Utah Water Users Workshop March 6, 2007 Current Water Rights Issues Jerry Olds State Engineer / Director DWRi

Objective Forfeiture of water rights Snake Valley – Nevada/Utah Update of activities at the Division Questions

Selected Principles of Utah Water Law Utah is a prior appropriation state All water owned by the public Water rights – the right to make beneficial use of water Water rights held subject to conditions Beneficial use – measure & limit Abandonment – intent Forfeiture – statutory time

A Water Rights …. The right to use water Diverted from a specific source Beneficial use Place of use Ownership – transferred by deed Water rights are held subject to terms and conditions set by state law WR #

Irrigation Company Shares Stock held by share holders Irrigation companies own water rights Water used by share holders Amount of water per share varies by company Shares used within the irrigation company Ownership – not appurtenant Right to a proportional “share” of the companies water.

History Related to Forfeiture Legislative study - partial forfeiture 2001 – Ad hoc committee created 2002 – Two bills introduced on forfeiture HB 57 – Forfeiture water shares ( ) HB 58 - Water rights forfeiture (73-1-4)

Abandonment or Forfeiture for Nonuse 1) In order to further the state policy of securing the maximum use and benefit of its scarce water resources, a person entitled to the use of water has a continuing obligation to place all of a water right to beneficial use. The forfeiture of all or part of any right to use water for failure to place all or part of the water to beneficial use makes possible the allocation and use of water consistent with long established beneficial use concepts.

Abandonment or Forfeiture for Nonuse (cont’d) 3) (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 five years, the water right or the unused portion of that water right ceases and the water reverts to the public, unless, before the expiration of the five-year period, the appropriator or the appropriator's successor in interest files a verified nonuse application with the state engineer.

Abandonment or Forfeiture for Nonuse (cont’d) (f) The provisions of this section shall not apply: (i) to those periods of time when a surface water source fails to yield sufficient water to satisfy the water right, or when groundwater is not available because of a sustained drought; (ii) to water stored in reservoirs pursuant to an existing water right, where the stored water is being held in storage for present or future use; or (iii) when a water user has beneficially used substantially all of a water right within a five-year period, ….

Authorization for water companies to allocate water rights lost by forfeiture or nonuse (1) (a) If a water right, to which a mutual water company holds title, ceases or is lost due to forfeiture or abandonment for lack of beneficial use, in whole or in part, the water company shall, through procedures consistent with this section, and as defined in the company's articles of incorporation or bylaws, apportion the loss to each stockholder whose failure to make beneficial use caused the loss of the water right.

Nonuse Applications Filed before nonuse has occurred Up to 5 year period Must state reason for nonuse financial hardship legal proceedings reasonable future requirements (public) any other reasonable cause End of 5 years, put to use / file another nonuse application

What happens to water lost by forfeiture? In areas closed to new appropriations, the water goes to supply other water rights in order of priority. In areas open to appropriation, the water becomes available for appropriation by others.

Irrigated Acreage = 100 acres 50 acres not irrigated for 12 years Is this water right subject to partial forfeiture? WellCASE STUDY

Municipal Water User Has 20 certificated water rights Supply about 17,500 acre-feet per year Currently using up to 7,000 acre-feet/year 10 water rights being used For the last 12 years – use range from 5,200 to 7,000 acre-feet. Are some of the municipal water rights subject to forfeiture or partial forfeiture?

Determining Forfeiture A water right or a portion of the water right may not be forfeited unless a judicial action to declare the right forfeited is commenced ….. The water company shall make an apportionment if the Utah Division of Water Rights or a court of proper jurisdiction makes a final decision that a loss has occurred.

Dealing with Forfeiture Inventory your water rights – know what you have and how is it being used. If not being used or needed - File nonuse application Lease the water Filing a change application does not protect the underlying perfected water right!

What is the role of the state engineer regarding forfeiture? Change application filed - irrigation to municipal Water rights has NOT been used for 12 years!

Clark, Lincoln & White Pine Counties Groundwater Development Project sponsor: Southern Nevada Water Authority Nevada Utah SNAKE VALLEY

SNWA Groundwater Project 7 Valleys in Eastern Nevada 125,000 to 200,000 AF/year 25,000 AF – Snake Valley SNWA working thru Water rights process EIS (BLM) Construction as early as 2009 Water deliveries as early as 2014

Actual Statements Will drain aquifers from Salt Lake to St. George. Governor Huntsman should not approve the project. The project is taking Utah’s water to Las Vegas. Even though there are willing sellers, Las Vegas should not be allowed to take our water!

Snake Valley (Utah) Snake Valley shared Nevada / Utah Located in Tooele, Juab, Millard, Beaver and Iron counties 140 miles in length Population is about 600 Average precipitation – 6 to 30 inches 650 water rights Irrigated acreage – 14,000 acres Fish Springs, 34,000 AF ( Actual supply ~ 20,000AF)

AGREEMENT BETWEEN UTAH & NEVADA (PL ) The bill passed by Congress states the following – (3) AGREEMENT – Prior to any transbasin diversion from the ground-water basins located within both the State of Nevada and the State of Utah, the State of Nevada and the State of Utah shall reach an agreement regarding the division of water resources of those interstate ground- water flow system(s) from which water will be diverted and used by the project. The agreement shall allow for the maximum sustainable beneficial use of the water resources and protect existing water rights.

State to State Issues Great concern – HJR 1 Dividing ground water - new frontier Two sovereign states Not a interference dispute between water users Utah is committed to - Protecting existing users Future interests Alternatives to an agreement

From USGS BARCASS web site Monday, March 26 at 1:00 PM at DNR Building in Salt Lake City, Kimball Goddard, Director USGS Nevada Science Center Basin and Range Carbonate Aquifer System Study

Division of Water Rights Activities Proof of beneficial use Rules regarding water distribution systems / commissioners Water management (automation) Ground-water management Application processing Reports of Water Right Conveyance (Title) Formal Hearings

Protests: Do we require a fee?

Number of Reports of Water Rights Conveyance Filed SB 8 allows SE to use fee to process ROCs

Hearing Process Informal Hearing Process Applicant / Protest present data & info SE issues decision Judicial review De novo review Formal Hearing SE creates record Appeal bases on the record

HB 48 DNR “House Cleaning Bill” : Deputy and other staff : diverting, impounding or using water : Extension of time – signed statement : Controlling works & measuring devices 73-4: Adjudication

Always do right. This will gratify some people and astonish the rest.

Thank You Questions?