This year the Utah Legislature took action on two water law issues that it has struggled with for several years—the authority of the State Engineer to consider forfeiture during review of change applications and the rights of nonowners to file change applications. These are familiar issues in Utah water law, but they arose this year because of two 2011 Utah Supreme Court decisions.
In 2011, the Utah Supreme Court decided Jensen v. Jones, 2011 UT 67, and Salt Lake City Corporation v. Big Ditch Irrigation Company, 2011 UT 33. In Jensen, the Court held that the State Engineer lacked authority to adjudicate water rights and, as a result, could not consider unadjudicated forfeiture when reviewing change applications. In Big Ditch, the Big Ditch Irrigation Company did not own water rights, but it had a perpetual contract to receive water from Salt Lake City. The Court held that the irrigation company’s contract qualified it as a “person entitled to the use of water” that could file a change application.
Each year since 2011, the Legislature has tried unsuccessfully to pass bills to address perceived problems with Jensen and Big Ditch. This year it took action on both cases, granting the State Engineer limited authority to consider forfeiture and enumerating which parties may file a change application. The Legislature passed several other water related bills, including one amending the procedure for water company shareholders to file a change application.
State Engineer Authority to Consider Forfeiture
H.B. 25 made general amendments to change application procedures and specific amendments to address the limits Jensen placed on the State Engineer’s authority. Generally, H.B. 25 introduces the concept of “quantity impairment” to change application review. The new term means “any reduction in the amount of water a person is able to receive in order to satisfy an existing right to the use of water that would result from an action proposed in a change application.” To obtain approval, an applicant must submit evidence to support a reasonable belief that the proposed change satisfies statutory requirements, including that it will not cause quantity impairment to existing water rights.
Jensen barred the State Engineer from considering unadjudicated forfeiture during review of a change application. H.B. 25 relaxes this bar and allows the State Engineer to consider forfeiture after meeting certain conditions. It allows for a rebuttable presumption of quantity impairment if a water right is subject to forfeiture (i.e. it has an unexcused period of nonuse of at least seven years). The presumption only arises, and the State Engineer may only consider this specific type of quantity impairment, if he provides written notice to the applicant alleging quantity impairment, or if a timely protest alleges quantity impairment. If the applicant cannot defeat the presumption of quantity impairment, the State Engineer may...
