LibGuides: Administrative Law: Water Rights & Resources in Utah by Tasha Warnock: Secondary sources

IMPORTANCE OF THE COLORADO RIVER

"It might be impossible to overstate the importance of the Colorado River to the southwestern United States--both within the Colorado River Basin and across expansive adjacent areas dependent on the river's life-giving flows. In innumerable ways, the river has shaped the face of the region. It has facilitated, and continues to enable, the growth of major metropolitan areas like Albuquerque, Denver, Las Vegas, Los Angeles, Phoenix, Salt Lake City, and San Diego. It provides lifeblood for hallmark national parks of unsurpassed natural beauty and immense cultural, historical, and scientific value, including the Grand Canyon. It gives sustenance to diverse American Indian tribes struggling to create viable homelands in modern U.S. society, as well as to myriad farming and ranching communities whose labor feeds the nation (and beyond). Measured by any metric--economic or otherwise--the Colorado River is a defining feature of the U.S. Southwest. Its fate bears immeasurably on the fate of the region."

Jason A. Robison, Douglas S. Kenney, Equity and the Colorado River Compact, 42 Envtl. L. 1157, 1158-59 (2012)

UTAHS ADMINISTRATIVE PROCESS FOR WATER RIGHTS

Although the State Engineer has broad statutory discretion to “secure the equitable apportionment and distribution of the water according to the respective rights of appropriators,”⁵² the State Engineer lacks authority to adjudicate the validity of these rights.⁵³ The State Engineer may, however, rely on available evidence to deny an administrative action if this evidence shows the pre-statutory claim *309 might be invalid or overstated.⁵⁴ Therefore, when subjecting a claim to the administrative process, the owner of a pre-statutory water right should be prepared to provide evidence to substantiate the priority and extent of the claimed use.

The most common administrative action involving a pre-statutory claim occurs when the owner files a change application seeking either to modify the nature of the beneficial use (i.e., irrigation, municipal, power, stock watering), the point of diversion, and / or the place of use.⁵⁵ Sections 73-3-3 and 73-3-8 govern the procedures and criteria under which the State Engineer must approve a change application.⁵⁶ The State Engineer is required to undertake the same investigation for permanent change applications as for applications for water appropriations.⁵⁷ For example, the State Engineer must find that the proposed use will not impair existing rights or interfere with the more beneficial use of the water, and that the change is feasible and would not prove detrimental to the public welfare.⁵⁸

Because a claim filed prior to 1997 is prima facie evidence of a valid right, the State Engineer must, when evaluating a change application based on such a pre-statutory claim, take administrative notice of the facts set forth in the claim. These facts include the amount of water used, the nature of use, and the priority of the claim.

The Division of Water Rights has adopted administrative rules that allow the State Engineer to refer to maps or aerial photographs, to compel the production of any necessary evidence, and to consult experts before approving or denying a change application.⁵⁹ All adjudicative proceedings of the Division (including change applications) are informal proceedings.⁶⁰ At its discretion, the Division may determine matters within its authority by holding hearings on adjudicative proceedings.⁶¹ Although the rules prohibit the type of discovery typical of litigation, the rules establish permissible types of evidence and confer the power to compel production of necessary evidence.⁶² At a hearing, “[t]he Presiding Officer may take official notice of the following matters which shall be considered as facts presented at the hearing: [r]ules, regulations, official and unofficial reports, surveys, maps, investigations, all Division files, decisions and orders of the State Engineer and any other regulatory agency, state or federal.”⁶³

The State Engineer may have access to historic hydrographic *310 survey maps showing the purported place of beneficial use. If the record shows the claimed use is invalid or overstated, the State Engineer may reject the application on the grounds that approving a change to an invalid or overstated right would have the effects of a new appropriation of water or constitute an enlargement of the underlying right.⁶⁴ Although these findings could support a conclusion that a certain water right claim is invalid, as long as the State Engineer is not asserting a determination of forfeiture or abandonment of the underlying right, he is neither adjudicating the right nor exceeding his administrative powers.⁶⁵

A party may obtain judicial review in district court of any order from the State Engineer.⁶⁶ Although a party may ask the State Engineer to reconsider his action, that party does not have to exhaust administrative remedies before appealing.⁶⁷

