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Water Rights Update: Municipal Use Policy and Changes in Adjudication Statutes

This article discusses the latest developments in water rights, including the implementation of a municipal use policy and proposed modifications to adjudication statutes. It also highlights the implications of recent court decisions on small domestic exchanges and the process of proving up on municipal rights.

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Water Rights Update: Municipal Use Policy and Changes in Adjudication Statutes

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  1. Hot Topics in Water Rights August 31, 2011 Kent L. Jones, P.E. State Engineer

  2. 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 Oakley • Decree Orders; 1985 Jordan River/Utah Lake

  3. Municipal Uses Policy Change Applications Proofs

  4. Municipal Policy • Adopted December 2, 2010. • Discussions with RWAU. • Municipal Use options extended to Public Water Suppliers. • Includes private water companies with 100 connections or 200 year round residences controlled by the residents they serve.

  5. Evaluating Municipal Applications • Existing Uses Evaluated for Diversion and Depletion Limitations • Each Right Has an Associated Use Limitation • Each Use Limitation Will be Evaluated • Limitations Will be Imposed to Restrict Proposed Uses to Historical Diversion and Depletion Limitations • Municipal Use Provides Flexibility in Use

  6. Conversion of Existing Uses To Municipal Use • Existing Uses: 250 Family connections 100 Acres of Irrigation 500 Cattle or Equivalent 1 Convenience Store Diversion and Depletion Calculations: 250 Families : 0.45af/fam(div); 0.09af/fam(dep) Septic Tank 100 Acres : 4af/ac (div); 2.12af/ac (dep) 500 Cattle : 0.028af/elu (div) and (dep) 1 store : 1.0 af (div); 0.5 af (dep)

  7. Calculations Continued • Total Diversion Requirement Would Be: UseDiv Dep 250 Families 112.5 22.5 100 Acre 400 212 500 Cattle 14 14 1 Store 1 0.5 Totals: 527.5 249.0 • Change Application Would Be Filed to Change from Existing Uses to Municipal Use. Approval would be limited to the calculated diversion and depletion limits

  8. Proving Up on Municipal Rights • Diversions Would be Measured • Amount to be Proved Up Would Be in Addition to Any Rights Already Perfected • Depletions Would be Calculated for the Water Diverted to Show That Historical Depletions Are Not Exceeded • Proof Would Be Evaluated and a Certificate Issued for the Diversion and Depletion Limits Submitted and Verified.

  9. Executive Water Task Force • Small Domestic Exemptions Allowed for Exchange Applications 73-3-5.6 and 73-3-20 • Modifications to Adjudication Statute • Modifications for the “Big Ditch” Supreme Court Decision • Modifications for the “Jensen v Jones” Supreme Court Decision

  10. Small Domestic Exchanges • 2009 Legislative Session allowed small amount of water applications to file proof of beneficial use by affidavit and be reinstated if water was being used at the time of lapsing • Small amount of water applications defined as the water needed for up to 1 family, 0.25 acre of irrigation, and the water for 10 head of livestock. • Exchange applications also involved these small amounts of water use but were not included in the statute amendment. They are added with this proposal.

  11. Adjudication Statutes • 73-4-3; 73-4-4; 73-4-11: Requires claimants to file with the State Engineer’s Office and the State Engineer to file them with the court. Notification lists from the State Engineer’s records and not court records • 73-1-4: Subjects water rights to forfeiture considerations in an adjudication after the PD is published even though a decree may be issued

  12. Technical Amendments • 73-2-22; Emergency Management Administrative Council name adjusted to match actual council • 73-2-1: Reuse rules “may” be required rather than “shall” be required to conform to reuse statute revisions • 73-3-12: Defines criteria for wholesale electrical cooperatives to justify extensions beyond 50 years • 73-3-16: No longer requires notarization of proof engineer’s signature on Proofs and Diligent Claims

  13. Big Ditch Proposals • 73-3-3 allows “any person entitled to the use of water” to make changes in the point of diversion, place of use, or purpose of use • Court ruling indicated that a contract holder was a person entitled to the use of water even though they don’t own the underlying water right • Discussions are centered on better defining who can file a change with focus on the owner of the water right

  14. Jensen v Jones Proposals • Change application before the State Engineer was denied because no beneficial use of the water could be identified. Appeared 1954 was the last time it may have been used. • Supreme Court ruled that water rights are not forfeited except by court ruling and that loss by forfeiture couldn’t be considered by the State Engineer in a change application proceeding • Gave the State Engineer options to pursue should a right appear to have not been used for longer than 7 years

  15. Jensen v Jones (continued) • State Engineer may bring suit to enjoin unlawful appropriation and diversion • State Engineer may stay a change pending resolution of such adjudication • State Engineer can grant conditional approval of a change application • Cannot simply declare that a forfeiture has occurred and thereby deny the change application

  16. Jensen v Jones (continued) • State Engineer has historically been the “gatekeeper” to help protect the water rights of others from impairment. Only beneficial uses of water that can be given up when the change is reviewed are allowed to be transferred. • “If you want to get something new, you have to give something up” There appears to be nothing to give up if a right is subject to challenge for forfeiture and hasn’t been used in a long time. • Discussions are based on allowing the State Engineer to evaluate a change based on observed beneficial use; but, there is much debate about how far the State Engineer authority should go. Several options are being discussed.

  17. Reports Of Conveyance • Concerns Expressed about the length of time required to process ROC’s • Statute Allows Professionals to do Work • Professionals Include: an Attorney; a Professional Engineer; a Title Insurance Producer; or a Professional Land Surveyor

  18. Reports of Conveyance (continued) • Efforts are being made to streamline processes. • More reliance is to be placed on the Title Professional. • Reasonable solutions for resolving breaks in title will be pursued with recommendations requested from the professionals. Establishing a “reason to believe” standard will be pursued. • Deed Riders are allowed and encouraged. They can be used as ROC’s if completed correctly.

  19. Reports of Conveyance (continued) • Internal review committee has been authorized to help in the process of whether ROC’s are complete or not. • An advisory committee comprised of staff and title professionals has been suggested to help discuss reasonable solutions to problems which will help establish a “reason to believe” standard.

  20. Snake Valley Update • Nevada in the process of rehearing Spring, Cave, Delmar, and Dry Lake Valleys. • Utah experts will be involved in the hearing process. • Snake Valley applications have not been re-advertised and will not be processed until later. • There is still an agreement drafted between Utah and Nevada to divide water between the states and protect Utah’s right to use its water in our state. • The agreement is a good safeguard to protect the environment and the ground water resources. The agreement doesn’t authorize the pipeline project but rather will impose some strict regulations on any water developed.

  21. Snake Valley Update (continued) • The interstate agreement is currently on hold pending outcomes of issues in both states. • Water division between states is proposed as follows: Allocated… Utah 55,000 afy Nevada 12,000 afy Unallocated…Utah 6,000 afy Nevada 35,000 afy Reserved… Utah 5,000 afy Nevada 19,000 afy This is a reasonable result for a difficult decision.

  22. Nuclear Power Plant at Green River • Kane County Water Conservancy District and San Juan County Water Conservancy District are the applicants. Blue Castle is the promoter. • 53,600 af 24,000 09-462 4-21-2000 priority SJCWCD; 29,600 89-74 1-15-1964 priority KCWCD. • Previously approved for coal-fired power generation purposes. • Looking at Fish Flow requirements, water availability, priorities on the river, Utah’s over-allocation, and interference potential.

  23. Questions Questions?

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