Water Rights Update Rural Water Association of Utah: Legislative Water Rally

January 19,2012

Kent L. Jones, P.E.

State Engineer

Executive Water Task ForceExecutive Water Task Force

Small Domestic Exemptions Allowed Small Domestic Exemptions Allowed for Exchange Applications 73-3-5.6 for Exchange Applications 73-3-5.6 and 73-3-20and 73-3-20

Modifications to Adjudication StatuteModifications to Adjudication Statute Modifications for Administrative fixes Modifications for Administrative fixes

to the statutesto the statutes Modifications for the “Jensen v Jones” Modifications for the “Jensen v Jones”

and “Big Ditch” Supreme Court and “Big Ditch” Supreme Court DecisionsDecisions

Small Domestic ExchangesSmall Domestic Exchanges 2009 Legislative Session allowed small 2009 Legislative Session allowed small

amount of water applications to file proof amount of water applications to file proof of beneficial use by affidavit and be of beneficial use by affidavit and be reinstated if water was being used at the reinstated if water was being used at the time of lapsingtime of lapsing

Small amount of water applications Small amount of water applications defined as the water needed for up to 1 defined as the water needed for up to 1 family, 0.25 acre of irrigation, and the family, 0.25 acre of irrigation, and the water for 10 head of livestock. water for 10 head of livestock.

Exchange applications also involved these Exchange applications also involved these small amounts of water use but were not small amounts of water use but were not included in the statute amendment. They included in the statute amendment. They are added with this proposal. are added with this proposal.

Adjudication StatutesAdjudication Statutes

73-4-3; 73-4-4; 73-4-11: Requires 73-4-3; 73-4-4; 73-4-11: Requires claimants to file with the State Engineer’s claimants to file with the State Engineer’s Office and the State Engineer to file them Office and the State Engineer to file them with the court. Notification lists from the with the court. Notification lists from the State Engineer’s records and not court State Engineer’s records and not court recordsrecords

73-1-4: Subjects water rights to forfeiture 73-1-4: Subjects water rights to forfeiture considerations in an adjudication after the considerations in an adjudication after the PD is published even though a decree may PD is published even though a decree may be issuedbe issued

Technical AmendmentsTechnical Amendments 73-2-22; Emergency Management 73-2-22; Emergency Management

Administrative Council name adjusted to Administrative Council name adjusted to match actual councilmatch actual council

73-2-1: Reuse rules “may” be required 73-2-1: Reuse rules “may” be required rather than “shall” be required to conform rather than “shall” be required to conform to reuse statute revisionsto reuse statute revisions

73-3-12: Defines criteria for wholesale 73-3-12: Defines criteria for wholesale electrical cooperatives to justify electrical cooperatives to justify extensions beyond 50 yearsextensions beyond 50 years

73-3-16: No longer requires notarization of 73-3-16: No longer requires notarization of proof engineer’s signature on Proofs and proof engineer’s signature on Proofs and Diligence ClaimsDiligence Claims

Big Ditch ProposalsBig Ditch Proposals

73-3-3 allows “any person entitled to the 73-3-3 allows “any person entitled to the use of water” to make changes in the use of water” to make changes in the point of diversion, place of use, or purpose point of diversion, place of use, or purpose of useof use

Court ruling indicated that a contract Court ruling indicated that a contract holder was a person entitled to the use of holder was a person entitled to the use of water even though they don’t own the water even though they don’t own the underlying water rightunderlying water right

Discussions are centered on better Discussions are centered on better defining who can file a change with focus defining who can file a change with focus on the owner of the water righton the owner of the water right

Recommended LegislationRecommended Legislation

A “person” may make changes to a water A “person” may make changes to a water right.right.

Point of Diversion, Place of Use, Nature of Use, Point of Diversion, Place of Use, Nature of Use, Period of Use, and add or delete storage.Period of Use, and add or delete storage.

A Person is: A Person is: The holder of an approved but unperfected The holder of an approved but unperfected

application to appropriate; application to appropriate; The owner of record of a perfected water right;The owner of record of a perfected water right; One authorized in writing by the holder or owner;One authorized in writing by the holder or owner; A shareholder in a water company as defined in A shareholder in a water company as defined in

73-3-3.5 with written consent of the water company.73-3-3.5 with written consent of the water company.