Where a party appeals, the trial court is required to determine the same questions that were before the State Engineer in the administrative process in a de novo review.⁶⁸ When appealing the rejection of a change application, the extent or priority of rights that the applicant asserts have been acquired under a pre-statutory claim cannot be adjudicated because “no cause of action for the adjudication ... accrue[s]” from the administrative action on a change application.”⁶⁹ Therefore, the court's reviewing of the denial of a change application is “based only on a finding of reason to believe that such facts do or may exist if the application is approved rather than a finding of such facts.”⁷⁰

Even where the State Engineer's records show that the claimed use or priority may be invalid, the records of the State Engineer extend no further than the sanctity of his decisions.⁷¹ The courts are not bound by evidence or data adduced at hearings before the State Engineer.⁷² Regardless of what evidence the court considers on appeal, the extent and validity of a pre-statutory claim cannot be judicially determined until the validity of that right is itself the subject of a judicial or adjudicative action. Therefore, an invalid or overstated pre-statutory claim could continue to underlie the right to water use under the original claim for decades after the State Engineer denied a change application. Furthermore, the right may change ownership several *311 times, possibly creating unfounded expectations of a valid water right.

Jamie Carpenter, Pre-Statutory Water Right Claims in Utah: Uncertainty in the Administration of Water Rights, 14 U. Denv. Water L. Rev. 301, 308-11 (2011)

DEFINITIONS

A diligence claim under Utah water law is a claim to a surface water right that a user established by “diverting [water] from its natural channel and putting it to beneficial use

Jamie Carpenter, Pre-Statutory Water Right Claims in Utah: Uncertainty in the Administration of Water Rights, 14 U. Denv. Water L. Rev. 301, 302 (2011)

An underground water claim (sometimes referred to as an “UGWC”) is a claim to underground water established by diversion and beneficial use of ground water prior to enactment of the 1935 statute

Jamie Carpenter, Pre-Statutory Water Right Claims in Utah: Uncertainty in the Administration of Water Rights, 14 U. Denv. Water L. Rev. 301, 302 (2011)

WATERSHEDS AND THE INTEGRATION OF U.S. WATER LAW AND POLICY: BRIDGING THE GREAT DIVIDES

Several great divides in U.S. water law and policy stand out amidst this widespread fragmentation. First, the law of water rights and allocation, which is dictated largely by individual states, operates apart from the law and regulation of water pollution, the basic structure of which is governed principally by federal statutes.³ Second, decisions about water resources are divorced from closely related land use policies.⁴ Third, the riparian rights doctrine of water law inherited from England and prevalent in the east stands in sharp contrast to the prior appropriation doctrine of western water law.⁵ Fourth, water issues often are addressed *2 independent of broader questions of ecosystem health.⁶ Finally, the fundamental divide of federalism spans across all of these more discrete issues.⁷ Given the depth and breadth of these divides, it is little wonder that the balkanized nature of U.S. water law and policy is so frequently criticized.⁸

In recent years, however, the renewed idea of restoring, protecting and managing water resources on an integrated, watershed basis has been promoted at all levels of government, by public and private advocates, and in all parts of the country.⁹ Watershed programs differ widely in many respects. Indeed, one of the main advantages of a watershed approach is the opportunity to identify and solve problems on a site-specific rather than a generic basis. The fact that the recent watershed revolution seems to be taking root in virtually every state regardless of its legal backdrop and approach to water quality, water quantity, or land use, in itself reflects some movement toward a more nationwide philosophy of water resources law and policy.

In some respects, the implementation of collaborative watershed programs around the country is bridging some of the deep-rooted divides in water law and policy in the United States. Major differences in water law remain, and are likely to do so for some time. As noted above, one principal advantage of watershed programs is that they address rather than avoid legitimate local and regional variations. However, the watershed approach has highlighted some of the fundamental problems of fragmentation caused by past U.S. water law and policy in all parts of the country. More importantly, watershed programs in very different regions of the country are devising and implementing surprisingly similar solutions to some of those problems. Some of these solutions seek to bridge the water quality/water quantity divide by addressing those previously disparate issues in a coordinated way. Similarly, watershed programs increasingly are looking to changes in land use in order to protect and restore water resources. This trend also indicates that western and eastern water systems may be developing more common legal and institutional approaches than previously believed likely, and may portend a natural although only partial convergence in U.S. water law and policy across the traditional east-west divide.

