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.

Where Can I Get Copies of Water Decrees?

Utah water law provides for a general adjudication process under which all water rights in an area are adjudicated. The final step in this process is for the court to enter a decree that establishes the water rights. In many areas of the state, these decrees become the most important document with respect to water rights. Copies of decrees are available on the Utah Division of Water Rights' website. Click here to access the complete list of decrees, which have been organized by county.

Below, I have provided the links to some of the most common decrees:

Provo River Decree (1921) - available here or here

Weber River Decree (1937) - click here

Ogden River Decree (1948) - click here

Sevier River Decree [aka “Cox Decree”] (1936) - click here

Big Cottonwood Creek Decree [aka “Morse Decree”] (1914) - click here

Little Cottonwood Creek Decree [aka “Morse Decree”] (1910) - click here

How Do I Receive Email Notification of Action Taken on My Water Right?

The Utah Division of Water Rights has a service that sends you an email notification when new documents are placed your water right file. The notification service is free, and is easy to use. To use the service, click here and follow the directions below.

If you are a new user, click on the “Register Here” button. You will then be asked to provide your email address and a password. You can then enter the water right or change application number, and hit the “Add Application” button. This will add the water right to your notification list.

You can add as many water rights to your notification list as you want. You are also not limited to tracking your own water rights, so if there are water rights owned by others that you want to track, you can add those water rights to your notification list as well.

Although the notification service is very useful, it is not a complete substituting for receiving notices by mail. Accordingly, water right owners should ensure that their address is current on the Division of Water Rights’ database.

How Do I Check the Status of a Report of Conveyance?

If you have submitted a Report of Conveyance ("ROC") to the Utah Division of Water Rights, you can check its status by clicking here. If the ROC has not yet been processed, it will be in the “Pending” tab. If the ROC has been processed and approved, it will be in the “Completed” tab. If the ROC has been processed but has been rejected, it will be in the “Returned” tab.

Utah Waterways Task Force Meeting in Richfield

The Utah Waterways Task Force has scheduled its second meeting for Wednesday, August 25th, at 9:00 a.m. The meeting will be held in Rooms 147 A & D of the Administration Building at the Snow College Richfield Campus (800 West 200 South, Richfield).

To view the meeting notice and other information about the Task Force, click here.

What Is a Surplus Water Agreement?

Under Article XI, § 6 of the Utah Constitution, a municipality cannot “directly or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply” owned or controlled by the municipality. However, under Section 10-8-14 of the Utah Code, a municipality is authorized to “sell and deliver the surplus product or service capacity of [its water system] not required by the city or the city’s inhabitants, to others beyond the limits of the city.” Accordingly, municipalities can enter into surplus water agreements under which the municipality allows a person to use the municipality’s surplus water until the water is required to meet the municipality’s demands.

What Is a Report of Conveyance?

As discussed in a previous blog post, water rights in Utah are generally transferred either by deed or through appurtenance. Thus, true ownership of a water right is determined by researching the deeds at the county recorder’s office. The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Water Right Conveyance (more commonly referred to as a Report of Conveyance or a "ROC") to notify the Division when ownership transfers. Thus, the purpose of a Report of Conveyance is to notify the Division of Water Rights of the true ownership of a water right.

It is important that a water right owner update title with the Division of Water Rights. Any notices or correspondence that affect a water right will be sent to the owner of record on the Division of Water Rights' database. There have been many unfortunate occasions where, because title was not updated with the Division, a water right owner has not received communications regarding important deadlines that affect their water rights. Furthermore, until title is updated with the Division, a water right owner cannot file proof, file a change application, etc.

There are two different Report of Conveyance forms: a 100% conveyance form and a portion conveyance form. The 100% conveyance form is used if the grantor (seller) is conveying all of his/her interest in the water right. The portion conveyance form is used if the grantor (seller) is conveying only a portion of his/her interest in the water right.

In certain situations (e.g., when a water right has passed by appurtenance), the Report of Conveyance must include a certification by a licensed attorney, professional engineer, title insurance agent, or professional land surveyor. Copies of all relevant deeds must be included with the Report of Conveyance, as well as maps if the water passed by appurtenancy. For a helpful guide for determining if your Report of Conveyance will meet the Division's standards for processing, you should refer to the Report of Water Right Conveyance Review Checklist. This is the same checklist the Division's title department will use when reviewing the Report of Conveyance to see if it is complete.

