State Water Issues – State Engineer Utah Water Users Workshop March 13, 2012 Kent L. Jones, P.E.

1. State Water Issues – State Engineer Utah Water Users Workshop March 13, 2012 Kent L. Jones, P.E. State Engineer

2. 2012 Water Legislation • 3HB 67 Stormwater Capture Amendments • HB 127 Navajo Water Rights Negotiation Account • HB 153 Diversion of Water • HB 368 Abandonment or Forfeiture of Water Rights • HB 369 Adjudication of Water Rights • HB 485 Change Application Amendments • HB 486 Water and Irrigation Amendments • SB 187 Change Application Procedure

3. HB 127 Navajo Water Rights Negotiation 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. • Bill proposes $2 million as first allocation to state’s share.

4. HB 153 Diversion of Water • Similar to Section 73-3-5.6 for small amount of water. • 1 Family, 0.25 Acre Irrigation, 10 Animal Units. • Allows Exchange/Small Domestic Applications to Be Reinstated or Have Proof filed by Affidavit. • Evidence must be shown that house was there before the water right lapsed.

5. HB 485 Change Application Amendments • 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.

6. SB 187 Change Application Procedure • Requires that a person who applies for a change to a water right must meet certain qualifications. • Allow 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.

7. Recommended Legislation • 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.

8. Recommended Legislation (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.

9. 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. • Seven years.

10. 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 State Engineer’s determination of the quantity of water available for change does not constitute forfeiture or abandonment, affect the use of the unapproved portion of the water right, or constitute an adjudication of the underlying water right.

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

12. Jensen v Jones Proposals • Change application before the State Engineer was denied because no beneficial use of the water could be identified. Appeared 1956 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.

13. 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

14. 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 were 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. • 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.

15. 1939 State Engineer Biennial Report • Address changes in statute regarding adverse possession. • Justice Wolfe dissenting opinion in Adams v Portage case: “I fear that in this we have so extended the doctrine of adverse possession as to disturb the settled water law of decades.”

16. Consideration • The issues we have before us now are: • Whether the State Engineer should look at beneficial use or not in the change application process, and • Who can file a change application. • The Court in a good faith effort to interpret the law seems to be deviating from long-term water right practice. • These issues need to be resolved and clarified in statute.

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

19. For Consideration: • 20 years later, 1st 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? • Property right activists assert there is • Hydrologically there isn’t anything to move because nothing is given up – the 2nd 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.

20. 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

21. 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).

22. Water Rights Subject to Forfeiture For Nonuse • Since 1888 Utah has had a statute providing for the reversion of water to the public upon abandonment or nonuse. • The right ceased upon the expiration of the statutory period: 7 years until 1919 and then 5 years after that. • 1935 extensions of time to resume use (nonuse) applications instituted.

23. Water Rights Subject to Forfeiture For Nonuse • Until 1996, If water was not beneficially used for a period of 5 years it was considered forfeited, it ceased to exist and reverted to the public. It 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.

24. 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.

25. 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.” • 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.

26. Water Rights Subject to Forfeiture For Nonuse • 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 or change review process… contrary to the legislative intent language and contrary to historical practice of the state engineer.

27. Water Rights Subject to Forfeiture For Nonuse • We asked for help. SB 187 was the recommendation of the Executive Water Task Force. • Some opposition was expressed and the legislature was unable to take action on the bill this year. • Meanwhile…

29. Questions Questions?