Filing Proof of Water Development Challenges and opportunities

Filing Proof of Water Development Challenges and opportunities in defining and quantifying water rights via the proof and certification process Jared Manning Utah Division of Water Rights St. George Water Law and Policy Seminar March 9, 2009

Topics • Quantifying water rights • Municipal proofs and certificates • Appurtenance issues

Quantifying Water Rights • Historical practice was to quantify water rights for distribution purposes – Total acres – Flow rate (c. f. s. ) • System worked well for surface waters • We didn’t realize the extent to which water rights would be divided up and changed to wells • Current practice is to quantify water rights in anticipation that they will be divided – Sole supply – Volume (acre-feet)

Sole Supply on Certificates • Virtually all certificates now must have an acrefeet sole supply • There are thousands of approved applications out there where no sole supply has been determined • A huge challenge for us is to determine sole supply so that we can issue the certificate • A Statement of Group Contribution may be needed in order to sort everything out • This is especially challenging with irrigation company water rights which may have dozens or hundreds of supplemental water rights

Municipal Certificates • Past practice was to quantify with a flow rate only (no acre-foot amount) • Current practice is to include an acre-foot amount on the certificate • This practice makes about 95% of municipal proofs impossible to certificate

Water Use Vs. Water Rights (An Actual Municipality)

Water Use Vs. Water Rights (An Actual Municipality)

Municipal Certificates (Cont’d) • Actual use (annual volume) is often a fraction of a municipality’s water rights • It doesn’t make sense to issue additional certificates that will compound the disparity • How should the state engineer treat existing municipal water rights that have a flow rate only? (Roosevelt City)

Certificates and Appurtenance • “For purposes of land conveyances only, the land to which a water right is appurtenant is the authorized place of use of water as described in the. . . certificate” [73 -1 -11(5)(c)] • Certificates used to include a metes and bounds description of the place of use • Certificates currently show forty-acre tracts as the place of use • We are moving towards putting legal descriptions of land parcels (Tax ID or Sub-division/Lot Number) on certificates • Is the water right appurtenant to a pre-defined parcel or to the specific acreage shown on the proof map? • Can the irrigation configuration change over time on a land parcel without a change application?

Certificates and Appurtenance (continued) • "Engineering surveys" as used in Subsection 58 -22 -102(9) include all survey activities required to support the sound conception, planning, design, construction, maintenance, and operation of engineered projects, but exclude the surveying of real property for the establishment of land boundaries, rights-of-way, easements, alignment of streets, and the dependent or independent surveys or resurveys of the public land survey system. [R 156 -22 -102(4)] • "Real property" or "real estate" means any right, title, estate, or interest in land, including all nonextracted minerals located in, or under the land, all buildings, fixtures and improvements on the land, and all water rights, rights-of-way, easements, rents, issues, profits, income, tenements, hereditaments, possessory rights, claims, including mining claims, privileges, and appurtenances belonging to, used, or enjoyed with the land or any part of the land. [57 -1 -1(3)]

Summary • Quantification of water rights is essential in the proof and certification process • We don’t have all of the answers when it comes to certificating municipal water rights • Appurtenance becomes increasingly important the more things are divided