonassignable, revocable license.

Easements should contain the legal description of the land that is subject to the easement and should in most cases be recorded. Easements appurtenant should also describe the benefitted land.  It is prudent to specify the amount of water that is authorized to be taken from the source, permitted use and sometimes the depth of a well.  Remember that in Washington the land owner will be required to sign a covenant that prohibits use within one hundred feet of a well used for drinking water.

If the easement is given for future development it is best to make it immediately effective, not effective whenever the development occurs to avoid creating a voidable future interest.

Water Rights: Let the Buyer Beware.

November 4, 2014

Water rights issues are cropping up with increasing frequency as water becomes a diminishing commodity. In the Puget Sound area this is a somewhat ironic concept, as flooding seems to have been on the uptick and the drizzle for which the area is renown has certainly not disappeared. Flooding however is often attributed to logging and development which causes rainwater to become surface water, rather than groundwater, available through wells. The expansion of the population beyond areas served by water systems has created a proliferation of wells, drawing from largely unknown underground estuaries. This increased burden on the supply of water diminishes the quantity of water available to wells, sometimes with disastrous results.

Care must be taken when purchasing water rights or acquiring property with water rights. The value of property is often dependent on water rights but too often property is purchased without a thorough investigation of those water rights. Scrutiny of a title report may give the buyer false confidence in the availability of water.

In verifying the validity of a water source the inquirer enters into the Byzantine realm of Washington water rights, which defy easy explanation. Broadly speaking there are three levels of inquiry. First water systems must be permitted by the State Department of Ecology. However, there are certain exemptions from state permitting requirements and water systems that predate the water code of 1917 need not be permitted. Roughly 166,000 systems claim to have originated before 1917 but very few claims, if any, have been adjudicated. Next the county determines compliance with health requirements and conducts routine inspections. This is usually a fairly straight forward inquiry for the purchaser.

The last common level of inquiry relates to the assignment of water rights. The right to draw water is assignable. As to any water source that is off-site, the validity of the transfer of water rights must be verified. If there is a well on site, all documents transferring rights to others, or allocating rights of use, must be verified. When creating a joint-use well a great deal of difficulty can be avoided by carefully delineating each user’s rights and duties. This warrants as much care as the determination of the rights and regulations governing a home owners’ association.