Water cannot be used without the legal right to its capture and use. A water right includes: 1) the legal right to capture and use water; and, 2) the right to the "use" of of the water so captured. A water right is an intangible, usufructuary, incorporeal, heriditament and the "use" right is considered as real and immovable property rather than personal property. Water rights apply to 18 western states. They do not apply to the driparian rights states such as North and South Dakota, Texas, Oklahoma and the states east of the Mississippi. In the riparian rights states, owners of the surface own the water in place as their real property. In all states, the sovereign states must comply with state law regarding the management and protection of the water or water rights.
The right to capture and use water is a valuable real property right in most jurisdictions. You may have water rights that were developed in the past and that are worth thousands of dollars to the right buyer. When the water is diverted and captured it is reduced to personal property.
WaterBank® acts as a brokerage and investment banking house. WaterBank® connects sellers of water rights, water utilities, springs, geothermal water, and bulk water with buyers. WaterBank® may buy and sell water rights and other water-related assets for its own account or through straw buyers. If you own valid and merchantable title to water rights, water utilities, or water sources, WaterBank® can help you obtain the best possible price and assist in litigation to protect your water property. At present WaterBank® is involved in litigation support in New Mexico, North Dakota, and Oklahoma. If you need water rights, or bulk water WaterBank® can help you find a seller. We have bulk water sellers in Maine, New Hampshire, East Texas, Connecticut and elsewhere.
Water rights are sold on the basis of the consumptive irrigation requirement or on a per gallon or per barrel (42 U.S. gallons) not the amount of water diverted to a piece of land for irrigation or for other commercial and/or industrial uses. This is because some of the water applied to the land returns to the hydrological system. Regulatory agencies keep their books based on water actually removed from the hydrological system. If you have land that has adjudicated water rights, the adjudication commonly only states the diversion amount or the duty and not the consumptive irrigation requirement.
We must stress that you must own valid and merchantable title to any water you hope to sell or lease. The title to the water rights must be clean. For water rights in areas that follow the civil law, this is usually the case if you own adjudicated or licensed water rights. If your water rights have not been adjudicated by a court of competent jurisdiction or licensed by a regulatory authority, you may have to prove the quantity of your rights and the priority date of their first use. In common law jurisdictions, you may also have to prove ownership of the surface estate in the land.
WaterBank® provides services to clarify and confirm title on a consulting basis on behalf of clients. These services are in addition to brokerage activities and can be very expensive. Do your homework before offering your water rights, water utilities, water sources, bulk water, or geothermal water for sale or lease. Get all of your documents together so that the title can be traced. If you are acting as an agent for someone else, be sure to have a written agreement with your principle. We do not need all of the documentation to list your property; but, we will need to see all of documentation before a transaction can even begin