July 2019 Newsletter

MESSAGE FROM THE PRESIDENT

BY: GENE SHAWCROFT

Dear Friends,
What a runoff! We can finally pause for a few minutes, catch our breath and wipe our brows. To top off the challenges of an extremely heavy snowpack, Mother Nature blessed us with the second wettest spring on record. She also provided a temperature regime that made the melt much more manageable. With all that said, I’m proud to be associated with all of you who worked many long days and nights including weekends to manage a runoff that in many cases could have filled reservoirs multiple times. Although there were some nervous moments there was very little flooding and little damage from the high flows. Thanks, and congratulations to all involved in managing very successfully this extraordinary runoff.

Once again, the wisdom and commitment of our forefathers to sacrifice and to invest in storage and delivery systems cannot be overstated. With the extremes of a very dry 2018 to an extremely wet 2019, this infrastructure has proven to be a life saver in both cases. My concern is whether we are doing enough to keep pace with the ever-increasing demand for our very limited water resources.

As a water community we keep our heads down and elbows flying. Very few people stop to appreciate what it takes to get them a drink of water or water for crops. That is not all bad, but I believe as our population increases and the demand for water increase we will need to leave our comfort zones and be better about letting people know what we do and what it takes and will take to meet these demands.

Thanks again for all you do and congratulations to all for the tremendous effort in managing this wonderful water year.

WATER & THE LAW

SMITH HARTVIGSEN, PLLC
ROCKY FORD v. KENTS LAKE
By Jeffry R. Gittins

The Utah Supreme Court recently issued its decision in the case of Rocky Ford Irrigation Company v. Kent’s Lake Reservoir Company. The case focuses on the issues of water efficiency savings, impairment of others’ water rights, and obligations to measure water diversions.

Rocky Ford and Kent’s Lake are two irrigation companies on the Beaver River system. Both companies have various direct flow water rights and storage water rights with varying priority dates. In 1931, the Fifth District Court issued the Beaver River Decree, which divided the Beaver River system into an upper portion and a lower portion. Upper water users were allowed to divert water prior to lower water users, despite a later priority date, in part because the lower water users benefited from return flows from the upper water users’ flood irrigation. The Decree also required that all points of diversion be equipped with measuring devices.

In the 1930s and 1940s, Kent’s Lake filed applications with the State Engineer to construct Three Miles Reservoir in the upper portion of the Beaver River system. Rocky Ford protested the applications, but the State Engineer ultimately approved the applications. In 1953, Rocky Ford and Kent’s Lake entered into an agreement in which Rocky Ford agreed not to protest future change applications associated with Three Mile Reservoir, and Kent’s Lake agreed not to oppose Rocky Ford’s expansion of its reservoir located in the lower portion of the Beaver River system. Kent’s Lake later filed a change application, and Rocky Ford did not protest it. Kent’s Lake later certificated this change application with the State Engineer.

Beginning in the 1970s, Beaver River water users began converting from flood irrigation to sprinkler irrigation. Rocky Ford alleged that it was being harmed due to the reduced return flows from upper water users and due to Kent’s Lake storing the “saved” water from the efficiency gains in its reservoir. In 2010, Rocky Ford filed a lawsuit against Kent’s Lake alleging water right interference, conversion of water rights, and negligence. Rocky Ford asserted that its water rights had been impaired by the actions of Kent’s Lake, including the storage change application and the failure to measure water diversions. Following a trial, the district court ruled in favor of Kent’s Lake. Rocky Ford then appealed the case to the Utah Supreme Court.

The Court first reviewed Rocky Ford’s claims of impairment. The Court determined that even though Kent’s Lake had filed change applications in the 1950s, the water rights retained their (much earlier) original priority dates. And the Court rejected the “hybrid priority approach” that the priority date of the change applications is relevant to impairment, but the original priority is relevant to distribution. The Court then determined that parties cannot “claim impairment in perpetuity” and that “an impairment claim must be raised during the protest period before the State Engineer.” Interestingly, the Court also implied that impairment protests can and should be raised at the proof stage, despite the fact that there is no public notice or protest period when proofs are filed or certificates are issued. Based on these determinations, the Court concluded that Rocky Ford had “failed to participate in any administrative proceedings” and therefore cannot claim impairment now.

The Court next examined whether Kent’s Lake is allowed to store the water it saves through increased irrigation efficiency. The Court determined that the lower water users “have no claim on runoff before it reenters the stream” and therefore “have no claim against upper water users requiring them to create a return flow.” Based on these determinations, the Court concluded that “Rocky Ford has no claim to Kent’s Lake’s efficiency gains.”

