RWAU Annual Conference March 3, 2016 James Greer Assistant State Engineer

1. RWAU Annual Conference March 3, 2016 James Greer Assistant State Engineer

2. Objectives • New Legislation • SB75 Water Right Adjudication Amendments • HB222 Nonuse Application Amendments (Passed) • HB 305 Water Rights and Resources Amendments • HB 218, SB 23, SB 80 • Implementation of HB 25 (2015) – Quantity Impairment

3. SB75 Water Right Adjudication Amendments • Objectives • Enhance overall efficiency of adjudication process. • Provide adequate due process to water users. • Increase water user participation. • Modernize process to address issues of current concern.

4. Summary of Proposed Amendments • Adjust the sequence of the Hydrographic Survey to better facilitate claim investigation and focus resources on claims of interest. • Allows for the online submission of water user’s claims. • Creates a “List of Unclaimed Rights” for those rights of record that aren’t represented by a timely-filed water user’s claim. • Clarifies that failure to file a timely claim for a right of record constitutes a default and may result in a judgment of abandonment. • Bars and estops claimants from asserting unclaimed rights (i.e. pre-statutory claims) if they fail to file a timely claim. • Removes antiquated/redundant requirements for water user’s claims. • Allows the State Engineer to grant one 30-day extension to file a claim. • Requires claimants to update address and ownership on records of the State Engineer to receive notice of further proceedings.

5. Upon notice, claimants have 90 days to file claims with the Court or State Engineer 73-4-5  State Engineer holds a public meeting in the area to discuss the PD with the claimants 73-4-11(2)(c)  Court enters final judgment 73-4-15 Claimants have 90 days to file an objection to the Proposed Determination 73-4-11(3) State Engineer serves notice of the completion of the Proposed Determination to claimants 73-4-11(2)(b) Objections to the Proposed Determination (if any) are resolved 73-4-11,13 State Engineer searches records for missed claimants, files affidavit with Court, and serves 2nd Summons 73-4-22 KEY State Engineer holds a public meeting in the area to discuss the list of unclaimed rights 73-4-9.5(1)(c) Objections to the list of unclaimed rights (if any) are resolved and judgement is entered  73-4-9.5(5) State Engineer serves notice of completion of the list to claimants and property owners* 73-4-9.5(1)(b) State Engineer composes list of unclaimed rights and files it with the Court 73-4-9.5(1)(a) State Engineer investigatesfiled claims and prepares hydrographic survey maps  73-4-11(1) State Engineer notifies claimants and property owners* by mail to submit claims 73-4-3(8)(a) State Engineer composes Proposed Determination and files with the Court 73-4-11(3) Claimants have 90 days to file an objection and a water users claim 73-4-9.5(2) Summons is served via publication in a newspaper for 5 weeks 73-4-4(1)(b) Notice is served via publication in a newspaper for 2 weeks 73-4-3(2)(a) State Engineer searches records to locate all possible claimants and property owners* 73-4-3(3) Claimants and property owners* are served with summons via mail 73-4-4(1)(a) State Engineer holds a public meeting to inform public of process 73-4-3(7)(b) Proposed Amendments to Water Rights Adjudication Existing Statute Revised Statute *The expanded notice to property owners is not explicitly required in the revised statute. 9 3 2 1 7 16 19 15 14 18 17 12 8b 10 8a 6 13 11 4 5

6. HB222 Nonuse Application Amendments • Filing nonuse applications do not cover forfeiture for use prior to the filing of the applications. • “Lazarus Clause” - 15 years of use • Explored extensive revision of the forfeiture statute to address the issues.

7. HB305 Water Rights and Resources Amendments • Water Use Reporting Program • Require Signature of Operator or Engineer • Authorizes the Division of Water Rights to collect and validate water use data

8. Jensen v Jones • Supreme Court Decision 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.

9. 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.

10. Jensen v Jones • 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. • Gave the State Engineer options to pursue should a right appear to have not been used for longer than 7 years.

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

12. 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

13. 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.”

14. 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.

15. 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”

16. 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

17. 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.

18. 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.

19. 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.

