Water Rights Toolkit: Applications, Transfers, Adjudications, and Enforcement

Summary. Worksheets, letters, and clause language for acquiring, perfecting, documenting, transferring, and defending water rights.

Tool 1 — Water right abstract

Tool 2 — Due diligence request to seller

Re: [Property] — Water rights due diligence request

Please provide, or authorize the [State Agency] to release to us:

1. Copies of all permits, certificates, decrees, and licenses for water rights appurtenant to or used on the property, including groundwater;
2. All change, transfer, or amendment applications filed in the last ten years, and their disposition;
3. Diversion and use records for the last ten years, including meter readings, delivery records, and any reports filed with the state;
4. Crop and acreage history for the last ten years, including farm program and crop insurance filings;
5. All ditch company or irrigation district documents: share certificates, bylaws, delivery schedules, assessment history, and any transfer restrictions;
6. Any notice received regarding forfeiture, abandonment, curtailment, or a general adjudication, and any statement of claim filed;
7. Any well permits, well logs, and pump test data;
8. Any augmentation, mitigation, or replacement supply obligation;
9. Any engineering report on the rights or the property's water supply;
10. Contact information for the watermaster and the district or ditch company manager.

Tool 3 — Purchase agreement and deed language

Purchase agreement

§ ___ Water Rights. Seller represents and warrants that Seller is the owner of the water rights described on Exhibit ___ (the "Water Rights"), free of liens and encumbrances except as disclosed; that the Water Rights have not been abandoned or forfeited in whole or in part; that water has been applied to beneficial use under each in each of the last ___ years; that no change, transfer, or forfeiture proceeding is pending; and that Seller has filed all reports required by the [State Agency].

Condition precedent. Buyer's obligation to close is conditioned on Buyer's verification, within ___ days, of the existence, priority, quantity, and status of the Water Rights, and of the transferability of any district or ditch company shares. Buyer may terminate if not satisfied in Buyer's reasonable discretion.

Conveyance. At closing, Seller shall convey the Water Rights by [deed and by separate assignment in recordable form / assignment of shares], and shall execute any application or notice required by the [State Agency] or the district to effect the transfer of record.

Title. Seller shall cause the title commitment to [delete the standard water rights exception / provide an endorsement insuring the Water Rights], or Buyer may terminate.

Deed language

…together with all water and water rights, ditches and ditch rights, wells and well rights, reservoirs and reservoir rights, and shares of stock in ditch, canal, and reservoir companies, appurtenant to or used in connection with the above-described property, including without limitation those described on Exhibit ___ attached hereto.

Tool 4 — New appropriation application outline

1. Applicant and contact. 2. Source — name, tributary relationship, and legal description of the point of diversion. 3. Quantity — rate (cfs) and annual volume (acre-feet), with the basis for each. 4. Purpose of use — irrigation (acreage and crop), domestic, stock, municipal, industrial, storage, instream. 5. Place of use — legal description and map. 6. Season of use. 7. Works — diversion structure, conveyance, measuring device, storage if any, with a construction schedule. 8. Availability — evidence that unappropriated water exists in the source at the times requested [hydrologic analysis attached]. 9. No injury — analysis of effect on existing rights. 10. Beneficial use — the use and its reasonableness. 11. Public interest [where required] — benefits, alternatives considered, conservation measures. 12. Land ownership or access evidence. 13. Exhibits — map, hydrologic analysis, engineering report, land documents.

Calendar: publication date · protest deadline · construction commencement deadline · completion deadline · extension request deadlines · proof of beneficial use deadline.

Tool 5 — Proof of beneficial use

Re: Permit No. ___ — Proof of application of water to beneficial use

Applicant has completed construction of the works described in the permit and has applied water to beneficial use as follows:

• Date construction completed: ___
• Date water first applied to beneficial use: ___
• Maximum rate diverted: ___ cfs, on ___ [supporting measurement attached]
• Total volume diverted: ___ acre-feet in ___ [records attached]
• Acreage irrigated: ___ acres, described and mapped [aerial imagery attached]
• Crops grown: ___
• Works as constructed: [description; photographs attached; as-built drawing attached]
• Measuring device: [type, location, calibration]

Applicant requests issuance of a certificate confirming the right in the amount actually applied to beneficial use.

