Resources for Real Estate Analysts and Valuers on Water Rights and Continuing Care Retirement Communities.

Author:Swango, Dan L.
 
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Resource Center is about all manner of resources available for appraisers and real estate market analysts--from print and online publications to radio shows, videos, and webinars. This edition of Resource Center identifies where valuers can find helpful information and data relevant to the highly specialized and complex areas of appraisal of water rights and appraisal of continuing care retirement communities.

Water Rights

Many appraisers face the challenge of valuation of water rights or evaluating the value impact of favorable water rights and limitations on water rights. The Dictionary of Real Estate Appraisal, sixth edition, includes the following definition of water rights:

A right to a definite or conditional flow or quantity of water, usually for use at stated times and in stated quantities, e.g., for irrigation or for hydroelectric power development. A water right may be a right acquired by prescription, ... a right acquired by appropriation, ... or a riparian right under the common law. (1) It is important to understand this part of the bundle of rights. Each state has its own water laws and policies--which need to be consulted in depth by valuers and analysts dealing with water rights. Further, there is a host of underlying principles in common law, case law, and federal regulations that influences valuation of water rights.

Appraisal Institute professionals are encouraged to research the Y. T. and Louise Lee Lum Library for information related to water rights. The library's Knowledge Base section on "Easements and Rights of Way" includes water rights materials. In addition, a search of "water rights" within the library's EBSCO database will yield a variety of materials.

The sections below describe some specific publications that valuers may find helpful in increasing their understanding of issues related to water rights.

General Books on Water Rights (2)

General books on water rights are a good starting point for those who need an overview of water law concepts, customs, precedents, and regulations.

The Appraisal of Water Rights, by Steven J. Herzog (Appraisal Institute, 2012; paperback), covers the nature and transferability of water rights, the applicability of appraisal standards, and the skills and knowledge needed for valuation assignments involving water rights. The book includes case studies involving the valuation of partial and stand-alone interests, and examples of challenging situations. A helpful glossary is also included. (The table of contents can be viewed at http://bit.ly/WaterRightsTOC.)

Water Law in a Nutshell, fifth edition, by David Getches, Sandi Zellmer, and Adell Amos (West Academic Publishing, 2015; available in paperback and e-book formats), summarizes the scores of recent court decisions and key changes in water law. The authors cover a broad variety of topics, including groundwater and surface water conflicts; public and private water rights; claims and uses; federal water developments; and takings and claims.

Water Law: Concepts and Insights, by Robin Kudis Craig, Robert W. Adler, and Noah D. Hall (Foundation Press, 2017; available in paperback and e-book formats), is a widely respected work covering the five basic groundwater law doctrines; policies governing allocation of water; hydrological principles; the federal government's role in freshwater law and regulation; and federal water rights. This text also covers the two main state-law doctrines governing the use of surface water and groundwater. It includes treatment of the concept of water rights as private property rights and the problems and nuances of takings litigation and environmental protections that interfere with those rights. Chapter topics include the following:

* introduction to water law; riparian property and rights, riparian law

* prior appropriation and the three alternative prior appropriation doctrines

* five major doctrines covering groundwater allocations; groundwater and surface water interactions

* common law of the past and current permit systems

* state public trust doctrines

* water law and water pollution laws

* human versus endangered species water use conflicts

* water management and watershed planning

* public interests and private rights in water

* takings claims and compensation owed for a water right taking

* defining the property right known as a water right

* physical versus regulatory takings of water rights

The Water Gates: Water Rights, Water Wars in the SO States, by Randy Stapilus (Ridenbaugh Press, 2010; available in paperback and e-book formats), addresses common law and case law covering water rights as well as information in each state. It discusses the underlying principles of water rights of land, including accessing shoreline, flowing surface water, riparian principles, distinctions between the riparian and appropriative doctrines, and foundational laws and court cases in the United States. It explains the evolution of water laws in different areas of the country and the growing role of the federal government. The author provides the applicable state statutes and contact information for water laws in the coverage of water information for each state. The list of interstate water agreements is extensive, with citations and references.

Books Covering Water Rights Laws in Western States

Not surprisingly, western states have developed laws specific to the circumstances of their regions. Though the following resources are primarily concerned with the western states, much of the material in these texts has general application across the United States. Since each state has its own water laws and nuances, valuers should be sure to consult state-specific as well as general resources.

Water Rights Laws in the Nineteen Western States, by Wells A. Hutchins (originally published in 1942, with various updated editions; available in hardcover, paperback, and e-book formats), looks at water rights laws in the seventeen contiguous western states plus Alaska and Hawaii. A sampling of topics includes state water policies; characteristics of watercourse and the property nature of water and water rights pertaining to watercourses; appropriations; the riparian doctrine; loss of water rights in watercourse and adjudication of water rights in watercourses; diffused surface waters; groundwater rights; federal-state relations; and the interstate dimensions of water rights.

Sharing the Common Pool: Water Rights in the Everyday Lives of Texans, by Charles Porter Jr. (Texas A&M University Press, 2014; in paperback and e-book formats), provides a comprehensive look at Texas water rights, from historical background to current situation. The state's Spanish, English, and Republic heritages have resulted in a complex collection of laws, permits, and governing authorities--all impacting various types of water rights and various interests in agricultural, industrial, and urban contexts. This text covers state and private water ownership; duties of buyers, sellers, and real estate agents in transactions; surface water, diffused surface water, and groundwater rights; the conjunctive state of water; and the outlook for water interests and rights in the state. It offers extensive references, citations, sources, and notes, as well as an extensive index, a bibliography, and an excellent glossary of terms useful in most states. This is an impressive work indeed.

California Water II, second edition, by Arthur L. Littleworth and Eric L. Garner (Solano Press Books, 2007; paperback), is a comprehensive guide to issues related to water use in California. Chapter topics include the following:

* an overview of California's water supply

* a capsule view of water rights law, property-based rights with and apart from land ownership

* reasonable use doctrine

* surface water rights, water rights as real property, types of water rights, riparian water rights, acquisition and loss of riparian rights, priority of rights, appropriative rights, loss and severance of rights, condemnation, prescriptive surface water rights

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