*3 This article is based in part upon research on four large watershed programs conducted for the National Academy of Public Administration (NAPA) as part of their “Learning from Innovations in Environmental Protection Project.”¹⁰ In particular, it relies on a comparison of the watershed program attributes of the Colorado River Basin Salinity Control Program (CRBSCP) with three other large watershed programs around the country, including those designed to restore the Chesapeake Bay, Everglades and San Francisco Bay Delta ecosystems.¹¹ Among the many issues highlighted by that comparison¹² was the manner in which the programs seek to address multiple environmental and natural resource issues and problems in an integrated way. We do not imply complete endorsement of any of these programs, acknowledging that each of which has strengths and weaknesses. Rather, we use these four programs to illustrate how watershed programs are beginning to develop more integrated approaches to water quality, water quantity, land use, and ecosystem protection, and how such approaches are likely to have more in common across the country than have previous fragmented approaches to water resource protection and management. Some of these programs, however, are missing important additional opportunities for water program integration.

Part II of this article describes the three “great divides” in more detail, and explains why they present obstacles to more rational and effective water resource management and protection. Part III describes the four large watershed programs used to illustrate the development of a more integrated approach. Part IV evaluates the significance of the new approaches contained in these programs, and explains how they are *4 beginning to bridge the vast divides that have hampered U.S. water law and policy in the past.

Robert W. Adler & Michele Straube, Watersheds and the Integration of U.S. Water Law and Policy: Bridging the Great Divides, 25 Wm. & Mary Envtl. L. & Pol'y Rev. 1 (2000)

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CONTROVERSY SURROUNDING THE COLORADO RIVER

"Research in recent years has demonstrated that the river historically has produced
considerably less water than is presently allocated under the "Law of
the River," including, most notably, the Colorado River Compact of
1922 and the 1944 treaty between the U.S. and Mexico. Well-
founded predictions of the impacts of climate change on the Colorado
River basin draw an even gloomier picture. The predictions suggest
that average flows on the river will continue to decline even as
droughts become more frequent, and that declines in runoff will result
in amplified reduction of water stored in dams on the system.5 At the
same time, a growing population will likely demand more water from
the over allocated system. All this leads to the inescapable
conclusion that the Colorado River's water budget is broken."

48 Willamette L. Rev. 118 (2011-2012)
Mapping the Human Right to Water on the Colorado River; Birdsong, Bret C.

SNAKE VALLEY TO LAS VEGAS: KEEP YOUR PIPES OUT OF OUR AQUIFER! Part 1

The biggest deficiency with today's environmental regulations is that because their provisions are not a model of clarity, the interpretation of those provisions--along with their enforcement--falls to federal agencies whose partisan leadership has the power to manipulate those provisions in a way that propels their party's political agenda rather than provides for environmental protection. Agency *152 discretion rules the day⁷ and with regulations neatly crafted from political rhetoric designed more for positive public relations than for substance, simply depending on an agency's enforcement of those regulations to protect the environment would be a mistake. Take, for instance, verbiage in the federal Land Policy and Management Act (FLPMA), BLM's statutory guidance for processing SNWA's permit request. FLPMA requires the BLM to issue a permit with terms and conditions that “minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment.”⁸ While language of this nature is probably necessary for the sake of political expediency, what it really means is open to a wide range of interpretation. Does it mean that SNWA must not take any actions damaging to the environment, or does it mean that SNWA will be allowed to entirely change the valleys' ecosystems as long as it doesn't create an air hazard on the scale of Owens Valley? That is largely left up to BLM to decide.

Rob Dubuc, Snake Valley to Las Vegas: Keep Your Pipes Out of Our Aquifer!, 27 J. Land Resources & Envtl. L. 151 (2007)

PARCHED: THE FUTURE OF THE GLEN CANYON DAM IN A DRIER WEST

Despite the public perception that the current drier conditions are temporary, the United States Geological Survey is suggesting that the drought may actually be a return to normal, more arid conditions.¹ Tree ring records indicate that the flow of the Colorado River has historically averaged significantly less water than was divvied up between the parties who share that water.² To exacerbate this shortfall, the amounts promised to each user did not originally include considerations that protected the environment³ and did not adequately consider Native American water rights.⁴ Currently the demand for this limited resource far exceeds the supply needed to satisfy all of the claims on the river and demands are only expected to increase. The current water management crisis should be seen as an opportunity to reassess the way we manage water in the West, and update our current outdated water delivery system. Meeting the growing water needs of the West with a finite and potentially shrinking resource, and restoring the health of the Colorado's fragile ecosystems is the daunting challenge facing policymakers, water managers and everyone living within the river's influence. Changing conditions and social values call for a reevaluation of the management of the entire Colorado Riverbasin in pursuit of a sustainable water delivery system. In this reevaluation, we must at least consider the evidence that the system could function more efficiently without the Lake Powell reservoir.

