By: Dale B. Kimsey
You might have recently received notice from the State asking you to respond if you think you have water rights. This process is intended to provide a framework for evaluating and decreeing water rights so that the public has a current record of its valid water rights. Translation: the State wants to know what you think you have and then to tell you what it thinks you have as far as water rights go. This subject does not go to water shares in water companies, that is another subject. It does apply to the water rights your company thinks it has and what the State thinks of those water rights claims.
This is not the first time the State has attempted to “clarify” water rights; it is merely the latest effort. The Process is intended to apply a framework for review, evaluation and determination of who has what right, if any, and the uses of those rights.
You should pay attention to this process since it is intended to be a current but final determination and your rights may and probably will be affected either directly or indirectly.
Since water rights are a property interest those rules of law apply. There is a set of Codes in Utah that address those rights, privileges and obligations. It is Code Section 73. There are other sections which may have application but Section 73 is the home for water. The next relevant section to most water users is the Non-profit corporation section (16-6a). This is relevant to most water companies because they generally are filed as non-profit organizations. Certain laws of governance etc apply to the company’s handling of the shareholders’ water rights. The use of water in Utah is subject to certain specific rules. One major rule is that water in Utah is the property of the public (State) and the State authorizes private (non-governmental) entities and persons to Use the water for beneficial use. The underlying principal is that the water is allowed to be used and if it is not used the right can be taken away through judicial foreclosure.
Since all water must flow from point A to point B for use, the transfer system such as pipes or open ditches must be maintained as agreed and approved so that those downstream do not lose their right to the water that is supposed to flow to them for their use. Since Utah is a “first in time” water usage state the downstream user may actually have a superior right to some or all of those upstream.
The way the water is diverted from its flow in the system is significant, changing the use (flooding to sprinklers) or diversion (flood gates to valves) are defined and control the use of that water. For this reason water rights can have very detailed descriptions. The particular use of the water (culinary vs irrigation) is significant in determining if that water is to be treated and if so how so. A cross connection of culinary with irrigation water can have dire health consequences and thus is also regulated. The fact that some water is used for culinary purposes, that is it is used in the residence does not mean that it is treated water. Some individuals are still receiving water from systems that have no treatment prior to use. On the other hand as has been seen recently some treated water, if not properly controlled, can also be a health risk.
The time and place of use of water is also usually regulated as it affects the water that is available to other users in the system and from one system to another that are drawing from the same watershed. The side of the hill or mountain that the water is diverted at can have a direct impact on who gets to use that water, how much and when.
The largest users of water in Utah are agriculture. Without water crops don’t grow and without crops the food supply in the state suffers.
Water rights are defined by their use in several ways, the use may be from pioneer times and be shown by a Beneficial Use Certificate based on a diligence claim. Watering livestock from a lake, stream, canal or well may have been started over one hundred fifty years ago. It must be evidenced by the diligence claim and beneficial use, consistently during that time. A user may have applied for a right to use water with a showing that there was/is surplus water available in a current lake, stream, well, canal or other source (mine tunnels provide water). Water does not flow in creeks during the period of winter when the creeks are frozen, some creeks only run during the spring run off some flow year round. The resulting water right states its scope and use. A water right may also be determined by a court decree. In 1910 Judge Morse issued a decree from the district court defining who had use of the waters flowing through Little Cottonwood Creek. The current approved uses include a hydro electric plant, using creek water down stream from the Ski resorts who use water to make artificial snow to provide skiing earlier in the ski season. The resorts themselves often obtain their water from the many mines that dot the hillsides. Once mine entrances are properly capped they become reservoirs for water.
Over time a water right may be lost from lack of use or misuse, that is any use not provided for in the water right description. Due to the complexity of uses and applications it is sometimes difficult to know who has what right and where.
Utah has decided to inventory the water rights within the state so that it can stabilize the rights, resolve disputes and take water from that inventory that appears unused to be able to supply water for future development.
The adjudication process is intended to identify existing water claims, review those claims for validity against the State Engineer’s records and make recommendations to the courts on how the water rights should be dealt with going forward. The end result is intended to be a court decree that will be binding in defining water rights in a particular area, drainage or flow. The state has been divided into Thirteen areas of adjudication. Those have been divided into divisions and subdivisions. These areas may cover multiple counties and judicial districts. Each subdivision is described by a discrete Title and Number.
Any person or entity that has or believes they have a valid claim to water in Utah must follow the proper procedure to verify and maintain those rights. Failing the proper claim procedure could result in the loss of rights as defined differently than the user intends, being reduced for the same use or even abandoned for non-use or a non-approved use over a period of time.
The order in which the process works is first, the State sends out a notice to all water users in a specific subdivision that is to be adjudicated, this is accomplished by general publication and or by letter to the specific user. Second, a notice to file a claim within ninety (90) days or be forever barred from asserting that claim. Third, a list of unclaimed rights will be published, which can be checked to see what or whose rights are valid but remain unclaimed and therefore abandoned. Fourth, a proposed determination of all water rights in the specific subdivision is prepared and published by the State Engineer, to be filed with the assigned court, which recommends what rights ought to be decreed-these should be reviewed in detail to confirm accuracy and not impaired by others rights. Fifth, there is a ninety (90) day objection period which begins the day the determination is published to file any objection with the court regarding the State Engineer’s plan.
This issue began in 1944 in the case of Salt Lake Municipal Corp. v Tamar Anderson. It involves the Utah Lake Jordan River Adjudication area which includes portions of Salt Lake, Utah, Wasatch and Juab counties as part of that watershed. In an effort to get the issues resolved the Legislature provided funding and passed bills to streamline (see above) the case resolution.
The court’s intent is to identify objections, current stake holders, see the objections, notice to the appropriate parties (as they would be affected by a ruling) and finalize any litigation on the issues. Counsel and Pro Se litigants have benefited by the more well-defined process.
Many cases have been resolved in Salt Lake County on the east side. The Provo River section of the ULJR division has developed new subdivisions and they are being noticed and decided. The process is coming to the Virgin River region. The Moab region is in the determination phase by the State Engineer.
This is truly a Statewide effort and will have long term effects on all residents of the state now and in the foreseeable future. Washington County is looking at exponential growth over the next 20-30 years which will require a billion dollar investment in a pipeline to get water from the Colorado River. Many other counties and cities in Utah as well as individuals will be affected by the General Adjudication in that water rights will be gained or lost during the current process. The effects will be seen or felt for decades.