Tool 6 — Annual use log

Attach each year: meter or delivery records · dated photographs from fixed locations · aerial image with irrigated acreage outlined · crop insurance or farm program filing · assessment and power receipts.

Tool 7 — Forfeiture defense memorandum

1. The right. [Instrument, priority, quantity, place and purpose of use.] 2. The period at issue. [Years alleged as non-use.] 3. Use during the period. For each year: [diverted ___ AF; irrigated ___ acres; evidence at Tab ___]. Partial use in any year defeats a claim of complete non-use for that year. 4. Statutory excuses applicable. [Water physically unavailable in ___ ; participation in [conservation program] in ___ ; circumstances beyond the holder's control, namely ___ ; military service; pending litigation.] Evidence at Tab ___. 5. No intent to abandon. [Maintenance of the diversion works; payment of assessments; retention of shares; statements and conduct; efforts to lease or transfer.] 6. Resumption. Use resumed on ___, before any forfeiture proceeding was commenced. 7. Conclusion. [Requested finding.]

Tool 8 — Change application outline and engineer scope

Change application outline

1. The right as decreed/permitted: [instrument, priority, quantity, point of diversion, place and purpose of use, season]. 2. The proposed change: [new point of diversion / place of use / purpose / season], described precisely. 3. Historical consumptive use: ___ acre-feet annually, averaged over the representative period ___ to ___, determined by [method], as set out in the attached engineering report. 4. Return flow analysis: historical timing, location, and quantity; projected post-change return flows. 5. No injury: month-by-month analysis of effects on identified downstream and junior rights. 6. Proposed terms and conditions to prevent injury: [replacement water by month; reduced transferable quantity; retained fallowing; limitation on season; measuring and reporting]. 7. Compliance with district or ditch company rules [consent attached]. 8. [Public interest / area of origin, where applicable.] 9. Exhibits: engineering report; maps; historical records; consent documents.

Engineer engagement scope

You are engaged to determine, for the water right(s) described: (1) irrigated acreage by year for the period ___ to ___, mapped from aerial imagery; (2) diverted quantities by year from available records; (3) historical consumptive use, by year and averaged, stating the method and all inputs; (4) return flow timing, location, and quantity; (5) the injury analysis for the proposed change, by month; and (6) proposed mitigation sufficient to prevent injury.

Please state the representative period selected and the basis for it. Please document each input so that it can be traced and defended. Advise promptly if the analysis will not support the requested transfer quantity.

Tool 9 — Protest letter

To: [State Agency] Re: Protest to Application No. ___ of [applicant], published [date]

Protestant [name] owns the following water right(s): [instrument no., priority date, source, quantity, point of diversion, place and purpose of use].

Grounds for protest:

1. Injury. The proposed [change of point of diversion / change of use / new appropriation] would injure Protestant's right because [the depletion moves upstream of Protestant's point of diversion / the timing of diversion shifts into months when Protestant is in priority / return flows on which Protestant relies would be eliminated / the source is fully appropriated in the months requested].

2. Overstatement of historical consumptive use. Applicant claims ___ acre-feet. Available records indicate ___ acres irrigated in the representative period, which supports no more than ___ acre-feet of consumptive use.

3. [No unappropriated water available / not a beneficial use / contrary to the public interest / area-of-origin protection.]

Relief requested: denial, or approval only with conditions sufficient to prevent injury, including [replacement water in the months of ___; a transferable quantity not exceeding ___; measurement and reporting].

Protestant is prepared to discuss stipulated conditions.

Tool 10 — Curtailment response and futile call demand

Response

Re: Curtailment order dated ___ , [right no.]

[Name] is complying with the order and reserves all rights. [Name] requests the following, in writing:

1. The identity and priority date of the calling right;
2. The accounting demonstrating that the calling right is not being satisfied;
3. The quantity being called for, and its relationship to the calling right's historical consumptive use;
4. The reach and points of measurement relied upon.