The Court next examined Kent’s Lake’s obligations to measure its water diversions. Kent’s Lake asserted–and the district court had agreed–that even though Kent’s Lake did not measure all of its diversions, it was compliant because it did all measuring required by the State Engineer. But the Court noted that both Utah law (Utah Code section 73-5-4) and the Beaver River Decree require Kent’s Lake to measure all of its diversions. Thus, the Court reversed the district court on this point.

The Court finished its opinion by determining that the district court had properly concluded that the 1953 Agreement between Rocky Ford and Kent’s Lake should not be rescinded, and determining that the district court had erred in granting an award of attorney fees to Kent’s Lake.

WATER OUTLOOK

By Brian McInerney

The 2019 Water Year will be remembered as quite positive on all fronts. We filled the majority of the reservoirs, didn’t produce any damaging flooding, and the skiing was fabulous. All in all, it was a timely gift that we will gladly receive.

The year began with 300% precipitation in October, with almost all of it falling in the first 10 days. Additionally, this wet trend continued throughout the spring months. Not only was it wet, but also It remained colder than average throughout the year. Quite an anomaly as we continue down the road to a warmer climate.

The key piece of this puzzle came in the fact that high pressure was not the dominant weather feature this year. When we experience high pressure for an extended period, our meager snowpacks melt early, produce inefficient runoff volumes, and make life miserable for the water community. While this weather pattern has become more prevalent in past years, that was not the case this year. During this past year, we experienced a very active weather pattern with storms originating from the North Pacific, and a multitude of atmospheric river events from the Central Pacific. The combination produced precipitation levels that averaged 150% to 200% throughout the state from October through May.

So, long story short. This year was awesome on so many levels it’s hard to fit in this space. Let’s enjoy it while it lasts and we’ll go from there.

SNOWPACK UPDATE

National Resource Conservation Service – by Troy Brosten

Snowpack from water year 2019 turned out some impressive numbers with the percent normal across that state at 140% on April 1st. Precipitation accumulation for the months of May and June was 6-7 inches for a percent normal of about 150% in Northern and Central Utah and up to over 300% in Southern Utah. Big snowpack and a wet spring brought some fantastic relief to our reservoirs and, according to the U.S. Drought Monitor, removed drought conditions throughout Utah. Reservoir storage, as of July 1, is 90% across the state with most reservoirs full or nearly full. Water supply is in great shape going into the 2019 summer months. Looking forward, the NOAA two week outlook forecasts above normal temperatures and below normal precipitation so it looks like summer is ready to take center stage for the remaining water year.

BUREAU OF RECLAMATION RESERVOIRS

By Gary Henrie

It’s been a great year. Most Reclamation reservoirs throughout the state filled this spring and have remained high into the summer.

Statewide, Reclamation reservoirs— not including Flaming Gorge and Lake Powell—are 94% full (as of 15 July 2019). Much better than the 77% full we saw last year (15 July 2018), and the 80% full we’ve seen on average since 1997 (for July 15).

Flaming Gorge is 94% full (15 July 2019) and climbing. About where it was last year (94%) and better than the average since ‘97 (86%).

Now, to the highlight of highlights: Lake Powell. Lake Powell started from a low of 37% full back in April and has climbed more than 51 feet and 4,768,000 acre-feet up to 57% full (as of 15 July 2019). A gain of 20%! Nice! Beats the 10% average gain since 2011, the 18% gain in 2017, and isn’t far from the 24% gain of 2011. And it might even inch up another 1% before it’s done.

It’s been a great year at Reclamation reservoirs across the state.

MESSAGE FROM THE DIRECTOR’S CORNER

By Carly Burton

Utah Water Summit Conference

The Utah Water Summit is just around the corner and has been scheduled for Tuesday, October 29, 2019 at the Utah Valley Convention Center in Provo. We have another great program lined up this year. The theme of this year’s conference is “Can Water Users & Legislators Work Together to Solve Future Water Needs”. Interesting topics include:

  1. Achieving a comprehensive legislative plan for water issues
  2. Regional water conservation goals for Utah
  3. Secondary water metering issues
  4. Partnership trends among cities and water districts to implement water wise ordinances
  5. Utah’s water future from the new director of the Utah Dept. Of Natural Resources
  6. Water banking concepts and partnerships
  7. Water supply outlook.

We are in the process of lining up speakers and we will have the conference brochure ready to mail and be on our website by around September 1, 2019. We look forward to seeing you there.