Distribution of Water Rights

1. Distribution of Water Rights Jared Manning, P.E. Utah Division of Water Rights March 17, 2014

2. Topics • Distribution Agreements • Resolving Distribution Disputes • Understanding Exchanges • Priority of Change Applications

3. Distribution Agreements • Contracts • Informal agreements between parties • Operational procedures developed by the commissioner or state engineer

4. Resolving Distribution Disputes • Public Process involving affected parties • Generally operate under the status quo until the issue is resolved • Resolution: State Engineer issues instructions to the commissioner

5. Understanding Exchanges • An exchange is a way of providing just compensation (in the form of replacement water) for “impairment” • Distributing an exchange • Distribute the water “on paper” as if there was no exchange • Distribute the wet water without interfering with “paper” entitlements • Employ Mass-Balance Equation to ensure proper accounting: Natural Flow = Outflow + Storage

6. Priority: 1880 Flow: 30 cfs Priority: 1932 Flow: 5,000 ac-ft Priority: 1870 Flow: 50 cfs Zen River

7. Priority: 1880 Flow: 30 cfs Priority: 1870 Flow: 50 cfs Zen River: June 1 (Pre-1932) 200 cfs 30 cfs 50 cfs 120 cfs

8. Priority: 1880 Flow: 30 cfs Priority: 1932 Flow: 5,000 ac-ft Priority: 1870 Flow: 50 cfs Zen River: June 1 (Post-1932) 200 cfs 170 cfs 30 cfs +120 cfs 50 cfs 50 cfs 0 cfs

9. Priority: 1880 Flow: 30 cfs Priority: 1870 Flow: 50 cfs Zen River: July 1 (Pre-1932) 60 cfs 10 cfs 50 cfs 0 cfs

10. Priority: 1880 Flow: 30 cfs Priority: 1932 Flow: 5,000 ac-ft 30 cfs (total) Priority: 1870 Flow: 50 cfs Zen River: July 1 (Post-1932) 60 cfs 30 cfs 10 cfs -20 cfs 20 cfs (exchange) 50 cfs 50 cfs 0 cfs

11. Priority: 1880 Flow: 30 cfs Priority: 1870 Flow: 50 cfs Zen River: Aug 1 (Pre-1932) 40 cfs 0 cfs 40 cfs 0 cfs

12. Priority: 1880 Flow: 30 cfs Priority: 1932 Flow: 5,000 ac-ft 30 cfs (total) Priority: 1870 Flow: 50 cfs Zen River: Aug 1 (Post-1932) 40 cfs 10 cfs 0 cfs -30 cfs 30 cfs (exchange) 40 cfs 40 cfs 0 cfs

13. Change Applications in Water Distribution: Relevant Dates • 1909 – Change Applications statute introduced • 1919 – Distribution responsibilities given to the State Engineer • 1933 – Proof required on change applications • 1934 – The State Engineer was actively distributing water on 27 systems

14. 1938 • Kents Lake change application • West Jordan Milling change application • Kennecott/North Jordan E33 • Weber/Provo Power Contract

15. Standard Change Application Approval Language • 1909 – 1941: No standard approval language • 1941 – 1944: “Subject to prior rights whether diverting directly from the source hereof or from other sources to which this water is tributary.” • 1944 – 1967: “Subject to prior rights whether diverting directly from the source hereof or from other sources to which this water is tributary (including rights junior to the original application or rights which might be impaired by the change or changes) for diversion and use as herein described.” • 1967 – 1985: No standard approval language • 1985 – Present: “Subject to prior rights”

16. Criteria for Operating a Change • Third-party water rights existing at the time of the change cannot be impaired (unless just compensation is provided) • The party making the change bears the costs of operating the change and of showing that no impairment is occurring

17. POD Change: Case #1 Proposed Change Protestant 1890 Applicant 1880

18. POD Change: Case #2 Proposed Change Protestant 1890 Applicant 1880

19. 10 8 6 6 POD Change: Case #3 Protestant 1890 Proposed Change Applicant 1880

20. So What is the Priority of a Change? • The priority of the underlying water right? • The date of the change? • Answer: It depends on whether or not there is potential impairment • Each situation has to be judged on its individual merits