Utah Division of Water Rights

1
Water Rights Role in Economic Growth
http//waterrights.utah.gov
CLE International Utah Water Law
Conference October
16, 2008 Boyd
Clayton
2
(No Transcript)
3
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
4
Water as the gasoline of Utah Economic Growth

• Cost
• Uncertainty
• Delay

• No resource use fee
• Defined System of Rights
• Administrative Process

5
Utah Division of Water Rights Mission

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

6
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

7
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)

8
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 (perfects record)

9
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)

10
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.

11
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

12
Approval Balance
New Beneficial Use
Public Interest
Existing Rights
13
Changing TimesNew Challenges
14
Key Issue New Water Cost

• Tendency to hoard rather than sow
• Change statute fabric stretching
• Better measurements required for better
  management
• Conservation paradigm

15
Water Right Management
16
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 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 is the current
  deed system becoming cud?
• Is the goal still to beneficially use water?

17
Where is the system moving?

• Water use benefits gtgt trading commodity
• Desire to have record reflect reality
• Future use reservations without use
• Efforts to politicize administrative process

18
Title Issues

• No auto synchronization with counties
• Land deed silence not definitive
• No good water right index at county
• Currently processing 80 ROCS/week
• 50 lapsed applications have bad address
• 400 applications lapse each year

19
Change Applications (73-3-3)

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

20
Changing Questions

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

21
HB51 Statute Change
(3) (2) (a) When an appropriator or the
appropriators successor in interest abandons or
ceases to use all or a portion of a water right
for a period of five seven years, the water
right or the unused portion of that water right
ceases and the water reverts to the public is
subject to forfeiture in accordance with
Subsection (2)(c), unless, before the expiration
of the five-year period, the appropriator or the
appropriators successor in interest files a
verified nonuse application with the state
engineer.
22
Other HB51 change related Features

• Approved Change protects from forfeiture
• New public supplier holdings must be changed
• Nonuse applications less burdensome

23
Record WrestlingWater rights are like
snowflakes, No two are alike.
24
Record Uses

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

25
Record Perfection Corrections

• Proofs with works but no or questionable use
  Why?
• Transitory uses occurring for the purpose of
  submitting proof on permanent rights. (trailers,
  livestock)
• New legislation intended to reinforce submission
  of proof on water beneficially used even for
  public water suppliers.
• Expecting professionalism in proofs
• All new diligence claims will have SE report

26
HB208 Questions

• Is filing of diligence claims acquiring ?
• Who owns a grazing permit?
• How does a water right transfer to DAF?
• What good is a livestock water use certificate?
• Is requiring consent a taking?
• Is this statute retroactive or does it intend to
  create a new class of water rights to which these
  provisions apply?
• What about allotments with more than one user?
• Is granting of a Forage right a taking?

27
Reaching For New Heights

• Eliminate certificate backlog
• Eliminate change backlog
• Focused adjudication team
• Automate diversion reporting
• Address critical groundwater
• Streamline approval

28
Areas of Emphasis (Cont)

• Public assistance
• Extended hours
• All offices open at lunch
• Immediate feedback on app completeness
• Web based tools
• Public education tools
• Training
• Pamphlets
• More public dialog

29
Concerns

• Movement to hold rather than use water
• Unclear public policy
• Beryl/Enterprise
• Direction on nonuse
• HB208

30
Areas of Concern (Cont)

• Protest activism (not a vote)
• Applications which shift burden of approval to
  state engineer.
• Holding down costs

31
Big Costs

• Litigation
• Purchasing existing water rights
• Value based (loss of benefit income stream)
• Speculation (cost of holding water in fluctuating
  and uncertain markets)

32
In the endPriorities will be everything