Water rights and wells
Owning land with water on it is not the same as owning the right to use that water. In much of the western United States, water is a separate property right with its own history and its own priority date.
Two different legal systems
The United States runs two broadly different doctrines for surface water, and the line between them falls roughly at the hundredth meridian.
Eastern states generally follow riparian rights: an owner whose land touches a watercourse may make reasonable use of it, shared with other riparian owners. The right attaches to the land and is not usually lost by non-use, though many eastern states now layer a permit system on top for larger withdrawals.
Western states generally follow prior appropriation: water rights are separate from land ownership and are ranked by seniority. First in time, first in right. A senior right from 1887 is satisfied in full before a junior right from 1974 gets anything, which matters enormously in a dry year.
- Priority date
- When the right was first established. In an appropriation state this is the single most important attribute of a water right.
- Beneficial use
- The purpose the right is tied to, such as irrigation, stock watering or domestic use. Using water for something else can require a change application.
- Appurtenance
- Whether the right is attached to this particular land. Rights can be severed and sold away from the land they once served.
- Adjudication
- A court or agency process that determines and ranks all rights in a basin. A pending adjudication can change what a right is worth.
Water rights do not automatically convey
This is the point that catches buyers out. In appropriation states, a water right is property that can be sold separately from the land. A previous owner may have sold the irrigation right to a city or a neighbouring farm while keeping the ground.
The deed, and the state agency record, determine what you are getting. A ditch running through the parcel proves only that there is a ditch. A pivot standing in a field proves only that there is a pivot.
Rights in appropriation states can also be forfeited through sustained non-use, under rules that vary by state. A right that has not been exercised for years deserves a close look rather than an assumption.
Wells and groundwater
Groundwater is regulated separately from surface water, and often by a different body, such as a state engineer, a water resources department or a local groundwater district.
Many states allow a small exempt domestic well without a full water right, typically capped at a modest daily volume and sometimes limited in what it may serve, such as a single household and a small garden but not irrigation or stock at scale. The caps and the conditions vary widely, and some basins are closed to new wells entirely.
For an existing well, ask for the well log, the completion report, the depth, the static water level, the measured yield in gallons per minute, the date of the last test, and a recent water quality analysis. For a parcel with no well, ask a local driller what depth and cost are typical in that specific area. Neighbouring wells are the best available evidence and are still not a guarantee.
Practical checks before you commit
Identify the governing agency for the parcel and call them: in most western states that is the state engineer or the department of water resources, and in many places a local conservancy or groundwater district as well.
Ask whether the basin is closed or over-appropriated, whether new domestic wells are being permitted, and whether any adjudication is pending.
Have the title company confirm in writing what water rights, if any, are included in the sale, with the permit or certificate numbers. A right without a number is a description, not a right.
If water is why you are buying, make the purchase contingent on verifying it, the same way you would a financing contingency.
Common questions
If a creek runs through the property, can I use the water?
Not necessarily. In riparian states you generally have a shared right to reasonable use, sometimes subject to a permit. In prior appropriation states you need an actual water right with a priority date, and the creek may already be fully committed to senior users downstream.
Do water rights come with the land?
In riparian states they generally attach to riparian land. In appropriation states they are separate property and may have been sold away. The deed and the state agency record are the only reliable sources.
Can I drill a well on any parcel?
No. Well permitting depends on the state, the basin and sometimes a local district. Some basins are closed to new wells. Even where an exempt domestic well is allowed, there are limits on volume and on what it may serve.
What should I ask about an existing well?
The well log and completion report, total depth, static water level, tested yield in gallons per minute, when it was last tested, and a current water quality test. Ask whether the well is permitted and whether the permit matches your intended use.
Check it with the source
This is general information, not legal, engineering or financial advice. Rules vary by state and county and they change. Get the answer that matters to you in writing from the office that issues it.
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