Ridenbaugh Press/Water Rights

Utah State Engineer Kent Jones on December 21 adopted a new groundwater management plan for the large Beryl Enterprise area in the southern part of the state, located mostly in Iron County, to the west of Cedar City and just east of the Nevada border.

“The objectives of this groundwater management plan are to limit the
groundwater withdrawals to safe yield, protect the physical integrity of the aquifer, and protect water quality. The intent of this plan is to provide specific management guidelines for this area under the statutory provisions within Section 73-5-15 of the Utah Code,” he said in explanation. “The safe yield for the groundwater basin has been determined to be approximately 34,000 acre-
feet per year. The current average depletion from the groundwater system is estimated at approximately 65,000 acre-feet per year. The total reduction needed to return the withdrawals to safe yield is estimated as 31,000 acre-feet per year of depletion. The groundwater withdrawals in this area have for over 40 years consistently exceeded the safe yield of the aquifer making this a critical management area as defined in section 73-5-15 of the Utah Code.”

From the planning document:

“For purposes of the groundwater management plan annual depletions from irrigation will be calculated using an annual crop survey prepared by the distribution system commissioner. The crop survey will tabulate irrigated acres for every crop type in the management plan boundary. It will include acreage supplied by both surface and underground sources. The crop survey will be published every year in the “Beryl Enterprise Water Distribution System Annual Water Report.”

“The total depletion from irrigation will be calculated by multiplying the number of acres of crops irrigated by the estimated crop consumptive use values from the Enterprise/Beryl Junc. Station published in “Consumptive Use of Irrigated Crops in Utah, Research Report 145.” The State Engineer will consider the use of scientifically verified studies that provide more accurate crop consumptive use values. Any reduction in use by either a decrease in acres or through the irrigation of less consumptive crops will be accounted for as a reduction from the total depletion. The baseline for irrigation from which future reductions will be calculated is the amount of irrigation from 2012, 29,278 acres, multiplied by the consumptive use value for alfalfa, 2.4925 feet, which equals 72,975 acre-feet. This baseline accounts for acreage supplied by both surface and underground sources. …

“If there are reductions in irrigation because water use is changed to new use through the application process, then the baseline for irrigation will be adjusted to reflect the decrease in irrigation rather than the decrease in depletion. If a decrease in depletion from the system results from the change application then this decrease will be accounted for by the State Engineer. Accounting procedures adopted under this plan for decreasing the irrigation depletion by growing less water consumptive crops may not be construed to authorize acreage to be expanded under a water right. The procedures are applicable only as a groundwater management tool in the Beryl Enterprise basin.”

The Utah Legislature is moving closer toward ratifying a settlement on Colorado River water rights for the Navajo Tribe, involving a specific water allocation to the tribe and a money payment as well.

However, the proposed 81,500 acre-feet from the Colorado River and tributaries is still less than half of the amount (166,000 acre-feet) the tribe might have claimed and gotten.

Bill sponsor Representative Christine Watkins, D-Price, said the use the money would be put to – infrastructure upgrades on the reservation – is badly needed.

The bill, House Bill 127, has been placed on the House floor calendar for a final vote.

Blue Castle Holdings Inc. on January 20 received approval from the State of Utah to use existing water rights for the Blue Castle Nuclear Plant Project (BCP) in Green River.

BCH leased the water over 4 years ago from the Kane County and San Juan County Water Conservancy Districts for the expected 60 years of plant operations. After a strict review of the Districts’ applications for changing the points of diversion, places of use, nature of use, and storage of water, Utah’s State Water Engineer approved the 53,600 acre feet of water per year from the Green River for the proposed nuclear electricity generation project.

The approved water for the BCP was allocated previously for electric generation by Utah’s State Water Engineer for use in coal fired power plants that were not constructed. The proposed two-unit Blue Castle Nuclear Project would increase the electricity generated in Utah by approximately 50%, adding between 2,200 to 3,000 Megawatts of installed electrical capacity, using less than 1% of the State’s current water diversion.

Aaron Tilton, CEO of BCH, commented on the decision: “We realized early on that there would be a detailed and deliberate process adjudicated by the State of Utah before the water rights were approved for use at the project. We are pleased that the State Water Engineer, after a thorough review of all requirements under State law, determined that the water was available for withdrawal from the river, that its use at the proposed new nuclear power plant site would not interfere with other water users, that the proposed plan is physically and economically feasible and would not prove detrimental to the public welfare and the environment.”

A Utah and Wyoming water right holder failed in his attempt to get a clarification of his water rights, after courts determined that such efforts were premature without a clear challenge.

