Utah Water Law – Back to the Basics And Some Thoughts on Federal Reserved Water Rights and Colorado River Issues Norman K. Johnson 2012 Utah Water Users.

Utah Water Law – Back Utah Water Law – Back to the Basicsto the Basics

And Some Thoughts on And Some Thoughts on Federal Reserved Water Federal Reserved Water

Rights and Colorado River Rights and Colorado River IssuesIssues

Norman K. Johnson 2012 Utah Water Users

WorkshopMarch 13, 2012

The Dixie Center, St. George, Utah

"The women sat among the doomed "The women sat among the doomed things, turning them over and lookingthings, turning them over and lookingpast them and back...No, there isn't past them and back...No, there isn't room... How can we live withoutroom... How can we live withoutour lives? How will we know it's us our lives? How will we know it's us without our past?" without our past?" - John Steinbeck, - John Steinbeck, The Grapes of WrathThe Grapes of Wrath

HOW WILL WE

KNOW IT'S

US . . . ?"

We Live in a We Live in a DesertDesert

We Live in a We Live in a DesertDesert

Eastern Water Law Eastern Water Law ——

Not for Arid AreasNot for Arid Areas A riparian owner has the right to the A riparian owner has the right to the

undiminished flow of a streamundiminished flow of a stream ““Riparian rights” turn on the physical Riparian rights” turn on the physical

relationship of a body of water to relationship of a body of water to riparian land--they include access, riparian land--they include access, use, and the opportunity to build in use, and the opportunity to build in the waterthe water

This law would not work in a desertThis law would not work in a desert

Western Water Law Western Water Law — Origin and History— Origin and History

In the arid West areas of water use were In the arid West areas of water use were often located far from sources of supplyoften located far from sources of supply

Miners and irrigators built diversions Miners and irrigators built diversions

and moved water to areas of needand moved water to areas of need Their “first in time/first in right” Their “first in time/first in right”

mining principles carried over tomining principles carried over to

water rightswater rights The doctrine of “prior appropriation” The doctrine of “prior appropriation”

of water was born (mid to late 1800s) of water was born (mid to late 1800s)

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory Appropriative water rights are given a Appropriative water rights are given a

priority based on their date of creationpriority based on their date of creation In times of shortage, earlier priority rights In times of shortage, earlier priority rights

are filled first to the limit of the rightare filled first to the limit of the right No sharing of shortages means some uses No sharing of shortages means some uses

will be metwill be met The intent was to maximize public benefitThe intent was to maximize public benefit

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory An appropriative water right in Utah is a An appropriative water right in Utah is a

conditional conditional right to useright to use a a shared resourceshared resource Conditional because water is a public Conditional because water is a public

resource and to get a private right to use resource and to get a private right to use it legislative requirements must be metit legislative requirements must be met

The most important = continued The most important = continued beneficial use beneficial use of the water (or non-use of the water (or non-use application)application)

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory The right to use is not ownership of a The right to use is not ownership of a

volume of water, but a right to use an volume of water, but a right to use an amount of water for a beneficial purposeamount of water for a beneficial purpose

Since water rights are shared, everything Since water rights are shared, everything one right-holder does impacts others and one right-holder does impacts others and any change in use must not harm othersany change in use must not harm others

Each system has a finite amount of waterEach system has a finite amount of water

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory The federal government supported The federal government supported

growth and development of this “new” growth and development of this “new” water lawwater law

1866 Mining Act; 1877 Desert Land Act1866 Mining Act; 1877 Desert Land Act The U.S. Supreme Court said these acts The U.S. Supreme Court said these acts

severed the land and water estates and severed the land and water estates and directed that water rights be obtained directed that water rights be obtained under the laws of the territories and under the laws of the territories and statesstates

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory State Engineer’s Office established in State Engineer’s Office established in

18971897 By 1903 surface water appropriation By 1903 surface water appropriation

required a State Engineer application required a State Engineer application The State Engineer’s Office became the The State Engineer’s Office became the

administrative mechanism to create administrative mechanism to create rights and to administer them—to be the rights and to administer them—to be the caretaker of the water systems in Utahcaretaker of the water systems in Utah

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory State policy was to maximize beneficial State policy was to maximize beneficial

use of water use of water The State Engineer approved rights to The State Engineer approved rights to

more water than was available so that as more water than was available so that as much water as possible would be usedmuch water as possible would be used

An alternative to beneficial use was An alternative to beneficial use was provided (resumption of use applications)provided (resumption of use applications)

