The Surveyor’s Role in Utah Water Rights

1. The Surveyor’s Role in UtahWater Rights Utah Council of Land Surveyors February 19-21, 2014

2. ENGLISH COMMON LAW Affecting Riparian Lands The bundle of legal rights concerning the relation of the owner of the bank of a stream to various features of the stream: 1. Right of access to the water; 2. Right to build a wharf or pier into the water; 3. Right to use the water without transforming it (not alter quantity or quality); 4. Right to consume the water; a. consumption must be incidental to use and enjoyment of riparian land; b. socially and economically valuable; and c. not unreasonable to diminish water availability to other riparian users; 5. Right to accretions; and 6. Right to own subsoil of nonnavigable streams and other private waters. Beck, Robert E., 1 Waters and Water Rights, section 6.01

7. Act of July 26, 1866 14. Stat. 253 SEC. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

13. Current procedure for appropriating water § 73-3-1, et seq. A. Filing an application with the State Engineer--section 73-3-1, 73-3-2 B. Publication of the application in a local newspaper—section 73-3-6 C. Protest period—section 73-3-7 D. Hearing if protested E. Action by the State Engineer either approving or rejecting the application—section 73-3-8 F. Diligent prosecution of proposed actions—section 73-3-12 G. Filing Proof of Appropriation—section 73-3-16 H. Issuance of a Certificate of Beneficial Use—section 73-3-17

14. Types of Water Rights Application to Appropriate, but not approved Application to Appropriate, approved, no certificate issued Certificated Water Right Decreed Water Right Pre-Statutory Water Right 1. Claim Filed a. Diligence Claim filed b. Statement of Water User’s Claim filed 2. No Claim Filed

15. Elements of a Water Right i. Priority ii. Flow rate iii. Beneficial use iv. Point of diversion v. Period of use vi. Place of use

16. Diligence Claims Section 73-5-13 (2)(b) the claim shall also include the following information prepared by a Utah licensed engineer or a Utah licensed land surveyor: (i) measurements of the amount of water diverted; (ii) a statement that the quantity of water claimed either in AF or cfs is consistent with the beneficial use claimed and the supply that the source is capable of producing; and (iii) a map showing the original diversion and conveyance works and where the water was placed to beneficial use, including irrigated lands, if irrigation is the claimed beneficial use.

17. Section 73-3-10 (1)(a) A water right, whether evidenced by a decree, a certificate of appropriation, a diligence claim to the use of surface or underground water, or a water user’s claim filed in general determination proceedings shall be transferred by deed in substantially the same manner as is real estate.

18. Section 73-1-11 (1)(a) a water right appurtenant to land shall pass to the grantee of the land unless the grantor: (a) specifically reserves the water right or any part of the water right in the land conveyance document; (b) conveys a part of the water right in the land conveyance document; or (c) conveys the water right in a separate conveyance document prior to or contemporaneously with the execution of the land conveyance document.

19. Andrus Claim

23. Reports of Water Right Conveyance Section 73-1-10(3) (a) To update water right ownership on the records of the state engineer, a water right owner shall submit a report of water aright conveyance to the state engineer. . . . (c) the report of water right conveyance shall be prepared by: (i) or prepared under the direction of and certified by any of the following persons licensed in Utah: (A) an attorney; (B) a professional engineer; (C) a title insurance producer; (D) a professional land surveyor; or (ii) the water right owner as authorized by rule of the state engineer.

36. Gaps in Title Marketable Record Title Section 73-1-11 (b) If a county recorder records a document that conveys a water right appurtenant to land as described in Subsection 1(a) and relies on the document to maintain a tract index described in Section 17-21-6, the state engineer shall rely on the document as an effective conveyance of a water right appurtenant to land.

37. Proofs of Appropriation or of Change Section 73-3-16 (6)(a) when filing proof, the applicant shall submit maps, profiles, and drawings made by a Utah licensed land surveyor or Utah licensed professional engineer that show: (i) the location of the completed works; (ii) the nature and extent of the completed works; (iii) the natural stream or source from which and the point where the water is diverted and, in the case of a nonconsumptiveuse, the point where the water is returned; and (iv) the place of use.