Step 1: DESCRIBE ENCUMBERED WATER RIGHTS in deed of conservation easement
Deed should include a description of each water right (or portion thereof) encumbered by the deed (this may be by an exhibit), including, if applicable:
Name of water right
Source of water
Court and case number
Permit number and issuing agency
Date of appropriation
Date of adjudication and/or permit
Well permit number(s)
Allotment contract(s)
Certification number(s) for shares in ditch, reservoir, and irrigation companies
Statement that encumbered water rights include associated headgates, canals, ditches, laterals, springs, wells, ponds, reservoirs, water shares and stock certificates, water allotments, contract units, permits, easements and rights-of- way, and irrigation equipment
Step 2: DEALING WITH UNENCUMBERED and/or reserved WATER RIGHTS in deed
Deed should include provisions to address any situation where a portion of the water right is beneficially used on the encumbered land and another portion is reserved by the landowner
Include a description of the portion of the water right(s) reserved
Specify where and how the landowner may use the reserved water right in order to, among other things, avoid an illegal expansion of historical use
Specify how water right will be shared in times of shortage (the conservation organization will generally want priority)
Include provisions concerning a water right that is beneficially used on the encumbered land but not encumbered by the deed (recommended, but deed could also be silent)
Include a statement that the water right beneficially used on the encumbered land is not necessary to encumber to protect the conservation values
Add description of the water right not encumbered (use same format used for Step 1)
Include a statement that inclusion of water right complies with state statutory requirements
Step 3: describe PERMITTED USES OF ENCUMBERED WATER RIGHTS
Establish that the paramount right is that of landowner to continue historical uses
Include a statement that it remains the right of landowner to maintain, repair and reconstruct any existing water facilities unless the conservation values would be irreversibly damaged, as determined by the conservation organization in its sole judgment
Address if there is to be:
temporary or permanent change of water rights to other conservation purposes
irrigation of other conservation lands
enhancement of instream flows or littoral levels
maintenance of wetlands and/or riparian areas for wildlife
Describe if there are any other conservation purposes
Step 4: describe RESTRICTIONS ON USE OF ENCUMBERED WATER RIGHTS
Describe prohibited actions (i.e., those that require the consent of the conservation organization following its determination that the action will not be inconsistent with the permitted uses or the protection of the conservation values, including:
Changing water right to any new uses, including but not limited to municipal, industrial, or commercial
Changing water right for use off the encumbered land
Selling, leasing, transferring or encumbering water rights separate from the encumbered land
Separating water rights from encumbered land
Changing point of diversion or type or place of use
Explain the restrictions on land and water development (for example, draining wetlands or inundating irrigated pasture) that would injure conservation values, without prior written approval of conservation organization
Step 5: describe activities necessary for PROTECTION OF ENCUMBERED WATER RIGHTS
Make sure the deed of conservation easement explicitly requires the landowner to:
continue historical use of water rights and not abandon/forfeit water rights by action or inaction
provide conservation organization with an annual written or oral report, including any reports provided state water officials, of water diversions and evidence of use, such as crop reports
provide conservation organization with all notices concerning water right, including a notice of abandonment/forfeiture, from state water officials
Specify your organization’s monitoring requirements
Be sure that the landowner’s requirement to avoiding abandonment/forfeiture of water right is clearly defined as well as the landowner’s obligation to cooperate with conservation organization to prevent abandonment/forfeiture
Include provision that requires conservation organization to give notice to landowner and opportunity to cure any threat of abandonment/forfeiture
Make sure the deed of conservation easement explicitly includes the right of conservation organization to
enter property and continue historical use of water right to prevent abandonment/forfeiture
to attempt to administratively prevent abandonment/forfeiture
to change water right to another conservation use, including related sale or transfer of such water right