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory 1863 – 100 ac/ft

1890 – 100 ac/ft –0 use  

1900 – 100 ac/ft   

1901 – 100 ac/ft   

1915 – 100 ac/ft

 1920 – 100 ac/ft—10 use

1925 – 100 ac/ft  

1930 – 100 af/ct  

1931 – 100 ac/ft  

1932 – 100 ac/ft 

Hypothetical

Mill Valley Water System

This small water system produces +/- 400 ac/ft/yr, with variationThe rights in blue are used every yearThe right in pink has not been used for decadesThe rights in yellow have become supplemental to other rights and are rarely used The rights in light green are used every year when water is availableOnly 10 ac/ft of the right in dark green has been used for decades

Western Water Law Western Water Law — Origin and — Origin and

HistoryHistory Appropriative water rights are Appropriative water rights are

constitutionally protected property rightsconstitutionally protected property rights Their basis is the beneficial use of waterTheir basis is the beneficial use of water They are defined by quantity, time, and They are defined by quantity, time, and

nature of use nature of use Priority date is when beneficial use beganPriority date is when beneficial use began They can be lost by non-useThey can be lost by non-use

Reserved Rights Doctrine Reserved Rights Doctrine —Origin and History—Origin and History

At the same time the appropriation doctrine At the same time the appropriation doctrine was developing, federal reservations of land was developing, federal reservations of land were being madewere being made

Congress and the President set aside public Congress and the President set aside public landland

for a particular purposes, for a particular purposes,

such as an Indiansuch as an Indian

reservation, but did notreservation, but did not

create accompanying create accompanying

water rightswater rights

Reserved Rights Doctrine Reserved Rights Doctrine —Origin and History—Origin and History

In 1906 the U. S. brought suit on behalf In 1906 the U. S. brought suit on behalf of the Fort Belknap Reservation Indians of the Fort Belknap Reservation Indians to secure water rights for themto secure water rights for them

Defendant farmers/ranchers protested, Defendant farmers/ranchers protested, saying they had valid water rights saying they had valid water rights created under Montana lawcreated under Montana law

The suit created a genuine dilemmaThe suit created a genuine dilemma

Reserved Rights Doctrine Reserved Rights Doctrine —Origin and History—Origin and History

In 1908 the Supreme Court issued its In 1908 the Supreme Court issued its Winters Winters decision decision

It said Congress, when it set aside It said Congress, when it set aside the reservation, impliedly intended to the reservation, impliedly intended to reserve water for the Indians reserve water for the Indians

The “reserved rights” doctrine was The “reserved rights” doctrine was born as a judicial response to a born as a judicial response to a difficult controversy difficult controversy

Reserved Rights Doctrine Reserved Rights Doctrine —Origin and History—Origin and History

In In Arizona v. CaliforniaArizona v. California (1963) the U. S. (1963) the U. S. Supreme Court said the reserved rights Supreme Court said the reserved rights doctrine applies to federal reservations doctrine applies to federal reservations other than Indian reservationsother than Indian reservations

For Indian Reservations it said the For Indian Reservations it said the number of practicably irrigable acres number of practicably irrigable acres on the reservation (PIA) is used to on the reservation (PIA) is used to quantify the right quantify the right

Reserved Rights Doctrine Reserved Rights Doctrine —Origin and History—Origin and History

Subsequent case law further Subsequent case law further defined the reserved rights defined the reserved rights doctrinedoctrine

Cappaert v. U.S. Cappaert v. U.S. (1976) – the(1976) – the

amount of water reserved is theamount of water reserved is the

minimum amount necessary tominimum amount necessary to

fulfill reservation purposesfulfill reservation purposes U.S. v. New Mexico U.S. v. New Mexico (1978) – (1978) –

primary purposes only get primary purposes only get

reserved water rightsreserved water rights

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights Reserved water rights are important Reserved water rights are important

sovereign and property interestssovereign and property interests Their basis is the creation of reservationsTheir basis is the creation of reservations The purpose of the reservation defines The purpose of the reservation defines

them (PIA for Indian reservations)them (PIA for Indian reservations) Priority date is creation of the reservationPriority date is creation of the reservation They are not lost by non-useThey are not lost by non-use

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights In addition to having characteristics In addition to having characteristics

that conflict with appropriative water that conflict with appropriative water rights, the more pressing problem is rights, the more pressing problem is that reserved water rights are un-that reserved water rights are un-quantified when createdquantified when created

Given their early priority dates, they Given their early priority dates, they compete with State-created water compete with State-created water rights rights

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights Utah, an arid state, has Utah, an arid state, has many federal many federal reservations — federal reservations — federal lands set aside for lands set aside for specific purposes, like specific purposes, like Indian reservations, Indian reservations, national parks and national parks and monuments, military monuments, military bases, etc.bases, etc.

