LibGuides: Administrative Law: Water Rights & Resources in Utah by Tasha Warnock: Statutes and Legislative history

28 U.S.C.A. § 1345

Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.

28 U.S.C.A. § 1345 (West)

U.C.A. 1953 § 63C-12-108

The research team shall:

(1) compile existing scientific research baseline data on the potential impact of the use of water resources in the interstate groundwater flow system specified in the Lincoln County Conservation, Recreation, and Development Act of 2004, Pub. L. No. 108-424, including the impact on:

(a) surface water and groundwater;

(b) vegetation, including invasive species;

(d) soils;

(e) air quality;

(f) wildlife;

(g) the geologic integrity of the aquifer; and

(h) socioeconomic conditions;

(2) compile changes to the baseline data compiled under Subsection (1);

(3) seek to enter into cooperative agreements with governmental entities to share relevant data and information;

(4) provide an annual data and information report to the council; and

(5) seek the voluntary participation of experts in academia and the private sector in the activities of the research team.

Utah Code Ann. § 63C-12-108 (West)

S. Rep. No. 115

Section 202(a)(2) of the Central Utah Project Completion Act (Public Law 102–575) authorizes $10 million for the Utah counties of Salt Lake, Utah, Davis, Wasatch, and Weber to develop conjunctive use water projects including the conjunctive use of surface water and groundwater and groundwater recharge. Since the enactment of Public Law 102–575 in 1992, only Salt Lake County has participated in the conjunctive use program, leaving approximately $8.5 million in remaining authorization for the program. The Central Utah Project (CUP) allows Utah to beneficially use a portion of its allocation of the Colorado River under the Colorado River Compact. As originally contemplated, the CUP would have provided Juab County, Utah with project water. As it stands, the CUP will only serve more populated areas of Utah which excludes Juab *2County. Without an allocation of CUP water and increasing demand on its existing water supply, Juab County has been forced to investigate other sources of water. The County has identified conjunctive use of water as a way to make available new water supplies.

S. Rep. No. 115, S. REP. 110-115, 1-2

H.R. Rep. No. 443

The federal Central Utah Project has enabled the State of Utah to beneficially use a substantial portion of its allotted share of Colorado River water under the Colorado River Compact. During initial Project feasibility studies, planners had envisioned developing water supplies in the northern mountainous region and delivering them through a series of reservoirs, tunnels and pipelines to the southern basin areas, including Juab County. That plan never materialized because it was initially determined that the water would stay north to meet the growing population demands of the northern counties rather than agricultural needs in the southern counties. Although Juab County continues to pay into the Project, it is not receiving benefits.

*2 As local water demands grow, Juab County is seeking to more effectively use its existing water supplies through conjunctive use of surface and groundwater sources. H.R. 4013 amends Reclamation Projects Authorization and Adjustment Act of 1992 (Public Law 102–575) by adding Juab County to the list of Utah counties eligible to receive federal funds for this conjunctive use purpose.

H.R. Rep. No. 443, H.R. REP. 109-443, 1-2

43 U.S.C.A. § 666

(a) Joinder of United States as defendant; costs

Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.

(b) Service of summons

Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.

Nothing in this section shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream.

43 U.S.C.A. § 666 (West)

U.C.A. 1953 § 73-2-1

(1) There shall be a state engineer.

(2) The state engineer shall:

(a) be appointed by the governor with the consent of the Senate;

(b) hold office for the term of four years and until a successor is appointed; and

(c) have five years experience as a practical engineer or the theoretical knowledge, practical experience, and skill necessary for the position.

(3)(a) The state engineer shall be responsible for the general administrative supervision of the waters of the state and the measurement, appropriation, apportionment, and distribution of those waters.

(b) The state engineer may secure the equitable apportionment and distribution of the water according to the respective rights of appropriators.

(4) The state engineer shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the purposes and provisions of this title, regarding:

(a) reports of water right conveyances;

(b) the construction of water wells and the licensing of water well drillers;

(d) the alteration of natural streams;

(e) sewage effluent reuse;

(f) geothermal resource conservation; and

(g) enforcement orders and the imposition of fines and penalties.

(5) The state engineer may make rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with the purposes and provisions of this title, governing:

(a) water distribution systems and water commissioners;

(b) water measurement and reporting;

(d) the determination of water rights; and

(e) the form and content of applications and related documents, maps, and reports.

(6) The state engineer may bring suit in courts of competent jurisdiction to:

(a) enjoin the unlawful appropriation, diversion, and use of surface and underground water without first seeking redress through the administrative process;

(b) prevent theft, waste, loss, or pollution of those waters;

(d) enforce administrative orders and collect fines and penalties.

