Attorneys along the Wasatch Front may have recently received inquiries from clients regarding a “weird summons” or a “strange letter about water.” If you have not yet received a call, you most likely will in the foreseeable future. Welcome to the Utah Lake Jordan River Water Rights General Adjudication (ULJR Adjudication): it is big, it is old, and it is coming for the Salt Lake Valley.
This article provides a brief introduction to Utah water rights, discusses the purpose and components of a water rights general adjudication, and offers information relevant to addressing increased activity in the ULJR Adjudication area. While most people receiving ULJR Adjudication documents will not have a valid claim to water, for those who do, this process is extremely important to protect very valuable property rights. Understanding the general adjudication process will help you determine how best to advise your clients.
Water in Utah is the property of the public, subject to existing rights to the use thereof. Utah Code Ann. § 73-1-1. Water rights are established by demonstrating that water was put to use either prior to 1903 or 1935 (for groundwater) when Utah Appropriation statutes were passed or a claimant has completed the statutory appropriation process to obtain a water right. Water rights define who can use water, where users take water from, what water can be used for, and how much water users are entitled to. Without clearly defined water rights, it is impossible for society to meet the needs of today or plan for an increasingly drier and more complex future.
Water rights are real property rights but have key elements that make them distinct and different from traditional real property rights. For example, water rights are usufructuary rights, meaning you must use the water as stated under a water right or risk forfeiting the water back to the public. You may have heard the phrase “use it or lose it.” Similarly, water is naturally found in a hydrologically connected system. Use in one part of the system can drastically impact use elsewhere. Accordingly, settling disagreements over water use often involves technical expertise and a larger watershed perspective.
To create stability, inventory the state’s water rights, and resolve disputes, the Utah Legislature created a special statutory civil action process codified as Utah Code Title 73 Chapter 4, Determination of Water Rights. These “water rights general adjudications” are large scale quiet title suits filed in a local district court and are intended to compile all existing claims to water in a watershed, define water rights based on those claims, and confirm all water rights with a judicial decree. The state of Utah is divided into thirteen large General Adjudications with each General Adjudication being broken down into smaller divisions and subdivisions based on the contours of the local watershed. Each subdivision is given a name and numerical indicator, for example the City Creek (57-09) or Dry Creek (57-10) Subdivisions of the ULJR Adjudication. Subdivisions are also commonly referred to as “books.”
The ULJR Adjudication is the oldest case in the Third District Court. Commenced in 1944 as the smaller dispute of Salt Lake City Municipal Corporation v. Tamar Anderson, the case was expanded to become the largest General Adjudication in terms of number of potential claims and complexity. The ULJR Adjudication is important because it will define water rights along the Central and Southern Wasatch Front where most of the State’s economic and population growth is anticipated to occur. While most General Adjudications take decades to complete, to meet coming demands, the Utah Legislature allocated almost $1.9 million dollars to speed the pace of the ULJR Adjudication. Much of this funding is targeted at starting new adjudication subdivisions in the Salt Lake valley and completing existing subdivisions commenced decades ago. The state engineer hopes to complete the ULJR Adjudication within the next five years. Accordingly, local attorneys should expect a sharp increase in inquiries as the ULJR Adjudication makes its way across the valley.
General Adjudications operate using a discreet series of statutorily defined steps starting with a petition in the local district court and ending with final judicial decree. The process is a combination of state engineer, the state authority managing water rights activity, and court action. It is essential that those with a valid claim to water follow the proper procedure to retain their water rights. Failure to do so may result in the right being decreed abandoned and no longer valid. This will result in your client losing a valuable property right. While not all steps are listed here, the primary steps practitioners should know about, or may receive questions about, are:
To account for all potential claims to water, all property owners and water right owners of record within newly commenced ULJR Adjudication subdivisions are presently being sent a cover letter and Summons joining them to the ULJR Adjudication. Utah Code Ann. § 73-4-4. This is unlike a traditional Summons and does not require mandatory action but informs potential claimants to be looking for further information and to attend a public meeting for more information.
As many as 35,000 property owners around downtown Salt Lake and along parts of the east bench have already received a Summons as the state engineer has commenced new ULJR Adjudication subdivisions such as City Creek (57-9), Dry Creek (57-10), and Liberty Park (57-11). Presently the state engineer is commencing new subdivisions in the north central part of the Salt Lake valley and will most likely be moving their activities south as time progresses.