In its December 20 decision in Daniel Berman and Steve Bond v. John Yarbrough and Jerry Olds (water officials in Utah and Wyoming), the Utah Supreme Court held,

“In this appeal, Daniel Berman challenges the denial of his Motion to Enforce the Memorandum Decisions and Orders of the Court (the Motion to Enforce or the Motion). As part of his initial action, Mr. Berman asked the district court for a declaratory judgment quantifying his Utah water rights. Mr. Berman also sought an injunction ordering a Wyoming water official to deliver this water to his property in Wyoming. The district court issued the declaratory judgment, but expressly reserved ruling on any enforcement issues. The court made no ruling regarding enforcement of the Utah water rights and did not order the Wyoming water official to undertake any action. Sometime later, after a different Wyoming water official denied Mr. Berman’s request for the amount of water announced in the declaratory judgment, Mr. Berman filed the Motion to Enforce. In the Motion, Mr. Berman asked the court to order Wyoming water officials, including those who were not parties in the declaratory action, to deliver the amount of water quantified in the declaratory judgment. The court denied the Motion to Enforce and Mr. Berman filed an appeal.

“We conclude that a motion to enforce cannot be used to address matters beyond the scope of the underlying judgment it seeks to enforce. In this case, the declaratory judgment merely quantified Mr. Berman’s Utah water rights; it did not include any directive to the Wyoming water officials. Thus, there was nothing in the declaratory judgment to enforce against the Wyoming water officials. We therefore hold that Mr. Berman’s Motion to Enforce was procedurally barred.”

The Utah Supreme Court said that a complex litigation involving water rights for 110 acres of farmland was badly botched, but still didn’t merit a reversal of the final decisions.

“This appeal involves the conveyance of a water right with a tortuous history, blunders in the conveyance process, and two successive trial judges, whose rulings were inconsistent on some points but reached the same result: dismissal of the plaintiff’s claims,” the court said in its August 16 decision in Sanpete America LLC v. Christian Willardsen et al. Appellant, Sanpete America, LLC, asks us to reverse aspects of both judges’ decisions and hold that it is entitled to damages and attorney fees from the Appellees, Christian Willardsen and Douglas Neeley. We decline to do so.

“Although we conclude that some errors were made below, we affirm both judges’ conclusion that Sanpete America is entitled to no damages. We hold that Mr. Willardsen conveyed his portion of the water right to Sanpete America under a warranty deed, Mr. Willardsen breached no covenants in the deed, and Mr. Neeley’s actions were not the cause of Sanpete America’s alleged damages. We therefore affirm the judgment dismissing Sanpete America’s claims.”

The basis of the case, the court said: “At the heart of this appeal is the conveyance of approximately 110 acres of farmland and certain water rights located in Sanpete County, Utah. In the summer or fall of 1998, Robert Clyde approached the Farm’s owner, Christian Willardsen, about a potential purchase. During Mr. Clyde’s visit, Mr. Willardsen showed him a well and stated it was sufficient to irrigate the Farm and was “his well.” The water right associated with the well is known as Water Right No. 65-920.”

The repayment schedule for the Uintah Water Conservancy District for costs of its water supply on the Jensen Unit of the Central Utah Project, came up in congressional testimony on May 12.

Speaking before the House Natural Resources Committee Subcommittee on Water and Power, Bureau of Reclamation Deputy Commissioner David Murillo said the agency supported some changes in the schedule. The measure (H.R. 818) was introduced in February.

From Murrillo’s testimony:

This legislation allows for prepayment of the current and future repayment contract obligations of and provides that the prepayment must result in the United States recovering the net present value of all repayment streams that would have been payable to the United States if H.R. 818 were not enacted. H.R. 818 would amend current law to change the date of repayment to 2022 from 2037. The legislation would also allow repayment to be provided in several installments and requires that the repayment be adjusted to conform to a final cost allocation. The Department supports H.R. 818.

The District entered into a repayment contract dated June 3, 1976, in which they agreed to repay all reimbursable costs associated with the Jensen Unit of the CUP. The Jensen Unit’s total water supply was envisioned at this time to be roughly 18,000 acre-feet because plans anticipated completion of another pumping plant at a location on the Green River known as Burns Bench.

However, for a variety of reasons, the Burns Bench feature was never built. And with the enactment of language in Section 203(g) of the Central Utah Project Completion Act of 1992 (P.L. 102-575), the District’s contract was amended in 1992 to reduce the project M&I supply subject to repayment to 2,000 acre-feet annually, and temporarily fix repayment for this supply based upon a reduced interim cost allocation developed for the still-uncompleted project. The amended 1992 contract required the District to repay about $5.545 million through the year 2037 at the project interest rate of 3.222% with annual payments of $226,585. The current balance due, without discounting, is $3,949,058 as of 2011.

It is important to note that this $3,949,058 figure reflects a repayment amount that is statutorily lowered by the 1992 legislation, and does not reflect the true repayment costs of the Jensen Unit. The costs allocated to the 2,000 acre-feet of contracted M&I supply, and the M&I supply available through additional incomplete project features, may be significantly revised upward in the future upon project completion or enactment of this bill, both of which would require a Final Cost Allocation. An additional currently unallocated cost of $7,419,513 is expected to be allocated to the contracted 2,000 acre-feet in order to achieve a full and final project repayment. These are the costs that paragraph 3 of H.R. 818 requires to be included in the prepayment. .The 2011 balance on the 1992 M&I repayment contract is $3,949,058 and the adjustment amount when factoring in the total project cost including interest on that debt is $7,419,513. Therefore, in total non-discounted dollars, the Conservancy District owes the Federal government $11,368,571.

