Water Right Issues of the State Engineer Utah Water Users Workshop March 17, 2015 Kent L. Jones,...

Water Right Issues of the State Engineer Utah Water Users Workshop

March 17, 2015 Kent L. Jones, P.E.

State Engineer

2015 Water Bills2015 Water Bills

HB 25 HB 25 Water Law – Application Water Law – Application Revisions Revisions - - Snow Snow ; ; New LawNew Law

HB 43S4 HB 43S4 Water Rights – Change Water Rights – Change Application AmendmentsApplication Amendments – – McIffMcIff; ; New New LawLaw

HB 47 HB 47 Protection of Water Rights Protection of Water Rights – – McIffMcIff; ; House RulesHouse Rules

HB 58 HB 58 Change Application Change Application Modifications Modifications – – GroverGrover; ; New LawNew Law


HB 161 HB 161 Utah Revised Nonprofit Utah Revised Nonprofit Corporation Act Corporation Act – – McIffMcIff; ; House CommitteeHouse Committee

HB 258 HB 258 Employee Classification Employee Classification AmendmentsAmendments – – ChewChew; ; New LawNew Law


SB 15 SB 15 Water Law – Forfeiture Water Law – Forfeiture Exemptions Exemptions – – DaytonDayton; ; New LawNew Law

SB 35 SB 35 Water Rights Amendments Water Rights Amendments – – DaytonDayton; ; Passed Senate to House Floor/Circled. Passed Senate to House Floor/Circled.

Same bill as HB 58; Same bill as HB 58; New LawNew Law SB SB 40 Water Law – Application 40 Water Law – Application

Withdrawal Withdrawal – – DaytonDayton; ; New LawNew Law SB 126 SB 126 Water Amendments Water Amendments – – DaytonDayton; ;

Senate RulesSenate Rules


SB 142 SB 142 Water Rights – Change Water Rights – Change Application RevisionsApplication Revisions – – StevensonStevenson; ; Senate Rules. Same as HB 43Senate Rules. Same as HB 43

SB 225 SB 225 Irrigation Service Water Irrigation Service Water Rights AmendmentsRights Amendments – – Van TasselVan Tassel; ; New New Law Law

SCR 2 SCR 2 Concurrent Resolution Concurrent Resolution Regarding Navajo Water Rights Regarding Navajo Water Rights SettlementSettlement – – HinkinsHinkins; ; New Law New Law

O

X - SenateO - House

OO

O O O O OX X X X

XX

XX

Jensen v Jones/ Big DitchJensen v Jones/ Big Ditch

Supreme Court Decisions 2011Supreme Court Decisions 2011

Restricted state engineer’s ability to Restricted state engineer’s ability to address beneficial use of water in a address beneficial use of water in a change application based on the right change application based on the right being subject to forfeiture from nonusebeing subject to forfeiture from nonuse..

Allowed contract holders to file change Allowed contract holders to file change applications as “one entitled to the use of applications as “one entitled to the use of water.”water.”

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

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

Jensen v Jones/ Big DitchJensen v Jones/ Big Ditch

Requested direction from the legislatureRequested direction from the legislature

Action tied back to 2008 HB 51 where Action tied back to 2008 HB 51 where concern was expressed that the state concern was expressed that the state engineer may not be able to continue to engineer may not be able to continue to do what he has always done on change do what he has always done on change applicationsapplications

Intent language given from the legislatureIntent language given from the legislature

HB 51 Intent Language 2008HB 51 Intent Language 2008

Intent language with the 2008 changes Intent language with the 2008 changes said these changes are :said these changes are :

““not intended to change the way not intended to change the way the State Engineer evaluates the State Engineer evaluates change applications based on change applications based on historic beneficial use or validate historic beneficial use or validate any invalid water rights.”any invalid water rights.”

HB 25 HB 25 Water Law – Application Water Law – Application RevisionsRevisions

Water community wanted to have Water community wanted to have the legislature reconfirm State the legislature reconfirm State Engineer’s “Gatekeeper” role.Engineer’s “Gatekeeper” role.

Efforts were made over the last three Efforts were made over the last three years to get the right balance and years to get the right balance and provide proper protection to all water provide proper protection to all water right holders.right holders.

Have not been able to reach Have not been able to reach agreement.agreement.

