Water Right Proof Process

Rural Water Association of Utah

April 29, 2010

Jared Manning

Division of Water Rights

Topics

• Overview of proofs and certificates

• Affidavits of Beneficial Use

• Municipal Proofs

Appropriations Process

• Water right owner files an Application with the State Engineer’s Office

• Application is approved and a date set for submitting Proof of Beneficial Use

• Applicant can file for Extensions if development is not complete

• Proof is filed when development is complete and water has been put to beneficial use

• Certificate of Beneficial Use is issued to the applicant

Purpose of Proofs

• To show that water has been developed and placed to a beneficial use:– Describes the works constructed– Describes the beneficial use

• To quantify the water right– Distribution purposes– Helps when ownership becomes divided

• To establish appurtenance to land

Purpose of Certificates

• Finalizes the application process

• Establishes a public record of a water right and its characteristics– Nature of use– Water source and diversion location– Place of use– Water quantities (flow and/or volume)

Affidavit “as Proof”

• H.B. 389 – Effective May 12, 2009

• Allows an applicant to submit an affidavit instead of hiring a proof professional

• Affidavit must be for “a small amount of water” associated with a residence

• Some permanently lapsed applications can be revived

Reasons for Affidavits

• Provide applicants with an affordable alternative to hiring a proof professional

• Provide a way to revive some permanently lapsed small domestic applications

• Reduce the workload of Division Staff

Small Amount of Water

• 1 Residence

• A quarter acre or less of irrigation

• 10 livestock or less

• Affidavits must be associated with a home– Home may be on a separate water right or on a

municipal system

• No other uses are permitted on an affidavit

Affidavit Requirements

1. Affidavit form signed by all owners

2. Map of beneficial use

3. Plat map

4. Certificate of Occupancy or Tax Notice

Affidavit Statistics

• 559 Proofs submitted (since May 12, 2009)

• 129 Affidavits

• 35 Lapsed applications revived

• Oldest revived application (so far) lapsed in 1979

• Approximately 40% of those eligible have submitted affidavits

Municipal Water Rights

• Municipalities typically have several water rights and sources

• Municipal water rights have historically been certificated for a flow rate (cfs) only

• Current practice is to certificate for a flow rate (cfs) AND VOLUME (ac-ft)

Why is Volume (ac-ft) Required on Municipal Proofs?

• A flow rate (cfs) by itself doesn’t describe the demand curve of municipal water use

• A volume limitation (ac-ft) in addition to a flow rate (cfs) helps provide order and certainty in groundwater management and administration

• Salt Lake Valley Groundwater Management Plan• Roosevelt City case

Filing Proof on Municipal Rights

• Perfected water rights– Identify and quantify (cfs and ac-ft) each perfected water

right owned by the municipality– Calculate total quantity (cfs and ac-ft)

• Historical water use– Determine maximum annual use (cfs and ac-ft)

• Compare perfected water rights to historical water use– If water use < perfected water rights then there is no use that

can be proved up on– If water use > perfected water rights then a municipality can

prove up on the difference between the two

Water Use Vs. Water RightsExample Number 1

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Perfected Water Rights

cfs

A Closer Look at Example #1

• Flow Rate– 2.0 cfs base flow– 12.4 cfs perfected water rights– 12.4 cfs peak flow

• Volume– 9,000 ac-ft per year perfected water rights– 2,600 ac-ft per year use

• Options: File extension(s)

Water Use Vs. Water RightsExample Number 2

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Perfected Water Rights

cfs

A Closer Look at Example #2• Flow Rate

– 0 cfs base flow– 8.0 cfs perfected water rights– 15.0 cfs peak flow

• Quantity– 3,000 ac-ft per year use – 5,800 ac-ft per year perfected water rights– 900 ac-ft per year use above perfected rights

• Options– Prove up on up to 7 cfs, 900 ac-ft– File extension(s)

Water Use Vs. Water RightsExample Number 3

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Perfected Water Rights

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A Closer Look at Example #3• Flow Rate

– 10.0 cfs base flow – 6.0 cfs perfected water rights– 30.0 cfs peak flow

• Quantity– 4,300 ac-ft per year perfected water rights– 9,700 ac-ft per year use– 5,400 ac-ft per year use above perfected rights

• Options– Prove up on up to 24 cfs, 5,400 ac-ft– Prove up on 4 cfs, 2,900 ac-ft– File extension(s)

Extension Requests

• The holding of an approved application by a public water supplier constitutes due diligence for up to 50 years after approval

• Extensions beyond 50 years shall be granted to public water suppliers if:– Substantial expenditures have been made to

construct the works, and– The water will be needed in the next 40 years

Some Common Proof Problems

• Filing a late or incomplete proof – the application lapses but may be reinstated with a later priority

• To be complete a proof must have:– Ownership records current – Signatures of all owners of record– All signatures notarized– Proof professional’s stamp and signature

• Proofs on “other” uses (industrial, gravel-washing, commercial, etc.) must have water volume measurements (ac-ft)

What’s Next for Proofs?

• Update Administrative Mapping Rules– May apply to application maps, title maps,

diligence claim maps and proof maps– Address the use of new technology (GPS)– Address appurtenance issues

• Continue proof professionals training• Continue to reduce proof backlog (40%

reduction in last 1 ½ years)