Declaring Beneficial Use in Water Use Groups

1. Declaring Beneficial Usein Water Use Groups R655-16

2. Overview Rule became effective April 7, 2010 • A Few Definitions • When are Declarations Required? • Declaration Principles • Requests for State Engineer Review • Applications for Apportionment • Declarations & Supplemental Use

3. A Few Definitions • Beneficial Use – the purpose to which water diverted under a water right is applied and the quantity of that beneficial use • Supplemental Right – a water right used together with one or more water rights for a common beneficial use.

4. A Few Definitions • Water Use Group – one or more water rights listed together in the records of the SE as being applied to a common beneficial use. Each water use group is assigned a unique number in the SE database. Previously identified on the database as the “Supplemental Group”

5. A Few Definitions • Beneficial Use Amount – the quantity of beneficial use a water right contributes to a water use group. Previously known as “Group Contribution”. If a water right is a member of only one water use group then Beneficial Use Amount = Sole Supply

6. A Few Definitions • Sole Supply - the quantity of beneficial use allowed by a water right when used alone and separate from all supplemental rights. If the water right is a member of more than one water use group then Sole Supply = the sum of its Beneficial Use Amounts.

7. A Few Definitions • Declaration of Beneficial Use Amounts = Declaration – A form for water users to declare the beneficial use amounts of the water rights in a water use group. Previously known as the “Group Contribution Form”.

8. A Few Definitions • Application for Apportionment of Beneficial Use Amounts= Apportionment Application A form requesting that the SE apportion the beneficial use of a water use group among its supplemental water rights.

9. Water Use Groups • 05-1 • 05-1,05-2 • 05-2 • 05-2,05-3 • 05-2,05-4 • 05-3 • 05-3,05-4 • 05-4 • 05-2,05-3,05-4 Typical Water User Group Number: 215225

10. 53-536 53-374 53-95 53-109 53-110

11. When are Declarations Required? Change Applications Declarations shall be required if: • filed on fewer than all of the water rights; and • the Change Application seeks to remove a water right from a Water Use Group; and • the Beneficial Use Amount has not been quantified; and • the nature of the change requires a quantification of the beneficial use.

12. When are Declarations Required? Proof Declarations may be required if: • the Beneficial Use Amount has not been quantified; and • the Proof is filed on fewer than all of the water rights in the Water Use Group; or • the Water Right Holder does not hold all the water rights in the Water Use Group.

13. When are Declarations Required? Title Update • Declaration not required if: • Updating title on entire water right • Not segregating • Not changing UNLESS • Deed specifies amount being conveyed Segregations • Declaration required

14. When are Declarations Required? • SE may waive the filing of a Declaration for a temporary change if sufficient water and beneficial use are available. • Water use groups created for public water suppliers that do not describe the extent of the beneficial uses but rather group water rights within a use area will not require a Declaration. • During change or proof process, if a declaration is necessary to complete the process, the SE may require that one be completed consistent with this rule.

15. Declaration Principles General Provisions • May be filed any time – no filing fee at this time. • SE Form or equivalent • May declare the beneficial use amounts of all the water rights or some of the rights or just one of the rights • Must be signed by all the water right holders. Who can sign? • The water right holder shown on the SE records • An authorized agent of the water right holder shown on the SE records (a written authorization must be filed)

16. Declaration Principles General Provisions • Must provide documentation for the beneficial use amounts that are declared showing how they were determined. What is acceptable? • Any evaluation method consistent with the SE's records. • SE may require additional documentation • Must acknowledge this is not a general adjudication of the water right(s).

17. Declaration Principles General Provisions • A filed declaration may only be revised by filing another declaration signed by all water right holders. • Declaration is Acceptable • The database will be updated with the beneficial use amounts for each water right consistent with the declaration. • Declaration is Incomplete or Unacceptable • Returned to submitter with an explanation of deficiencies.

18. Declaration Principles Declaration of No Beneficial Use • A declaration may state that a water right contributes no beneficial use amount • Must be the sole owner of the non-contributing water right • May be signed by only by the water right holder making the declaration. • Once filed, cannot be withdrawn or modified. • Other water right holders will not be contacted • Records will be updated for all water rights listed in the declaration

19. Declaration Principles Court Orders • If the beneficial use amount of a water right has been quantified by a court order or other legal instrument of equivalent effect. • If not a part of the State Engineer's records • May be submitted by any person for consideration by the State Engineer

20. Request for SE Review General Provisions • Request must be in writing • Limited to a determination whether the database and the files are consistent with each other • Must indicate how the database should be modified for consistency • SE will complete the review within a reasonable time

21. Request for SE Review To Modify Water Use Groups • Most likely to be used if water right holders believe their water rights have been incorrectly grouped. • Written plan describing how rights should be grouped or requesting removal from a water use group and stating the reasons. • Modifications can generally be made if the request does not result in changes to a water right (POD, POU, nature of use, etc) that would normally require approval of a change application.

22. Request for SE Review General Provisions • No fee for requests at this time • SE may modify Water Use Group records at any time to resolve errors, deficiencies, or ambiguities. • SE may remove a water right from a water use group if it will provide for better water right administration.

23. Applications for Apportionment Criteria • Can request SE assistance to determine the beneficial use amounts if: • A declaration is required for an administrative action; and • The water right holder is unable to complete a declaration. • Cannot find the water right holders listed in the SE records or determine their successors • One or more of the water right holders refuses to participate or will not sign the declaration. • Other reason applicant cannot cure

24. Applications for Apportionment Application Requirements • No filing fee at this time • SE form or closely equivalent format & language • Signed by applicant • Document or explain efforts and problem. • Will be evaluated for acceptable effort • Include information requested on form and gathered by applicant (affidavits, documentation, etc.).

25. Applications for Apportionment Filing Process • If not complete or does not meet criteria • Returned with explanation • If acceptable for filing • SE begins apportionment process • Applicant must provide notice to the other parties to the extent possible

26. Applications for Apportionment Preliminary Apportionment • SE will notify water right holders • By regular mail. • Request information regarding use of water (UCA §73-5-8) • Allow 30 days for response • SE will review • Information received with the application • Information received from request • Other relevant information (water right records (priority, flow limitations), distribution records, etc.)

27. Applications for Apportionment Preliminary Apportionment • SE will prepare preliminary apportionment • Based on information review • May elect to apportion all rights in a water use group or only the water right involved in an administrative action. • SE will notify of preliminary apportionment • By regular mail to water right holders in group • Advise of right to protest preliminary apportionment • Allow 30 days for protest

28. Applications for Apportionment Apportionment - Order of the SE • SE may hold a hearing if necessary • Review any new information • Revise apportionment if necessary • Issue Order of the State Engineer • Beneficial use amount of each water right apportioned • Final action on the apportionment - UAPA • Water right holders may request reconsideration (20 days) • Water right holders may file for de novo review (30 days)

29. Applications for Apportionment Update database • After 30 days and no motion for de novo review • Update database consistent with OSE • After de novo review • Update database consistent with court order if one has been issued

30. Effect of Declarations on Supplemental Use • Regardless of the beneficial use amounts set forth in a Declaration, the previous supplemental relationship of the water rights in the water use group will continue. • Any water right removed from the group through an approved Change Application or invalidated through other legal or administrative process would be excluded.

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