Water Horse filed an export application with the Utah State Engineer to divert 55,000 acre-feet of water from the Green River in Daggett County, Utah. The water was to be piped across Wyoming and used somewhere along the Front Range in Colorado. The application received numerous protests, and the State Engineer held an administrative hearing on the application. The State of Colorado sent a letter stating that it believed that Water Horse was required to follow Colorado's laws and procedures for water rights administration. The Utah State Engineer ultimately concluded that the application did not meet the approval criteria contained in Utah's water export statutes (Utah Code sections 73-3a-101 to -109), and the State Engineer therefore issued an order rejecting the application. Water Horse requested reconsideration, which the State Engineer did not grant. Water Horse appealed to the district court.
In the district court, Water Horse and the State Engineer filed competing motions for summary judgment. After a hearing, the district court granted summary judgment in favor of the State Engineer. Water Horse appealed to the Utah Supreme Court.
Water Horse argued that the Upper Colorado River Basin Compact ("Upper Compact") preempts Utah's export statutes. Specifically, Water Horse cited the Upper Compact language that states that "no State shall deny the right of another signatory State, any person, or entity of any signatory State to acquire rights to the use of water ... or regulating water in an upper signatory State for consumptive use in a lower signatory State, when such use is within the apportionment to such lower State." The Court determined, however, that the Upper Compact and Utah's export statutes do not conflict. The Court noted that the Upper Compact allowed Water Horse to file for the water use but did not guarantee that the water use would be approved. "The Upper Compact only prohibits a state from denying a right to acquire rights to the use of water; it does not guarantee that an applicant will acquire the particular right it seeks." The Court further concluded that the export statutes do not "impede the congressionally ratified purpose of the Upper Compact," but actually further that purpose.
Water Horse further argued that it had satisfied the criteria of the export statutes. The Court disagreed. The statutes require an applicant to show that "the water can be transported, measured, delivered, and beneficially used in the recipient state." The Court concluded that Water Horse could not meet this requirement because Water Horse had not filed any application or received any approvals from the State of Colorado for the beneficial use of the water in Colorado. "The reason to believe standard may be low, but it is not so low that an applicant can present a 'we'll figure it out as we go' proposal and obtain an appropriation."
The Court also reviewed and rejected several other minor arguments made by Water Horse. The Court therefore affirmed the district court and upheld the State Engineer's rejection of Water Horse's application.
To read the full opinion, click here.
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