Proof Professionals Training

July 15, 2010

Salt Lake City, Utah

Topics

• Division of Water Rights proof web page

• Historical perspective on proofs

• Affidavits of Beneficial Use

• Proof maps

• Municipal proofs

Historical Perspective on Proofs(Homestead Act of 1862)

• Signed into law by Abraham Lincoln after the southern states had seceded

• Allowed for the settling of 160 acres of federally owned land• Process

1)Make application to the government2)Make improvements3)File proof of use4)Receive a patent (deed of title) on the land

• Proof was in the form of an affidavit signed by witnesses attesting to the improvement of the land

• Law was abused by those seeking to monopolize land or water sources or to gain title without actual development

Historical Perspective on Proofs(Utah Water Law of 1903)

• Water rights process is similar to the process for homesteading lands in the U.S.

1) Make application to the state engineer2) Construct works and put water to use3) File proof of beneficial use4) Receive a certificate of beneficial use

• Establishes a legal property interest recorded in an office of public record

• Allocates limited resources to those who put them to use• Proof to be completed by a “reputable engineer”• Law was abused by speculators or engineers unwilling to

represent actual conditions on the proof

Biennial Reports (Selected Quotes)• “Of the 229 proofs of appropriation submitted during the past

biennium practically all were returned for correction; in fact, most of them were returned several times.” (1918)

• “Evidence is constantly accumulating to show that the proofs submitted are quite frequently not only incorrect, but definitely misrepresent actual conditions.” (1928)

• “In many instances, physical conditions of the lands described have been such that irrigation has been either impossible or impractical. In other cases, lands embracing gravel pits, wide gullies, rock piles, or land covered by sagebrush or other native vegetation have been shown.” (1938)

• “Oftentimes, carelessly prepared proofs require several months to correct and to bring up to acceptable standards on which certificates can be written.” (1958)

Reasons for Proof Professionals Training

• Decrease our workload in reviewing and processing proofs

• Help proof professionals to prepare better proofs more efficiently

• Prevent fraud and abuse of the proof process– Recent discussions with the State Engineer have

contemplated filing complaints with DOPL regarding misrepresentations on proofs

Affidavits “as Proof”

• H.B. 389 – Effective May 12, 2009

• Allows an applicant to submit an affidavit instead of hiring a proof professional

• Affidavit must be for “a small amount of water” associated with a residence

• Some permanently lapsed applications can be revived

Small Amount of Water

• 1 Residence

• A quarter acre or less of irrigation

• 10 livestock or less

• Affidavits must be associated with a home– Home may be on a separate water right or on a

municipal system

• No other uses are permitted on an affidavit

Affidavit Requirements

1. Affidavit form signed by all owners

2. Map of beneficial use

3. Plat map

4. Certificate of Occupancy or Tax Notice

Affidavit Statistics (since May 12, 2009)

• 519 Proofs submitted by proof professionals

• 157 Affidavits submitted

• Additional 28 Affidavits submitted on lapsed applications

• Oldest revived application lapsed in 1979

Proof Maps Tips

• Show and describe diverting, measuring and conveyance works

• Describe method of irrigation• Show surface sources for some distance

above and below the point of diversion• Show property boundaries• Account for all water use occurring• Show existing water right boundaries

Is a Proof Map a Legal Survey of the Place of Use?

• Current water rights mapping rules imply that a proof is a legal survey. The place of use is the location “identified by a legal description by metes and bounds” where water is placed to use. (R655-5-2.7.1)

• Water right appurtenance to land is currently determined by the proof map

• DOPL rules prohibit engineers from “the surveying of real property for the establishment of land boundaries” (R156-22-102(4))

Municipal Proofs

• Each municipal proof must include an acre-foot diversion quantity

• Acre-foot quantity must be supported by diversion records

• All sources and water rights need to be considered in evaluating municipal proofs

Municipal Proof Analysis• Identify all water rights owned by the municipality• Determine which water rights are perfected• Determine the total quantity of perfected water rights

– If the application is for a well, add up water rights from ALL municipal wells, but not surface sources

– If the application is for a surface source, add up all water rights from that particular source

– If the application is from a combination of wells and surface sources, add up water rights from ALL municipal wells and all surface sources involved

• Determine the maximum annual use from the relevant sources• If use exceeds perfected water rights then a certificate can be issued

for up to the difference between the two

Example #1: Washington City(4 proofs submitted for a total of 2059 ac-ft)

