The State Engineer's New Supplemental Water Rights Rule
by Matthew E. Jensen
 
It looks likes the third time was the charm for the State Engineer's Supplemental Water Rights Rule-Rule R655-16, "Administrative Procedures for Declaring Beneficial Use Limitations for Supplemental Water Rights," is now the law.  This article describes some of the provisions of that new law.  For a more expansive explanation of the water rights principles underlying the new rule, please refer to an earlier newsletter article available at the following link: Smith Hartvigsen's Water & The Law, Winter 2010 Edition (scroll down below the 2010 Legislative Preview).  In a nutshell, since the state water rights database was modified in 2006 to assign a unique number to each supplemental water right group (i.e., a group of water rights used together for a specific beneficial use), the Utah Division of Water Rights has been seeking the right mechanism to better define the actual water contributed by each water right within a group.
 
Originally, the State Engineer began requiring Sole Supply Statements or Group Contribution Forms for virtually every Change Application.These forms required an applicant to determine how much beneficial use each water right contributes to a particular supplemental group and to get signatures from all water right holders approving that allocation.  But the process of evaluating supplemental groups is often complicated and expensive, and water right holders are often hesitant to sign the form regardless of how logical or fair the allocation is.  Accordingly, the process resulted in an unexpected expense and delay for a number of change applicants.  Perhaps in response to the objections of many change applicants to completing the Sole Supply Statements, the State Engineer published a proposed administrative rule in the summer of 2008.  In response to the many comments submitted in opposition to the rule as originally proposed, the State Engineer published a revised rule in the Utah State Bulletin on November 1, 2009.  Although there were again a number of comments to the rule, the tenor of those comments was generally more positive than before.
 
The version of Rule R655-16 that is now in effect was published in the Utah State Bulletin on March 1, 2010 with a few additional changes from the November 2009 version.  As a result of those changes, it is significantly less onerous than the original policy of the State Engineer.  First, the rule does not require a Declaration of Beneficial Use Amounts (the new name for the Statement of Sole Supply or Statement of Group Contribution forms) for every change application, but only for change applications that fall within a narrowly defined set of circumstances where a change application is seeking to separate a water right from its historical supplemental group.  Second, there are significant exemptions for many types of change applications.  For example, public water suppliers, such as municipalities and districts, need not file a Declaration for Supplemental Groups created for water use within their service areas.  Furthermore, the State Engineer may waive the Declaration requirement for Temporary Change Applications and may remove water rights from a group if it would be unduly burdensome (e.g., for large water rights that cover an expansive area and are therefore part of many supplemental groups).  Third, the rule now requires only that the beneficial use amount for the water right being changed be declared as opposed to every water right in the group.  And finally, in instances where the other water right holders refuse to sign a Declaration, the rule provides for an administrative process to establish the beneficial use amounts and allow the change application to proceed.  The new rule R655-16 contains many nuances and should be studied thoroughly before a change application is filed.  The full text of the rule is available on the State's website or through the following link:  Utah Administrative Code Rule R655-16.