Bruce Clotworthy, Parched: The Future of the Glen Canyon Dam in A Drier West, Utah B.J., November 2004, at 8

SNAKE VALLEY TO LAS VEGAS: KEEP YOUR PIPES OUT OF OUR AQUIFER! Part 2

Consider, if you will, the parallels. In 1904, the chief water official of Los Angeles, a cash-rich but water-poor desert city, began implementing a plan designed to obtain water that the city needed for its growing metropolis by going north several hundred miles to a place called Owens Valley.¹ How this plan was secretly carried out became the plot of an Academy Award-winning Hollywood movie.² In 2004, not so secretly, the Southern Nevada Water Association (SNWA), tasked with the responsibility of providing water to the exploding Las Vegas Valley population, submitted an application to the Bureau of Land Management (BLM) for rights-of-way needed to pump huge amounts of ground water from two mountain valleys several hundred miles to its north.³ In the case of Owens Valley, Los Angeles' actions exacted so much environmental devastation on the valley that it was eventually required to spend $62 million on an irrigation project⁴ to re-water the same lake bed it had dried up in order to alleviate dust storms regarded as the worst particulate matter pollution in the nation.⁵ In recent dialog refuting claims of critics of its proposal, SNWA supporters complained that a comparison to Owens Valley was unfair because modern environmental regulations would not allow such a result today.⁶ While there is some validity to that assertion, depending entirely on the feel good language found in modern environmental regulations often leaves proponents of protection empty handed. The fact of the matter is: effective advocacy normally requires something more.

For the residents of Snake Valley, one of the two desert valleys caught in the crosshairs of this controversy, resolution of this issue amounts to much more than an academic discussion. Understandably, they fear that the proposed ground water pumping will irreversibly change the character of their valley in a way that will seriously impact their homes and their way of life.⁹ And they are probably justified in those fears. A 2005 report by the Utah Geological Survey notes that SNWA's proposal could produce up to a 100 foot drop in Snake Valley's ground water table and could result in “lasting and irreversible effects on both the agriculture and native vegetation of the Snake Valley.”¹⁰ Faced with such possibilities, assurances from government officials that citizen rights will be protected¹¹ is likely to provide little comfort. The fact is that Nevada state law requires a current holder of water rights to allow a subsequent holder to lower the ground water level a “reasonable” amount,¹² as long as the rights of the current holder are “satisfied” in some manner.¹³ How those terms are defined is, of course, open to interpretation. If the primary impact to the residents is determined to be strictly an economic one--that they would have to drill their wells deeper, or that the land would only be able to sustain a limited number of animals--the likely remedy, if there is one, would be to simply throw money at the situation. It is doubtful that an equitable remedy would be available for these folks.

Perhaps because their valley straddles a state line,¹⁴ or perhaps because they have been the most vocal, Snake Valley citizens have attracted a great deal of press *153 attention.¹⁵ In hearing about their plight, it is hard to avoid the feeling that they simply do not stand a chance of coming out on top. On one side is Las Vegas with its millions of people and its vast pool of resources, spending hundreds of millions of dollars to help procure needed water rights,¹⁶ proposing a project that is likely to cost over two billion dollars.¹⁷ On the other side are the residents of Snake Valley, asking for money in letters to the editor,¹⁸ raising funds by selling “Keep Your Pipes Out Of My Aquifer” t-shirts at $10 apiece, and handing out bumper stickers that read “Remember Owens Valley.”¹⁹

But in classic David v. Goliath fashion, it may very well be the Snake Valley residents who prevail in this fight because, in the end, SNWA may decide that the Snake Valley water is just not worth the trouble. To begin with, there are multiple layers of political complexities that have to be overcome. Certainly, the question of whether it is proper for the citizens of Las Vegas to directly infringe on the water rights of Utah citizens has raised a few eyebrows. In reaction to this, Utah's Governor has stated that his office will “stand with [the Utah citizens of Snake Valley] and fight for their interests” in this matter.²⁰ Providing Governor Huntsman with the legal cover to back up his position is the language inserted into the Lincoln County Land Act²¹ by the Utah congressional delegation which stipulates that Utah and Nevada must reach some agreement on this issue before the SNWA proposal can move forward.²²

While this multistate, high visibility political jockeying is certainly intriguing and involves many complex legal issues, it will, for the most part, be decided in the political arena rather than in the courts. At this point in time, it would be nothing short of guesswork, and perhaps even an exercise in futility, to attempt to explore the countless possible consequences of compromises that have yet to be reached. On a different level, however, beyond the view of the press cameras, are the *154 mundane administrative processes, studies, decisions and laws involving the largest landowner within Snake Valley--the federal government.