To review the Utah Administrative Code rules regarding Reports of Conveyance, click here.

Rainwater Harvesting Registration

This year, the Utah Legislature passed Senate Bill 32, which permits the capture and storage of precipitation (i.e., rainwater harvesting). The bill has now been codified as section 73-3-1.5 of the Utah Code. One of the requirements of the new law is that a person who wants to harvest rainwater must first register with the Utah Division of Water Rights. The Division now has an online registration form (click here to access), which asks for the person's name, phone number, address, email address and storage size. Once the information is submitted, the person will receive a rainwater harvesting registration certificate.

Bingham v. Roosevelt City

The Utah Supreme Court recently issued its opinion in Bingham v. Roosevelt City. The case centered around five City wells, known as the Hayden Well Field, through which the City pumped water out of an unconfined, shallow aquifer underlying the Hayden area. The water level in the area dropped significantly due to the City's pumping. For example, the static water level at one well dropped from 14.3 feet to 94.6 feet.

A group of people who owned land near the Hayden Well Field were affected by the decreased water levels. The landowners found that when they applied water to their fields, the water was quickly drawn down deep into the soil. Thus, the landowners found it more costly and, in some instances, practically impossible to raise crops and livestock. The landowners filed suit against the City, claiming three causes of action: interference with water rights, takings, and negligence.

In the district court, the City moved for summary judgment on all three of the landowners' causes of action. The district court granted summary judgment, so the landowners filed an appeal with the Utah Supreme Court. The Utah Supreme Court affirmed in part and reversed in part.

First, the Court held that there was no taking because the City was using its lawfully appropriated water rights. The Court determined that the landowners' interest in the water table underlying their property was not a protectable interest under the Utah Constitution or the United States Constitution.

Second, the Court held that the landowners' interference claimed failed as a matter of law. Although the Court acknowledged that the City's pumping from the Hayden Well Field affected the soil saturation and the water table, the City was not interfering with the landowners' rights and ability to divert their water rights (which were diverted from surface sources).

Third, the Court held that the district court erred when it granted summary judgment in favor of the City on the landowners' negligence claim. The Court held that the negligence claim was not barred by the statute of limitations because the City's pumping--which caused the alleged damage--was a continuing tort. The Court also held that the City did owe a duty to the landowners to exercise reasonable care in obtaining its water. The Court recognized that the landowners would be able to prevail on their negligence claim if the facts support the landowners' assertion that there were alternative means for the City to obtain its water without adversely affecting the landowners. The case was remanded to the district court for additional proceedings on the negligence claim.

To read the full opinion, click here.

Utah Waterways Task Force

The Utah Waterways Task Force has set its first meeting for June 24, 2010 at 10:00 am at the Department of Natural Resources building (1594 West North Temple, Salt Lake City). The meeting notice can be viewed here.

Senator Dennis Stowell, the sponsor of the bill that established the Task Force, explained the purpose of the Task Force as follows:

"This task force will be made up of 12 legislators that will study . . . areas of the state which have conflicts between fishermen and landowners. The task force will hold public hearings to allow the landowners and fishermen testify about the conflicts in these areas. This process will help the legislature better understand how the problem may be solved. The task force will also address funding issues in regards to expanding the DWR Walk-in Access program, funding to permanently purchase access rights from landowners, and establishment of cooperative fishing management units (CFMU’S)."
(Click here for source of quote.)

The Task Force is made up of the following six representatives and six senators:
Rep. Melvin R. Brown (Co-Chair)
Sen. Dennis E. Stowell (Co-Chair)
Sen. Curtis S. Bramble
Sen. Margaret Dayton
Rep. Jack R. Draxler
Rep. Ben C. Ferry
Rep. James R. Gowans
Rep. Lynn N. Hemingway
Sen. Peter C. Knudson
Sen. Benjamin M. McAdams
Rep. Kay L. McIff
Sen. Karen W. Morgan