Public Meeting Concerning the Proposed Determination in the Nibley Park Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Nibley Park area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 5). The Nibley Park area is from 2700 South to 3300 South and from Main Street to 700 East. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Nibley Park area
When: January 12, 2016, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1040, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 360057298), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Nibley Park Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Nibley Park area to survey existing water rights and investigate water user's claims. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Nibley Park area, please contact Black Bingham at (801)538-7345.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments & Questions

For more information on the meeting, click here.

Public Meeting Regarding Groundwater in Iron County

The Utah Division of Water Rights has set a public meeting to discuss developing a groundwater management plan for Cedar Valley in Iron County. The following information is from the public meeting notice:

What: Public Meeting
Who: Cedar Valley Water Users
When: January 7, 2016, 6:00 pm
Where: Cedar High School Auditorium, 703 West 600 South, Cedar City
Purpose: The purpose of the meeting is to discuss the process for developing a groundwater management plan for Cedar Valley in Iron County. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.
If you are unable to attend the meeting, but would like to provide input, please send your written comments to:
Division of Water Rights
646 North Main St
P.O. Box 506
Cedar City, UT 84721-0506

For more information on the meeting, click here.

Update on General Adjudications

The following article was written by David Hartvigsen, one of my partners at Smith Hartvigsen, PLLC, for the Water & The Law newsletter that 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.

There have been a few developments that water users in Utah should be aware of with respect to ongoing and future court proceedings called General Determinations of Water Rights or General Adjudications in river basins and sub-basins around the state. According to a General Adjudication status report on the Division of Water Rights ("DWR") website, there are currently 13 ongoing General Adjudications; most have been pending for decades, with the one on the Utah Lake/Jordan River drainage basin having been pending since 1936. These General Adjudications evaluate each water right within the basin being adjudicated and result in a decree on each water right which either disallows the water right (for such reasons as non-use) or validates the right with a new set of characteristics/limitations based on a Water Users Claim, a HydrographicSurvey, a Proposed Determination ("PD") from DWR, and any court hearing on objections to the findings in the PD. These newly validated water rights in the adjudication process become "decreed" rights. It is therefore absolutely essential that water users understand and participate in this General Adjudication process or they could potentially lose valuable water rights.

Of the 13 pending General Adjudications, I'm aware of recent activity in: Area 05 near Moab in the Southeastern Colorado River basin; Area 29 in the Bear River basin; and several areas in the Utah Lake/Jordan River basin, including Area 51 near Birdseye and Hobble Creek, Area 53 near Goshen, and Area 57 in the Harmony Park area and the Emigration Creek area. There is likely activity in a few other General Adjudications as well. Finally, there are also two different procedural matters that are being addressed in the Utah Lake/Jordan River General Adjudication and the State Engineer is proposing legislation to streamline all General Adjudications. These procedural and legislative matters should be of interest to all water users, even those in areas outside of the Utah Lake/Jordan River basin.

Legislative Proposal for the 2016 Session

The State Engineer has spearheaded an effort to find ways to both modernize and streamline the General Adjudication process. The results of that effort was recently presented to the Executive Water Rights Task Force. The main feature of the proposal is to get water users involved earlier in the process and to take more responsibility with asserting their water rights in the court proceeding. More specifically, once a water user receives notice that a General Adjudication is under way, the water user will be solely responsible for initiating preparation of a water user claim. DWR staff will assist upon request but will no longer prepare the forms on their own initiative and send them out to water users. Next, if a person or entity with a known water right fails to file a claim within the time specified in the notices, DWR staff will prepare and publish a "List of Unclaimed Rights of Record." This list will give water users one more chance to get their claims of record in the General Adjudication, but the penalty for filing at this stage is that the water user will be filing an objection to a determination that their water right has been abandoned and will need to submit sufficient evidence to overcome that determination. A final key point is that DWR staff will only do the Hydrographic Survey work on claims that have been filed, not on all water uses as has been the prior practice. Please watch for this legislation as it moves forward and get involved if you are either supportive or opposed to this proposal.

Appointment of a Special Master in the Utah Lake/Jordan River General Adjudication

DWR has also been asking the court in the Utah Lake/Jordan River General Adjudication to appoint a Special Master to assist with resolving objections and other specific issues in this long-pending case. The Special Master will be paid by specific appropriations by the Legislature to help speed up resolution of these adjudications. The concept is a good concept. The question is who should be appointed as this Special Master. An ideal candidate would be someone who is familiar with Utah water law, the Utah General Adjudication process, and general civil litigation procedure, but who also does not have any ties or conflicts of interests with water users in the area being adjudicated. We are not sure the ideal person exists and are watching to see who responds to open position notice being sent out by the court. Water users and other interested parties will be given a chance to weigh in on the decision of who to appoint once a pool of individuals is identified. Please watch for information and notices regarding this process as well.

