1. Overview Utah Water Law Application Process Kirk Forbush PE Regional Engineer April 25, 2013

2. We Live in a Desert

4. Eastern Water Law —   A riparian owner has the right to the undiminished flow of a stream   “Riparian rights” turn on the physical relationship of a body of water to riparian land--they include access, use, and the opportunity to build in the water

5. Eastern Water Law — Not for Arid Areas   This law would not work in a desert

6. Western Water Law — Origin and History   In the arid West areas of water use were often located far from sources of supply   Miners and irrigators built diversions and moved water to areas of need   Their “first in time/first in right” mining principles carried over to water rights   The doctrine of “prior appropriation” of water was born (mid to late 1800s)

7. Western Water Law — Origin and History   Appropriative water rights are given a priority based on their date of creation   In times of shortage, earlier priority rights are filled first to the limit of the right   No sharing of shortages means some uses will be met   Use it or loose it   The intent was to maximize public benefit

8. Western Water Law — Origin and History  conditional right to use shared resource  An appropriative water right in Utah is a conditional right to use a shared resource  Conditional because water is a public resource and to get a private right to use it legislative requirements must be met  The most important = continued beneficial use of the water (or non-use application)

9. Western Water Law — Origin and History   The right to use is not ownership of a volume of water, but a right to use an amount of water for a beneficial purpose   Since water rights are shared, everything one right-holder does impacts others and any change in use must not harm others   Each system has a finite amount of water

10. Western Water Law — Origin and History   The federal government supported growth and development of this “new” water law   1866 Mining Act; 1877 Desert Land Act   The U.S. Supreme Court said these acts severed the land and water estates and directed that water rights be obtained under the laws of the territories and states

11. Western Water Law — Origin and History   State Engineer’s Office established in 1897   By 1903 surface water appropriation required a State Engineer application   The State Engineer’s Office became the administrative mechanism to create rights and to administer them—to be the caretaker of the water systems in Utah

12. Western Water Law — Origin and History   State policy was to maximize beneficial use of water   The State Engineer approved rights to more water than was available so that as much water as possible would be used   An alternative to beneficial use was provided (non-use applications)

13. Western Water Law — Origin and History 1863 – 100 ac/ft 1890 – 100 ac/ft –0 use 1900 – 100 ac/ft 1901 – 100 ac/ft 1915 – 100 ac/ft 1920 – 100 ac/ft—10 use 1925 – 100 ac/ft 1930 – 100 af/ct 1931 – 100 ac/ft 1932 – 100 ac/ft Hypothetical Mill Valley Water System  This small water system produces +/- 400 ac/ft/yr, with variation  The rights in blue are used every year  The right in pink has not been used for decades  The rights in yellow have become supplemental to other rights and are rarely used  The rights in light green are used every year when water is available  Only 10 ac/ft of the right in dark green has been used for decades

14. Western Water Law — Origin and History   Appropriative water rights are constitutionally protected property rights   Their basis is the beneficial use of water   They are defined by quantity, time, and nature of use   Priority date is when beneficial use began   They can be lost by non-use

15. 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).

16. Beneficial Use is the Basis, Measure, and Limit of a Water Right Water Right Record Characteristics Ownership Priority Diversion Location Diversion Flow Limitation Diversion Volume Limitation Storage Limitation Use of water (irrigation, domestic …) Place of use Amount of use Period of Use

17. Municipal Water Use December 2, 2010 Policy Change Allows Public Water Suppliers to have municipal water uses Public Water Suppliers are entities that supply water to the public and is: A public entity; A water corporation; A community water system – 100 year round service connections or 200 part time residences; A water users association. Municipal proof requirements: Proof is to be submitted on the actual amount of water put to beneficial use.

18. Filing a Water Right Application File application in proper form. Advertise for 2 consecutive weeks in local newspaper. 20 day protest period. Protested? Hearing. Approval or rejection. - If approved, typically 5 years, proof due date given, proof of beneficial use, certificate. - If rejected – De-novo Judicial Review

19. Water Rights Process

20. Approval Criteria (73-3-8) Unappropriated water in source. Will not impair existing rights. Physically and economically feasible. Not monopolistic / speculation. In the public interest / welfare. Won’t effect the natural stream environment or public recreation.

21. Change Applications Sec. 73-3-3 UCA May change: Point of diversion. Place of use. Nature of use. Period of use. Pertinent facts: Can’t impair existing rights without compensation. Doesn’t change priority date of underlying right. Priority of change applies to interference issues.

22. Change Approval Practice Avoid enlargement (defeats priority) Limit to historic diversion Limit to related depletion Use is the measure and limit Limit changed duty to standard amount required for new use Relinquish old use to get new use Applications conditioned rather than rejected

23. Irrigation Water Use Concepts

24. Water Use Terms Duty (maximum diversion requirement) Depletion (potential consumptive use) Irrigation (generally about 0.75 x duty) Domestic with Septic waste (20 percent) Municipal (secondary water, waste treatment, reuse)

25. 53-109 53-110 53-536 53-374 53-95

26. 11 Water Use Groups Unanswered Questions How much beneficial use does each water right contribute to each water use group? What is the total beneficial use in each water use group? What is the sole supply of each water right? What is the total irrigated area?

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

29. For Consideration: 20 years later, 1 st 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 2 nd 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.

30. Changing an Irrigation Water Right to Industrial Uses Water right is for 100 acre of irrigation 100 ac x 4.0 ac ft /ac = 400 ac ft Historical Depletion = 200 ac ft Industrial use is 100% consumptive Therefore, diversion & depletion limited to 200 ac ft.

31. Irrigation Efficiency Improvements Where does “saved” water come from? Where should it go?

32. Reducing Waste to Maximize Benefit is Encouraged. Reducing Waste to Enlarge Use Impairs Other Rights

33. Changing A Water Right What is Appropriate? ?

34. Shareholder’s Dilemma Background: Canal Company has a water right for 2,000 acres of irrigation. Shareholder 1: Owned 200 shares and flood irrigated 200 acres. Converted to sprinkler irrigation. Sold 50 excess shares (why pay for shares that are not needed?)

35. Shareholder’s Dilemma (Continued) Current Situation: Shareholder 1 irrigates 200 acres with 150 shares New shareholder 2 irrigates 50 acres of new ground. Total irrigation based on the 200 shares is 250 acres

36. Shareholder’s Dilemma (Continued) Future Scenario The canal company’s water right is reviewed. The canal company is irrigating more acreage than the 2,000 acres allowed under its water right. The canal company compares shares owned and acres irrigated for each shareholder. Mr. Jones, shareholder 1, is cut back to 150 acres based upon his shares. He unwittingly sold a significant part of his farm.

37. Questions ? The End