State water rights determination process moves into the Heber Valley
As the state of Utah proceeds with the laborious process of adjudication – basically ensuring that water right claims are backed up by wet water - the fighting over water, as Mark Twain, once said, is still a few more years off.
Mark Twain once wrote, if whiskey is for drinking, then water is for fighting – and some fighting should be expected as the state water engineer, who is the chief administrative officer that governs water rights throughout the state, moves through the adjudication process. With Utah’s population expected to double in the next 40 years, water rights will only become more important.
According to former Park City Attorney Craig Smith, who specializes in water rights litigation in his private practice, the adjudication process requires water right holders to tell the state engineer’s office how much water they think they have and after some investigation the state will let them know how much they do have. The adjudication process he says has been around for decades but hasn’t been updated in 50 years. It’s an earnest effort he says to inventory the water rights within the state.
“What they figured out at the state finally” Smith said, “which they should have figured out a long time ago is that, we have more water rights that we have water, and the best way to kind of send out, you know, kind of questionable or bad water rights is the adjudication process.”
Smith says the water rights on the Weber River were adjudicated and decreed back in the 1920s and 30s. The adjudication of the Provo River however just started a few years ago. And Smith notes, it’s a lengthy process.
“And what the state engineer is supposed to do,” he said, “is take all the claims plus their own investigation-- they prepare what they call hydrographic surveys where they go out and look to see where water is being used and things like that. Then the state engineer prepares what's called a proposed determination. And that's basically the state engineer telling the court, if I were the court, these are the water rights that I would recognize these are the water rights I wouldn't recognize in this drainage.”
In the meantime, thousands of units and commercial projects have already been approved in Wasatch County and the adjudication process started there just a couple of years ago.
State Rep. Mike Kohler, a Midway resident and manager of Midway Irrigation is sponsoring HB 377 this session which amends the water rights adjudication process in order to speed it up.
“If it doesn't change, it [adjudication] won't finish for another 100 years, and that's too long,”’ Kohler said. “Midway irrigation spent $100,000 or more are getting prepared for the adjudication. And indeed, it won't matter if this doesn't pass or doesn't finish for 40 years from now the information will be in fact, even 10 years from now, the information will be useless. So, this gives the in state engineer the opportunity to take those water rights that are not contested, that have been used properly and can easily be proven, that will be wells and irrigation company uses and others that are very easy to define and go to a judge and get those finished. So, there'll be done in maybe a year or two.”
He adds that those who have a harder time proving their water rights shouldn’t hold up the others ready to move forward...
“Those that have a harder time proving they've used it, proving its source or not being able to be found at all, they can take however long they want and if that was 100 years, it doesn't bother the rest of us who are doing the right way and can prove it easily,” Kohler said. “And they can move on without a cloud on the title of that water.”
Kohler’s bill came out of committee this week with a positive recommendation. Once the water rights are sorted and disputes resolved, the state engineer will be able to supply future development with water that is currently going unused.