A glance at an ownership map of the valley reveals a situation that is common in this part of the country--the vast majority of the land contained within Snake Valley is federally owned--with lands managed by agencies of both the Department of Interior (DOI)²³ and the Department of Agriculture²⁴ covering the valley from top to bottom, and from side to side. While certain of these lands have been set aside or “reserved” by Congress for a specific purpose such as a national park or wildlife refuge, most of this land in Snake Valley is made up of the dry, inhospitable public domain land managed by the BLM. By congressional mandate, the various federal agencies tasked with managing these lands are responsible for ensuring that the land they oversee is preserved for its intended purpose. For the “reserved” lands in this valley, that responsibility includes protecting the water rights--the “federal reserved water rights”--that keep these lands from becoming just another part of the desert that surrounds them.

How these water rights are defined and to what degree the federal agencies are required to protect them are the focal points of this Note. While certainly not the stimulating stuff of radio or television programs, the subject of the federal reserved water rights associated with these lands deserves the undivided attention of the citizens of Snake Valley. If they can step back from all the public controversy surrounding this proposal, and set aside for the moment all the political rhetoric, it is these rights that really provide them with their most powerful protection against the type of environmental devastation that befell Owens Valley. At several different levels, the federal land management agencies are legally bound to protect the lands they oversee and, to the degree necessary, can be compelled to do so in the courts.

To arrive at that conclusion, this Note first explores the backdrop of the SNWA proposal, to what extent the project impacts Snake Valley, and where, in a dry desert valley, all this water is hidden. Turning then to the concept of federal reserved water rights, the Note explores the origin of these rights and how they apply to the various categories of federal land. Next, the Note will identify the specific types of federal land within the valley and make a determination whether the reserved water rights doctrine applies to each of these lands. Finally, the Note will show why the federal agencies are obligated by law to protect these water rights and how this obligation can be called into play by the citizens of Snake Valley.

The struggle over water in the arid American West has been ongoing since the pioneers first settled this region, but the recent population boom has forced many cities to make choices they probably would rather not have to face. Las Vegas is *155 claiming that if it is not able to find additional sources of water within the near future it will be forced to drastically limit its economic and population growth.²⁵ While that is undoubtedly true, there are those who feel that Las Vegas is representative of many of the things that are wrong with growth in the West, and that requiring a city to live within its means is not necessarily a bad thing.²⁶ Although discussions of this type fall far outside the purview of the law, it would be nearsighted not to recognize that this struggle represents a very real backdrop against which many of the issues associated with the West's explosive growth will be decided. In arriving at solutions to this dilemma, the fundamental question that will have to be answered is this: does water really flow uphill to money, or are there some things that are simply too precious to be bought?

Rob Dubuc, Snake Valley to Las Vegas: Keep Your Pipes Out of Our Aquifer!, 27 J. Land Resources & Envtl. L. 151 (2007)

SNAKE VALLEY AGREEMENT

This State-to-State Agreement concerns the establishment of a cooperative relationship between the States of Utah and Nevada regarding the management of interstate groundwater resources. The Southern Nevada Water Authority is signatory to this Agreement for the limited purposes outlined in Sections 6.1 through 6.6, inclusive, and 7.2 of this Agreement.
In 2004, the United States Congress passed Pub. L. 108-424 (Appendix A) establishing, among other things, the requirement that the States of Utah and Nevada reach an agreement regarding the division of water resources, protection of existing water rights and the maximum sustainable use of the waters prior to any interbasin transfer from groundwater basins located within both States. It is the express intention of Utah and Nevada to satisfy the requirements of Pub. L. 108-424 with respect to the Snake Valley Groundwater Basin by executing this Agreement.
This Agreement is intended to define the water resource management responsibilities of the States of Nevada and Utah regarding the Snake Valley Groundwater Basin (Appendix B) and define a framework for cooperation between the states on natural resource issues of mutual interest. This Agreement is not intended to be an interstate compact, entered pursuant to the Compact Clause of the U.S. Constitution, Art. I, Section 10, Cl. 3. This Agreement is entered into between the States with the intention of avoiding an equitable apportionment action regarding the Snake Valley Groundwater Basin in the United States Supreme Court.

