State Engineer Issues Utah Water Users Workshop March 18, 2013 Kent L. Jones, P.E.

1. State Engineer Issues Utah Water Users Workshop March 18, 2013 Kent L. Jones, P.E. State Engineer

2. Utah Water Law Concerns • …..that a water law of the people, by the people, for the people, shall not perish from the earth. .

3. State Engineer Duties73-2-1 • 3(a) The state engineer shall be responsible for the general administrative supervision of the waters of the state and the measurement, appropriation, apportionment, and distribution of those waters. • 3(b) The state engineer may secure the equitable apportionment and distribution of the water according to the respective rights of the appropriators.

4. State Engineer • “… statutes place the responsibilities of enforcement and administration of waters on the state engineer… The state engineer is a disinterested and neutral party.” (Hafen) East Bench Irr. Co. v. Deseret Irr. Co.

5. State Engineer • “ The legislature invested the state engineer with important, but not conclusive, discretionary powers and duties deserving of great respect; but as a safeguard against possible injustice, invested the judiciary with plenary review on trial de novo of his decisions.” (Hafen) American Fork Irr. Co. v. Linke

6. Prior Appropriation DoctrineMain Features • Divert water to beneficial use. • Priority date. • First in time, first in right. • Loss of right. • Right acquired by application.

7. Basic Definitions • All water in the state is property of the public (73-1-1). • Beneficial use shall be the basis, the measure, and the limit of all rights to the use of water in the state (73-1-3).

8. Water Rights Are Property Rights With Conditions • It’s a right to share a public resource. • There are a series of conditions and responsibilities that go with the rights. • Water right holder doesn’t have total control of the water right use. • Ownership of a right gives the right to file a change but not to have it approved.

9. Water Rights Are Property Rights With Conditions • Some claim that they are entitled to the whole face value on their paper water right and that is what the state engineer should recognize. • There are more paper water rights than there is water available.

10. Paper Right Examples • 1 cfs/ 60 acres irrigation. Spring source • A. Spring flows full flow, full season – 240 af • B. Spring only flows May and June – 120 af • C. Spring only flows once every 5 years – • D. Used with 3 other rights all on the same 60 acres – • E. Spring flows full , full season, not used in 20 years

11. Paper Right Examples • Beneficial Use has to be the limit of the right regardless of what the paper says. • What is the limit if you want to change it ?

12. Water Rights Subject to Forfeiture For Nonuse • Forfeiture part of old mining law. • Forfeiture part of Utah water law prior to the adoption of the water code in 1903.

13. Water Rights Subject to Forfeiture For Nonuse • 73-1-4(2)(a) “When an appropriator or the appropriator’s successor in interest abandons or ceases to use all or a portion of a water right for a period of seven years, the water right or the unused portion of that water right is subject to forfeiture in accordance with (2)(c), unless the appropriator or the appropriator’s successor in interest files a nonuse application with the state engineer.”

14. Water Rights Subject to Forfeiture For Nonuse • Pre 1996, If water not beneficially use for a period of 5 year it was considered forfeited, it ceased to exist, and it reverted to the public and was available for appropriation unless a nonuse application was filed. • In 1996, the law changed to indicate that the forfeiture of a water right had to be a judicial action and if you had been using your water for a period of 15 years, the right was not subject to forfeiture. But it still said if you didn’t use your water for 5 years the right ceased.

15. Water Rights Subject to Forfeiture For Nonuse • In 2008, the forfeiture statute 73-1-4 was again altered. • The 5 year period for nonuse was changed to 7 years and public water suppliers were not subject to forfeiture if the water right was in a 40-year plan. • Several exemptions for nonuse were detailed. • The reference to a water right ceasing was removed from the statute.

16. Water Rights Subject to Forfeiture For Nonuse • 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.”

17. Water Rights Subject to Forfeiture For Nonuse • State Engineer expressed concern about what we can do in our review of change applications. Because of the changes, we thought there might be legal problems. • In 2011, the Jensen v Jones and the Big Ditch cases were ruled on by the Supreme Court and we were told to not look at non-beneficially used water as part of our change review process… contrary to the legislative intent language.

18. Jensen/Big Ditch Decisions • 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.

19. 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. • 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.

20. 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.

21. 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.

22. Famous Gatekeepers

23. Famous Gatekeepers • Willard Young 1897-1898 Ed Watson 1941-1949 • Robert Gemmell 1898-1901 Harold Linke 1949-1950 • A.F. Doremus 1901-1905 Joseph Tracy 1950-1957 • Caleb Tanner 1905-1913 Wayne Criddle 1957-1965 • W.D. Beers 1913-1917 Hubert Lambert 1965-1973 • G.F. McGonagle 1917-1921 Dee Hansen 1973-1985 • R.E. Caldwell 1921-1924 Robert Morgan 1985-2002 • Lloyd Garrison 1924-1925 Jerry Olds 2002-2008 • George Bacon 1925-1933 Kent Jones 2009-Present • T.H. Humphreys 1933-1941

24. Jensen v Jones (continued) • We asked for help. SB 187 in 2012 and SB109 in 2013 was the recommendation of the Executive Water Task Force. • SB 109 S1 – municipal swing out. • SB 109 S4 – universal swing out/HB 123 combination and essentially removed the state engineer from the “Gatekeeper” role for nonuse concerns.

25. Jensen v Jones (continued) • Some have claimed that by giving the state engineer authority to look at beneficial use associated with forfeiture allows administrative forfeiture by the state engineer. • Forfeiture has to be determined by judicial action.

