State Water Issues – State Engineer Utah Water Users Workshop March 13, 2012 Kent L. Jones, P.E. State Engineer

State Water Issues – State Engineer Utah Water Users Workshop

March 13, 2012

Kent L. Jones, P.E.

State Engineer

2012 Water Legislation2012 Water Legislation 3HB 67 Stormwater Capture Amendments3HB 67 Stormwater Capture Amendments HB 127 Navajo Water Rights Negotiation HB 127 Navajo Water Rights Negotiation

AccountAccount HB 153 Diversion of WaterHB 153 Diversion of Water HB 368 Abandonment or Forfeiture of HB 368 Abandonment or Forfeiture of

Water RightsWater Rights HB 369 Adjudication of Water RightsHB 369 Adjudication of Water Rights HB 485 Change Application AmendmentsHB 485 Change Application Amendments HB 486 Water and Irrigation AmendmentsHB 486 Water and Irrigation Amendments SB 187 Change Application ProcedureSB 187 Change Application Procedure

HB 127 Navajo Water Rights HB 127 Navajo Water Rights Negotiation AccountNegotiation Account

Settlement Agreement for reserved Water Settlement Agreement for reserved Water Rights on the Navajo Nation in Utah.Rights on the Navajo Nation in Utah.

Negotiations began in 2003, Governor and Negotiations began in 2003, Governor and President of the Navajo Nation signed President of the Navajo Nation signed agreement.agreement.

Projects Identified; 81,500 ac-ft agreed Projects Identified; 81,500 ac-ft agreed upon.upon.

$154 million in projects identified. State $154 million in projects identified. State share approximately $8 million.share approximately $8 million.

Bill proposes $2 million as first allocation Bill proposes $2 million as first allocation to state’s share.to state’s share.

HB 153 Diversion of WaterHB 153 Diversion of Water

Similar to Section 73-3-5.6 for small Similar to Section 73-3-5.6 for small amount of water.amount of water.

1 Family, 0.25 Acre Irrigation, 10 1 Family, 0.25 Acre Irrigation, 10 Animal Units.Animal Units.

Allows Exchange/Small Domestic Allows Exchange/Small Domestic Applications to Be Reinstated or Have Applications to Be Reinstated or Have Proof filed by Affidavit.Proof filed by Affidavit.

Evidence must be shown that house Evidence must be shown that house was there before the water right was there before the water right lapsed.lapsed.

HB 485 Change Application HB 485 Change Application AmendmentsAmendments

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.

SB 187 Change Application SB 187 Change Application Procedure Procedure

Requires that a person who applies Requires that a person who applies for a change to a water right must for a change to a water right must meet certain qualifications.meet certain qualifications.

Allow the State Engineer to Allow the State Engineer to determine the quantity of water that determine the quantity of water that is currently being beneficially used is currently being beneficially used and limit the approval of the change and limit the approval of the change based on that determination.based on that determination.

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 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 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.

Seven years.Seven years.

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

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

The State Engineer’s determination of the The State Engineer’s determination of the quantity of water available for change does quantity of water available for change does not constitute forfeiture or abandonment, not constitute forfeiture or abandonment, affect the use of the unapproved portion of affect the use of the unapproved portion of the water right, or constitute an the water right, or constitute an adjudication of the underlying water right. adjudication of the underlying water right.

Jensen/Big Ditch DecisionsJensen/Big Ditch Decisions 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 1956 was water could be identified. Appeared 1956 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 proceeding.proceeding.

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 years.for 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 were allowed to be transferred.reviewed were 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.

1939 State Engineer Biennial 1939 State Engineer Biennial ReportReport

Address changes in statute regarding Address changes in statute regarding adverse possession.adverse possession.

Justice Wolfe dissenting opinion in Justice Wolfe dissenting opinion in Adams v Portage case: Adams v Portage case: “I fear that “I fear that in this we have so extended the in this we have so extended the doctrine of adverse possession doctrine of adverse possession as to disturb the settled water as to disturb the settled water law of decades.”law of decades.”

ConsiderationConsideration

The issues we have before us now are:The issues we have before us now are: Whether the State Engineer should Whether the State Engineer should

look at beneficial use or not in the look at beneficial use or not in the change application process, andchange application process, and

Who can file a change applicationWho can file a change application.. The Court in a good faith effort to interpret The Court in a good faith effort to interpret

the law seems to be deviating from long-the law seems to be deviating from long-term water right practice.term water right practice.