How should these rights How should these rights be quantified?be quantified?

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights States have taken different approaches:States have taken different approaches:

Pretend reserved rights don’t exist (mostly in Pretend reserved rights don’t exist (mostly in times past)times past)

Litigate about reserved rightsLitigate about reserved rights Negotiate such rights on a case-by-case basisNegotiate such rights on a case-by-case basis

Utah has chosen to negotiate because Utah has chosen to negotiate because the other approaches have been the other approaches have been unsuccessful unsuccessful

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights Utah has negotiated reserved Utah has negotiated reserved

water rights for Zion National water rights for Zion National Park, a watershed in the Dixie Park, a watershed in the Dixie National Forest, Cedar Breaks, National Forest, Cedar Breaks, Hovenweep, Promontory, Hovenweep, Promontory, Rainbow Bridge, Timpanogos, Rainbow Bridge, Timpanogos, and Natural Bridges National and Natural Bridges National Monuments and the Shivwits Monuments and the Shivwits Indian ReservationIndian Reservation

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights We are working on an agreement for We are working on an agreement for

Arches National Park Arches National Park We are close to agreement with the Ute We are close to agreement with the Ute

Indian TribeIndian Tribe We are working with the Navajo NationWe are working with the Navajo Nation Both the Ute and Navajo settlements Both the Ute and Navajo settlements

involve water from the Colorado Riverinvolve water from the Colorado River

COLORADO RIVER COLORADO RIVER CHALLENGESCHALLENGES

Optimizing Use of Remaining Allocation (and Optimizing Use of Remaining Allocation (and integrating federal reserved water rights)integrating federal reserved water rights)

Assuring Continued River Use (ESA/Fish Assuring Continued River Use (ESA/Fish Flows) Flows)

Protecting Project Investments (Priority Protecting Project Investments (Priority Issues)Issues)

Keeping Peace with SisterKeeping Peace with Sister

States and MexicoStates and Mexico Studying Low or Reduced Studying Low or Reduced

Flow IssuesFlow Issues

COLORADO RIVER COLORADO RIVER OPPORTUNITIESOPPORTUNITIES

Negotiate Indian Water RightsNegotiate Indian Water Rights Negotiate Other Federal Reserved Negotiate Other Federal Reserved

Water Rights in the BasinWater Rights in the Basin Maintain ESA Compliance throughMaintain ESA Compliance through

RIPRAP RIPRAP ImplementImplement

Multipurpose ProjectsMultipurpose Projects

Utah/Navajo Reserved Water Right Negotiations

Navajo has substantial Winters rights

Compacts require Navajo’s rights come from Utah’s share of the River

Utah and Navajo have worked to resolve reserved water right issues

Utah must make a financial commitment

NAVAJO NATION

SETTLEMENT PROPOSAL

81,500 AF Water Depletion $156 Million in Projects Subordination to Existing Rights Consideration for Local Communities Emphasis on Drinking Water 5% of cost ($8M) = State Share

POTENTIAL LIABILITY PIA = 166,500+ AF Expensive, Unpredict- able Litigation Non-Indian Priority Conflict

BENEFITS OF A BENEFITS OF A SETTLEMENT SETTLEMENT AGREEMENTAGREEMENT

Protect Current Water RightsProtect Current Water Rights Quantify a Significant Reserved Water RightQuantify a Significant Reserved Water Right Improve Quality of Life for Utah Navajo PeopleImprove Quality of Life for Utah Navajo People Avoid Costly Litigation and Uncertain OutcomeAvoid Costly Litigation and Uncertain Outcome Provide Certainty for Utah’s Water UsersProvide Certainty for Utah’s Water Users

CUP/Wasatch FrontCUP/Wasatch Front Uintah Basin and San Juan County Uintah Basin and San Juan County Lake Powell PipelineLake Powell Pipeline

Solve a Colorado River IssueSolve a Colorado River Issue

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

The Colorado River The Colorado River Basin is home to four Basin is home to four fishes listed under the fishes listed under the federal Endangered federal Endangered Species Act (ESA)Species Act (ESA) Humpback ChubHumpback Chub Colorado PikeminnowColorado Pikeminnow Razorback SuckerRazorback Sucker Bonytail Chub Bonytail Chub