(7) The state engineer may:

(a) upon request from the board of trustees of an irrigation district under Title 17B, Chapter 2a, Part 5, Irrigation District Act, or another local district under Title 17B, Limited Purpose Local Government Entities--Local Districts, or a special service district under Title 17D, Chapter 1, Special Service District Act, that operates an irrigation water system, cause a water survey to be made of all lands proposed to be annexed to the district in order to determine and allot the maximum amount of water that could be beneficially used on the land, with a separate survey and allotment being made for each 40-acre or smaller tract in separate ownership; and

(b) upon completion of the survey and allotment under Subsection (7)(a), file with the district board a return of the survey and report of the allotment.

(8)(a) The state engineer may establish water distribution systems and define their boundaries.

(b) The water distribution systems shall be formed in a manner that:

(i) secures the best protection to the water claimants; and

(ii) is the most economical for the state to supervise.

Utah Code Ann. § 73-2-1 (West)

S. Rep. No. 360

Subsection 104(a) also specifically directs the Secretary to retain 6,411 acre-feet of this water until December 31, 2030, for use in a future water rights settlement agreement approved by an Act of Congress that settles the Navajo Nation's claims to water in Arizona. The 6,411 af of reserved CAP water is for possible use by the Navajo Nation in association with a water supply project projected to deliver water to the Navajo Reservation in eastern Arizona. It is not the Committee's intent that the 6,411 af be interpreted to limit additional allocations of tribal CAP water to the Navajo Nation to address water needs elsewhere on its reservation in Arizona. The Committee recognizes that any use of Colorado River water, including CAP water reserved for future tribal settlements, can only be utilized if consistent with the United States Supreme Court Decree in Arizona v. California, and the 1922 Colorado River Compact. The Committee recommends that the parties to any tribal settlement that proposes using Colorado River water in a different manner seek appropriate amendments or stipulations to change the aforementioned Decree and Compact.

S. Rep. No. 360, S. REP. 108-360

H.R. REP. 107-360

The Colorado River Basin States include Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada and California. They are separated into two basins, the upper (Wyoming, Colorado, Utah and New Mexico) and the lower (Arizona, Nevada and California), each basin is entitled to 7.5 million acre feet on an annual basis, under the Colorado River Compact of 1928.

Testimony presented before the Committee this past year has culminated in the need for Congress to assure that the legal water entitlement of each State is adhered to. An issue raised at several hearings has been to determine whether California can live within its legal apportionment of 4.4 million acre feet of lower Colorado River Basin water, although it has been drafting several hundred thousand additional acre feet of water for many years.

As a result of provisions in a later decree (the 1964 decree in Arizona v. California), California has been allowed to legally use more than its annual 4.4 million acre feet basic apportionment of Colorado River water. In past years, California relied upon apportioned but unused Colorado River water from the States of Arizona and Nevada, and in more recent years surplus reservoir system water since Arizona and Nevada are now using close to their full apportionments.

For many years the other Basin States have had the legitimate concern that dependence on this surplus by California, as the State continues to grow rapidly, creates a reliance which, legal apportionment or not, will be difficult or impossible to undo once the other Basin States can beneficially use the full amount of their individual State apportionments.

In recent years this concern has escalated even further as development in Arizona, Nevada, and the upper Basin States has increased and greater demands for Colorado River water are being created. This is accompanied, from the perspective of the other Basin States, by the increasing sense that, even though California water users know the limits of their legal apportionment, State or water user actions in California to limit water consumption or develop new supplies are not being taken in time to avoid a serious legal and political collision.

The Colorado River in the lower Basin is managed largely by the Secretary of the Interior. Recognizing the potential for such a collision in the near future, the previous Administration, under pressure from the other Colorado River Basin States, crafted a plan to address this issue. The Secretary threatened to cease declaring “annual surpluses” on the Colorado River unless California agreed to a specific plan to reduce its annual take of Colorado River water to its legal apportionment.

As a result of this pressure the Colorado River Basin States have entered into an agreement with the Secretary of the Interior to assure *23 that California reduce its demand by about 15% from approximately 5.2 million acre feet to 4.4 million acre feet over the next 15 years. This agreement is called the Interim Surplus Agreement. An initial reduction in water use by California is required under the agreement by December 31, 2002.

Although the population is projected to grow by 30% during this same time in California, it is expedient that California adhere to the Agreement. H.R. 3208 provides further incentives and assistance to California and the other Basin States to meet this commitment, while providing the water security necessary for a healthy environment and population at large.

Reclamation States

Population growth throughout the West has, in many cases, exceeded the rest of the country. This has increased the competition for a finite water resource amongst a variety of interests, including agriculture, municipal and industrial, recreational, and environmental. No appreciable water supply, including surface and groundwater has been added to the complex water system in the West in the last 30 years. Demand for water is outstripping available supplies throughout the West.

Over the past year, the Committee has received more than 100 letters regarding the increasing need for further funding for water recycling/reuse and groundwater storage projects throughout the Reclamation States. The Committee is aware of projects that would require an excess of $12 billion in federal appropriations. The Committee is also aware that water recycling projects authorized under the Title XVI, of Public Law 102–575, are severely underfunded. It is the intent of the Committee that the competitive grant program, which includes water recycling/reuse and groundwater storage will help ameliorate problems associated with the current lack of water security throughout all Reclamation States.

