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Water Right Issues of the State Engineer Utah Water Users Workshop

Water Right Issues of the State Engineer Utah Water Users Workshop March 17, 2015 Kent L. Jones, P.E. State Engineer. 2015 Water Bills. HB 25 Water Law – Application Revisions - Snow ; New Law

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Water Right Issues of the State Engineer Utah Water Users Workshop

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

  2. 2015 Water Bills • HB 25 Water Law – Application Revisions - Snow ; New Law • HB 43S4 Water Rights – Change Application Amendments – McIff; New Law • HB 47 Protection of Water Rights – McIff; House Rules • HB 58 Change Application Modifications – Grover; New Law

  3. 2015 Water Bills • HB 161 Utah Revised Nonprofit Corporation Act – McIff; House Committee • HB 258 Employee Classification Amendments – Chew; New Law

  4. 2015 Water Bills • SB 15 Water Law – Forfeiture Exemptions – Dayton; New Law • SB 35 Water Rights Amendments – Dayton; Passed Senate to House Floor/Circled. Same bill as HB 58; New Law • SB 40 Water Law – Application Withdrawal – Dayton; New Law • SB 126 Water Amendments – Dayton; Senate Rules

  5. 2015 Water Bills • SB 142 Water Rights – Change Application Revisions – Stevenson; Senate Rules. Same as HB 43 • SB 225 Irrigation Service Water Rights Amendments – Van Tassel; New Law • SCR 2 Concurrent Resolution Regarding Navajo Water Rights Settlement – Hinkins; New Law

  6. X - Senate O - House SB 40 SB 142 X X SB 35 SB 15 X X X X X X O O O O O O HB 58 HB 25 HB 258 O O HB 43

  7. Jensen v Jones/ Big Ditch • Supreme Court Decisions 2011 • Restricted state engineer’s ability to address beneficial use of water in a change application based on the right being subject to forfeiture from nonuse. • Allowed contract holders to file change applications as “one entitled to the use of water.”

  8. 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.

  9. Jensen v Jones/ Big Ditch • Requested direction from the legislature • Action tied back to 2008 HB 51 where concern was expressed that the state engineer may not be able to continue to do what he has always done on change applications • Intent language given from the legislature

  10. HB 51 Intent Language 2008 • Intent language with the 2008 changes said these changes are : • “not intended to change the way the State Engineer evaluates change applications based on historic beneficial use or validate any invalid water rights.”

  11. HB 25 Water Law – Application Revisions • Water community wanted to have the legislature reconfirm State Engineer’s “Gatekeeper” role. • Efforts were made over the last three years to get the right balance and provide proper protection to all water right holders. • Have not been able to reach agreement.

  12. HB 25 Water Law – Application Revisions • Focus Group: • 4 Representatives from the 4 biggest water Conservancy Districts. • 4 Representatives from the League of Cities and Towns. • 2 Representatives from the Farm Bureau. Efforts were focused on impairment of right and defined “Quantity Impairment”

  13. Quantity Impairment • Diminishing the quantity of water in the source of supply for the existing right. • Changing the timing of availability of water from the source of supply for the existing right, or • Enlarging the quantity of water depleted by the proposed nature of use when compared with the current nature of use

  14. HB 25 Water Law – Application Revisions • A person entitled to the use of water may make a change to a water right if: • The person makes a change in accordance with this section • The change does not impair an existing right without just compensation or mitigation • The State Engineer approves the right.

  15. HB 25 Water Law – Application Revisions • The applicant has the burden of producing evidence sufficient to support a reasonable belief that the change can be made in compliance with this section and section 73-3-8 • Rebuttable Presumption • Quantity Impairment • For a period of at least 7 years • Not diverted from the approved point of diversion; nor • Beneficially used at the approved place of use.

  16. HB 25 Water Law – Application Revisions • Quantity Impairment under the rebuttable presumption may not be considered unless raised in a: • Timely protest identifying the rights that may be impaired. • Written notice from the State Engineer within 90 days from the filing of the application and identifying the rights that may be impaired. • All rights don’t have to be identified.

  17. HB 25 Water Law – Application Revisions • Consultation with the State Engineer or designee may be requested before filing an application… (nonbinding).