• a19389 (81-666, 1087)– 6 Municipal Wells– 1.24 cfs, 687.1355 ac-ft

• a23880 (81-1610, 4313)– 9 Municipal Wells– 213 ac-ft

• a25120 (81-1674)– 8 Municipal Wells– 1 cfs

• a25121 (81-1719)– 8 Municipal Wells– 0.6 cfs

WASHINGTON CITY WATER RIGHTS WRNUM TYPE USE SOURCES CFS AC-FT 81-207 CERT Mun Price Spring 0.0156 81-222 CERT Mun Prisbrey Spring 0.00668 81-266 CERT Mun 3 Springs 0.0141 81-363 REJ Irr Sand Hollow Creek 3.0 81-645 CERT Mun 2 Wells 0.496 119 81-666 CERT Mun Well 0.5 151.4 81-710 DIL Irr Mill Creek 0.3 71.834 81-1087 CERT Mun Well 0.74 81-1150 DEC Irr Sand Hollow Creek 0.65 81-1151 DEC Mun Sand Hollow Creek 0.03 81-1610 CERT Irr Well 0.168 53 81-1674 CERT Mun Well 1.0 81-1719 CERT Mun Well 0.6 81-1747 CERT Mun 8 Wells 0.048825 11.786 81-2175 UNAP Mun 6 Wells 3.0 81-2412 CERT Mun Well 2.4 81-3665 DEC Irr Green Spring/Stream 1.06 81-3667 DEC Irr 2 Springs 0.61 81-3858 UNAP Mun Well 3.0 81-3866 UNAP Mun Well 3.0 81-3908 UNAP Mun Green Stream 1.0 81-3939 DEC Irr Green Spring/Stream 1.06 81-4076 DEC Irr 2 Springs 0.76 249.6 81-4077 DEC Mun 2 Springs 0.07 81-4078 DEC Mun 2 Springs 0.09 81-4079 DEC Irr 3 Springs 2.7 896.4 81-4313 CERT Irr Well 0.667 160 TOTAL PERFECTED MUNICIPAL UNDERGROUND WATER RIGHTS 1868

Washington City Water Use

YEAR WELL USE [AC-FT]

2009 3628.3

2008 2994.6

2007 3890.1

2006 3440.2

2005 3521.3

2004 3597.9

2003 3998.0

2002 3750.7

2001 3398.6

Water Rights

1868 (Perf.) + 2059 (Proof) = 3927

Example #2: Lindon City(4 proofs submitted for a total of 168 ac-ft)

• a21388 (55-1670, 2325, 3205)– 4 Municipal Wells– 0.668 cfs, 135.97 ac-ft

• a23905 (55-9400)– 4 Municipal Wells– 14 ac-ft

• a29621 (55-12048)– 4 Municipal Wells– 5.6 ac-ft

• a30001 (55-12066)– 4 Municipal Wells– 12.92 ac-ft

LINDON CITY WATER RIGHTS WRNUM TYPE USE SOURCES CFS AC-FT 55-286 PD Irr Well 0.508 31.2 55-416 PD Mun Well 1.104 55-742 PD Mun Well 0.713 55-1039 CERT Mun 4 Wells 30.8 55-1040 CERT Mun 4 Wells 0.52 77.72 55-1670 UGWC Irr Well 0.668 55-2325 UGWC Irr Drain 0.75 55-2520 PD Irr Well 11.18 55-2613 PD Irr Well 0.167 8.168 55-3205 UGWC Irr Well 0.75 55-3206 UGWC Irr Well 0.134 50.4 55-3357 UGWC Irr Well 0.334 68 55-3380 UGWC Irr Drain 0.666 20 55-3533 UGWC Irr Well 0.111 9.57 55-3534 UGWC Irr Drain 0.22 2.57 55-4107 PD Mun Well 6.677 55-4416 PD Irr Drain 2 31.2 55-4478 PD Mun Well 4.61 55-6908 PD Mun 13 Springs 1.34 55-7873 PD Irr Ditch 0.271 79.2 55-8998 DIL Irr Slough 28.5 55-9400 CERT Irr Well 14 55-12048 CERT Irr Well 5.6 55-12066 CERT Irr Well 12.92 55-12116 CERT Irr Slough 28.5 55-12164 UGWC Irr Well 7.04 55-12165 UGWC Irr Well 7.04 55-12166 DIL Irr Ditch 7.04 55-12221 UGWC Irr Well 26.992 TOTAL PERFECTED MUNICIPAL UNDERGROUND WATER RIGHTS 9596

Lindon City Water Use

YEAR WELL USE [AC-FT]

2008 1965.1

2007 1579.1

2006 1694.9

2005 1243.1

2004 1247.6

2003 1353.4

2002 1214.9

2001 1026.6

2000 1064.4

Water Rights

9596 (Perf.) + 168 (Proof) = 9764

Questions?