The State Engineer's New Supplemental Water Rights Rule

The following article is a combination of two articles published in the Water & The Law newsletter, whch our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.

A foundational principle of Utah water law is that beneficial use is the basis, measure, and limit of a water right. The concept of duty is implicit in this principle in that there can be only a certain amount of beneficial water use for any particular use. For example, in the Tooele Valley, the irrigation duty is four acre-feet of water per acre of land. In other words, the application of water for irrigation in Tooele Valley in excess of four acre-feet per acre would be wasteful, and irrigation of one acre can support only four acre-feet of water right.

Often, however, multiple water rights combine to supply a particular beneficial use. When this occurs, the rights are said to be supplemental to each other. In 2006, the State Engineer implemented the supplemental group system to facilitate clarification of supplemental water rights. In essence, the State Engineer gave a unique supplemental group number to each particular beneficial use and linked that number to any water right that may provide water for that use. Typically, the amount of water actually contributed from each water right to the supplemental group was shown as unevaluated. To promote evaluation, the State Engineer began requiring Sole Supply Statements or Group Contribution Forms for most change applications. These forms required an applicant to determine how much beneficial use each water right contributes to particular supplemental group and to get signatures from all water rights holders in favor of that allocation. But the process of evaluating supplemental groups is often complicated and expensive, and water rights holders are often hesitant to sign the form regardless of how logical or fair the allocation is. Accordingly, the process resulted in an unexpected expense and delay for a number of change applicants.

Perhaps in response to the objections of many change applicants to completing the Sole Supply Statements, the State Engineer published a proposed administrative rule in the summer of 2008. In response to the many comments submitted in opposition to the rule as originally proposed, the State Engineer published a revised rule in the Utah State Bulletin on November 1, 2009. Although there were again a number of comments to the rule, the tenor of those comments was generally more positive than before. The version of Rule R655-16 that is now in effect was published in the Utah State Bulletin on March 1, 2010 with a few additional changes from the November 2009 version. As a result of those changes, it is significantly less onerous than the original policy of the State Engineer.

First, the rule does not require a Declaration of Beneficial Use Amounts (the new name for the Statement of Sole Supply or Statement of Group Contribution forms) for every change application, but only for change applications that fall within a narrowly defined set of circumstances where a change application is seeking to separate a water right from its historical supplemental group. Second, there are significant exemptions for many types of change applications. For example, public water suppliers, such as municipalities and districts, need not file a Declaration for supplemental groups created for water use within their service areas. Furthermore, the State Engineer may waive the Declaration requirement for temporary change applications and may remove water rights from a group if it would be unduly burdensome (e.g., for large water rights that cover an expansive area and are therefore part of many supplemental groups). Third, the rule now requires only that the beneficial use amount for the water right being changed be declared as opposed to every water right in the group. And finally, in instances where the other water right holders refuse to sign a Declaration, the rule provides for an administrative process to establish the beneficial use amounts and allow the change application to proceed. The new rule R655-16 contains many nuances and should be studied thoroughly before a change application is filed. The full text of the rule is available on the State’s website or through the following link: Utah Administrative Code Rule R655-16.