http://waterrights.utah.gov/snakeValleyAgreement/snakeValley.asp

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LAW OF THE RIVER

"The water supply available within each of the two basins, as distinguished from the total supply for the basins combined, depends on more than precipitation, runoff, and reservoir storage. It also depends on how the law of the river--a body of more than four dozen statutes, administrative rules and decisions, court decrees, water contracts, interstate compacts, and international documents--allocates the total supply between the two basins. The seven basin states disagree about how to interpret various elements of the law of the river that bear on interbasin allocation. The seven states put aside these disagreements when negotiating their recent landmark proposal on coordinated reservoir management and Lower Basin shortages. At the same time, however, they included a provision in the proposal preserving the right to assert their differing views later. The future resolution of these disagreements could significantly affect the watersupply within each basin."

Douglas L. Grant, Collaborative Solutions to Colorado River Water Shortages: The Basin States' Proposal and Beyond, 8 Nev. L.J. 964, 982-83 (2008)

CLEAR LAW AND MURKY FACTS: UTAH'S APPROACH TO CONJUNCTIVE SURFACE AND GROUNDWATER MANAGEMENT

[I]f wells are driven into a subterranean body of water, and a spring is dried up, the owner of the wells will be enjoined from permitting them to flow; if a tunnel is driven into a mountain and percolating waters are gathered with the result that the water of a surface stream is affected, the water cannot be claimed by the person who drove the tunnel; if a man digs a trench across his lands and thereby intercepts the ground water percolating through his lands to lower levels with the result that a prior user is injured, the prior user can enjoin the injury .... It ought to make no difference as to the kind of a channel through which water reaches the sunlight .... Once the water bubbles forth to be used by man in the reclamation of our desert areas, whether from a pipe driven into the earth by man or as the result of an earthquake or some other force of nature, the first to apply to a beneficial use should be protected.¹

Justice Bates penned those words more than seventy-five years ago, putting a clarifying gloss on past decisions and foretelling imminent statutory revisions. Today in Utah, “[a]ll waters in this state, whether above or under the ground, are hereby declared to be the property of the public, subject to all existing rights to the use thereof.”² New rights to appropriate public waters are obtained exclusively through application with, and approval by, the State Engineer.³ Surface and groundwater permit applications are subject to the same requirements, and surface and groundwater rights are administered under the same priority system.

While the law of appropriation in Utah draws no distinction between surface and groundwater, managing interactions between surface and groundwater raises complicated factual questions.

In its broadest definition, conjunctive management is the coordinated and combined use of surface water and ground water. It involves using more surface water and less ground water when surface water is available during wet periods .... Conversely, less surface water and more ground water is used during dry periods when surface water supplies are reduced. Water previously stored, above ground and underground, is taken out of storage *219 during dry periods .... The key point is that unused surface water is intentionally stored above ground and underground in order to have it available when it is needed.⁴

This simple definition belies complicated practical realities. Surface streams are easily mapped and measured; whereas the size, extent, and character of groundwater resources is less well known. Additionally, surface water diversions have an immediate and measureable downstream impact; while the effects of groundwater withdrawals are often temporally and geographically removed. Thus the most pressing set of challenges are often factual rather than legal in nature.

This article addresses the complex questions that must be answered, the policy choices faced by the State of Utah, and the analytical polestars that should drive state action. Section one provides background and context with a summary of Utah's appropriative water law, beginning with the path by which groundwater resources were incorporated into the water code and the current appropriative requirements, before summarizing the legal treatment of seepage water, return flows, and wastewater, and concluding with a brief summary of the Utah Groundwater Recharge and Recovery Act. Section two addresses legislative efforts to foster conjunctive water resource management. Section three discusses the Utah Supreme Court's 2010 opinion in Bingham v. Roosevelt City and its impact on conjunctive water management. Section four describes how water managers in the Salt Lake Valley approach conjunctive water resource administration and outlines the Southern Nevada Water Authority's proposal to pump groundwater from beneath eastern Nevada and western Utah as examples of the issues faced by Utah water managers.

John Ruple (FNaa1), Clear Law and Murky Facts: Utah's Approach to Conjunctive Surface and Groundwater Management, 47 Idaho L. Rev. 217, 218-19 (2011)