Hot Topics in Water RightsAugust 31, 2011

Kent L. Jones, P.E.

State Engineer

State Engineer Flood Responsibilities

73-2-22 and 73-2-23 Emergency Flood Powers

Approval of the Emergency Management Advisory Council (Lt. Gov./ Public Safety Director)

Weber River Near OakleyDecree Orders; 1985 Jordan River/Utah

Lake

Municipal UsesMunicipal Uses

PolicyPolicy

Change ApplicationsChange Applications

ProofsProofs

Municipal PolicyMunicipal Policy

Adopted December 2, 2010.Adopted December 2, 2010. Discussions with RWAU. Discussions with RWAU. Municipal Use options extended Municipal Use options extended

to Public Water Suppliers. to Public Water Suppliers. Includes private water companies Includes private water companies

with 100 connections or 200 year with 100 connections or 200 year round residences controlled by round residences controlled by the residents they serve.the residents they serve.

Evaluating Municipal Evaluating Municipal ApplicationsApplications

Existing Uses Evaluated for Diversion Existing Uses Evaluated for Diversion and Depletion Limitationsand Depletion Limitations

Each Right Has an Associated Use Each Right Has an Associated Use LimitationLimitation

Each Use Limitation Will be EvaluatedEach Use Limitation Will be Evaluated Limitations Will be Imposed to Limitations Will be Imposed to

Restrict Proposed Uses to Historical Restrict Proposed Uses to Historical Diversion and Depletion LimitationsDiversion and Depletion Limitations

Municipal Use Provides Flexibility in Municipal Use Provides Flexibility in UseUse

Conversion of Existing Uses Conversion of Existing Uses To Municipal UseTo Municipal Use

Existing Uses: 250 Family connectionsExisting Uses: 250 Family connections 100 Acres of Irrigation100 Acres of Irrigation 500 Cattle or Equivalent500 Cattle or Equivalent 1 Convenience Store1 Convenience StoreDiversion and Depletion Calculations:Diversion and Depletion Calculations: 250 Families : 0.45af/fam(div); 0.09af/fam(dep) 250 Families : 0.45af/fam(div); 0.09af/fam(dep)

Septic TankSeptic Tank 100 Acres : 4af/ac (div); 2.12af/ac (dep)100 Acres : 4af/ac (div); 2.12af/ac (dep) 500 Cattle : 0.028af/elu (div) and (dep)500 Cattle : 0.028af/elu (div) and (dep) 1 store : 1.0 af (div); 0.5 af (dep)1 store : 1.0 af (div); 0.5 af (dep)

Calculations ContinuedCalculations Continued Total Diversion Requirement Would Be:Total Diversion Requirement Would Be: UseUse Div Div Dep Dep 250 Families 112.5 22.5250 Families 112.5 22.5 100 Acre 400 212100 Acre 400 212 500 Cattle 14 14500 Cattle 14 14 1 Store 1 Store 1 0.51 0.5Totals: 527.5 249.0Totals: 527.5 249.0

Change Application Would Be Filed to Change Change Application Would Be Filed to Change from Existing Uses to Municipal Use. Approval from Existing Uses to Municipal Use. Approval would be limited to the calculated diversion and would be limited to the calculated diversion and depletion limitsdepletion limits

Proving Up on Municipal Proving Up on Municipal RightsRights

Diversions Would be MeasuredDiversions Would be Measured Amount to be Proved Up Would Be in Amount to be Proved Up Would Be in

Addition to Any Rights Already PerfectedAddition to Any Rights Already Perfected Depletions Would be Calculated for the Depletions Would be Calculated for the

Water Diverted to Show That Historical Water Diverted to Show That Historical Depletions Are Not ExceededDepletions Are Not Exceeded

Proof Would Be Evaluated and a Proof Would Be Evaluated and a Certificate Issued for the Diversion and Certificate Issued for the Diversion and Depletion Limits Submitted and Verified.Depletion Limits Submitted and Verified.

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 the “Big Ditch” Modifications for the “Big Ditch”

Supreme Court DecisionSupreme Court Decision Modifications for the “Jensen v Jones” Modifications for the “Jensen v Jones”

Supreme Court DecisionSupreme Court Decision

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 Diligent ClaimsDiligent 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

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.

