Utah Division of Water Rights

June 21, 2004

Current Water Right Issues

Rural Water Users Association

Boyd Clayton boydclayton@utah.gov

February 28, 2008

Presentation Topics

• Role of State Engineer

• Water Right Administration

• Changing water policy landscape (legislation)

State Engineer

• Appointed by Governor for 4 year term– Confirmed by Senate

• Licensed Professional Engineer– Knowledge of water issues, water laws, state water resources

• Division of Water Rights - Support Staff– SE serves as director of division– Department of Natural Resources Agency

• Responsible for Water Right Administration– Policy set by legislature through statute– Gatekeeper to provide order and certainty

• Reduces potential for conflict• Protects investments• Respect for existing rights• Public waters appropriated according to policy set by legislature

– Decisions reviewed in district courts

State Engineer Does

• Maintain Water Right Records• Approve, deny, lapse, and terminate water right

applications based on statutory criteria• Issue water right certificates based on demonstrated

and measured beneficial use• Evaluate and quantify existing water rights using

beneficial use as the limit for a change application• Make recommendations to the court in judicial

proceedings as required by statute• Regulate water rights by priority

State Engineer Does Not

• Adjudicate Title

• Award or Adjudicate Water Rights

• Declare a water right forfeited

• Take away water rights

• Sell or trade water or water rights

• Set water right policy

STATE ENGINEER PROGRAMS– Water Right Administration

• Application Processing• Water Diversion Management• Court Proposals (General Adjudication)• Illegal Use Enforcement• Records

– Water Well Drillers• Driller Licensing• Well Log Records

– Stream Environment– Dam/Water Structure Safety– Research and data collection

State Engineer Decisions

• Decisions Issued ~ 6000 per year

• Decision basis – Science & Law

• Subject matter contested ~ 2000 per year

• Reconsideration request ~ 120 per year

• Judicial Review ~ 10 per year

SE Decision Making Process

• Regional staff gather and analyze facts

• Regional staff provide draft decision based on published criteria and local knowledge

• Statewide consistency review by program

• Attorney General legal review if needed

• State Engineer final review and revision

What is a Water Right?

Right to divert and use waters of the public for a beneficial

purpose

Utah Law Basic Concepts

• Water property of the public

• Beneficial use is the basis, the measure, and limit of all rights.

• First in time, first in right

• Use it or loose it (forfeiture)– Enables maximum benefit and use– Brings reality to undefined claims

Origin of Water Rights

• Pre-Statutory Use

– Surface water uses prior to 1903

– Ground-water uses prior to 1935

• Court Decree

• Federal Reservation

• Application to State Engineer

Water Right Elements

• Ownership• Priority• Basis of right• Diversion location• Diversion quantity• Storage• Uses• Period of use• Place of use

How Do I get a Water Right?

• Transferred by deed recorded in County– Silent land deeds transfer appurtenant water right

interest– Specific deeds convey specific water right interest– NO CONNECTION TO SE RECORDS– Conflicts can develop over deeds vs water right record

• Application to appropriate approved by SE– Covered by SE administrative process

Water Right Applications

• Application to Appropriate– Creates a new water right

• Change Application– Converts an existing water right to new

equivalent features

• Exchange Application– Option for existing water right to trade

diversions with another source

Application Process

• File application in proper form• Advertise for 2 consecutive weeks• 20 day protest period• Protested?

– Response– Hearing

• SE study and approval or rejection– Reconsideration/Judicial Review

• Develop, proof of beneficial use• Certificate

Approval Criteria

• Unappropriated water in source.• Will not impair existing rights.• Physically and economically feasible.• Not monopolistic / speculative• In the public interest / welfare.

• Entitled to Use/Priority Impairment– Ownership– Historic use– Equivalent diversion and depletion

Water Right Management

Management by Use

• Goal is Sustainability (use renewable supply)• Unused water indicator of availability • Water right record develops over time, preserved

by uses• Beneficial use with presumption of forfeiture

forces closure of rights and uses.• Reservations and forfeiture exemptions frustrate

convergence of rights and uses.

WaterAppropriation

Areas

Existing Nonuse/Forfeiture

• Pressure to beneficially use water or allow right to revert to the public for other use

• 5 years triggers, 15 years erases• Judicial action to finalize• Nonuse application exempts

– Filed within 5 years of nonuse– Must be extended, placed back to use or loss of right

• Poor policing fuels speculation/uncertainty• When is it appropriate to measure use (or

nonuse)?

2008 Water Right Legislation

 HB0042Water Right Application for Electrical Cooperative HB0051Water Right Forfeiture Protection  HB0117Instream Flow to Protect Trout Habitat HB0143Administration of Interstate Water HB0170Process for Entering into the Snake Valley Agreement  HB0179Water Right Appropriation Amendments HB0203Judicial Review of State Engineer's Decision HB0208Livestock Watering Rights HB0225Proof for a Water Right Application  SB0085Water Rights Board SB0228Regulation of Wells SB0269Water Rights – Ombudsman  SB0279Water and Land Use Development  

Legislative Trends

• Reservation rather than use

• Growing distaste for forfeiture

• View water right as a commodity

• Struggling with water user duties

• Increase political control in administration

• Policy by exemption

HB51 Intent Language

• Fifth Substitute H.B. 51, "Water Right Amendments," is not intended to:(1) change the way the State Engineer evaluates change applications based on historic beneficial use;(2) provide a mechanism for public water suppliers to hoard water beyond the amount of water needed in the next 40 years by persons within the public water supplier's projected service area;(3) validate any invalid water rights;(4) promote or allow for speculation in water rights; or(5) provide a mechanism for any out-of-state person or entity to acquire water rights in Utah for the purpose of providing water in another state.

HB51 Forfeiture Protections• Nonuse period change to 7 years• Nonuse applications become nonuse free card• Water right “ceases” presumption eliminated• Changes forfeiture from operation of law to judicial contest• Change applications protect from forfeiture• Exemptions

– Public water supplier future requirement (with change app)– Fallowing– Reservoirs– Well difficulties

• Bill is prospective, does not fix past problems

Question: How do you quantify a water right claim if there is no evidence of historic use but the water right is “exempt”?

Question 2: How do you limit change applications to historic use if there is no operation of law which supports the practice?

SB85 Water Rights Board

• Creates 5 member board• Board nominates SE• Assumes rule making authority of SE• Assumes legislative duties of SE• SE decisions become function of board • Replaces FREE reconsideration with fee

funded admin law judge review • Forecloses agency appeal of admin law judge

review

You can reshuffle priorities,

reserve for future use,hobble the process,introduce politics,

play games with title…

But in the end,there is only so much water.