1. Utah Water Law – Back to the Basics And Some Thoughts on Federal Reserved Water Rights and Colorado River Issues Norman K. Johnson 2012 Utah Water Users Workshop March 13, 2012 The Dixie Center, St. George, Utah

2.  "The women sat among the doomed things, turning them over and looking past them and back...No, there isn't room... How can we live without our lives? How will we know it's us without our past?" - John Steinbeck, The Grapes of Wrath H OW WILL WE KNOW IT ' S US... ?"

3. We Live in a Desert

5. Eastern Water Law — Not for Arid Areas  A riparian owner has the right to the undiminished flow of a stream  “Riparian rights” turn on the physical relationship of a body of water to riparian land--they include access, use, and the opportunity to build in the water  This law would not work in a desert

6. Western Water Law — Origin and History  In the arid West areas of water use were often located far from sources of supply  Miners and irrigators built diversions and moved water to areas of need and moved water to areas of need  Their “first in time/first in right” mining principles carried over to mining principles carried over to water rights water rights  The doctrine of “prior appropriation” of water was born (mid to late 1800s)

7. Western Water Law — Origin and History  Appropriative water rights are given a priority based on their date of creation  In times of shortage, earlier priority rights are filled first to the limit of the right  No sharing of shortages means some uses will be met  The intent was to maximize public benefit

8. Western Water Law — Origin and History  An appropriative water right in Utah is a conditional right to use a shared resource  Conditional because water is a public resource and to get a private right to use it legislative requirements must be met  The most important = continued beneficial use of the water (or non-use application)

9. Western Water Law — Origin and History  The right to use is not ownership of a volume of water, but a right to use an amount of water for a beneficial purpose  Since water rights are shared, everything one right-holder does impacts others and any change in use must not harm others  Each system has a finite amount of water

10. Western Water Law — Origin and History  The federal government supported growth and development of this “new” water law  1866 Mining Act; 1877 Desert Land Act  The U.S. Supreme Court said these acts severed the land and water estates and directed that water rights be obtained under the laws of the territories and states

11. Western Water Law — Origin and History  State Engineer’s Office established in 1897  By 1903 surface water appropriation required a State Engineer application  The State Engineer’s Office became the administrative mechanism to create rights and to administer them—to be the caretaker of the water systems in Utah

12. Western Water Law — Origin and History  State policy was to maximize beneficial use of water  The State Engineer approved rights to more water than was available so that as much water as possible would be used  An alternative to beneficial use was provided (resumption of use applications)

13. Western Water Law — Origin and History 1863 – 100 ac/ft 1890 – 100 ac/ft –0 use 1900 – 100 ac/ft 1901 – 100 ac/ft 1915 – 100 ac/ft 1920 – 100 ac/ft—10 use 1925 – 100 ac/ft 1930 – 100 af/ct 1931 – 100 ac/ft 1932 – 100 ac/ft Hypothetical Mill Valley Water System  This small water system produces +/- 400 ac/ft/yr, with variation  The rights in blue are used every year  The right in pink has not been used for decades  The rights in yellow have become supplemental to other rights and are rarely used  The rights in light green are used every year when water is available  Only 10 ac/ft of the right in dark green has been used for decades

14. Western Water Law — Origin and History  Appropriative water rights are constitutionally protected property rights  Their basis is the beneficial use of water  They are defined by quantity, time, and nature of use  Priority date is when beneficial use began  They can be lost by non-use

15. Reserved Rights Doctrine — Origin and History  At the same time the appropriation doctrine was developing, federal reservations of land were being made  Congress and the President set aside public land for a particular purposes, for a particular purposes, such as an Indian such as an Indian reservation, but did not reservation, but did not create accompanying create accompanying water rights

16. Reserved Rights Doctrine — Origin and History  In 1906 the U. S. brought suit on behalf of the Fort Belknap Reservation Indians to secure water rights for them  Defendant farmers/ranchers protested, saying they had valid water rights created under Montana law  The suit created a genuine dilemma

17. Reserved Rights Doctrine — Origin and History  In 1908 the Supreme Court issued its Winters decision  It said Congress, when it set aside the reservation, impliedly intended to reserve water for the Indians  The “reserved rights” doctrine was born as a judicial response to a difficult controversy

18. Reserved Rights Doctrine — Origin and History  In Arizona v. California (1963) the U. S. Supreme Court said the reserved rights doctrine applies to federal reservations other than Indian reservations  For Indian Reservations it said the number of practicably irrigable acres on the reservation (PIA) is used to quantify the right

19. Reserved Rights Doctrine — Origin and History  Subsequent case law further defined the reserved rights doctrine  Cappaert v. U.S. (1976) – the amount of water reserved is the amount of water reserved is the minimum amount necessary to minimum amount necessary to fulfill reservation purposes fulfill reservation purposes  U.S. v. New Mexico (1978) – primary purposes only get primary purposes only get reserved water rights reserved water rights

20. Reserved Rights vs. Appropriative Water Rights  Reserved water rights are important sovereign and property interests  Their basis is the creation of reservations  The purpose of the reservation defines them (PIA for Indian reservations)  Priority date is creation of the reservation  They are not lost by non-use

21. Reserved Rights vs. Appropriative Water Rights  In addition to having characteristics that conflict with appropriative water rights, the more pressing problem is that reserved water rights are un-quantified when created  Given their early priority dates, they compete with State-created water rights

22. Reserved Rights vs. Appropriative Water Rights  Utah, an arid state, has many federal reservations — federal lands set aside for specific purposes, like Indian reservations, national parks and monuments, military bases, etc.  How should these rights be quantified?