If your client has received a Summons and is unsure about ownership of a water right, has not used a well or other physical means of diverting water on the property, or has only ever received municipal water – they most likely do not have a valid claim to water and do not need to participate in the ULJR Adjudication. However, this should be confirmed with the state engineer or a water attorney prior to disregarding the Summons.
Notice to File Statement of Water User’s Claim
The Summons is followed by a Notice to File a Statement of Water User’s Claim. This is typically a cover letter and form provided by the state engineer where a claimant can enter the various parameters and support for their claim to water. Id. § 73-4-5. A claim to water is generally represented by an existing perfected water right, i.e. an application to appropriate that has gone through the certification process or previously undocumented surface water use prior to 1903 or underground use prior to1935. For a claim to water to be valid, the water user must have supportable evidence that the water has been in continuous beneficial use since use of the water was initiated.
While it may be tempting to claim a new water right for a well that was buried under your driveway twenty years ago or for the remnants of an irrigation ditch in the backyard, Water User’s Claims should only be submitted for valid claims to water where the claimant can demonstrate continuous use of the water. If you are unsure whether a client should file a Water User’s Claim, contact the state engineer to discuss the need for filing.
Claimants must file a Statement of Water User’s Claim within ninety days of receiving the Notice to File Statement of Water User’s Claim document. Water User’s Claims can be filed with the state engineer or the district court. This timeframe is extremely important. Failing to timely file will forever bar a claimant from asserting a claim to water in that subdivision, and the claimant will not have their water right recognized. Id. § 73-4-9.
Once all Water User’s Claims are submitted, the state engineer will review the claims against the state engineer’s records and conduct a field visit to verify actual use of water. The state engineer will then issue a state engineer’s recommendation that recommends a contemporary definition for the water right based on their review. The state engineer only reviews the physical parameters of a water right. The state engineer does not review title or ownership issues, as those concerns are addressed in separate and distinct administrative processes before a different branch of the state engineer’s office.
The state engineer’s recommendations are compiled into a document called a proposed determination. The proposed determination is submitted to the court and served on all those who submitted water user’s claims in the subdivision.
If your client submits a Water User’s Claim that is included in a proposed determination, it is very important the client reviews the proposed determination to ensure the state engineer’s recommendation accurately reflects your client’s claim. Additionally, the proposed determination should be reviewed to ensure other water rights are not defined in such a way as to adversely affect your client’s claim.
Objections to a Proposed Determination:
If there is a disagreement about a state engineer recommendation in the proposed determination, a water user must file an objection with the court within ninety days of the proposed determination being published. Once an objection is filed, it becomes a subcase to the General Adjudication and is litigated under the Utah Rules of Civil Procedure and various orders issued by a newly instituted special master, Rick Knuth. The special master is a new addition to the General Adjudication process and has jurisdiction solely over the ULJR Adjudication. The role and purpose of the special master is to issue procedures for governing and streamlining the objection resolution process.
As water rights grow in value, disputes and litigation over water rights are on the rise. These disputes often require a strong understanding of the complexities of water law, expert witness such as hydrologists and engineers, and intense discovery to reconstruct historic use patterns for the rights. Clients should be prepared to support all objections with defensible support for their claims and documentation.
While these are the key steps to be aware of in the General Adjudication process, if you have clients who have water rights or claims to water, it may be prudent to review the entirety of Utah Code Title 73 Chapter 4. There are several other steps in the process that may be relevant to their interests.
It goes without saying that water in the west is important. Without access to safe and secure water resources, our economic, environmental, and cultural advancements wither. Utah’s enterprising spirt is nowhere better exemplified than in how the state has approached water management. From the pioneers first using City Creek to grow a nascent Salt Lake City to today’s state engineer office staffed by hundreds of experts, water has been, and always will be, a Utah priority. The advancement of the ULJR Adjudication is the next necessary step in securing Utah’s water future. It is prudent to get ahead of the curve and be prepared to answer coming client questions on how best participate in the Utah Lake River General Adjudication and protect their property interests.
This article was originally published in the September/October 2017 Utah Bar Journal.