Water Users’ Workshop – Session March 2007 Dixie Center – St. George, Utah Water Users’ Workshop – Session March 2007 Dixie Center – St. George, Utah Lee H. Sim, P.E. – Assistant State Engineer Kerry E. Carpenter, P.E. – Enforcement Engineer

The 2005 Statutes § : State Engineer enforcement powers § : Administrative penalties § : Criminal penalties § : Costs and fees in civil actions

The 2005 Administrative Rules Rule R655-14: Administrative Procedures for Enforcement Proceedings Before the Division of Water Rights

Enforcement Authority  When an “enforcement action” is authorized:  Taking water without right or in violation of an existing right  Failure to comply with statutes, orders or notices regarding headgates, measuring devices, etc.

Enforcement Authority  Failure to comply with an order or notice regarding dam safety or natural stream channel alteration

Enforcement Authority  When is an enforcement action not authorized:  More than one year has passed since violation  Civil disputes between or among water users  Internal disputes in water or irrigation companies  Right-of-way, easement or trespass disputes

The Enforcement Program Administrative Penalties may include:  Monetary fines  Replacement of water  Reimbursement of Division’s enforcement expenses

What’s New? The changes are of two types:  Amended statutes  Amended administrative rules The changes are of two types:  Amended statutes  Amended administrative rules

Amendments to Statute First Sub. HB 48 (2007) amends § to clarify when an enforcement action is authorized in relation to a water right violation. This section of statute will now read: “The state engineer may commence an enforcement action under this section if the state engineer finds that a person: (i) is diverting, impounding, or using water for which no water right has been established; (ii) is diverting, impounding, or using water in violation of an existing water right...” First Sub. HB 48 (2007) amends § to clarify when an enforcement action is authorized in relation to a water right violation. This section of statute will now read: “The state engineer may commence an enforcement action under this section if the state engineer finds that a person: (i) is diverting, impounding, or using water for which no water right has been established; (ii) is diverting, impounding, or using water in violation of an existing water right...”

Amendments to Rules  Section R was amended in December of  “Housekeeping” changes  Introduction of Subsection R : “Procedures for Determining the Amounts of Administrative Penalties, Enforcement Costs and Water Replacement.”  Section R was amended in December of  “Housekeeping” changes  Introduction of Subsection R : “Procedures for Determining the Amounts of Administrative Penalties, Enforcement Costs and Water Replacement.”

Subsection R  Administrative penalties based on: Direct Economic Benefit, or Avoided Cost  Multiplied by a factor based on: Knowing / Unknowing Injury to others Duration of violation Efforts to comply  Administrative penalties based on: Direct Economic Benefit, or Avoided Cost  Multiplied by a factor based on: Knowing / Unknowing Injury to others Duration of violation Efforts to comply  “Penalty Multiplier Tables” for: Water Rights Direct Benefit Avoided Cost Stream Alteration Dam Safety Penalty Reduction  “Penalty Multiplier Tables” for: Water Rights Direct Benefit Avoided Cost Stream Alteration Dam Safety Penalty Reduction

Pre-Enforcement  Water right enforcement referrals may come from:  Region Office personnel  Distribution Commissioners  Adjudication Team personnel  Other water users or affected parties using a form provided for this purpose

WATER RIGHTS ENFORCEMENT REFERRAL This form is available on the Division’s website or from any Division office. As a rule, anonymous referrals will not be pursued. Reasonable efforts will be made to protect a complainant’s identity as circumstances warrant. WATER RIGHTS ENFORCEMENT REFERRAL This form is available on the Division’s website or from any Division office. As a rule, anonymous referrals will not be pursued. Reasonable efforts will be made to protect a complainant’s identity as circumstances warrant. Water Rights Enforcement Referral Form

Required Referral Information Alleged violator’s identity and contact information Date(s) and duration of alleged violation Nature of the alleged violation Water right or application numbers Details, photos, etc. Alleged violator’s identity and contact information Date(s) and duration of alleged violation Nature of the alleged violation Water right or application numbers Details, photos, etc. Referring party’s identity and contact information Referring party’s desire to remain anonymous NOTE: Anonymity is never guaranteed! Referring party’s identity and contact information Referring party’s desire to remain anonymous NOTE: Anonymity is never guaranteed!

Pre-Enforcement  Upon receipt of a referral:  Alleged violations are investigated.  Alleged violator is advised of findings of investigation.  The alleged violator is invited to respond with information and/or seek compliance.  An informal resolution will be considered.