Return Flow Credits for Imported Water
Finally, last year a settlement was reached and a stipulation was entered in the Utah Lake/Jordan River General Adjudication concerning a procedure for public input and protest on new applications for, and changes to existing formulas for, credits given to importers of water into this basin where the return flows migrate to Utah Lake. These credits are then typically used to allow for water stored in Deer Creek Reservoir, and potentially Jordanelle Reservoir, to be diverted directly to Salt Lake Valley for culinary use instead of flowing down the Provo River and into Utah Lake. The first such proposal to be considered under this new process is currently being processed by DWR. It was filed by the Provo River Water Users Association on Water Right No. 55-262. The new process appears to be working well, but this is a very complicated issue that could affect many water users on the Jordan River, so water users that may be affected will want to be watchful for notices regarding such Return Flow Credit proposals.

New Regional Engineer and Enforcement Engineer

There have been a few changes in personnel at the Division of Water Rights. Kerry Carpenter recently retired, leaving a vacancy in the Enforcement Engineer position.  Kurt Vest was appointed as the new Enforcement Engineer.  Mr. Vest was previously the regional engineer for the Southwestern Regional Office.  Nathan Moses has been appointed as the new regional engineer for the Southwestern Regional Office.

Contact information for these individuals and other Division of Water Rights personnel can be found by clicking here.

Public Meeting Regarding Appropriation Policies Near Arches National Park

The Utah Division of Water Rights has set a public meeting to discuss updating the water right appropriation policy in Water Right Area 01 near Arches National Park in Grand County. The following information is from the public meeting notice:

What: Public Meeting
Who: Water users near Arches National Park, Grand County
When: October 15, 2015, 4:00 pm
Where: Moab City Center, 217 East Center Street, Moab
Purpose: The State of Utah recently entered into an agreement with the United States of America for a federal reserved water right for Arches National Park. As a part of the agreement a Protection Zone was established. The purpose of this meeting is to discuss the adoption of this Protection Zone as policy for Water Right Area 01. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.
If you are unable to attend the meeting, but would like to provide input, please send your written comments to:
Division of Water Rights
319 N Carbonville Road Suite B
P.O. Box 718
Price, UT 84501
Agenda for October 15, 2015 Public Meeting
1. Introduction - Kent Jones, State Engineer
2. Protection Zone Policy - James Greer, Assistant State Engineer - Technical Services
3. Public questions/comments

For more information on the meeting, click here.

Public Meeting Concerning the Proposed Determination in the Harmony Park East Area

The Utah Division of Water Rights has set a public meeting to discuss the proposed determination of water rights within the Harmony Park East Subdivision, Salt Lake County East Division of Utah Lake/Jordan River Drainage Area (Area No. 57, Book 4).  The Harmony Park East Subdivision is the area between 3300 South and 3900 South, and between Main Street and 700 East, in Salt Lake County. The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Harmony Park East Area

When: September 16, 2015, 6:00 pm to 7:00 pm

Where: Granite Connection High School Auditorium, 501 East 3900 South, Salt Lake City

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 360057298), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Harmony Park East Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River Drainage Area in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Harmony Park East area to survey existing water use, contact water users, and review the water rights of record.  In light of this work, the public is invited to a Public Meeting.  Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Harmony Park East Area; please contact Blake Bingham at (801) 538-7345.

Agenda:

1. Introduction - Blake Bingham, P.E., Adjudication Program Manager

2. Adjudication process presentation

3. Public comments and questions

For more information on the meeting, click here.

Proposed Appointment of a Special Master in General Adjudication

Recently, the Utah Division of Water Rights has asked the Third District Court to appoint a Special Master in the Utah Lake and Jordan River General Adjudication.  A Special Master is a person appointed by the court to take specific action on behalf of the court.  In the General Adjudication, the Division is asking to have a Special Master assist with resolving objections filed on the various Proposed Determinations in the General Adjudication.  The appointment of a Special Master in a General Adjudication is something that is new in Utah.  The proposal to appoint a Special Master is currently being advertised, and interested parties can file an opposition with the court.

Additional information, including the court pleadings, regarding the proposal to appoint a Special Master are available here.  The notice that was published is included below.

