Commission proposes simpler water disclosure, drops 'water course' test

At a two‑day committee meeting, members endorsed a draft that removes the technical ‘‘water course’’ test from seller disclosure forms and instead asks whether the seller owns a surface water right and whether a pond, lake or water tank exists on the property. Brian Sledge, who led the presentation, said the change reflects how real estate transactions actually break down: "Do you have one of these water rights? If so, give us the number for it, the names on it," he told the committee, urging a short, documentary approach rather than a morphological legal determination.

Sledge said determinations about whether a feature is a ‘‘water course’’ can take years when referred to the state's water regulator (noting he had one determination pending for three years) and often provide little practical benefit to buyers or sellers. Instead, the form will ask sellers to identify permits, certified filings, or adjudications associated with the property — the documents that create surface water rights — and to disclose the existence of ponds, lakes or "water tanks" on the parcel, whether currently with water or dry.

The committee discussed wording to avoid creating a new duty to investigate. Members agreed to remove the phrase "and belief" from the instruction language, to encourage reasonable diligence without converting the form into a legal duty to research statutes or registries. The draft adds a short notice pointing buyers to consult an attorney for complex water‑rights questions and uses definitions aligned with the state's water code for "surface water" and "surface water right."