Recommended LegislationRecommended Legislation

Change applications filed on federal Change applications filed on federal reclamation project water rights held reclamation project water rights held in the name of the United States in the name of the United States must be signed by both the United must be signed by both the United States and the local water users States and the local water users association or district contractually association or district contractually responsible for the operation and responsible for the operation and maintenance of the project or maintenance of the project or repayment of project costs.repayment of project costs.

Jensen v Jones ProposalsJensen v Jones Proposals

Change application before the State Engineer Change application before the State Engineer was denied because no beneficial use of the was denied because no beneficial use of the water could be identified. Appeared 1954 was water could be identified. Appeared 1954 was the last time it may have been used.the last time it may have been used.

Supreme Court ruled that water rights are not Supreme Court ruled that water rights are not forfeited except by court ruling and that loss forfeited except by court ruling and that loss by forfeiture couldn’t be considered by the by forfeiture couldn’t be considered by the State Engineer in a change application State Engineer in a change application proceedingproceeding

Gave the State Engineer options to pursue Gave the State Engineer options to pursue should a right appear to have not been used should a right appear to have not been used for longer than 7 yearsfor longer than 7 years

Jensen v Jones (continued)Jensen v Jones (continued)

State Engineer may bring suit to enjoin State Engineer may bring suit to enjoin unlawful appropriation and diversionunlawful appropriation and diversion

State Engineer may stay a change State Engineer may stay a change pending resolution of such adjudicationpending resolution of such adjudication

State Engineer can grant conditional State Engineer can grant conditional approval of a change applicationapproval of a change application

Cannot simply declare that a forfeiture Cannot simply declare that a forfeiture has occurred and thereby deny the has occurred and thereby deny the change applicationchange application

Jensen v Jones (continued)Jensen v Jones (continued) State Engineer has historically been the State Engineer has historically been the

“gatekeeper” to help protect the water rights of “gatekeeper” to help protect the water rights of others from impairment. Only beneficial uses of others from impairment. Only beneficial uses of water that can be given up when the change is water that can be given up when the change is reviewed are allowed to be transferred.reviewed are allowed to be transferred.

““If you want to get something new, you have to If you want to get something new, you have to give something up” There appears to be nothing to give something up” There appears to be nothing to give up if a right is subject to challenge for give up if a right is subject to challenge for forfeiture and hasn’t been used in a long time.forfeiture and hasn’t been used in a long time.

Discussions are based on allowing the State Discussions are based on allowing the State Engineer to evaluate a change based on observed Engineer to evaluate a change based on observed beneficial use; but, there is much debate about how beneficial use; but, there is much debate about how far the State Engineer authority should go. Several far the State Engineer authority should go. Several options are being discussed.options are being discussed.

Recommended LegislationRecommended Legislation

““Quantity of water available for Quantity of water available for change” shall mean the quantity of change” shall mean the quantity of water that has been placed to water that has been placed to beneficial use under a water right beneficial use under a water right within the time provided in Section within the time provided in Section 73-1- 4 UCA.73-1- 4 UCA.

Recommended Legislation (cont.)Recommended Legislation (cont.)

State Engineer, to prevent impairment of State Engineer, to prevent impairment of other water rights shall:other water rights shall:

Have authority to review beneficial use and limit the Have authority to review beneficial use and limit the approval to the “quantity of water available for approval to the “quantity of water available for change”;change”;

Presume water has been put to beneficial use if Presume water has been put to beneficial use if protected by statute and not rebutted by clear and protected by statute and not rebutted by clear and convincing evidence that a lesser quantity of water convincing evidence that a lesser quantity of water is available for change;is available for change;

Hold a hearing to review nonuse issues;Hold a hearing to review nonuse issues;

Not adjudicate the validity of the remaining portion Not adjudicate the validity of the remaining portion of the right.of the right.

Recommended Legislation (cont.)Recommended Legislation (cont.)

The applicant has the right to The applicant has the right to withdraw the application, request withdraw the application, request a stay of action, or pursue a stay of action, or pursue litigation to determine the litigation to determine the validity of the right. validity of the right.

For Consideration:For Consideration:

Spring flow enough for 10 acresSpring flow enough for 10 acres 11stst individual files for use and individual files for use and

irrigates 10 acres then later stops irrigates 10 acres then later stops irrigatingirrigating

22ndnd individual sees water is available individual sees water is available and file on the spring for 10 acres and file on the spring for 10 acres and continues to use itand continues to use it

For Consideration:For Consideration:

20 years later, 120 years later, 1stst individual files a change to individual files a change to move the spring right to a well for use by a move the spring right to a well for use by a city for municipal usecity for municipal use

Is there a water right to move to the city or Is there a water right to move to the city or not?not?

