Distribution – Getting Water to the End of the Row – How it Works Water Law & Policy Seminar March 16, 2015 Jared Manning, Assistant State Engineer Utah Division of Water Rights

Distribution Systems Composition – Distribution System Committee – Water Commissioner(s) and Deputy Water Commissioners – Water users – State Engineer Established for a defined geographic area – When ordered by the district court, or – When the state engineer determines it’s necessary – Public meeting of water users – Public comment period – Order of the State Engineer

Distribution System Committee Equitably represent the water users – Appointed by a water company, municipality, federal agency, or other group with a substantial water interest – Elected by the water users of a voting bloc or geographic area Committee Duties – Select the commissioner – Outline the commissioner’s duties – Set an annual budget, including commissioner compensation – Set annual system assessment amount

Annual Distribution Meetings Held in January, February, or March each year (some Distribution System Committees meet more frequently) Discuss general distribution issues Water Commissioner reports on previous year State Engineer’s Office gives a report Prepare an annual budget of salaries and other expenses Determine assessment amount Elect Committee Members

Water Commissioners Selected by the water users Appointed by the state engineer to a 4 year term Primary responsibility is to distribute available water in accordance with water rights, including the accounting and delivery of storage May hire one or more deputies subject to approval of the distribution committee and the state engineer Can set and lock head gates to ensure proper distribution Prepare an annual report that includes records of all water measurements, addresses distribution issues during the year, and shows a record of the decisions made

House Bill 258 Classifies Water Commissioners as Schedule AQ State Employees of the Division of Water Rights Water Commissioners are covered under the state’s liability umbrella Water Commissioners are subject to certain state and federal laws Changes the “Water Commissioner Fund” from a private purpose trust fund to an expendable special revenue fund Cost of liability insurance and other administrative costs passed on to the water users

Water User Responsibilities Elect committee members Pay annual assessment Maintain adequate measuring device and head gate Provide reasonable and safe access for the commissioner Distribute water within a private ditch

State Engineer’s Role Create, modify or dissolve a distribution system by Order of the State Engineer Appoint a water commissioner and deputies Remove a commissioner, if necessary, for cause Direct the commissioner in the distribution of water under the various water rights Hold an annual meeting to conduct distribution system business Provide accounting for the Water Commissioner Fund Ensure adequate measurement and control of water by periodically inventorying the systems and issuing Orders of the State Engineer where needed

Groundwater Systems 4 Groundwater “Mapped” Systems in SW Utah where groundwater mining is occurring – Milford Valley – Beryl-Enterprise Valley – Parowan Valley – Cedar City Valley Irrigation water use is mapped every year Industrial use is metered

Telemetry Water measurements transferred from the field to the Internet in near real-time Gates can be adjusted from a remote location on some systems Creates a continuous, accurate record of diversions Reduces conflict among water users

Distribution Systems Overview 38 State Engineer Distribution Systems 40 Commissioners 17 Deputy Commissioners 2100 Active Distribution Accounts 2 Distribution Systems operated by the District Court

Early Water Distribution “In the Mormon system the bishop is the local or community head or leader. He was supposed in the early days to look out for the economic and the spiritual welfare of his charge. No one thing contributed more to the material welfare of his community than an orderly and economic use of the irrigation water. So in the very beginning the control and the distribution of the irrigation water came under his jurisdiction.” (Thomas, George. The Development of Institution under Irrigation with Special References to Early Utah Conditions. 1920, p. 92) “The bishop or a community committee of which he was usually a member, was the controlling authority in the distribution of water, in the upkeep and enlargement of the canals and in the construction of new canals until such time as the civil authority was ready and willing to take over the management and control of the system in different cities and counties.” (Ibid., p. 93)

Communal Legacy “The community or cooperative canal was the all-important means of supplying the towns and villages of the territory with water. It was fundamental inasmuch as the basic industry, agriculture, could not exist at that time, if at any time, in the Rocky Mountains without irrigation. From the first the canal was a community problem to be solved by the skill and labor of the community.” (Ibid. p. 19) “Whenever the waters of any natural source of supply are not sufficient for the service of all those having primary rights to the use of the same, such water shall be distributed to each owner of such right in proportion to its extent, but those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for irrigating lands shall have preference over those using the same for any other purpose, except domestic purposes. Provided, Such preference shall not be exercised to the injury of any vested right, without just compensation for such injury.” (Utah Laws 1880:40, § 14) The communal efforts to develop water is still evident today in the priority dates of many early water rights

County Courts The first session of the legislative assembly of the Territory of Utah established county courts consisting of a probate judge and three select men “The Probate Judge in connection with the select men, is hereby invested with the usual powers and jurisdiction of County Commissioners, and with such other powers and jurisdiction as are conferred by law, and in this connection, they shall be known as the County Court.” (Utah Laws 1852:45, § 35) “The County Court has control of all timber, water privileges, or any water course, or creek to grant mill sites, and exercise such power as in their judgment shall best preserve the timber and subserve the interest of the settlements in their distribution of water for irrigation or other purposes.” (Utah Laws 1852:46, § 39)

Water Masters Appointed by the county courts Jurisdiction extended from the natural source to the fields of each user Appointed on the court’s own initiative or upon recommendation from the water users Could be removed by the water users after petition from the water users or could be dismissed by the court at any time for cause Appointed to a 1 year term

Water Masters (continued) Under the control and supervision of the county court, not the water users Normally, one of the select men was assigned by the court to oversee the water masters A levy was issued per acre of land to cover the salary of the water master and other expenses of distribution In 1876 the courts began to ask the water users to hold a mass meeting and elect a water master, who the court would then appoint

City Councils Most City Charters gave city councils the power to control the water leading to and flowing within their respective cities Cities considered dams and canals to be city property Water Masters were appointed annually by city councils Water Masters and the upkeep of dams and canals were paid from property taxes collected by the cities Assistant Water Masters were selected by the Chief Water Master or by the water users and paid for by the water users

Historical Notes The 1861 completion of the Transcontinental Telegraph and the 1869 completion of the Transcontinental Railroad helped end Utah’s relative isolation In the 1870’s the Federal Government began to assert more control over Utah’s judiciary “[Utah Supreme Court Justice] McKean and others had forecast precisely the steps Congress would have to take when it became serious about curbing the power of the Mormon church and eliminating polygamy. Because a judicial system controlled by Mormons would not enforce the polygamy law, Mormon control of the judicial process in Utah would have to cease.” (Firmage, Edwin & Mangrum, Richard. Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter Day Saints 1830 – , p. 147)

Legislation of 1880 County Selectmen were made ex officio Water Commissioners for their respective counties; probate judges no longer had authority over water Provided that water rights were personal property and could be conveyed separate from the land Allowed for incorporation of ditch companies, thereby “privatizing” distribution, operation and maintenance within a ditch

Distribution in the New State of Utah Before statehood in 1896, very few water cases were decided in District Court After statehood, District Courts began to adjudicate disputes and appoint water commissioners to carry into effect the judgments of the court In areas where courts had not made decrees, water commissioners were appointed by the board of county commissioners for two-year terms and compensated by the county The State Engineer acted as an advisor to water commissioners by measuring streams and providing technical help on the measurement of water Water commissioners submitted measurements to the county recorder and the state engineer Water users required to install measuring devices and lockable head gates

Legislation of 1919 The basis of modern distribution Gives the State Engineer authority over distribution Commissioners and deputies appointed by the State Engineer after consultation with the water users Expenses borne pro rata by the water users and paid in advance to the state engineer Commissioners can be removed for cause by the state engineer or by the district court on petition from the water users