Under Reclamation law, water districts are not authorized to prepay their M&I repayment obligation based upon a discounted value of their remaining annual payments.

This legislation would authorize early repayment by the Uintah Conservancy District to the Federal government. Because there is an interest component to the M&I repayment streams to be repaid early, early repayment without an adjustment for interest would result in lower overall repayment to the United States. To keep the United States whole, the Bureau of Reclamation would collect the present value of the whole amount that would be due without early repayment.

The language in H.R. 818 has been amended from the language contained in an earlier version of this legislation, H.R. 2950. The amended language clarifies that this legislation requires that the Federal government be paid what it is owed by the Conservancy District. Because the United States supports the goals of providing for early repayment under this contract so long as the United States is kept whole, and H.R. 818 clearly establishes that early repayment under this legislation must be of an amount equal to the net present value of the foregone revenue stream, the Department supports this legislation.

The Utah legislature is expected to get another look at a revised draft of Senate Bill 20, a measure concerning water rights in critical water management areas – with changes that could turn around some of its key impacts.

Its formal description says it “allows a local district to hold certain water rights for recharge; addresses the requirements of a groundwater management plan; provides that artificially recharging a groundwater basin is a beneficial use of water in a critical management area.”

But a problem was detected in the area of over-appropriation. Stowell said that the bill as first drafted would allow property owners to petition over-appropriated rights; the change would transfer that to water right holders.

That’s something of a side issue to the bill’s main thrust. The St. George Spectrum reported, “The bill could be used as a tool for those areas that do not have water conservancy districts, Stowell said, because it allows for the formation of special local districts similar to decide what to do with those rights.”

The bill adds language to state law saying, “A local district created in accordance with Subsection (1)(a)(xiv) to develop and execute a groundwater management plan may hold or acquire a right to surface waters that are naturally tributary to the groundwater basin subject to the groundwater management plan if the surface waters are appropriated in accordance with Title 73, Water and Irrigation, and used in accordance with Title 73, Chapter 3b, Groundwater Recharge and Recovery Act.”

The bill formally was introduced in the Senate on January 24.

Buying land in a river bottom might seem to be like buying acreage in a swamp – not a terribly useful investment. Or might it be?

Spanish Fork, Utah, is betting that 43 acres on the bottom of the Spanish Fork River, at a cost of just over $1 million, can be a useful investment. The land does, after all, come with water rights attached.

The river bottom is dry much of the time, and the city is considering using some of it for a park. But the water rights might also come into play.

A simmering conflict between the Salt Lake City’s water department and nearby water brokers, who have contested city water rights, has begun to blow up into the open.

Inserts in the local Cottonwood/Holladay Journal newspaper took sharp blasts at the city, saying it was trying to absorb large portions of the water rights in the area.

In an interview with KPCW, , Salt Lake Director of Public Utilities Jeff Niermeyer said the opposition consists largely of a pair of water brokers from Utah County. “They’ve sent it to legislators, they’ve sent it to just about anybody, but really what you do is you’ve got a choir of two people all trying to somehow, thinking that they can, discredit Salt Lake City to somehow help them in their quest to take over Salt Lake City’s water rights,”

The utahwater.net site which duplicates much of the material has posted articles maintaining “Salt Lake City is Utah’s Top Water Hoarder with a “Double Water Enterprise Utility” gaming Utah’s Water to operate a multi-million dollar “surplus” water business in three counties outside SLC corporate limits against the public interest.”

And there was this accusation of Salt Lake City’s water efforts: “1) ask the state for free state water rights by claiming your neighbor’s “future public demand,” 2) declare their water “surplus,” 3) lease it to neighboring municipalities as “surplus” because the water basin is closed to new water appropriations, 4) tell the state SLC is meeting the beneficial use requirement because the water being leased, 5) cash the big water checks from leasing so-called “surplus water,” 6) use the “surplus” millions of tax payer monies to fund a cache of influence with lawyers to disrupt the transferability of water and put competition out of business, and 7) change the laws to concentrate the control of water into SLC’s hands, and pack water boards with SLC water associates.”

Upwards of 1,600 people are reported to have added their names to a protest of prospective water draws from the Snake River valley, which crosses the Utah-Nevada border, south toward Las Vegas.

The Southern Nevada Water Authority has been seeking water from about 130 wells in the generally dry Snake Valley country. But that would remove water resources used by farmers, wildlife and others.

Susan Lynn of the Great Basin Water Network told the Deseret News (Salt Lake City) that “This outpouring of protests from such a large number and broad range of organizations and individuals shows just how united and strong the opposition to this misguided project has become.”