23. Reserved Rights vs. Appropriative Water Rights  States have taken different approaches:  Pretend reserved rights don’t exist (mostly in times past)  Litigate about reserved rights  Negotiate such rights on a case-by-case basis  Utah has chosen to negotiate because the other approaches have been unsuccessful

24. Reserved Rights vs. Appropriative Water Rights  Utah has negotiated reserved water rights for Zion National Park, a watershed in the Dixie National Forest, Cedar Breaks, Hovenweep, Promontory, Rainbow Bridge, Timpanogos, and Natural Bridges National Monuments and the Shivwits Indian Reservation

25. Reserved Rights vs. Appropriative Water Rights  We are working on an agreement for Arches National Park  We are close to agreement with the Ute Indian Tribe  We are working with the Navajo Nation  Both the Ute and Navajo settlements involve water from the Colorado River

26. COLORADO RIVER CHALLENGES  Optimizing Use of Remaining Allocation (and integrating federal reserved water rights)  Assuring Continued River Use (ESA/Fish Flows)  Protecting Project Investments (Priority Issues)  Keeping Peace with Sister States and Mexico States and Mexico  Studying Low or Reduced Flow Issues Flow Issues

27. COLORADO RIVER OPPORTUNITIES  Negotiate Indian Water Rights  Negotiate Other Federal Reserved Water Rights in the Basin  Maintain ESA Compliance through RIPRAP RIPRAP  Implement Multipurpose Projects Multipurpose Projects

28. Utah/Navajo Reserved Water Right Negotiations  Navajo has substantial Winters rights  Compacts require Navajo’s rights come from Utah’s share of the River  Utah and Navajo have worked to resolve reserved water right issues  Utah must make a financial commitment

29. NAVAJO NATION SETTLEMENT PROPOSAL  81,500 AF Water Depletion  $156 Million in Projects  Subordination to Existing Rights  Consideration for Local Communities  Emphasis on Drinking Water  5% of cost ($8M) = State Share POTENTIAL LIABILITY  PIA = 166,500+ AF  Expensive, Unpredict- able Litigation  Non-Indian Priority Conflict

30. BENEFITS OF A SETTLEMENT AGREEMENT  Protect Current Water Rights  Quantify a Significant Reserved Water Right  Improve Quality of Life for Utah Navajo People  Avoid Costly Litigation and Uncertain Outcome  Provide Certainty for Utah’s Water Users  CUP/Wasatch Front  Uintah Basin and San Juan County  Lake Powell Pipeline  Solve a Colorado River Issue

31. Another Colorado River Challenge — Fish Flows  The Colorado River Basin is home to four fishes listed under the federal Endangered Species Act (ESA)  Humpback Chub  Colorado Pikeminnow  Razorback Sucker  Bonytail Chub

32. Another Colorado River Challenge — Fish Flows  Congress enacted ESA in 1973  It requires federal agencies to conserve species listed under the Act  It prohibits anyone from “taking” a species listed as endangered  “Taking” is broadly defined and includes diverting water from listed species habitat  “Reasonable and prudent alternative” needed

33. Another Colorado River Challenge — Fish Flows  The ESA has caused dramatic results in the Columbia and Klamath River Basins (managing for the salmon) and in the tributaries of California’s Bay Delta (managing to protect the Delta Smelt)  In effect, federal judges have become the water master in some places

34. Another Colorado River Challenge — Fish Flows  Some 40 years after ESA’s enactment, states have three choices:  Legislate  Litigate or  Cooperate  Efforts to legislate or litigate regarding ESA have been unsuccessful

35. Another Colorado River Challenge — Fish Flows  The Upper Basin States chose to be proactive and implement a recovery plan for the Colorado River endangered fishes  This gives Utah and the other three states an opportunity to be full partners in recovery implementation and to continue to use and develop water resources

36. Another Colorado River Challenge — Fish Flows  The program consists of two parts:  The Recovery Implementation Plan (RIP)  The Recovery Action Plan (RAP)  The RIP is what we want to do to recover endangered fishes—the framework  The RAP is what we’re going to do  RIPRAP emphasizes science not politics

37. Another Colorado River Challenge — Fish Flows  Ultimately, recovery would mean ESA issues would be resolved  Meantime, the RIPRAP means Utah can continue to develop its water resources  No RIPRAP compliance means both existing and future diversions may be in question and could be prohibited

38. Another Colorado River Challenge — Fish Flows  Two important elements of the RIPRAP are: non-native species control (small- mouth bass and pike) and habitat protection  Habitat protection means facilitation of reintroduction of fry, predator control, creating backwaters, and fish flow sufficiency, which is critical to recovery

39. Another Colorado River Challenge — Fish Flows  Flow recommendations, or flow targets, are set based on 20 years of studies— Utah works to identify fish flows  The fish are resilient and can survive drought, but also need years of significant flow to reproduce  The RIPRAP seeks a balance between the needs of fish and water users

40. Another Colorado River Challenge — Fish Flows  Given use projections, the “pinch point” for flows is Reach 3 on the Green River  Generally, flow is sufficient  How to assure future flows are not jeopardized?  Exercising the Lake Powell Pipeline water right could provide a win/win/win opportunity re fish flows Reach 1 Reach 2 Reach 3

41. Another Colorado River Challenge — Fish Flows  If the LPP water right is exercised as a Flaming Gorge storage right with a point of re-diversion at Lake Powell, then flows would be protectable through Reach 3  This may require a limited modification to existing water law Reach 1 Reach 2 Reach 3

42. Questions ? The End