1. Water Rights Update Rural Water Association of Utah: Legislative Water Rally January 19,2012 Kent L. Jones, P.E. State Engineer

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

3. 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 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. 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. Exchange applications also involved these small amounts of water use but were not included in the statute amendment. They are added with this proposal.

4. 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 73-4-3; 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 73-1-4: Subjects water rights to forfeiture considerations in an adjudication after the PD is published even though a decree may be issued

5. Technical Amendments 73-2-22; Emergency Management Administrative Council name adjusted to match actual council 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 73-2-1: 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 73-3-12: 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 Diligence Claims 73-3-16: No longer requires notarization of proof engineer’s signature on Proofs and Diligence Claims

6. 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 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 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 Discussions are centered on better defining who can file a change with focus on the owner of the water right

7. Recommended Legislation A “person” may make changes to a water right. A “person” may make changes to a water right. Point of Diversion, Place of Use, Nature of Use, Period of Use, and add or delete storage. Point of Diversion, Place of Use, Nature of Use, Period of Use, and add or delete storage. A Person is: A Person is: The holder of an approved but unperfected application to appropriate; The holder of an approved but unperfected application to appropriate; The owner of record of a perfected water right; The owner of record of a perfected water right; One authorized in writing by the holder or owner; One authorized in writing by the holder or owner; A shareholder in a water company as defined in 73- 3-3.5 with written consent of the water company. A shareholder in a water company as defined in 73- 3-3.5 with written consent of the water company.

8. Recommended Legislation Change applications filed on federal reclamation project water rights held in the name of the United States must be signed by both the United States and the local water users association or district contractually responsible for the operation and maintenance of the project or repayment of project costs. Change applications filed on federal reclamation project water rights held in the name of the United States must be signed by both the United States and the local water users association or district contractually responsible for the operation and maintenance of the project or repayment of project costs.

9. 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. 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 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 Gave the State Engineer options to pursue should a right appear to have not been used for longer than 7 years

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

11. 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. 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. “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. 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.

12. Recommended Legislation “Quantity of water available for change” shall mean the quantity of water that has been placed to beneficial use under a water right within the time provided in Section 73-1- 4 UCA. “Quantity of water available for change” shall mean the quantity of water that has been placed to beneficial use under a water right within the time provided in Section 73-1- 4 UCA.

13. Recommended Legislation (cont.) State Engineer, to prevent impairment of other water rights shall: State Engineer, to prevent impairment of other water rights shall: Have authority to review beneficial use and limit the approval to the “quantity of water available for change”; Have authority to review beneficial use and limit the approval to the “quantity of water available for change”; Presume water has been put to beneficial use if protected by statute and not rebutted by clear and convincing evidence that a lesser quantity of water is available for change; Presume water has been put to beneficial use if protected by statute and not rebutted by clear and convincing evidence that a lesser quantity of water is available for change; Hold a hearing to review nonuse issues; Hold a hearing to review nonuse issues; Not adjudicate the validity of the remaining portion of the right. Not adjudicate the validity of the remaining portion of the right.

14. Recommended Legislation (cont.) The applicant has the right to withdraw the application, request a stay of action, or pursue litigation to determine the validity of the right. The applicant has the right to withdraw the application, request a stay of action, or pursue litigation to determine the validity of the right.

15. For Consideration: Spring flow enough for 10 acres Spring flow enough for 10 acres 1 st individual files for use and irrigates 10 acres then later stops irrigating 1 st individual files for use and irrigates 10 acres then later stops irrigating 2 nd individual sees water is available and file on the spring for 10 acres and continues to use it 2 nd individual sees water is available and file on the spring for 10 acres and continues to use it

16. For Consideration: 20 years later, 1 st individual files a change to move the spring right to a well for use by a city for municipal use 20 years later, 1 st individual files a change to move the spring right to a well for use by a city for municipal use Is there a water right to move to the city or not? Is there a water right to move to the city or not? Property right activists assert there is Property right activists assert there is Hydrologically there isn’t anything to move because nothing is given up – the 2 nd individual is still using the water for the 10 acres Hydrologically there isn’t anything to move because nothing is given up – the 2 nd individual is still using the water for the 10 acres If the right is allowed to move, other water rights in the basin will be impaired. If the right is allowed to move, other water rights in the basin will be impaired.

17. Proposed Reserved Water Right Settlement with the Navajo Nation Agreement made between the State of Utah and the Navajo Nation in 2003 Agreement made between the State of Utah and the Navajo Nation in 2003 Negotiation meetings held over the next several years Negotiation meetings held over the next several years Tentative agreement reached Tentative agreement reached State participation required estimated at 8 million dollars State participation required estimated at 8 million dollars Legislation represents initial 2 million to be set aside for the settlement Legislation represents initial 2 million to be set aside for the settlement Rep. Watkins has opened a Bill file to support this settlement Rep. Watkins has opened a Bill file to support this settlement

18. NAVAJO NATION SETTLEMENT PROPOSAL 81,500 AF Water Depletion $156 Million in Projects 5% of cost ($8M)=State Share Subordination to Existing Rights Monticello/Blanding Consideration Emphasis on Drinking Water LIABILITY POTENTIAL PIA = 166,500+ AF Non-Indian Priority Conflict Expensive, Unpredictable Litigation

19. UTAH'S COLORADO RIVER ALLOCATION 1.369 MAF Current Use1.008 MAF UNUSED ALLOCATION361 KAF Future Use Ute Tribe Reserve Water (compact) 105 KAF New Ag Uses 40 KAF New M&I Uses 21 KAF Lake Powell Pipeline 86 KAF TOTAL 109 KAF Navajo Nation Navajo Nation 81 KAF BALANCE BALANCE 28 KAF 28 KAF

20. ADDITIONAL Approved San Juan County WCD 30,000 San Juan County WCD 30,000 Kane County WCD30,000 Kane County WCD30,000 Deseret Generation 12,000 Deseret Generation 12,000 Central Utah WCD 29,500 Central Utah WCD 29,500 Sanpete County WCD 5,600 Sanpete County WCD 5,600 Wayne County WCD 49,000* Wayne County WCD 49,000* Partial Total 156,100 Partial Total 156,100 (Total Approved: 34,184 rights, 2.1 million af)

21. 1908 SUPREME COURT DECISION Water Right for Purpose of Federal Reservation Implied WINTERS DOCTRINE DEFINED Native Americans have a Reserve Water Right The Water Right Priority Date is the Reservation Date The Amount of Water is Determined by the Practicable Irrigable Acres (PIA) WINTERS V USA

22. Stormwater Capture Amendments Rep. Fred C. Cox, H.B. 67 Rep. Fred C. Cox, H.B. 67 Provides for the collection and use of precipitation without obtaining a water right for certain commercial, mixed use, or multifamily projects Provides for the collection and use of precipitation without obtaining a water right for certain commercial, mixed use, or multifamily projects Capture and store above or below ground in a catch basin, storm drain pipe, swell, or pond. Capture and store above or below ground in a catch basin, storm drain pipe, swell, or pond.

23. Stormwater Capture Amendments Catchments designed to slow, detain, or retain stormwater or protect watersheds from pollution Catchments designed to slow, detain, or retain stormwater or protect watersheds from pollution May put up to 2500 cubic feet to beneficial use of the water slowed, detain, or retained May put up to 2500 cubic feet to beneficial use of the water slowed, detain, or retained Not counted as beneficial use if it absorbs into the ground or evaporates Not counted as beneficial use if it absorbs into the ground or evaporates Must register with the state engineer Must register with the state engineer

24. Municipal Uses Policy Change Applications Proofs

25. Questions Questions?