HB 25 Water Law – Application HB 25 Water Law – Application RevisionsRevisions

Focus Group:Focus Group: 4 Representatives from the 4 biggest 4 Representatives from the 4 biggest

water Conservancy Districts.water Conservancy Districts. 4 Representatives from the League of 4 Representatives from the League of

Cities and Towns.Cities and Towns. 2 Representatives from the Farm Bureau.2 Representatives from the Farm Bureau.

Efforts were focused on impairment of Efforts were focused on impairment of right and defined “Quantity Impairment”right and defined “Quantity Impairment”

Quantity ImpairmentQuantity Impairment

Diminishing the quantity of water in the Diminishing the quantity of water in the source of supply for the existing right.source of supply for the existing right.

Changing the timing of availability of Changing the timing of availability of water from the source of supply for the water from the source of supply for the existing right, orexisting right, or

Enlarging the quantity of water depleted Enlarging the quantity of water depleted by the proposed nature of use when by the proposed nature of use when compared with the current nature of usecompared with the current nature of use


A person entitled to the use of water A person entitled to the use of water may make a change to a water right if:may make a change to a water right if:

The person makes a change in accordance The person makes a change in accordance with this sectionwith this section

The change does not impair an existing The change does not impair an existing right without just compensation or right without just compensation or mitigationmitigation

The State Engineer approves the right.The State Engineer approves the right.


The applicant has the burden of producing The applicant has the burden of producing evidence sufficient to support a reasonable evidence sufficient to support a reasonable belief that the change can be made in belief that the change can be made in compliance with this section and section 73-3-compliance with this section and section 73-3-88

Rebuttable PresumptionRebuttable Presumption Quantity ImpairmentQuantity Impairment For a period of at least 7 yearsFor a period of at least 7 years

Not diverted from the approved point of Not diverted from the approved point of diversion; nordiversion; nor

Beneficially used at the approved place of use.Beneficially used at the approved place of use.


Quantity Impairment under the Quantity Impairment under the rebuttable presumption may not be rebuttable presumption may not be considered unless raised in a:considered unless raised in a: Timely protest identifying the rights that Timely protest identifying the rights that

may be impaired.may be impaired. Written notice from the State Engineer Written notice from the State Engineer

within 90 days from the filing of the within 90 days from the filing of the application and identifying the rights that application and identifying the rights that may be impaired.may be impaired.

All rights don’t have to be identified.All rights don’t have to be identified.


Consultation with the State Engineer Consultation with the State Engineer or designee may be requested before or designee may be requested before filing an application… (nonbinding).filing an application… (nonbinding).


What To Expect:What To Expect: The Division will continue to look for impairment The Division will continue to look for impairment

issues associated with change applications.issues associated with change applications. In instances where water hasn’t been used In instances where water hasn’t been used

continuously for more than 7 years, impairment continuously for more than 7 years, impairment will be investigated when it is proposed to put will be investigated when it is proposed to put the water back to use through a change the water back to use through a change application processapplication process

Notifications will be sent within 90 days of filing Notifications will be sent within 90 days of filing or other water users must protestor other water users must protest

The GATEKEEPER is back…The GATEKEEPER is back…

SB35/HB 58 Water Rights SB35/HB 58 Water Rights AmendmentsAmendments

Proposal defines: “a person entitled to Proposal defines: “a person entitled to the use of water”the use of water” The holder of an approved but The holder of an approved but

unperfected application to appropriate unperfected application to appropriate waterwater

The record holder of a perfected rightThe record holder of a perfected right A person who has written authorization A person who has written authorization

from the person described in 1 or 2from the person described in 1 or 2 A shareholder in a water company who A shareholder in a water company who

files in accordance with section 73-3-3.5files in accordance with section 73-3-3.5

SB35/HB 58 Water Rights SB35/HB 58 Water Rights AmendmentsAmendments

What To Expect:What To Expect: Required to have owner sign the change Required to have owner sign the change

application, orapplication, or Require the owner to give written Require the owner to give written

authorization.authorization. File change based on shares of stock by File change based on shares of stock by

going through 73-3-3.5 criteriagoing through 73-3-3.5 criteria

SB 15 Water Law – Forfeiture SB 15 Water Law – Forfeiture ExemptionsExemptions

Forfeiture does not apply to a water Forfeiture does not apply to a water right during the period of time the right during the period of time the water right is subject to an approved water right is subject to an approved change application where the change application where the applicant is diligently pursuing applicant is diligently pursuing certification. certification.

This bill is not retroactive and does This bill is not retroactive and does not cover any periods of time before not cover any periods of time before the change application is approved.the change application is approved.