The Enforcement Program  If warranted, an enforcement action will be initiated:  As justified by the prior investigation and an informal resolution is not feasible, an “Initial Order” is issued.  The “Initial Order” details the alleged facts, declares the penalties, orders compliance, and describes actions to be taken by the alleged violator to participate in the process.  If warranted, an enforcement action will be initiated:  As justified by the prior investigation and an informal resolution is not feasible, an “Initial Order” is issued.  The “Initial Order” details the alleged facts, declares the penalties, orders compliance, and describes actions to be taken by the alleged violator to participate in the process.

The Enforcement Program  “Participation” by the alleged violator may take several forms:  Respond with a desire to negotiate a settlement (Consent Order)  Respond to dispute the allegations and/or request a hearing (Consent or Final Order)  No response (Default Order)

The Enforcement Program  Consent Order: A stipulated “Consent Order” is not subject to reconsideration nor to a formal court appeal.  Consent Order: A stipulated “Consent Order” is not subject to reconsideration nor to a formal court appeal.  Final / Default Order: A “Final Order” issued by the State Engineer is subject to informal reconsideration or appeal in district court.  Final / Default Order: A “Final Order” issued by the State Engineer is subject to informal reconsideration or appeal in district court.

Case Study :: Timeline 03 June: Referral Form received 15 June: Investigation completed and letter sent to alleged violator 18 July: No response received; Initial Order issued 31 July: Response: Request for extension of time and hearing

Case Study :: Timeline 17 August: Preliminary Conference, followed by acreage reduction, submission of affidavits, change applications, etc. 03 October: Consent Order issued

Case Study :: Penalty Calculation “Economic Benefit” 23.5 acres alfalfa Annual 4.5 Ton/acre “Stack price” $90/Ton Benefit: $9,517.50/year 214-day period of use (Apr 1 – Oct 31) Daily benefit: $ days of violation $5,469.81Base Penalty = Economic Benefit : $5, “Economic Benefit” 23.5 acres alfalfa Annual 4.5 Ton/acre “Stack price” $90/Ton Benefit: $9,517.50/year 214-day period of use (Apr 1 – Oct 31) Daily benefit: $ days of violation $5,469.81Base Penalty = Economic Benefit : $5, “Penalty Multiplier” Unknowing violation – 0.5 Unmeasured injury to others – 0.50 Duration of known violation < 1 yr. – 0.50 Minimal compliance effort – 0.75 Total: 2.25 Administrative Penalty =$12, “Penalty Multiplier” Unknowing violation – 0.5 Unmeasured injury to others – 0.50 Duration of known violation < 1 yr. – 0.50 Minimal compliance effort – 0.75 Total: 2.25 Administrative Penalty =$12,307.07

Case Study :: Penalty Calculation Water replacement 123/214 days = 57.48% 57.48% of 23.5 acres = acres x 2.25 (multiplier) = acres to be “idled” 27.0 acresStatutory limit of 200% = 27.0 acres to be “idled” for one full season Water replacement 123/214 days = 57.48% 57.48% of 23.5 acres = acres x 2.25 (multiplier) = acres to be “idled” 27.0 acresStatutory limit of 200% = 27.0 acres to be “idled” for one full season Enforcement costs Established by affidavits of time and expenses Includes costs of travel, field work, research, conferences, etc. Base costs are multiplied by an overhead factor (currently 69%) $5,279.47$5, in this case Enforcement costs Established by affidavits of time and expenses Includes costs of travel, field work, research, conferences, etc. Base costs are multiplied by an overhead factor (currently 69%) $5,279.47$5, in this case

First Year :: Regulation Referrals:  Dam Safety – 5  Stream Alteration – 1  Well Drilling – 8  Distribution – 36  Water Rights – 17

First Year ::  Enforcement outcomes:  Not subject to formal enforcement – 3  Referred to Region office / Informal resolution – 6  Consent Order – 5  Final/Default Order – 2  Still under active investigation – 9  Under active litigation – 1  Enforcement outcomes:  Not subject to formal enforcement – 3  Referred to Region office / Informal resolution – 6  Consent Order – 5  Final/Default Order – 2  Still under active investigation – 9  Under active litigation – 1

Contact Information Enforcement Engineer Kerry Carpenter, P.E. Enforcement Engineer 88 E Fiddlers Cyn Rd – Ste F Cedar City, UT (435) Enforcement Engineer Kerry Carpenter, P.E. Enforcement Engineer 88 E Fiddlers Cyn Rd – Ste F Cedar City, UT (435) Presiding Officer Lee H. Sim, P.E. Asst. State Engineer 1594 W North Temple PO Box SLC, UT (801) Presiding Officer Lee H. Sim, P.E. Asst. State Engineer 1594 W North Temple PO Box SLC, UT (801)

Conclusion – Q & A