Water Right Issues in the Upper Colorado River Basin of Utah
Under the "law of the river" Utah is entitled to deplete 1,369,000 acre-feet annually from sources tributary to the Upper Colorado River. Current estimates show that we are depleting about 1,007,500 acre-feet. This leaves just over 360,000 acre-feet not presently being used. However, there are approved water right applications, which, if developed, could potentially exceed Utah's entitlement.
An evaluation of approved yet undeveloped water right applications indicates that an additional 385,000 acre-feet of depletion is possible if all water contemplated under the applications is developed. In addition to the approved yet undeveloped applications the water right claims for the Ute Tribe and Navajo Nation need to be considered. Under the Ute Indian Water Compact, as now drafted, the Utes would add an additional 105,000 acre-feet of depletion from the waters apportioned to the State of Utah. The water right claims of the Navajo Nation have not been quantified, but they need to be taken into account in any evaluation of the potential depletions of water within the Upper Colorado River Basin of Utah. The basis of these rights (Federal Reserved Rights Doctrine) suggest they will have earlier priority dates than many of the approved yet undeveloped applications to appropriate water approved by the State Engineer. The total potential depletion from approved yet undeveloped water right applications and rights of Native American tribes in Utah's portion of the basin could significantly exceed 500,000 acre-feet.
Because of economics, environmental constraints, and numerous other factors, not all of the approved water right applications (projects) will be developed. Nevertheless, we need to manage the accounting and development of our limited water resources in a responsible and prudent manner. Before expenditure of large amounts of capital and development of projects and new sources of water, applicants with junior priority water rights need to make a determination as to whether or not water will physically be available if undeveloped senior water rights are finally put to beneficial use.
A large portion of the water represented by the approved yet undeveloped water right applications in the basin are held by "public agencies". Utah Code Section 73-3-12 defines a public agency to be “a public water supply agency of the State or a political subdivision of the State”.
The applicant is normally given 5 years to complete the project and place the water to beneficial use when a water right application is approved. An applicant can request an extension of time if the project is not completed at the end of the 5-year period. If the applicant has exercised “reasonable and due diligence” in working toward completion of the appropriation of water, the State Engineer may grant the extension of time request. The statute (73-3-12) indicates the holding of an application by a public agency to meet the reasonable future requirements of the public is considered to be “reasonable and due diligence” for the first 50 years. The State Engineer may grant extension of time beyond 50 years for a public agency if the agency provides information sufficient to demonstrate the water will be needed to meet the reasonable future requirements of the public.
Many of the approved yet undeveloped water right applications were approved in the 1950’s and 60’s and are approaching the 50-year time limit. It is the State Engineer’s interpretation of the law that extensions of time past 50 years for public agencies required a different standard than those prior to 50 years. Perhaps a clear showing that there is an immediate need by the public for the water and the agency has a viable project is a reasonable expectation.
Public water supply agencies face many challenges developing future water supplies. It takes considerable lead time to do the planning, arrange the financing and get the necessary permits and approvals. However, if a project is not started and developed in a reasonable period of time, perhaps others who have filed applications to appropriate water should be given an opportunity to develop. Several public agencies, companies, and private individuals have contacted the Division and expressed interest in obtaining water for proposed projects. Even though we are currently not using about 360,000 acre-feet annually of the Utah's entitlement, we are over appropriated on paper. Until this situation is dealt with, new appropriations of water can not be granted. The current policy allows for the approval of "small" applications to appropriate water. These can be for the domestic purposes of one family, irrigation of up to 1.0 acre, and the stockwatering of 10 livestock. With Utah water law based on the prior appropriation doctrine, if we are unable to reduce the quantity of water covered by the approved yet undeveloped applications or reduce their priority date, continued approval of these "small" applications needs to be examined further.
On April 20 and 21, 2005, four public meetings were held in the Upper Colorado River drainage to discuss these issues. The meetings were held in Vernal, Price, Loa, and Moab. The State Engineer sought to inform water users of two main issues: 1) on paper the waters of the Upper Colorado River Basin of Utah are significantly over appropriated; and 2) extension of time requests by a public agency past 50 years might be required to demonstrate a more immediate need for the water and to identify a feasible project associated with the development of the water. The State Engineer is considering developing rules to define the criteria for granting extension of time after 50 years. Comments regarding these and related issues should be submitted to the Division of Water Rights by June 30, 2005.