Tuesday, July 15, 2014

Priority Cuts on the Virgin River and Tributaries

The following notice was issued by the Utah Division of Water Rights on July 7, 2014:

Water Users on the Virgin River and Associated Tributaries Including:
North Fork, North Creek, Ash Creek, La Verkin Creek,Quail Creek, Leeds Creek, Leap Creek, Toquerville Springs

Due to extremely dry conditions over the last 3 years, the Virgin River and associated tributaries are experiencing significantly diminished flows. Utah law provides that appropriators have priority among themselves according to the dates of their respective appropriations, so that each appropriator is entitled to receive the appropriator's whole supply before any subsequent appropriator has any right (Utah Code Section 73-3-21.1(2)). The state engineer routinely operates distribution systems, including one on the Virgin River where a river commissioner maintains records and distributes water among the appropriators in accordance with their respective rights to carry out purposes of the statute. Typically distributing water among the users on the main stem of the Virgin River has been adequate to accomplish priority distribution objectives, so the system does not include tributaries named in this letter. However, current circumstances have caused senior appropriators on the main stem of the Virgin to question if they are being impaired by junior users on unregulated tributaries and they are now calling for all water which is tributary to the Virgin River to be regulated by priority. This is an extraordinary action which will require an immediate response to be effective.

With this notice, the state engineer is initiating a priority call on the Virgin River including all associated tributaries from the headwaters to the Washington Fields diversion which is the user which initiated the call. This letter is being sent to notify water users of the action and request your cooperation during this extraordinary period.

A public meeting will be held July 15 at 6:00 PM at Washington County Water Conservancy District offices, 533 Waterworks Driven St. George, Utah, if you would like to further understand the process, provide suggestions, or comment.

The Virgin River System is currently being regulated such that all water users with a priority later than 1900 are no longer entitled to divert water. If you are currently diverting water and the priority of your water right is later than December 31, 1900, please immediately cease the use of water until advised by the state engineer your priority is entitled to the use of water. Representatives of the state engineer from the Utah Division of Water Rights wilt be providing further regulation instruction and field checking actual practice. If you are found to be diverting water in violation of instructions you could be subject to significant fines under the state engineer's water right enforcement powers. Water not diverted must be allowed to run to the natural course, and continue downstream to diversions of the senior priority water right holder. All users of water, the source of which could be construed as directlv tributarv to the flows of the Virgin River such as springs and seeps, should discontinue diversions and water is to be allowed to run its natural course.

Water stored earlier in the year in reservoirs is stored water and may be released from the reservoir and rediverted downstream without respect for the current priority call. Change applications which have approved points of diversion in wells are not subject to the priority call from well points of diversion but are subject to the call with respect to any surface points of diversion.

Please see the attached priority schedule that provides water rights listing, with associated water right ownership, listed in order of priority dates and organized into specific rivers and tributaries.

Ash Creek above Ash Creek Reservoir is not included in the attached priority schedule. It is the opinion of the state engineer under current conditions calling water above the reservoir would be a futile call. The East Fork above Zion National Park is a separate distribution system operating under direction of the state engineer and therefore not included in the priority schedule. That system is already operating with diversions limited to priorities prior to 1900. Should priority be further reduced on the Virgin River, calls on the East Fork system will be coordinated between commissioners and administered bv the appointed commissioner on each system.

One of the fundamental principles of Utah water law is priority between appropriators. There are two ways that priority is established. If water was put to beneficial use prior to 1903 (the date the statutory water right process was adopted), the priority of the water right is the date the appropriator placed the water to beneficial use. After 1903, the priority is the date the application for appropriation was filed with the state engineer.

Priority distribution requires that a senior appropriator's water right be satisfied before a subsequent (junior) appropriator receives any water (Utah Code 73-3-21). Appropriators with the same priority share proportionately in the available water supply according to the amount of their individual rights. An appropriator's water right is considered satisfied if either they are receiving all water entitled under the definition of the right or they choose not to divert their water right or to divert only a portion of their water right.

An appropriator is not authorized by law to dictate the next right in priority; that is, they cannot determine who should receive the water if they choose not to divert it. A water right extends only to controlling one's own diversion and use of water. If a senior right is satisfied, the opportunity to divert falls to the next water right in priority according to the priority date of the water right.

A junior upstream appropriator is not required to reduce their diversion if doing so would not increase the water supply available to a prior downstream appropriator who is not receiving their full water right. In this situation, a call by a senior appropriator for a junior appropriator to reduce their diversion is a futile call. A water user may not determine that a futile call situation exists; the State Engineer determines when a call is futile. This rule also allows appropriators with non-consumptive uses (power generation) to divert water out of priority; since the use is non-consumptive (and the entire flow is returned to the source) curtailing the diversion will not change the water supply available to downstream water users.

Utah does not recognize de-minimis use. A junior appropriator may not use the argument that their diversion has a minimal or negligible effect on a senior appropriator to avoid curtailment if the senior right is not satisfied. No matter how small the effect, if there is a cause and effect relationship, the junior right must yield to the senior appropriator.

Within a water distribution system organized by the State Engineer, a water commissioner is appointed by the State Engineer to regulate the distribution of water (under the direction of the State Engineer) according to the priority of the water rights on the system. The Water Commissioner for the Virgin River system monitors diversions from the system and also regulates water during priority regulation conditions. You may be receiving a visit from the Virgin River Water Commissioner during the regulation period. Water Rights staff will be supplementing his efforts on the tributary streams.

According to state law (UCA 73-5-15), water users are required to install and maintain control structures and measuring devices that meet state engineer approval. Please insure your diversion has functional control (head gate) structures and measuring devices.

The distribution of water from surfaces sources (rivers, streams, springs etc.) is regulated by priority as described. The distribution of water from underground wells and developed springs which have now been shown to directly affect the flow of surface sources is not regulated under the current call.

Dated the 7th day of July, 2014
By Kent L. Jones, State Engineer

For a copy of the priority schedule referenced in the notice, click here.