Reports Of ConveyanceReports Of Conveyance

Concerns Expressed about the length of Concerns Expressed about the length of time required to process ROC’stime required to process ROC’s

Statute Allows Professionals to do WorkStatute Allows Professionals to do Work Professionals Include: an Attorney; a Professionals Include: an Attorney; a

Professional Engineer; a Title Insurance Professional Engineer; a Title Insurance Producer; or a Professional Land Producer; or a Professional Land SurveyorSurveyor

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Reports of Conveyance Reports of Conveyance (continued)(continued)

Efforts are being made to streamline Efforts are being made to streamline processes.processes.

More reliance is to be placed on the Title More reliance is to be placed on the Title Professional.Professional.

Reasonable solutions for resolving breaks in Reasonable solutions for resolving breaks in title will be pursued with recommendations title will be pursued with recommendations requested from the professionals. Establishing requested from the professionals. Establishing a “reason to believe” standard will be pursued.a “reason to believe” standard will be pursued.

Deed Riders are allowed and encouraged. Deed Riders are allowed and encouraged. They can be used as ROC’s if completed They can be used as ROC’s if completed correctly.correctly.

Reports of Conveyance Reports of Conveyance (continued)(continued)

Internal review committee has been Internal review committee has been authorized to help in the process of authorized to help in the process of whether ROC’s are complete or not.whether ROC’s are complete or not.

An advisory committee comprised of staff An advisory committee comprised of staff and title professionals has been and title professionals has been suggested to help discuss reasonable suggested to help discuss reasonable solutions to problems which will help solutions to problems which will help establish a “reason to believe” standard.establish a “reason to believe” standard.

Snake Valley UpdateSnake Valley Update Nevada in the process of rehearing Spring, Cave, Delmar, Nevada in the process of rehearing Spring, Cave, Delmar,

and Dry Lake Valleys. and Dry Lake Valleys.

Utah experts will be involved in the hearing process.Utah experts will be involved in the hearing process.

Snake Valley applications have not been re-advertised and Snake Valley applications have not been re-advertised and will not be processed until later.will not be processed until later.

There is still an agreement drafted between Utah and There is still an agreement drafted between Utah and Nevada to divide water between the states and protect Nevada to divide water between the states and protect Utah’s right to use its water in our state.Utah’s right to use its water in our state.

The agreement is a good safeguard to protect the The agreement is a good safeguard to protect the environment and the ground water resources. The environment and the ground water resources. The agreement doesn’t authorize the pipeline project but rather agreement doesn’t authorize the pipeline project but rather will impose some strict regulations on any water developed.will impose some strict regulations on any water developed.

Snake Valley Update (continued)Snake Valley Update (continued)

The interstate agreement is currently on hold The interstate agreement is currently on hold pending outcomes of issues in both states.pending outcomes of issues in both states.

Water division between states is proposed as Water division between states is proposed as follows:follows:

Allocated… Utah 55,000 afyAllocated… Utah 55,000 afy Nevada 12,000 afyNevada 12,000 afyUnallocated…Utah 6,000 afyUnallocated…Utah 6,000 afy Nevada 35,000 afyNevada 35,000 afyReserved… Utah 5,000 afyReserved… Utah 5,000 afy Nevada 19,000 afyNevada 19,000 afy

This is a reasonable result for a difficult decision.This is a reasonable result for a difficult decision.

Nuclear Power Plant at Green Nuclear Power Plant at Green RiverRiver

Kane County Water Conservancy District Kane County Water Conservancy District and San Juan County Water Conservancy and San Juan County Water Conservancy District are the applicants. Blue Castle is District are the applicants. Blue Castle is the promoter.the promoter.

53,600 af 24,000 09-462 53,600 af 24,000 09-462 4-21-2000 priority SJCWCD; 29,600 89-4-21-2000 priority SJCWCD; 29,600 89-74 1-15-1964 priority KCWCD.74 1-15-1964 priority KCWCD.

Previously approved for coal-fired power Previously approved for coal-fired power generation purposes.generation purposes.

Looking at Fish Flow requirements, water Looking at Fish Flow requirements, water availability, priorities on the river, Utah’s availability, priorities on the river, Utah’s over-allocation, and interference potential.over-allocation, and interference potential.

Questions

Questions?