NOTICE TO WATER USERS OF MOTION TO APPOINT A MASTER IN THE UTAH LAKE AND JORDAN RIVER GENERAL DETERMINATION OF WATER RIGHTS.
A motion to appoint a master pursuant to Utah Rule of Civil Procedure 53 has been filed: IN THE MATTER OF THE GENERAL DETERMINATION OF RIGHTS TO THE USE OF WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE DRAINAGE AREA OF THE UTAH LAKE AND JORDAN RIVER IN UTAH, SALT LAKE, DAVIS, SUMMIT, WASATCH, SANPETE, AND JUAB COUNTIES IN UTAH. This action is pending in the Third Judicial District in and for Salt Lake County, State of Utah, Civil No. 360057298. The Division of Water Rights (State Engineer’s Office) has filed a motion to appoint a master pursuant to Utah Rule of Civil Procedure 53. Parties may obtain a copy of the motion and associated documents at www.waterrights.utah.gov/miscinfo/currentIssues.asp or on file with the 3rd District Court. Opposing memoranda are due within 30 days of the last date of publication of the notice; replies to opposing memoranda are due within 30 days of the final date for filing opposing memoranda. The Court has set a hearing on the motion on October 19, 2015 at 1:30 PM located at 450 South State Street Salt Lake City, UT 84114-1860, in room S32. For more information please contact the Utah Division of Water Rights at 801-538-7240 or the Attorney General’s Office at 801-538-7227.

Conversion of Shares into Acre-Feet

People often ask me how to convert shares into acre-feet.  Unfortunately, the answer is not as easy as one might expect.

At the outset, please note that this post focuses on water shares, not water rights.  To understand the distinction, visit here and here.  Water rights should already have acre-foot quantities associated with them--with the exception of certain circumstances, including undefined sole supply amounts for a water right.

The amount of water associated with a share in a water company (irrigation company, ditch company, canal company, etc.) is not consistent between companies.  As an example, there is one water company that I know of where 1 share is equal to 1/10th of an acre-foot of water, and there is another water company that I know of where 1 share is equal to 6 acre-feet of water.  The determination of how many acre-feet are associated with each share in a water company is, for the most part, a function of three components: (1) how many total acre-feet the water company is entitled to under its water rights, leases, contracts, etc.; (2) how many shares have been issued in the water company; and (3) how much water the water company's source(s) are able to produce.

As an example, suppose that a water company's water rights, in total, allow for the diversion of 1,000 acre-feet of water from a river for the irrigation of 250 acres (assuming the water company is in an area of the state where the duty is 4 acre-feet per acre).  Further suppose that the water company has issued 250 shares of stock.  On paper, each share would entitle the owner to irrigate 1 acre with 4 acre-feet of water.  Thus, each share represents 4 acre-feet of water.  But if it is a drought year and the river is running low, each shareholder may not actually receive 4 acre-feet of water per share.

Some water companies know how many acre-feet are represented by each share, usually because of shareholder change applications or other applications that have previously been filed with the Utah Division of Water Rights.  In fact, the Division keeps a list of water companies, and the list includes a spot for information about the number of acre-feet per share.  Some companies have this information (see example below), but most do not.  The reality is that many water companies will not know how many acre-feet are represented by each share, and a determination of this number could take some investigation, research, and calculation.

Water Right vs. Water Share - revisited

One of the my most visited blog posts is a post I wrote back in 2010 entitled "What Is the Difference Between a Water Right and a Water Share?"  The post explained that the two terms are not interchangeable, and that there are important differences between water rights and water shares.  Understanding the difference between water rights and water shares continues to be the most common confusion I encounter when speaking with people about Utah water.  Accordingly, I have decided to revisit my prior post, and this time provide some visual elements to help with the explanation.

Water rights are rights granted by the State of Utah, through the Utah Division of Water Rights (also known as the State Engineer's Office), that allow a person to use a specified amount of water from a specified source at a specified place for a specified use.  For example, the State may grant you a water right that allows you to divert 1 acre-foot from a well to use on your residential parcel to irrigate 0.25 acres.  Thus, a water right is granted directly from the State to the water right owner, as depicted below.




With water shares, the State issues water rights to a water company (ditch company, canal company, irrigation company, etc.).  So the company is the owner of the water rights.  The company issues shares to its shareholders.  By virtue of owning shares, the shareholders are entitled to receive and use a portion of the company's water rights. 



Many times people say "I have 3 shares of water," when what they really mean is that they own a water right that allows them to divert and use 3 acre-feet of water.  Conversely, many times people say "I have 5 water rights," when what they really mean is that they have 5 shares in a particular irrigation company.

The distinction between water rights and water shares is important in many contexts, including how the water rights or water shares are transferred, how change applications are filed, and whether the water transfers automatically with the land when the land is sold.