Filing Proof of Water Development

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Filing Proof of Water Development

• Challenges and opportunities in defining and
  quantifying water rights via the proof and
  certification process
• Jared Manning
• Utah Division of Water Rights
• St. George Water Law and Policy Seminar
• March 9, 2009

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Topics

• Quantifying water rights
• Municipal proofs and certificates
• Appurtenance issues

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Quantifying Water Rights

• Historical practice was to quantify water rights
  for distribution purposes
• Total acres
• Flow rate (c.f.s.)
• System worked well for surface waters
• We didnt realize the extent to which water
  rights would be divided up and changed to wells
• Current practice is to quantify water rights in
  anticipation that they will be divided
• Sole supply
• Volume (acre-feet)

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Sole Supply on Certificates

• Virtually all certificates now must have an
  acre-feet sole supply
• There are thousands of approved applications out
  there where no sole supply has been determined
• A huge challenge for us is to determine sole
  supply so that we can issue the certificate
• A Statement of Group Contribution may be needed
  in order to sort everything out
• This is especially challenging with irrigation
  company water rights which may have dozens or
  hundreds of supplemental water rights

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Municipal Certificates

• Past practice was to quantify with a flow rate
  only (no acre-foot amount)
• Current practice is to include an acre-foot
  amount on the certificate
• This practice makes about 95 of municipal proofs
  impossible to certificate

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Water Use Vs. Water Rights(An Actual
Municipality)
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Water Use Vs. Water Rights(An Actual
Municipality)
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Municipal Certificates (Contd)

• Actual use (annual volume) is often a fraction of
  a municipalitys water rights
• It doesnt make sense to issue additional
  certificates that will compound the disparity
• How should the state engineer treat existing
  municipal water rights that have a flow rate
  only? (Roosevelt City)

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Certificates and Appurtenance

• For purposes of land conveyances only, the land
  to which a water right is appurtenant is the
  authorized place of use of water as described in
  the . . . certificate 73-1-11(5)(c)
• Certificates used to include a metes and bounds
  description of the place of use
• Certificates currently show forty-acre tracts as
  the place of use
• We are moving towards putting legal descriptions
  of land parcels (Tax ID or Sub-division/Lot
  Number) on certificates
• Is the water right appurtenant to a pre-defined
  parcel or to the specific acreage shown on the
  proof map?
• Can the irrigation configuration change over time
  on a land parcel without a change application?

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Certificates and Appurtenance (continued)

• "Engineering surveys" as used in Subsection
  58-22-102(9) include all survey activities
  required to support the sound conception,
  planning, design, construction, maintenance, and
  operation of engineered projects, but exclude the
  surveying of real property for the establishment
  of land boundaries, rights-of-way, easements,
  alignment of streets, and the dependent or
  independent surveys or resurveys of the public
  land survey system. R156-22-102(4)
• "Real property" or "real estate" means any right,
  title, estate, or interest in land, including all
  nonextracted minerals located in, on, or under
  the land, all buildings, fixtures and
  improvements on the land, and all water rights,
  rights-of-way, easements, rents, issues, profits,
  income, tenements, hereditaments, possessory
  rights, claims, including mining claims,
  privileges, and appurtenances belonging to, used,
  or enjoyed with the land or any part of the land.
  57-1-1(3)

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Summary

• Quantification of water rights is essential in
  the proof and certification process
• We dont have all of the answers when it comes to
  certificating municipal water rights
• Appurtenance becomes increasingly important the
  more things are divided