26. Forfeiture Example Used • Farmer who subdivides land, builds homes on land, doesn’t use water for more than 7 years, files change, state engineer denies because of nonuse. • Farmer has no place to put the water back to use. • Farmer always has nonuse application options. There is always a way to protect his right. State engineer can not take it away.

27. Other 2013 Legislation • 18 Bills under Water and Irrigation title. • 13 bills passed.

28. New Water Rights Legislation • HB 29 Adjudication lists and reduced areas • HB 36 Storm water surface 2500 gallons • HB 73 Abandoning easements • HB 166 List of federal claims compiled • HB 326 Deed addendums for ROC’s/ recorder standards • HB 360 Defines nonuse applications

29. New Water Rights Legislation • SB 30 PD forfeiture clarification, no PE notarization, Electrical Coop extensions, rule making authority combined. • SB 101 No fixed time application proofs, amending diligence claims, filing claims closed by court.

30. Questions Questions?

31. HB 29 Adjudication of Water Rights - Briscoe • Allows State Engineer to maintain lists of claimants rather than the court in a General Determination proceeding • Allows the State Engineer to prepare proposed determinations on smaller areas • Allows the State Engineer, as an option, to use electronic means to supply a proposed determination to water users if delivery can be confirmed.

32. HB 36 Stormwater Capture Amendments - Nielson • Exempts the State Engineer from enforcement action for stormwater retention projects • Allows the storage of 2500 gallons of stormwater on the surface as an option on a parcel of land.

33. HB 68 Public Trust Obligations McKiff • Defines the state’s public trust obligations and declares certain water rights protected by the Utah Constitution • Concerned with Mono Lake decision in California and proposals in Hawaii and Colorado that take existing personal property water rights away from water right holders

34. HB 73 Water Easement Abandonment - Mathis • Establishes a procedure for the holder of a prescriptive easement for a water conveyance to abandon all or part of the easement • Public notification process

35. HB 123 Change Application Amendments - McKiff • Defines who can file a change application: • Record title owner, holder of an unperfected application, shareholder in a water company, equitable owner and beneficial user, or a person who has authorization from any of these, does not include a person who holds only a contract or leasehold interest.

36. HB 123 Change Application Amendments - McKiff • Discusses equitable and real title holders • Doesn’t allow real title holders to diminish equitable title holder interests in the underlying water right … equitable title holder must agree to participate • Allows for transitional changes for municipalities to protect past changes of water that do not have a change application approved for the change.

37. HB 123 Change Application Amendments - McKiff • Amends 73-3-3.5 for shareholder changes to strengthen a shareholder’s position in those cases where the water company is unwilling to be reasonable in a change application process by allowing the shareholder to first go to the water company and then going to the State Engineer with the change request. • Provides a process to treat each side fairly

38. HB 326 Division of Water Rights Amendments - Webb • Water right deed addendums will be used to update water right records • Recorded land conveyance documents also convey appurtenant water rights • Water company shares transfer as securities

39. HB 358 Instream Flow Amendments - Noel • Modifies conditions under which the director of the Division of Wildlife Resources may approve a fishing group’s proposed instream flow change application before being filed with the State Engineer

40. HB 360 Water and Irrigation Revisions -Wilcox • Clarifies a provision relating to protection from forfeiture for a water right subject to an approved nonuse application • May 5, 2008 provisions covers periods of nonuse from the day it is filed until the application expires. • Does not protect from nonuse periods prior to the application being filed

41. HJR 014 Joint Resolution on Water Rights - Ivory • Declares that claims of the Forest Service on state waters originating on public lands undermine state sovereignty and demand action by the state of Utah to protect its sovereign, recognized ownership and rights, and calls on state, county, and local governments to protect, preserve, and defend the health, safety, and welfare of the citizens of the state of Utah by defending and maintaining jurisdiction over the water resources of this state.

42. SB 30 Water and Irrigation Amendments - Dayton • Wastewater rules changed to permissive rather mandatory • Requires wholesale electrical cooperatives to provide information to get extensions of time beyond 50 years • Removes the requirement that proof/claim engineers have their signatures notarized

43. SB 30 (cont.) • Amends emergency authority of the state engineer to consult with the Emergency Management Administration Council. • Allows assertions of forfeiture for water right nonuse which occurs after publishing of a proposed determination.

44. SB 62 Governor’s Fire Suppression Authority - Dayton • Amends provisions relating to the governor’s authority during a state of emergency to authorize the use of all water sources as necessary for fire suppression.

45. SB 101 Division of Water Rights Revisions - Dayton • Removes proof requirements for fixed time applications • Technical revisions to 73-3-18(4) to identify all state engineer authority to set application priority dates • Clarifies the amendment procedure for diligence claims to be treated like a new claim • Clarifies that a judge issuing a decree in a general determination may bar the filing of additional diligence claims.

46. Navajo Water Rights Settlement Account • Settlement Agreement for reserved Water Rights on the Navajo Nation in Utah. • Negotiations began in 2003, Governor and President of the Navajo Nation signed agreement. • Projects Identified; 81,500 ac-ft agreed upon. • $154 million in projects identified. State Share approximately $8 million. • Proposes $2 million as second allocation to state’s share.

47. SB 190S01 Change Application Procedure - Okerlund • Requires that a person who applies for a change to a water right must meet certain qualifications. • Allows the State Engineer to determine the quantity of water that is currently being beneficially used and limit the approval of the change based on that determination.

48. SB 190S01 (cont.) • 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. • A Person is: The holder of an approved but unperfected application to appropriate; The owner of record of a perfected water right; 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.

49. SB 190S01 (cont.) • 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”; • 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; • Not adjudicate the validity of the remaining portion of the right.

50. SB 190S01 (cont.) • “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.