Utah Water Law and Utah Water Law and Federal Reserved Federal Reserved

Water RightsWater Rights

Norman K. Johnson 2013 Utah Water Users

WorkshopMarch 19, 2013

The Dixie Center, St. George, Utah

Let’s Not Get Out of Order Let’s Not Get Out of Order . . .. . .

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 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 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 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 and Bryce Canyon National Arches and Bryce Canyon National ParksParks

The Governor has requested that we The Governor has requested that we work with the Goshute Tribe to see if a work with the Goshute Tribe to see if a settlement is possiblesettlement is possible

We have had discussions with Bands of We have had discussions with Bands of the Piute Tribe about their water needsthe Piute Tribe about their water needs

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

RightsRights Reserved water right claims need to Reserved water right claims need to

be settled for:be settled for: Forest Service areasForest Service areas Remaining National Parks and Remaining National Parks and

MonumentsMonuments Military ReservationsMilitary Reservations

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

RightsRights The U.S. Congress passed legislation The U.S. Congress passed legislation

settling the Ute Tribe Claims and we settling the Ute Tribe Claims and we continue to work on an implementation continue to work on an implementation plan both parties can approve plan both parties can approve

We are working with the Navajo Nation We are working with the Navajo Nation on a negotiated settlement proposalon a negotiated settlement proposal

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 We now have a federal negotiating

team

NAVAJO NATION

SETTLEMENT PROPOSAL

81,500 AF Water Depletion $156 Million (provided mostly by the U.S.) in projects Emphasis on Drinking Water Subordination to Existing State-created water rights Waiver of all Tribal claims against the U.S. and Utah About 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

Questions ?

The End