SB 15 Water Law – Forfeiture SB 15 Water Law – Forfeiture ExemptionsExemptions

What To Expect:What To Expect: In considering a water right before the In considering a water right before the

State Engineer, forfeiture considerations State Engineer, forfeiture considerations will not be evaluated if there is an will not be evaluated if there is an approved change application as long as approved change application as long as the water right owner is working toward the water right owner is working toward certification.certification.

Must be diligent or have reasonable Must be diligent or have reasonable cause for delay in getting certificationcause for delay in getting certification

SB 40 Application WithdrawalSB 40 Application Withdrawal

Authorizes an individual to withdraw Authorizes an individual to withdraw an application that the individual an application that the individual owns.owns. Requires the individual to send written Requires the individual to send written

notice to withdrawnotice to withdraw Requires the State Engineer to update the Requires the State Engineer to update the

State Engineer’s recordsState Engineer’s records Individuals who withdraw unperfected Individuals who withdraw unperfected

applications are not entitled to a refund of applications are not entitled to a refund of feesfees

SB 40 Application WithdrawalSB 40 Application Withdrawal

What To Expect:What To Expect: If you want to withdraw your unperfected If you want to withdraw your unperfected

application, you must do so in writing.application, you must do so in writing. The State Engineer will update the water right The State Engineer will update the water right

records to reflect that it has been withdrawn and records to reflect that it has been withdrawn and is of no further force or effect. No other action is is of no further force or effect. No other action is requiredrequired

If the Division of Water Rights has had to expend If the Division of Water Rights has had to expend funds in processing the application, fees will funds in processing the application, fees will generally not be refunded. If you are not ready generally not be refunded. If you are not ready to file an application and have it processed…to file an application and have it processed…don’t file it.don’t file it.

Limitations of a Water RightLimitations of a Water Right

73-1-3: Beneficial use shall be the 73-1-3: Beneficial use shall be the basis, the measure and the limit of all basis, the measure and the limit of all rights to the use of water in this state.rights to the use of water in this state.

Involves an amount of water and the Involves an amount of water and the purpose to which you are using the purpose to which you are using the water.water.

Beneficial UseBeneficial Use

Each type of use has an associated Each type of use has an associated impact to the hydrologic system.impact to the hydrologic system.

Diversion: Diversion: The reasonable amount of The reasonable amount of water required to be diverted.water required to be diverted.

Depletion: Depletion: The amount of water that is The amount of water that is lost from the hydrologic system based on lost from the hydrologic system based on the associated beneficial use.the associated beneficial use.

Delta Canal Company et al vs Delta Canal Company et al vs Frank Vincent Family RanchFrank Vincent Family Ranch

Supreme Court Ruling Supreme Court Ruling November 2013November 2013:: ““The number of acres irrigated is not The number of acres irrigated is not

determinative in a forfeiture analysis, though it determinative in a forfeiture analysis, though it may be relevant insofar as it indicates the volume may be relevant insofar as it indicates the volume of water used or whether water usage was of water used or whether water usage was beneficial. Farmers may reduce the total acres beneficial. Farmers may reduce the total acres irrigated to grow a more water-intensive crop so irrigated to grow a more water-intensive crop so long as they beneficially use their full long as they beneficially use their full entitlement. The central question in any forfeiture entitlement. The central question in any forfeiture proceeding is whether the appropriator used all of proceeding is whether the appropriator used all of its water allowance in a reasonable manner and its water allowance in a reasonable manner and for a beneficial purpose.”for a beneficial purpose.”

QuestionsQuestions

Questions?

Understanding Water RightsUnderstanding Water Rights

When dealing with water rights, it is When dealing with water rights, it is important to understand the important to understand the underlying nature of the water right underlying nature of the water right you are dealing with.you are dealing with.

Point of Diversion, Place of Use, Point of Diversion, Place of Use, Nature of Use, Period of Use, Priority, Nature of Use, Period of Use, Priority, Consumptive Nature of the Right.Consumptive Nature of the Right.

Waters Declared Property of the PublicWaters Declared Property of the Public

73-1-1: All waters in this state, 73-1-1: All waters in this state, whether above or under the ground whether above or under the ground are hereby declared to be the are hereby declared to be the property of the public, subject to all property of the public, subject to all existing rights to the use thereof.existing rights to the use thereof.

