2010 Utah Groundwater Report

Each year, the United States Geological Survey (USGS) publishes a report on groundwater conditions in Utah. The report is prepared and published in cooperation with the Utah Division of Water Resources, the Utah Division of Water Rights, and the Utah Division of Water Quality. The report is a valuable resource containing information on well construction, groundwater withdrawal, groundwater level changes, groundwater quality, and much more.

The 2010 report is available online and can be accessed by clicking here.

What is an ELU?

Records of the Utah Division of Water Rights often utilize the term “ELU.” This abbreviation stands for Equivalent Livestock Unit, which is a standardized measure related to the watering of various sized livestock. For example, 1 ELU could represent 1 large animal, such as a cow or horse; 5 medium-sized animals, such as sheep or goats; or 33.33 small animals, such as chickens or turkeys. Accordingly, if you have a water right that allows for stockwatering of 50 ELUs, you would have enough water for 50 cows, or 250 sheep, or 1,666 chickens (or a combination of animals, such as 40 cows and 50 sheep).

What Are Supplemental Groups and Sole Supply?

Generally, each water right in Utah is limited to a defined quantity for a defined use. Sometimes, however, multiple water rights are used together for one particular use. For example, three water rights may be jointly used to irrigate ten acres of land, or ten water rights may be jointly used to provide water for 200 head of cattle. In such cases, the water rights are said to be "supplemental" to each and are listed together in a “supplemental group.”

The water rights in the supplemental group are usually not assigned an individual limit, which is not an issue if the same person owns all of the water rights in the supplemental group and continues to use the group for the specified use. However, when some of the water rights in the supplemental group are sold to different people and/or an owner wants to file a change application on some of the water rights in the supplemental group, a determination has to be made regarding how much of the group total is to be apportioned to each water right in the group. This is what is referred to as “sole supply.” For example, if ten water rights are in a supplemental group that provides water for 200 head of cattle, each of the ten water rights could be apportioned a sole supply of 20 head of cattle. Alternatively, five of the water rights could be apportioned a sole supply of 40 head of cattle each, and the other five water rights could be apportioned a sole supply of 0 head of cattle each. The Division of Water Rights essentially allow the water right owner(s) to apportion the sole supply in any way they want, as long as the sum of the water rights does not exceed the group total and the allocation is consistent with the governing water right documents.

The Utah Division of Water Rights has recently issued Utah Administrative Rule R655-16 regarding supplemental groups and sole supply. The Rule provides that in order to allocate sole supply among the water rights in a supplemental group, all of the water right owners in the group must sign a Declaration of Beneficial Use (formerly called a Group Contribution Statement). If a water right owner has exhausted all reasonable efforts and has been unable to locate or get signatures from all of the other water right owners, the owner may ask the Division of Water Rights to initiate an informal proceeding to allocate the sole supply. To read more about Rule R655-16, click here.

Utah Stream Access Coalition v. Victory Ranch

On November 12, 2010, a lawsuit was filed in the Wasatch County district court challenging the 2010 stream access law passed by the Utah Legislature (aka, the "Recreational Use of Public Water on Private Property Act," House Bill 141, or H.B. 141). The lawsuit was filed by Utah Stream Access Coalition, and names Victory Ranch L.C., Silver Creek - Robert Larsen Investors LLC, Utah Division of Wildlife Resources, and Wasatch County Sheriff Todd Bonner as defendants.

The complaint alleges that the Act violates Article I, section 25; Article XVII, and Article XX of the Utah Constitution and the Public Trust doctrine "to the extent it purports to abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public water and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in [Conatser v. Johnson] and other Utah Supreme Court decisions."

The complaint also alleges that the Act violates Article I, section 23; Article V; Article VI; and Article VIII of the Utah Constitution and the separation of powers doctrine "to the extent that it purports to (a) adjudicate the constitutional rights of the Coalition's members and defendants, (b) declare that Conatser's recognition of public rights constitutes a taking of private property, and (c) abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public waters and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in Conatser and other Utah Supreme Court decisions."