Property right activists assert there isProperty right activists assert there is Hydrologically there isn’t anything to move Hydrologically there isn’t anything to move

because nothing is given up – the 2because nothing is given up – the 2ndnd individual is still using the water for the 10 individual is still using the water for the 10 acresacres

If the right is allowed to move, other water If the right is allowed to move, other water rights in the basin will be impaired.rights in the basin will be impaired.

Proposed Reserved Water Right Proposed Reserved Water Right Settlement with the Navajo NationSettlement with the Navajo Nation

Agreement made between the State of Agreement made between the State of Utah and the Navajo Nation in 2003Utah and the Navajo Nation in 2003

Negotiation meetings held over the next Negotiation meetings held over the next several yearsseveral years

Tentative agreement reachedTentative agreement reached State participation required estimated at 8 State participation required estimated at 8

million dollarsmillion dollars Legislation represents initial 2 million to be Legislation represents initial 2 million to be

set aside for the settlementset aside for the settlement Rep. Watkins has opened a Bill file to Rep. Watkins has opened a Bill file to

support this settlementsupport this settlement

NAVAJO NATION

SETTLEMENT PROPOSAL

•81,500 AF Water Depletion•$156 Million in Projects•5% of cost ($8M)=State Share•Subordination to Existing Rights•Monticello/Blanding Consideration•Emphasis on Drinking Water

LIABILITY POTENTIAL•PIA = 166,500+ AF•Non-Indian Priority Conflict•Expensive, Unpredictable Litigation

UTAH'S COLORADO RIVER UTAH'S COLORADO RIVER ALLOCATIONALLOCATION

1.369 MAF1.369 MAF

Current Use 1.008 MAF

UNUSED ALLOCATION 361 KAF

Future UseFuture Use

Ute Tribe Reserve Water (compact)

105 KAF105 KAF

New Ag Uses 40 KAF40 KAF

New M&I Uses 21 KAF21 KAF

Lake Powell Pipeline 86 KAF86 KAF

TOTAL 109 KAF109 KAF

Navajo NationNavajo Nation 81 KAF81 KAF

BALANCE BALANCE 28 KAF28 KAF

ADDITIONAL Approved ADDITIONAL Approved

San Juan County WCD 30,000 San Juan County WCD 30,000 Kane County WCDKane County WCD 30,00030,000 Deseret Generation 12,000Deseret Generation 12,000 Central Utah WCD 29,500Central Utah WCD 29,500 Sanpete County WCD 5,600Sanpete County WCD 5,600 Wayne County WCD Wayne County WCD 49,00049,000** Partial Total Partial Total 156,100156,100

(Total Approved: 34,184 rights, 2.1 million af)(Total Approved: 34,184 rights, 2.1 million af)

• 1908 SUPREME COURT DECISION • Water Right for Purpose of Federal Reservation Implied

• WINTERS DOCTRINE DEFINED

• Native Americans have a Reserve Water Right

• The Water Right Priority Date is the Reservation Date

• The Amount of Water is Determined by the Practicable Irrigable Acres (PIA)

WINTERS V USA

Stormwater Capture AmendmentsStormwater Capture Amendments

Rep. Fred C. Cox, H.B. 67Rep. Fred C. Cox, H.B. 67 Provides for the collection and use of Provides for the collection and use of

precipitation without obtaining a precipitation without obtaining a water right for certain commercial, water right for certain commercial, mixed use, or multifamily projectsmixed use, or multifamily projects

Capture and store above or below Capture and store above or below ground in a catch basin, storm drain ground in a catch basin, storm drain pipe, swell, or pond.pipe, swell, or pond.

Stormwater Capture AmendmentsStormwater Capture Amendments

Catchments designed to slow, detain, Catchments designed to slow, detain, or retain stormwater or protect or retain stormwater or protect watersheds from pollutionwatersheds from pollution

May put up to 2500 cubic feet to May put up to 2500 cubic feet to beneficial use of the water slowed, beneficial use of the water slowed, detain, or retaineddetain, or retained

Not counted as beneficial use if it Not counted as beneficial use if it absorbs into the ground or evaporatesabsorbs into the ground or evaporates

Must register with the state engineerMust register with the state engineer

Municipal UsesMunicipal Uses

PolicyPolicy

Change ApplicationsChange Applications

ProofsProofs

Questions

Questions?