These issues need to be resolved and These issues need to be resolved and clarified in statute. clarified in statute.

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

10 ac.

10 ac.

Water Right A

Water Right B

Water SourceEnough To Supply10 acres of Irrigation

DownstreamSurface and Underground Water Rights

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.

Water Rights Are Property Rights Water Rights Are Property Rights With ConditionsWith Conditions

It’s a right to share a public resource.It’s a right to share a public resource. There are a series of conditions and There are a series of conditions and

responsibilities that go with the rights.responsibilities that go with the rights. Water right holder doesn’t have total Water right holder doesn’t have total

control of the water right use.control of the water right use. Ownership of a right gives the right to Ownership of a right gives the right to

file a change but not to have it file a change but not to have it approvedapproved

Basic DefinitionsBasic Definitions

All water in the state is All water in the state is property of the public (73-1-1).property of the public (73-1-1).

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

Water Rights Subject to Forfeiture Water Rights Subject to Forfeiture For NonuseFor Nonuse

Since 1888 Utah has had a statute Since 1888 Utah has had a statute providing for the reversion of water providing for the reversion of water to the public upon abandonment or to the public upon abandonment or nonuse.nonuse.

The right ceased upon the expiration The right ceased upon the expiration of the statutory period: 7 years until of the statutory period: 7 years until 1919 and then 5 years after that.1919 and then 5 years after that.

1935 extensions of time to resume 1935 extensions of time to resume use (nonuse) applications instituted.use (nonuse) applications instituted.


Until 1996, If water was not beneficially used Until 1996, If water was not beneficially used for a period of 5 years it was considered for a period of 5 years it was considered forfeited, it ceased to exist and reverted to forfeited, it ceased to exist and reverted to the public. It was available for appropriation the public. It was available for appropriation unless a nonuse application was filed.unless a nonuse application was filed.

In 1996, the law changed to indicate that the In 1996, the law changed to indicate that the forfeiture of a water right had to be a judicial forfeiture of a water right had to be a judicial action and if you had been using your water action and if you had been using your water for a period of 15 years, the right was not for a period of 15 years, the right was not subject to forfeiture. But it still said if you subject to forfeiture. But it still said if you didn’t use your water for 5 years the right didn’t use your water for 5 years the right ceased. ceased.


In 2008, the forfeiture statute 73-1-4 was In 2008, the forfeiture statute 73-1-4 was again altered.again altered.

The 5 year period for nonuse was changed The 5 year period for nonuse was changed to 7 years and public water suppliers were to 7 years and public water suppliers were not subject to forfeiture if the water right not subject to forfeiture if the water right was in a 40-year plan. was in a 40-year plan.

Several exemptions for nonuse were Several exemptions for nonuse were detailed.detailed.

The reference to a water right ceasing was The reference to a water right ceasing was removed from the statute.removed from the statute.


Intent language with the 2008 changes Intent language with the 2008 changes said these changes are “not intended to said these changes are “not intended to change the way the State Engineer change the way the State Engineer evaluates change applications based on evaluates change applications based on historic beneficial use or validate any historic beneficial use or validate any invalid water rights.”invalid water rights.”

State Engineer expressed concern about State Engineer expressed concern about what we can do in our review of change what we can do in our review of change applications. Because of the changes, we applications. Because of the changes, we thought there might be legal problems. thought there might be legal problems.


In 2011, the Jensen v Jones and the In 2011, the Jensen v Jones and the Big Ditch cases were ruled on by the Big Ditch cases were ruled on by the Supreme Court and we were told to Supreme Court and we were told to not look at non-beneficially used not look at non-beneficially used water as part of or change review water as part of or change review process… contrary to the legislative process… contrary to the legislative intent language and contrary to intent language and contrary to historical practice of the state historical practice of the state engineer.engineer.


We asked for help. SB 187 was the We asked for help. SB 187 was the recommendation of the Executive recommendation of the Executive Water Task Force.Water Task Force.

Some opposition was expressed and Some opposition was expressed and the legislature was unable to take the legislature was unable to take action on the bill this year.action on the bill this year.

Meanwhile…Meanwhile…

10 ac.

10 ac.

Water Right A

Water Right B

Water SourceEnough To Supply10 acres of Irrigation

DownstreamSurface and Underground Water Rights

Questions

Questions?

Documents

State Water Issues – State Engineer Utah Water Users Workshop March 13, 2012 Kent L. Jones, P.E. State Engineer