  18. HB 25 Water Law – Application Revisions • What To Expect: • The Division will continue to look for impairment issues associated with change applications. • In instances where water hasn’t been used continuously for more than 7 years, impairment will be investigated when it is proposed to put the water back to use through a change application process • Notifications will be sent within 90 days of filing or other water users must protest • The GATEKEEPER is back…

  19. SB35/HB 58 Water Rights Amendments • Proposal defines: “a person entitled to the use of water” • The holder of an approved but unperfected application to appropriate water • The record holder of a perfected right • A person who has written authorization from the person described in 1 or 2 • A shareholder in a water company who files in accordance with section 73-3-3.5

  20. SB35/HB 58 Water Rights Amendments • What To Expect: • Required to have owner sign the change application, or • Require the owner to give written authorization. • File change based on shares of stock by going through 73-3-3.5 criteria

  21. SB 15 Water Law – Forfeiture Exemptions • Forfeiture does not apply to a water right during the period of time the water right is subject to an approved change application where the applicant is diligently pursuing certification. • This bill is not retroactive and does not cover any periods of time before the change application is approved.

  22. SB 15 Water Law – Forfeiture Exemptions • What To Expect: • In considering a water right before the State Engineer, forfeiture considerations will not be evaluated if there is an approved change application as long as the water right owner is working toward certification. • Must be diligent or have reasonable cause for delay in getting certification

  23. SB 40 Application Withdrawal • Authorizes an individual to withdraw an application that the individual owns. • Requires the individual to send written notice to withdraw • Requires the State Engineer to update the State Engineer’s records • Individuals who withdraw unperfected applications are not entitled to a refund of fees

  24. SB 40 Application Withdrawal • What To Expect: • If you want to withdraw your unperfected application, you must do so in writing. • The State Engineer will update the water right records to reflect that it has been withdrawn and is of no further force or effect. No other action is required • If the Division of Water Rights has had to expend funds in processing the application, fees will generally not be refunded. If you are not ready to file an application and have it processed…don’t file it.

  25. Limitations of a Water Right • 73-1-3: Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state. • Involves an amount of water and the purpose to which you are using the water.

  26. Beneficial Use • Each type of use has an associated impact to the hydrologic system. • Diversion: The reasonable amount of water required to be diverted. • Depletion: The amount of water that is lost from the hydrologic system based on the associated beneficial use.

  27. Delta Canal Company et al vs Frank Vincent Family Ranch • Supreme Court Ruling November 2013: • “The number of acres irrigated is not determinative in a forfeiture analysis, though it may be relevant insofar as it indicates the volume of water used or whether water usage was beneficial. Farmers may reduce the total acres irrigated to grow a more water-intensive crop so long as they beneficially use their full entitlement. The central question in any forfeiture proceeding is whether the appropriator used all of its water allowance in a reasonable manner and for a beneficial purpose.”

  28. Questions Questions?

  29. Understanding Water Rights • When dealing with water rights, it is important to understand the underlying nature of the water right you are dealing with. • Point of Diversion, Place of Use, Nature of Use, Period of Use, Priority, Consumptive Nature of the Right.

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

  31. Acquiring A Water Right • 73-3-1(1) A person may acquire a right to the use of the unappropriated public waters in this state only as provided for in this title. • Applications to Appropriate • Diligence Claims • Change Applications • Exchange Applications • Purchase as an appurtenance to land or as an individual right

  32. Perfecting a Water Right • Application filed and approved • Diligently pursuing certification • Extensions can be granted 14 year, 50 year • Diligence must be show or a reasonable cause for delay • Proof submitted • Certificate issued … continued use required

  33. Irrigation Return Flow Diversion = 4.0 Ac Ft/Ac ET = 2.0 Ac Ft/Ac Return Flow = 2.0 Ac Ft/Ac

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

  35. Change Applications • 73-3-3(2)(a) … a person entitled to the use of water may make permanent or temporary changes in the point of diversion; place of use; or purpose of use for which the water was originally appropriated. • A change may not be made if it impairs a vested water right without just compensation.

  36. Changing an Irrigation Water Right to Industrial Uses • Water right is for 100 acres of irrigation • 100 ac x 4.0 ac-ft/ac = 400 ac-ft • Historical Depletion = 200 ac-ft • Industrial use is 100% consumptive Therefore, diversion & depletion limited to 200 ac ft.

  37. Paper Right Examples • 1 cfs/ 60 acres irrigation. Spring source • A. Spring flows full flow, full season – 240 af • B. Spring only flows May and June – 120 af • C. Spring only flows once every 5 years – • D. Used with 3 other rights all on the same 60 acres – • E. Spring flows full , full season, not used in 20 years

  38. Evaluation of a Water Right • Major Elements Flow: 2.50 CFS Source: Spring Creek Use: Irrigation of 100 acres Period of Use: April 1-Oct 31 • What is the beneficial use? • What are the diversion and depletion limitations?

  39. 53-536 53-374 53-95 53-109 53-110

  40. 11 Water Use GroupsUnanswered Questions • How much beneficial use does each water right contribute to each water use group? • What is the total beneficial use in each water use group? • What is the sole supply of each water right? • What is the total irrigated area?

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