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