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

21. 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…

22. Processing Change Applications Under HB 25 • Directions given to staff: • Nonuse and Change Applications Feb. 18, 2015 • Staff Consultations April 30, 2015 • Quantity Impairment June 23, 2015

23. Processing Change Applications Under HB 25 • Nonuse and Change Applications • Implemented HB 25 processes early . • Watched for protests concerning nonuse. • Sent notice within 90 days identifying impaired rights and nonuse concerns. • Sent notices to those potentially impaired.

24. Processing Change Applications Under HB 25 • Nonuse and Change Applications • Deferred action until HB25 enacted. • Clarification of concept embedded in statute. • 22 Change applications filed prior to the enactment of HB25 with nonuse issues. • Change can’t be made if it impairs. • If change pursued, forfeiture action will have to be initiated.

25. Processing Change Applications Under HB 25 • Staff Consultations • Consultation has always been part of our process. • In law now to acknowledge that all have a right to consultation. • In change statute, but we will apply it to all applications as we have in the past. • Pre-filing consultations nonbinding and are not part of the record.

26. Processing Change Applications Under HB 25 • Staff Consultations • Post-filing consultations should be documented and made part of the record and available to all parties. • Consultations can occur in the Salt Lake office or in the regional offices. • Signs have been provided in each of our offices acknowledging this service is provided.

27. Processing Change Applications Under HB 25 • Quantity Impairment – Nonuse Concerns • Protested during the protest period • Within 90 days, state engineer raises nonuse concerns • Rebuttable presumption of impairment based on nonuse • Notice sent to applicant and those thought to experience impairment • Not all rights have to be identified

28. Processing Change Applications Under HB 25 • Quantity Impairment • Burden of persuasion shifts to the applicant to overcome the presumption of impairment • Show that the water has actually been beneficially used • Demonstrate that the nonuse was excused by statute • Mitigation can be provided or show physical constraints prevent impairment

29. Beneficial Use • What can be done to compensate agricultural users for conserving water? • Concern expressed that if we don’t divert all the water we are entitled to the state engineer will take the water away from us • Issue being discussed amongst legislators and may be a topic this session. • It’s important to understand the nature of a water right

30. 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.

31. Garner v Anderson 67 Utah 553, 248 P.496(1926) “The appropriator of water doesnot acquire title to the corpus of the water but acquires only the right to use the quantity reasonably necessary to mature the crops and for other beneficial purposes. Regardless of the amount of water originally appropriated or historically used, the amount reasonably necessary is the limitationof the quantity appropriated.” Becker v Marble Creek Irrigation Company 15 Utah 225, 49P. 892 (1897) “The rights of a prior appropriator are fixed by the extent of his appropriation for a beneficial use. His right being fixed, he cannot enlarge his rights to the detriment of junior appropriators by increasing his demands or by extending his use to other lands, even if used for a beneficial purpose.” Court Directives

32. Mitchell v Spanish Fork West Field Irrigation Company 1 Utah 2d 313, 265 P.2d 1016 (1954) “The quantity of water acquired under a water right is limited to that amount beneficially used on the land upon which the use was established.” Mt. Olivet Cemetery Ass’n v Salt Lake City 65 Utah 193, P. 1876 (1925) “The extent of the right of an appropriator is limited to his reasonable necessities. The diversion and use of water creates a legal right only to the quantity necessary for the use.” Court Directives

33. Irrigation Efficiency Improvements Where does “saved” water come from? Where should it go?

34. Beneficial Use • What is the amount of water reasonably necessary? • Duty of water is established upon a 50% efficient flood irrigated system which provided that carrier water and inefficient water distribution would allow for enough water to irrigate the allowed acreage. • What happens to that amount of water that is not used by the crops?

35. Irrigation Water Use Concepts

36. Reducing Waste to Maximize Benefit is Encouraged.Reducing Waste to Enlarge Use Impairs Other Rights

37. 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.

38. Beneficial Use • It’s critical to keep return flows in balance. • Downstream rights are dependent on return flows. • If a determination can be made that historical depletions are not exceeded, some type of compensation could be considered if it can be assured that downstream rights will not be impaired.

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

40. Questions Questions?

41. 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.”