General Adjudication of water rights in Utah
What is a General Adjudication? General Adjudication is a legal process to determine who has a valid water right, how much water can be used, and who has priority during shortages.
Upon a Petition, the State Engineer May Investigate Water Rights and File an Action for General Adjudication
Pursuant to Utah Code section 73-4-1, “five or more, or a majority of, water users of a water source” may petition the State Engineer to investigate “the rights of all claimants to the water of the water source.”
Upon receipt of a petition to investigate, the State Engineer is required to “investigate whether the facts and circumstances of the water source and its claimants justify a general determination of water rights,” and if the State Engineer finds that a general determination of water rights is justified, then the State Engineer may “file an action in the district court for a general adjudication of water rights.”
State Engineer Must Give Notice of Filing of General Adjudication
Once an action for a General Adjudication is filed by the State Engineer, or other qualified persons as explained in Utah Code section 73-4-3, “[t]he state engineer then shall … give notice of commencement of action to the claimants by publishing notice” for “two consecutive weeks” in a newspaper designated by the court and in accordance with Utah Code section 45-1-101 “for two weeks.” The notice shall state that “an action has been filed,” “the name of the action,” “the name and location of the court in which the action is pending,” and “the name or description of the water source involved.”
After serving notice of commencement of an action, the State Engineer is required to investigate and locate all possible claimants and serve each claimant with a summons in accordance with Utah Code section 73-4-4. The State Engineer is then required to begin a “survey of the water source and the ditches, canals, wells, tunnels, or other works diverting water from the water source,” and “hold a public meeting in the survey area to inform a water right claimant of the survey.”
Water Right Claimant Must File Notice of Claim
Once completed, the State Engineer shall serve notice of the completion of the survey, including that any claimant to a water right must in accordance with Utah Code section 73-4-5 “submit a written statement of claim within 90 days after the day on which the notice is issued.” The statement of claim shall include:
(1) the name and address of the claimant; (2) the nature of use on which the claim of appropriation is based; (3) the flow of the water used in cubic feet per second, or the quantity of water stored in acre-feet, and the time during which the flow or stored water has been used each year; (4) the name of the stream or other source from which the water is diverted, the point on the stream or source where the water is diverted, and a description of the nature of the diverting works; (5) the date when the first work for diverting the water began, and a description of the nature of the work; (6) the date when the water was first used, the flow in cubic feet per second, or the quantity of water stored in acre-feet, and the time the water was used during the first year; (7) the place and manner of current use; and (8) other facts that clearly define the extent and nature of the appropriation claimed, or that are required by the written form provided by the state engineer with the notice of completion of survey.
State Engineer Then Issues Proposed Determination
The written statements of claims are compiled by the State Engineer, and then are submitted to the clerk of the district court in which the action is pending. Next, the State Engineer prepares a Proposed Determination under Utah Code section 73-4-11. The Proposed Determination is the State Engineer’s recommendation to the court of the status and quantification of water rights in the area. A copy of the Proposed Determination is sent to each claimant. If a claimant is dissatisfied with the Proposed Determination, the claimant has ninety days to file an objection with the court. After all objections have been resolved and, if necessary, modifications made to the Proposed Determination, the court enters a Decree that establishes all of the water rights for the area.
Current Pending General Adjudication Actions
In Utah, there are currently 13 pending General Adjudication actions. Most of the General Adjudication actions have been pending for decades now, including the Utah Lake/Jordan River drainage basin General Adjudication action, which has been pending since 1936. Of the 13 pending General Adjudication actions, there has been recent activity in: 1) Area 05 near Moab in the Southeastern Colorado River basin; 2) Area 29 in the Bear River basin; and 3) several areas in the Utah Lake/Jordan River basin, including Area 51 near Birdseye and Hobble Creek, Area 53 near Goshen, and Area 57 in the Harmony Park area and the Emigration Creek area.
There are also two different matters that are being addressed in the Utah Lake/Jordan River General Adjudication, including proposed legislation during the 2016 Utah legislative session, which the State Engineer proposed in order to streamline all General Adjudications. Senate Bill 75, “modifies the procedure for adjudicating water rights.” Specifically, S.B. 75 “requires the state engineer to identify all possible claimants in a particular area during an adjudications, if the state engineer’s records are incomplete,” as well as modifying “the procedure following the commencement of an action by the state engineer.” Under those modified procedures, “the failure or a potential party to file a timely statment of claim constitutes a default against that party.” additionally, S.B. 75 requires the state engineer “to authorize one extension to those seeking to file a statement of claim,” and after full considerations of claims and an examination of the river system or water source involved, to: complete a hydrographic survey map; prepare a proposed determination of all rights to the use of the water and file it with the district court; serve notice by publication and by mail; and hold a public meeting[.]”
State Engineer Motions for Appointment of Special Master in Utah Lake/Jordan River General Adjudication
The State Engineer has also motioned the district court in the Utah Lake/Jordan River General Adjudication to appoint a Special Master to assist with resolving objections and other specific issues in this long-pending case. The Special Master will be compensated from appropriations by the Legislature to help speed up resolution of these adjudications. However, the State Engineer’s motion is still pending.
Settlement and Stipulation Entered in Utah Lake/Jordan River General Adjudication
Prior to the State Engineer’s motion to appoint a Special Master, a settlement was reached and a stipulation was entered in the Utah Lake/Jordan River General Adjudication in 2014 over public input and objections in relation to the instant general adjudication.
* Photo Cred.: nrcs.usda.gov