New Policy Regarding Corrected Certificates

On December 28, 2018, the State Engineer issued a new policy about issuing corrected certificates. Certificates are issued by the Division of Water Right to complete the process of appropriating a new water right or changing the use of a water right through a Change Application. In the past, the Division has treated the certificates as "set in stone." As a result, when there was a clear error in the proof or certificate process, it has proven challenging to get the Division to correct the errors. This new policy is meant to address such circumstances.

The State Engineer emphasizes that the goal and primary effort is, and will continue to be, to issue certificates carefully and accurately. However, the State Engineer acknowledges, and provides examples of, situations where errors have occurred in the certificate process. The State Engineer notes that the Division is not obligated under statute to reissue certificates based on errors and omissions, but that "it seems the appropriate thing to do to reflect the actual beneficial use of water." Although this policy appears to give considerable latitude to Division staff to correct erroneous certificates, the State Engineer does provide some guidelines:

• Before a certificate is corrected, the Division may require the applicant to prepare and submit a revised proof.
• A corrected certificate should only be issued to reflect the actual beneficial uses, places of use, and points of diversion that existed at the time of proof, provided that these uses were consistent with the approved application that was being certificated.
• Corrections should only occur on a showing of clear error.
• Because certificates are prima facie evidence of a right, corrected certificates are not preferred and may lead to problems.

To read the full policy, click here.

New Policy on Beaver Dam Analogue Construction

The State Engineer has issued a new policy regarding the construction of beaver dam analogues (BDAs), which are small, man-made impoundments of water on natural streams. Proponents assert that BDAs enhance stream channels and streamflows, diminish erosion, increase the health of riparian zones, prevent fire damage during wildfires, and help restore damaged streams in wildfire burn areas. Opponents assert that BDAs impound water belonging to downstream water users, increase evaporation and evapotranspiration of the water, and diminish the water flowing downstream to satisfy water right holders.

Based on these considerations and concerns, the State Engineer issued a policy of December 28, 2018, with respect to BDA construction. The following are some of the key points in the new policy:

• Any BDA construction will require that a Stream Alteration Permit is filed and approved by the Division of Water Rights.
• During the Permit review process, the regional engineer will make a determination if any water rights will be impacted by the BDA.
• If water rights will be impacted, the applicant will have to compensate downstream uses for the impairment. It is contemplated that this will be accomplished by the applicant acquiring a water right and filing a Temporary Change Application on the water right to cover the anticipated impacts. It is assumed that the impacts of the BDA to the water system will stabilize during the one year that the Temporary Change Application is in place.
• If no water rights will be impacted, the only approval required from the Division of Water Rights is the Stream Alteration Permit.
• In emergency situations (e.g., in areas affected by wildfires where it is critical to stabilize streams and help diminish debris flows), no water right will be required. The only approval required from the Division of Water Rights will be the Stream Alteration Permit.

To read the full policy, click here.

Public Meeting Concerning the General Adjudication in Lehi Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Lehi area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 4). The Lehi area generally includes the area between 300 North (Lehi) on the north, Utah Lake on the south, the Jordan River on the west, and 1200 East (Lehi) on the east (see map below). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Lehi area

When: January 9, 2019, 6:00 to 7:00 pm

Where: Lehi Elementary School, 65 N. Center Street, Lehi

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729844), 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 Lehi Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Utah County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Lehi area to survey existing water rights and investigate water user's claims. 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 Lehi area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

A live stream broadcast of the public meeting will also be available online at this link.

For more information about this meeting, click here.

Public Meeting Concerning the General Adjudication in Draper Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Draper area in Salt Lake County East Division of the Utah Lake/Jordan River Drainage (Area 57, Book 26). The Draper area generally includes the area between 12300 South on the north, the Utah County-Salt Lake County boundary on the south and the east, and the Jordan River on the west (see map below). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Draper area
When: November 14, 2018, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1050, 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. 365729843), 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 Draper 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 Draper area to survey existing water rights and investigate water user's claims. 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 Draper area, please contact the Division of Water Rights at 801-538-5282.

Agenda:

1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

A live stream broadcast of the public meeting will also be available online at this link.

For more information about this meeting, click here.

 

Public Meeting Regarding Groundwater Management Plan for Parowan Valley

The Utah Division of Water Rights has set a public meeting to discuss the development of a Groundwater Management Plan for Parowan Valley. The following information is from the public meeting notice:

What: Public Meeting
Who: Parowan Valley Water Users
When: December 11, 2018, 6:00 p.m.
Where: Parowan City Office, 35 East 100 North, Parowan, Utah
Purpose: The purpose of the meeting is to discuss the development of a groundwater management plan for Parowan Valley. 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 have groundwater rights in the Parowan Valley area (Area 75), you may want to attend the public meeting, as the Groundwater Management Plan could have a significant impact on your water rights.

For more information about the meeting, click here.

For current water right policies in the Parowan Valley area, click here.

EnerVest Ltd v. Utah State Engineer

The Utah Supreme Court recently issued its opinion in the case of EnerVest, Ltd. v. Utah State Engineer. The case focused on the issue of who has standing to appeal a district court's decision on an objection to a proposed determination.

Minnie Maud Creek is a stream in Duchesne County that is tributary to the Green River. The General Adjudication for Minnie Maud Creek was initiated in 1956, and the State Engineer issued a Proposed Determination in 1964. The Minnie Maud Reservoir and Irrigation Company ("MMRIC") was awarded twelve water rights in the Proposed Determination. Four objections were filed, which challenged eight of MMRIC's water rights.

