Utah Division of Water Rights

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The changing world of Water Rights
http//waterrights.utah.gov
Rural Water Association of Utah Annual
Conference
March 3, 2009
Boyd Clayton
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(No Transcript)
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Water and Economic Development

• Is water necessary for growth?
• Have water rights helped in the past?
• What should be their future role?

Supply is limited Comes erratically Not generally
where needed
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Water as the gasoline of Utah Economic Growth

• Cost
• Uncertainty
• Delay

• No resource use fee
• Defined system of priority
• Set process to secure rights

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Utah Division of Water Rights Mission

• Promote order and certainty in the beneficial use
  of Utahs water.

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State Engineer Water Right Roles

• Maintain public water right records
• Administer appropriation process
• Supervise diversion and use of water
• Issue Proposed Determinations for courts
• Encourage water right law compliance
• Public Welfare Concerns

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Utah Water Right Fundamentals

• All waters property of public (73-1-1)
• Specific process to obtain rights (73-3-1)
• Beneficial use is water right limit (73-1-3)
• Beneficial use is a public use (73-1-5)
• Priority is given to first in time (73-3-1)
• Failure to use subjects to forfeiture (73-1-4)
• Water rights transfer by deed (73-1-10)

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Water Right Administrative Process

• Application to State Engineer
• State Engineer approval processing
• SE issues conditional permit to develop
• Applicant develops and submits proof
• SE issues certificate (ends administration)

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Informal Approval Processing

• Public record of application
• Public Notice (2 weeks)
• Invite Comment (20 days)
• Hearing / Collect facts (6 months)
• Weigh facts against statutory criteria
• Issue final decision (order) to all parties
• Judicial Review (if required)

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Approval Criteria (73-3-8)

• Make full use of scarce water supplies
• Protect existing rights
• Encourage best (most beneficial?) uses
• Discourage controlling water/speculation
• Protect public

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Approval Balance
New Beneficial Use
Public Interest
Existing Rights
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Extensions of time

• Provides for the continuance of viable permits,
  dropping of those without diligence.
• Allows affected rights to intervene after 14
  years.
• Allows for a reduction of priority in cases where
  actual use is far removed from application.
• Provides long development cycle protection for
  public agencies and power cooperatives.

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Water Right Management
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Changing TimesNew Challenges
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Key Issue New Water Cost

• Value in holding rather than sowing
• Change statute fabric stretching
• Measurement/Management dilemma
• More direct money/delay connection
• Conservation paradigm vs Use benefit

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Questions???

• What is beneficial use? Is it a use which
  generates economic benefit in excess of the cost
  of the practice (benefit/cost ratio gt 1)?
• Is the goal still to use water to produce a
  benefit?
• Is there more to priority than a date?
• Is forfeiture still fundamental? If not what is
  the effect?
• The deed system is developed to work with land.
  As land and water become decoupled does it still
  work?

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Change Applications (73-3-3)

• Convert existing water right or permit to new
  POD, USE, and/or POU (Relinquishment)
• Limited to equivalency
• May not impair vested rights
• If otherwise proper worth something
• Keeps priority
• Same administrative process
• Creates new perfected right

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Changing Questions

• Who is a person entitled to the use of water?
  Concerns about nonuse persist
• How can equivalent uses be identified if the
  record doesnt define extent of existing use?
• Supply reliability
• Surface/Groundwater Interaction?
• What interference is unreasonable?
• Is it always the SEs job to find a solution?

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Change Application Decisions

•      (7) (a) Except as provided by Section
  73-3-30, the state engineer may not reject a
  permanent or temporary change application for the
  sole reason that the change would impair a vested
  water right.     (b) If otherwise proper, the
  state engineer may approve a permanent or
  temporary change application for part of the
  water involved or upon the condition that the
  applicant acquire the conflicting water right.

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Record WrestlingWater rights are like
snowflakes, No two are alike.
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Water Right Types

• Unperfected Application
• Certificated Right
• Decree
• Federal Reserved Right
• Diligence Claim
• Unrecorded Right
• Shares of Stock in a Water Company

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Record Uses

• Commerce (who has what)
• Regulation (distribution / enforcement)
• Administrative processing
• History
• Water management planning

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Record Issues

• Proof Quality Goal is to show what is being
  done to divert and beneficially use water within
  the constraints of the approved application.
  Certificate is a reflection of proof. Inaccurate
  proofs lead to poorly defined records.
• Sole Supply Define limit of rights today so
  there wont be delays and confusion in the
  future.
• Segregations Growing need for standards and
  procedures as practice broadens.
• Current ownership and contact information

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Records of Interest

• Nonuse Application
• Exchange Application
• Water User Claim
• Proposed Determination

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Reaching For New Heights

• Eliminate certificate backlog
• Eliminate change backlog
• Streamline approval process
• Focused adjudication effort
• Measurement emphasis
• Work with willing participants

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2009 Legislation

• Water Right Bills
• Rainwater (sb128,sb58)
• Small domestic applications hb389
• Adjudication Amendments hb383
• Extensions/Segregations hb18
• Appeals hb19
• Leasing municipal water hjr16
• Water right exactions hb68
• Priority/Preference hb241
• Livestock on public lands hb256
• Deed addendums defining water rights hb366
• Fee Increases (new fee stream alts, protests)

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73-3-21.   Priorities between appropriators.    
Appropriators shall have priority among
themselves according to the dates of their
respective appropriations, so that each
appropriator shall be entitled to receive his
whole supply before any subsequent appropriator
shall have any right provided, in times of
scarcity, while priority of appropriation shall
give the better right as between those using
water for the same purpose, the use for domestic
purposes, without unnecessary waste, shall have
preference over use for all other purposes, and
use for agricultural purposes shall have
preference over use for any other purpose except
domestic use.
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Water Right Classes

• Public Water Suppliers
• Livestock on Public Land
• Small Domestic
• Everyone Else

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In the endPriorities are everything