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

Congress enacted ESA in 1973Congress enacted ESA in 1973 It requires federal agencies to conserve It requires federal agencies to conserve

species listed under the Actspecies listed under the Act It prohibits anyone from “taking” a species It prohibits anyone from “taking” a species

listed as endangeredlisted as endangered ““Taking” is broadly defined and includes Taking” is broadly defined and includes

diverting water from listed species habitatdiverting water from listed species habitat ““Reasonable and prudent alternative” Reasonable and prudent alternative”

neededneeded

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

The ESA has caused dramatic results in The ESA has caused dramatic results in the Columbia and Klamath River Basins the Columbia and Klamath River Basins (managing for the salmon) and in the (managing for the salmon) and in the tributaries of California’s Bay Delta tributaries of California’s Bay Delta (managing to protect the Delta Smelt)(managing to protect the Delta Smelt)

In effect, federal judges have become In effect, federal judges have become the water master in some placesthe water master in some places

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

Some 40 years after ESA’s enactment, Some 40 years after ESA’s enactment, states have three choices:states have three choices: LegislateLegislate Litigate orLitigate or CooperateCooperate

Efforts to legislate or litigate regarding Efforts to legislate or litigate regarding ESA have been unsuccessfulESA have been unsuccessful

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

The Upper Basin States chose to be The Upper Basin States chose to be proactive and implement a recovery plan proactive and implement a recovery plan for the Colorado River endangered fishesfor the Colorado River endangered fishes

This gives Utah and the other three This gives Utah and the other three states an opportunity to be states an opportunity to be full partnersfull partners in recovery implementation and in recovery implementation and to to continue to use and develop water continue to use and develop water resourcesresources

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

The program consists of two parts: The program consists of two parts: The Recovery Implementation Plan (RIP)The Recovery Implementation Plan (RIP) The Recovery Action Plan (RAP)The Recovery Action Plan (RAP)

The RIP is what we want to do to recover The RIP is what we want to do to recover endangered fishes—the framework endangered fishes—the framework

The RAP is what we’re going to doThe RAP is what we’re going to do RIPRAP emphasizes science not politicsRIPRAP emphasizes science not politics

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

Ultimately, recovery would mean ESA Ultimately, recovery would mean ESA issues would be resolved issues would be resolved

Meantime, the RIPRAP means Utah can Meantime, the RIPRAP means Utah can continue to develop its water resourcescontinue to develop its water resources

No RIPRAP compliance means both No RIPRAP compliance means both existing and future diversions may be in existing and future diversions may be in question and could be prohibitedquestion and could be prohibited

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

Two important elements of the RIPRAP Two important elements of the RIPRAP are: non-native species control (small-are: non-native species control (small-mouth bass and pike) and habitat mouth bass and pike) and habitat protectionprotection

Habitat protection means facilitation of Habitat protection means facilitation of reintroduction of fry, predator control, reintroduction of fry, predator control, creating backwaters, and fish flow creating backwaters, and fish flow sufficiency, which is critical to recoverysufficiency, which is critical to recovery

Another Colorado River Another Colorado River Challenge — Fish FlowsChallenge — Fish Flows

Flow recommendations, or flow targets, Flow recommendations, or flow targets, are set based on 20 years of studies—are set based on 20 years of studies—Utah works to identify fish flowsUtah works to identify fish flows

The fish are resilient and can survive The fish are resilient and can survive drought, but also need years of drought, but also need years of significant flow to reproducesignificant flow to reproduce

The RIPRAP seeks a balance between The RIPRAP seeks a balance between the needs of fish and water usersthe needs of fish and water users

Another Colorado Another Colorado River Challenge — River Challenge —

Fish FlowsFish Flows Given use projections, the Given use projections, the

“pinch point” for flows is “pinch point” for flows is Reach 3 on the Green Reach 3 on the Green RiverRiver

Generally, flow is sufficientGenerally, flow is sufficient How to assure future flows How to assure future flows

are not jeopardized?are not jeopardized? Exercising the Lake Powell Exercising the Lake Powell

Pipeline water right could Pipeline water right could provide a win/win/win provide a win/win/win opportunity re fish flows opportunity re fish flows

Reach 1

Reach 2

Reach 3

Another Colorado Another Colorado River Challenge — River Challenge —

Fish FlowsFish Flows If the LPP water right If the LPP water right

is exercised as a is exercised as a Flaming Gorge storage Flaming Gorge storage right with a point of right with a point of re-diversion at Lake re-diversion at Lake Powell, then flows Powell, then flows would be protectable would be protectable through Reach 3through Reach 3

This may require a This may require a limitedlimited modification to modification to existing water lawexisting water law

Reach 1

Reach 2

Reach 3

Questions ?

The End