The Coalition is asking the court for a judgment (1) declaring that the Act violates the Utah Constitution, the public trust doctrine, and the separation of powers doctrine; (2) declaring that the public has an easement for recreational access across private beds, including those on the Victory Ranch and Larsen properties; (3) enjoining Victory Ranch and Larsen from prohibiting, impeding, or restricting public access across private beds on their properties; and (4) enjoining the Division of Wildlife Resources and the Wasatch County Sheriff from citing members of the public for criminal trespass for accessing private beds on the Victory Ranch and Larsen properties.

I have a copy of the Coalition's complaint that was filed with the court. I would be happy to email a copy to anyone who is interested. Click here for my email address.

Update: The Coalition has filed an Amended Complaint. Click here to read more.

Utah Waterways Task Force Meeting in Salt Lake City

The Utah Waterways Task Force has scheduled its fourth meeting for Thursday, November 18, 2010 at 11:00 am. The meeting will be held in Room 250 of the State Capitol.

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

Livestock Water Use Certificates

In 2008, the Utah Legislature passed House Bill 208 (HB 208) entitled "Livestock Watering Rights." The bill enacted Utah Code section 73-3-31, which attempted to limit the right of the Bureau of Land Managment (BLM) and other public land agencies from acquiring livestock water rights. To read the 2008 bill, click here.

In 2009, the Utah Legislature passed House Bill 256 (HB 256) to amend Utah Code section 73-3-31. The bill provided that after May 12, 2009, a public land agency can only acquire a livestock watering right if it does so jointly with the beneficial user (i.e., the holder of the grazing permit). The bill also clarified that the State Engineer cannot approve a change application on a livestock water right unless the beneficial user consents to the change. The public land agency and/or the beneficial user can request a livestock water use certificate. To read the 2009 bill, click here.

To read the current version of Utah Code section 73-3-31, click here.

To access the Utah Division of Water Right's online livestock water certificate application form, click here.

For an interesting article about the history and legal analysis of the livestock watering law, click here.

What Is Duty of Water?

"Duty of water" (usually referred to as simply "duty") refers to the quantity of water, as determined by the Utah Division of Water Rights, that is required to satisfy the irrigation water requirements in a given area. The underlying concept is that only so much water may be beneficially used. The duty in an area is based on the irrigation requirements of alfalfa, and duties vary across the state. For example, Summit County has a duty of 3 acre-feet per acre (per annum), whereas portions of Washington County have a duty of 6 acre-feet per acre (per annum). The Division of Water Rights' determinations of duty are based mainly on the report entitled Consumptive Use of Irrigated Crops in Utah by Robert W. Hill (Utah State University), which is available here.

To determine the duty in your area, you can refer to the Division's PDF map or interactive map.

What Are the Policies for the Water Right Areas in Utah?

For administrative purposes, the Utah Division of Water Rights divides the state into a number of areas. In a water right number, the digits preceding the hyphen identify the area in which the water right is located. For example, a water right starting with “25-” is located in Area 25, which covers Cache County.

Each area has a page that contain information and policies that are specific to that area. You can view the area information and policies by accessing the area map located here, then clicking on the area that you wish to read more about.

Area pages contain the following information:
Description: explains the boundaries of the area and important characteristics of the area.
Management: describes decrees, proposed determinations, distribution systems, groundwater management plans, compacts, and other documents that relate to the management and distribution of water in the area.
Sources: describes the appropriation policies for the area (i.e., whether the area is open to appropriation of surface water or groundwater), as well as policies related to change applications.
General: describes which newspaper(s) notices are published in, the irrigation duty for the area, and other information.
References: contains links to groundwater studies, hydrologic data, and other studies and publications relating to the area.
Map: shows the boundaries of the area and the cities/towns located in the area.

Utah Waterways Task Force Meeting in Duchesne

The Utah Waterways Task Force has scheduled its third meeting for Thursday, September 30, 2010 at 11:00 am. The meeting will be held at the Duchesne County Administrative Offices, 734 North Center, Duchesne.

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

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.