Futile call demand

[Name] asserts that the call is futile. The distance from [Name]'s point of diversion to the calling right's point of diversion is ___ miles, through [describe channel conditions]. Based on the attached analysis, curtailing [Name]'s diversion of ___ cfs would deliver no more than ___ cfs to the calling right, which is [de minimis / insufficient to satisfy any portion of the call]. [Name] requests that the curtailment be lifted, or that the agency conduct a delivery test.

Tool 11 — Dry-year lease term sheet

Tool 12 — Augmentation / mitigation plan outline

1. The out-of-priority depletion. Source, location, quantity, and timing of the depletion to be replaced, by month, as determined by [model]. 2. The replacement supply. [Senior right dedicated / reservoir releases / recharge credits / leased water], with instrument, priority, and quantity. 3. Delivery. Where and when replacement water will be delivered so that it is available to the affected senior rights at the time and place of injury. 4. Accounting. Measurement devices, reporting frequency, and the accounting method reconciling depletions and replacements. 5. Contingency. What happens if the replacement supply is unavailable — curtailment, alternative supply, or reserve credits. 6. Administration. Who operates the plan; annual reporting to the agency; audit rights. 7. Term and amendment.

Tool 13 — Adjudication statement of claim and objection

Statement of claim

Claimant: [name, address] Basis of claim: [decree no. / permit no. / certificate no. / use without permit since ___] Priority date claimed: ___ Basis for priority: [first diversion / application date / decree] Source: ___ Point of diversion: [legal description, coordinates] Quantity claimed: ___ cfs / ___ AF Basis: [decree / measured use / duty of water × acreage] Place of use: [legal description] Acreage irrigated: ___ Purpose: ___ Season: ___ to ___ Evidence attached: decree/permit · diversion records ___ to ___ · aerial imagery by year · crop and acreage history · district records · affidavits of ___ · tax records · photographs.

Objection outline

1. Objector's right: [instrument, priority, quantity]. 2. The entry objected to: [claimant, proposed right, page of draft report]. 3. Ground: [priority date is later than proposed, because ___ ; quantity exceeds historical use, because ___ ; acreage exceeds that historically irrigated, per imagery at Tab ___ ; season is broader than historical practice; point of diversion is misdescribed; the right was forfeited by non-use from ___ to ___]. 4. Evidence at Tabs ___. 5. Requested finding.

Tool 14 — District / ditch company records request

To: [Manager, District / Ditch Company] Re: Records request — [shareholder / landowner name], [parcel]

Please provide: current bylaws and rules; the share certificate(s) and transfer history for this parcel; the assessment history and current balance; the delivery schedule and rotation applicable to this headgate; delivery records for the last ten years; any transfer restrictions applicable to shares or to changes in place or point of delivery; the requirements for consent to a change application; any pending capital assessment; and the district's rules on carriage, seepage, and change of delivery point.

Tool 15 — Pre-application meeting agenda (physical work)

Project: [description, location, timeline] Attendees requested: [federal permitting agency] · [state water quality] · [state water agency] · [state fish and wildlife] · [county floodplain] · [tribal historic preservation officer, where applicable]

Agenda

1. Project description and site walk-through.
2. Jurisdictional determination — is any portion of the work in jurisdictional waters or wetlands? Note the continuous-surface-connection standard.
3. State jurisdiction — does the state regulate waters or wetlands the federal program does not?
4. Permits required, and the sequence among them.
5. Water right — is a new right, a change, or a storage right required?
6. Endangered species screening and consultation timing.
7. Cultural resources — survey scope, monitoring, inadvertent discovery plan.
8. Mitigation expectations.
9. Realistic timeline and application completeness requirements.
10. Points of contact.

Related documents

• Water Rights
• Securing and Defending a Water Right
• Water Right and Permitting Checklist
• Residential Real Estate Toolkit
• Administrative Practice Toolkit
• Tribal Law Toolkit

Templates are starting points, not filings. Water law is state and basin specific; forms and deadlines vary. Consult the state agency and local counsel before filing.