Proof Professionals Training

1. Proof Professionals Training July 15, 2010 Salt Lake City, Utah

2. Topics • Division of Water Rights proof web page • Historical perspective on proofs • Affidavits of Beneficial Use • Proof maps • Municipal proofs

12. Historical Perspective on Proofs(Homestead Act of 1862) • Signed into law by Abraham Lincoln after the southern states had seceded • Allowed for the settling of 160 acres of federally owned land • Process • Make application to the government • Make improvements • File proof of use • Receive a patent (deed of title) on the land • Proof was in the form of an affidavit signed by witnesses attesting to the improvement of the land • Law was abused by those seeking to monopolize land or water sources or to gain title without actual development

13. Historical Perspective on Proofs(Utah Water Law of 1903) • Water rights process is similar to the process for homesteading lands in the U.S. • Make application to the state engineer • Construct works and put water to use • File proof of beneficial use • Receive a certificate of beneficial use • Establishes a legal property interest recorded in an office of public record • Allocates limited resources to those who put them to use • Proof to be completed by a “reputable engineer” • Law was abused by speculators or engineers unwilling to represent actual conditions on the proof

14. Biennial Reports (Selected Quotes) • “Of the 229 proofs of appropriation submitted during the past biennium practically all were returned for correction; in fact, most of them were returned several times.” (1918) • “Evidence is constantly accumulating to show that the proofs submitted are quite frequently not only incorrect, but definitely misrepresent actual conditions.” (1928) • “In many instances, physical conditions of the lands described have been such that irrigation has been either impossible or impractical. In other cases, lands embracing gravel pits, wide gullies, rock piles, or land covered by sagebrush or other native vegetation have been shown.” (1938) • “Oftentimes, carelessly prepared proofs require several months to correct and to bring up to acceptable standards on which certificates can be written.” (1958)

15. Reasons for Proof Professionals Training • Decrease our workload in reviewing and processing proofs • Help proof professionals to prepare better proofs more efficiently • Prevent fraud and abuse of the proof process • Recent discussions with the State Engineer have contemplated filing complaints with DOPL regarding misrepresentations on proofs

16. Affidavits “as Proof” • H.B. 389 – Effective May 12, 2009 • Allows an applicant to submit an affidavit instead of hiring a proof professional • Affidavit must be for “a small amount of water” associated with a residence • Some permanently lapsed applications can be revived

17. Small Amount of Water • 1 Residence • A quarter acre or less of irrigation • 10 livestock or less • Affidavits must be associated with a home • Home may be on a separate water right or on a municipal system • No other uses are permitted on an affidavit

18. Affidavit Requirements • Affidavit form signed by all owners • Map of beneficial use • Plat map • Certificate of Occupancy or Tax Notice

19. Affidavit Statistics(since May 12, 2009) • 519 Proofs submitted by proof professionals • 157 Affidavits submitted • Additional 28 Affidavits submitted on lapsed applications • Oldest revived application lapsed in 1979

21. Proof Maps Tips • Show and describe diverting, measuring and conveyance works • Describe method of irrigation • Show surface sources for some distance above and below the point of diversion • Show property boundaries • Account for all water use occurring • Show existing water right boundaries

25. Is a Proof Map a Legal Survey of the Place of Use? • Current water rights mapping rules imply that a proof is a legal survey. The place of use is the location “identified by a legal description by metes and bounds” where water is placed to use. (R655-5-2.7.1) • Water right appurtenance to land is currently determined by the proof map • DOPL rules prohibit engineers from “the surveying of real property for the establishment of land boundaries” (R156-22-102(4))

26. Municipal Proofs • Each municipal proof must include an acre-foot diversion quantity • Acre-foot quantity must be supported by diversion records • All sources and water rights need to be considered in evaluating municipal proofs

27. Municipal Proof Analysis • Identify all water rights owned by the municipality • Determine which water rights are perfected • Determine the total quantity of perfected water rights • If the application is for a well, add up water rights from ALL municipal wells, but not surface sources • If the application is for a surface source, add up all water rights from that particular source • If the application is from a combination of wells and surface sources, add up water rights from ALL municipal wells and all surface sources involved • Determine the maximum annual use from the relevant sources • If use exceeds perfected water rights then a certificate can be issued for up to the difference between the two

28. Example #1: Washington City(4 proofs submitted for a total of 2059 ac-ft) • a19389 (81-666, 1087) • 6 Municipal Wells • 1.24 cfs, 687.1355 ac-ft • a23880 (81-1610, 4313) • 9 Municipal Wells • 213 ac-ft • a25120 (81-1674) • 8 Municipal Wells • 1 cfs • a25121 (81-1719) • 8 Municipal Wells • 0.6 cfs

30. Washington City Water Use Water Rights 1868 (Perf.) + 2059 (Proof) = 3927

31. Example #2: Lindon City(4 proofs submitted for a total of 168 ac-ft) • a21388 (55-1670, 2325, 3205) • 4 Municipal Wells • 0.668 cfs, 135.97 ac-ft • a23905 (55-9400) • 4 Municipal Wells • 14 ac-ft • a29621 (55-12048) • 4 Municipal Wells • 5.6 ac-ft • a30001 (55-12066) • 4 Municipal Wells • 12.92 ac-ft

33. Lindon City Water Use Water Rights 9596 (Perf.) + 168 (Proof) = 9764

34. Questions?