In 2012, EnerVest filed a petition to expedite a hearing on the objections, which were still pending. The district court granted the hearing, but limited the scope to the question of whether MMRIC was correctly listed as the owner of the water rights. Several parties participated in the hearing, including EnerVest and Michael Carlson, who had not filed objections to the Proposed Determination, and the Hammerschmid Trust, who had filed an objection. EnerVest and the Hammerschmid Trust argued that MMRIC did not own the water rights, and Carlson argued that MMRIC did own the water rights. The district court agreed with Carlson, and ruled that MMRIC was correctly listed as the owner of the water rights in the Proposed Determination.

EnerVest and the Hammerschmid Trust appealed the decision to the Utah Supreme Court. During the pendency of the appeal, the Hammerschmid Trust voluntarily dismissed their appeal, leaving EnerVest as the sole appealing party. Carlson then challenged EnerVest's standing to continue the appeal.

The Utah Supreme Court first had to determine if the appeal was proper under Rule 54(b) of the Utah Rules of Appellate Procedure, which allows appeals for individual claims within a larger case. The Supreme Court concluded that the appeal was not proper for under Rule 54(b) because the district court did not offer a rationale for why the immediate appeal was necessary and because the district court's rulings were not final.

The Supreme Court then had to determine if the appeal was proper under Rule 5(a) of the Utah Rules of Appellate Procedure, which allows interlocutory appeals (i.e., appeals before a case is final). As part of this determination, the Supreme Court examined whether EnerVest had standing to pursue the appeal. The key fact in this analysis was that neither EnerVest nor its predecessor-in-interest had filed an objection to the Proposed Determination, and a party who does not timely object to a Proposed Determination acquiesces to the Proposed Determination as published. Because EnerVest had already acquiesced to the Proposed Determination, it lacked standing to appeal the district court's decision upholding the Proposed Determination. Furthermore, EnerVest could not pursue the Hammerschmid Trust's interests in the appeal. As the Supreme Court noted, "a non-objecting party's interests can piggyback on another party's objection, but only as far as the objecting party is willing to travel. Once the objecting party chooses to end its objection's journey, the non-objecting party cannot take over.

Based on these determinations, the Supreme Court dismissed the appeal for lack of appellate jurisdiction.

**On January 11, 2019, the Utah Supreme Court issued an amended opinion in this case. This article has been updated to reflect the amended opinion. To read the full amended opinion, click here.

Public Meeting Concerning the General Adjudication in Little Cottonwood Creek Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Little Cottonwood Creek area in Salt Lake County East Division of the Utah Lake/Jordan River Drainage (Area 57, Book 23). The Little Cottonwood Creek area generally includes the area between Bengal Boulevard on the north, 9400 South on the south, Highland Drive on the west, and the Little Cottonwood Creek drainage boundary on the east (see map below). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Little Cottonwood Creek area

When: October 17, 2018, 6:00 to 7:00 pm

Where: Department of Natural Resources, Room 1050, 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. 365729840), 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 Little Cottonwood Creek 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 Little Cottonwood Creek area to survey existing water rights and investigate water user's claims. 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 Little Cottonwood Creek area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Gary Brimley, P.E. - Adjudication Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

A live stream broadcast of the public meeting will also be available online at this link.

For more information about this meeting, click here.

Public Meeting Regarding Modification of Groundwater Management Plan

The Utah Division of Water Rights has set a meeting to discuss modifying the groundwater management plan for southern Utah County. The following information is from the public meeting notice:

What: Public Meeting
Who: Southern Utah Valley water users
When: November 1, 2018, 4:00 pm
Where: Mapleton City Office Building, Council Chambers, 125 West 400 North, Mapleton, UT
Purpose: The existing groundwater management plan for Southern Utah Valley discusses a contamination site near the mouth of Spanish Fork Canyon and defines a restricted area that extends into portions of Mapleton. The purpose of the meeting is to propose a modification to the provisions of the groundwater management plan that stipulate how the State Engineer will act on applications within this restricted area. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the 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
1594 West North Temple Suite 220
PO Box 146300
Salt Lake City, UT 84114-6300

Agenda:
1. Welcome/Introduction
2. Groundwater Management Plan Discussion
3. Public Questions/Comments

For additional information regarding the meeting, click here.

Regional Water Conservation Open Houses

The Utah Division of Water Resources is in the process of determining new water conservation goals by region. The Division will be hosting regional open houses throughout the state to discuss these water conservation goals. The open house schedule is included below. Additionally, citizens can give feedback via this survey.

Public Meeting Concerning the General Adjudication in Big Cottonwood Creek Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Big Cottonwood Creek area in Salt Lake County East Division of the Utah Lake/Jordan River Drainage (Area 57, Book 18). The Big Cottonwood Creek area generally includes the area between Murray-Holladay Road on the north, Bengal Boulevard on the south, the Van Winkle Expressway on the west, and the Big Cottonwood Creek drainage boundary on the east (see map below). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Willow Creek area

When: September 12, 2018, 6:00 to 7:00 pm

Where: Department of Natural Resources, Room 1050, 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. 365729835), 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 Big Cottonwood Creek 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 Big Cottonwood Creek area to survey existing water rights and investigate water user's claims. 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 Big Cottonwood Creek area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

A live stream broadcast of the public meeting will also be available online at this link.

For more information about this meeting, click here.