Acquiring A Water RightAcquiring A Water Right

73-3-1(1) A person may acquire a right 73-3-1(1) A person may acquire a right to the use of the unappropriated public to the use of the unappropriated public waters in this state only as provided for waters in this state only as provided for in this title.in this title.

Applications to AppropriateApplications to Appropriate Diligence ClaimsDiligence Claims Change ApplicationsChange Applications Exchange ApplicationsExchange Applications Purchase as an appurtenance to land or as an Purchase as an appurtenance to land or as an

individual rightindividual right

Perfecting a Water RightPerfecting a Water Right

Application filed and approvedApplication filed and approved Diligently pursuing certificationDiligently pursuing certification Extensions can be granted 14 year, 50 Extensions can be granted 14 year, 50

yearyear Diligence must be show or a reasonable Diligence must be show or a reasonable

cause for delaycause for delay Proof submittedProof submitted Certificate issued … continued use Certificate issued … continued use

requiredrequired

Irrigation Return Flow

Diversion = 4.0 Ac Ft/Ac

ET = 2.0 Ac Ft/Ac

Return Flow = 2.0 Ac Ft/Ac

ForfeitureForfeiture

73-1-4(2)(a): 73-1-4(2)(a): Except as provided in Except as provided in Subsection (2)(b) (nonuse application) or Subsection (2)(b) (nonuse application) or (e) (exemptions from nonuse), when an (e) (exemptions from nonuse), when an appropriator or the appropriator’s appropriator or the appropriator’s successor in interest abandons or ceases successor in interest abandons or ceases to use all or a portion of a water right for a to use all or a portion of a water right for a period of seven years, the water right or period of seven years, the water right or the unused portion of that water right is the unused portion of that water right is subject to forfeiture in accordance with subject to forfeiture in accordance with Subsection (2)(c) (judicial action).Subsection (2)(c) (judicial action).

Change ApplicationsChange Applications

73-3-3(2)(a) … a person entitled to 73-3-3(2)(a) … a person entitled to the use of water may make the use of water may make permanent or temporary changes in permanent or temporary changes in the point of diversion; place of use; the point of diversion; place of use; or purpose of use for which the water or purpose of use for which the water was originally appropriated.was originally appropriated.

A change may not be made if it A change may not be made if it impairs a vested water right without impairs a vested water right without just compensation.just compensation.

Changing an Irrigation Water Changing an Irrigation Water Right to Industrial UsesRight to Industrial Uses

Water right is for 100 acres of Water right is for 100 acres of irrigationirrigation

100 ac x 4.0 ac-ft /ac = 400 ac-ft100 ac x 4.0 ac-ft /ac = 400 ac-ft Historical Depletion = 200 ac-ftHistorical Depletion = 200 ac-ft Industrial use is 100% Industrial use is 100%

consumptiveconsumptive Therefore, Therefore, diversion & depletion diversion & depletion limited to limited to 200 ac ft.200 ac ft.

Paper Right ExamplesPaper Right Examples

1 cfs/ 60 acres irrigation. Spring source1 cfs/ 60 acres irrigation. Spring source

A. Spring flows full flow, full season – 240 A. Spring flows full flow, full season – 240 afaf

B. Spring only flows May and June – 120 afB. Spring only flows May and June – 120 af C. Spring only flows once every 5 years –C. Spring only flows once every 5 years – D. Used with 3 other rights all on the D. Used with 3 other rights all on the

same 60 acres –same 60 acres – E. Spring flows full , full season, not used E. Spring flows full , full season, not used

in 20 yearsin 20 years

Evaluation of a Water RightEvaluation of a Water Right

Major ElementsMajor ElementsFlow: 2.50 CFSFlow: 2.50 CFS

Source: Spring CreekSource: Spring CreekUse: Irrigation of Use: Irrigation of

100 acres100 acres Period of Use: Period of Use: April 1-Oct 31April 1-Oct 31

What is the beneficial use?What is the beneficial use? What are the diversion and What are the diversion and

depletion limitations?depletion limitations?

53-109 53-110

53-536 53-374

53-95

11 Water Use Groups11 Water Use GroupsUnanswered QuestionsUnanswered Questions

How much beneficial use does each water How much beneficial use does each water right contribute to each water use group?right contribute to each water use group?

What is the total beneficial use in each What is the total beneficial use in each water use group?water use group?

What is the sole supply of each water What is the sole supply of each water right?right?

What is the total irrigated area?What is the total irrigated area?

Water Right Issues of the State Engineer Utah Water Users Workshop March 17, 2015 Kent L. Jones,...

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