H.R. REP. 107-360, H.R. REP. 107-360, 22-23

H.R. Rep. No. 701

Challenges Facing the Grand Canyon (joint with Subcommittee on Water and Power): The Grand Canyon watershed is made up of an astonishingly vast system of springs and tributaries that feed the Colorado River. The watershed is facing increasing threats brought on by a recent boom in the demand for uranium and by the Forest Service's 2007 unilateral decision to allow uranium exploration within miles of the South Rim of the Canyon. The park's river system is also threatened by operations of the Glen Canyon Dam, which stores water pursuant to the Colorado River Compact, treaty requirements with Mexico, and generates power for many communities in the Southwest. The Committee explored water and water quality issues, including protecting the park and its watershed from pollution from uranium mining, resource management, research, monitoring and mitigation and adaptive management, and the effect of operations of the Glen Canyon Dam.

H.R. Rep. No. 701, H.R. REP. 111-701, 72

S. Rep. No. 401

Navajo water users in States other than the State of New Mexico; or

(2) authorizes the forbearance of water uses in the State of New Mexico to allow uses of water in other States other than as authorized under subsection (d).

(f) Colorado River Compacts.–Notwithstanding any other provision of law–

(1) water may be diverted by the Project from the San Juan River in the State of New Mexico for use within New Mexico in the lower basin, as that term is used in the Colorado River Compact;

(2) any water diverted under paragraph (1) shall be a part of, and charged against, the consumptive use apportionment made to the State of New Mexico by Article III(a) of the Compact and to the upper basin by Article III(a) of the Colorado River Compact; and

(3) any water so diverted by the Project into the lower basin within the State of New Mexico shall not be credited as water reaching Lee Ferry pursuant to Articles III(c) and III(d) of the Colorado River Compact.

S. Rep. No. 401, S. REP. 110-401, 13

H.R. Rep. No. 1087

The upper Colorado River Basin compact of 1948 apportions among the States of Arizona, Colorado, New Mexico, Utah, and Wyoming the consumptive use of waters apportioned to the upper basin by the Colorado River compact of 1922.

After the Colorado River compact and the Boulder Canyon Project Act became effective, lower basin development proceeded at a rapid pace with construction of the Hoover Dam and the Boulder Canyon project, Parker Dam, Davis Dam, and other works. Large populations in cities such as Los Angeles and San Diego, and extensive agricultural areas served by the Imperial Irrigation District, the Palo Verde District, and others have created expanding uses of the waters of the Colorado River for domestic, industrial, and agricultural purposes.

Development in the upper basin States of the water resources apportioned to that area by the original compact has been retarded while a comprehensive plan for the most efficient use of the upper basin's share of the water has been in preparation, while the investigation and selection of the best dam sites has been underway, and while engineering and economic problems have been considered. Completion of the upper Colorado River Basin compact in 1948 has permitted the formulation of the comprehensive basin plan mentioned above whereby the ,,per basin States could eventually use all the water of the Colorado River system allotted to them. Under this plan, sufficient holdover storage capacity would be provided in the upper basin to enable it to meet its commitment to the lower basin required by the Colorado River compact of 1922 and at the same time permit the upper basin States to make full use of their apportioned share of the water.

The upper basin comprises an area of some 110,000 square miles. On its fringes lie such large centers of population as Denver, Salt Lake City, and Albuquerque, each of which has experienced rapid growth in recent years and each of which anticipates additional significant growth, *2351 with an ever-increasing and urgent need for water and power. Growth within the basin itself has been rapid during recent years. The upper basin proper has been primarily an agricultural area; however, it contains valuable mineral resources which are becoming more important to our national welfare and economy. The mineral resources in the upper basin include uranium, vanadium, iron, coal, oil, oil shale, phosphates, and other metals and minerals. Intensified development of mineral resources and other industrial expansion in the area in recent years, and the increased population as a result thereof, have taxed to the extreme the municipal and industrial water supply facilities in many localities. The demand for municipal and industrial water in the project area is increasing rapidly. The Colorado River is the last water resource available in many parts of the area to supply additional water for municipal and industrial purposes. The future growth and development of the municipalities and their industries is therefore dependent to a large extent upon this comprehensive basin plan. The area stands on the verge of great industrial growth, with consequent increase in need for water for domestic, industrial, and agricultural purposes as well as for power.

Testimony given to the committee by representatives of all the upper Colorado River Basin States left no doubt that the future of those States is dependent upon the plan which would be initiated by this legislation or one similar thereto. This plan would make possible the utilization of the area's abundant natural resources and enrich the economy of the area and the Nation. Without it, development of these resources will be hampered and growth will be slow.

H.R. Rep. No. 1087, 1956 U.S.C.C.A.N. 2346, 2350-51