October 2018 Newsletter
Click to download the PDF format of the Oct 2018 Newsletter.
MESSAGE FROM THE PRESIDENT
By Gawain Snow
As I set here mulling what I might write for the Utah Water User’s Association newsletter, there is not much I can say that you have not already experienced. A long hot dry summer, with watersheds being devastated with wild fires and now much needed rain is being forecasted and with it the concern of debris flows and flooding. As water managers and water users we are continually reminded just how little control we have over Mother Nature. The task we are faced with is to moderate as best we can the dry and wet periods, the hot and the cold, so that the populations that depend on water and food for a quality life that is unprecedented, go on about their daily lives mostly uninterrupted by the lack of services to their homes and businesses. I would commend you for the great work you do every day to keep Utah a great place to live. Our Agricultural community is the first to feel the effects of weather and the related results. You are to be commended, that year in and year out, you survive and provide food and fiber for people all over the world. May you always be blessed for your efforts.
See you at the Utah Water Summit October 23 in Provo. Let it Snow !
UTAH & THE LAW: ENERVEST v. STATE ENGINEER
By Jeffry R. Gittins – SMITH HARTVIGSEN, PLLC
The Utah Supreme Court recently issued its opinion in the case of EnerVest, Ltd. v. Utah State Engineer. The case focused on the issue of who has standing to appeal a district court’s decision on an objection to a proposed determination.
Minnie Maud Creek is a stream in Duchesne County that is tributary to the Green River. The General Adjudication for Minnie Maud Creek was initiated in 1956, and the State Engineer issued a Proposed Determination in 1964. The Minnie Maud Reservoir and Irrigation Company (“MMRIC”) was awarded twelve water rights in the Proposed Determination.
Four objections were filed, which challenged eight of MMRIC’s water rights.
In 2012, EnerVest filed a petition to expedite a hearing on the objections, which were still pending. The district court granted the hearing, but limited the scope to the question of whether MMRIC was correctly listed as the owner of the water rights. Several parties participated in the hearing, including EnerVest and Michael Carlson, who had not filed objections to the Proposed Determination, and the Hammerschmid Trust, who had filed an objection. EnerVest and the Hammerschmid Trust argued that MMRIC did not own the water rights, and Carlson argued that MMRIC did own the water rights. The district court agreed with Carlson,and ruled that MMRIC was correctly listed as the owner of the water rights in the Proposed Determination.
EnerVest and the Hammerschmid Trust appealed the decision to the Utah Supreme Court. During the pendency of the appeal, the Hammerschmid Trust voluntarily dismissed their appeal, leaving EnerVest as the sole appealing party. Carlson then challenged EnerVest’s standing to continue the appeal.
The Utah Supreme Court first had to determine if the appeal was proper under Rule 54(b) of the Utah Rules of Appellate Procedure, which allows appeals for individual claims within a larger case. The Supreme Court concluded that the appeal was not proper for several reasons, including the unique nature of General Determinations that “prevents complete finality of any water rights until the entire general adjudication has been completed.”
The Supreme Court then had to determine if the appeal was proper under Rule 5(a) of the Utah Rules of Appellate Procedure, which allows interlocutory appeals(i.e., appeals before a case is final). As part of this determination, the Supreme Court examined whether EnerVest had standing to pursue the appeal. The key fact in this analysis was that neither EnerVest nor its predecessor-in-interest had filed an objection to the Proposed Determination, and a party who does not timely object to a Proposed Determination acquiesces to the Proposed Determination as published. Because EnerVest had already acquiesced to the Proposed Determination, it lacked standing to appeal the district court’s decision upholding the Proposed Determination. Furthermore, EnerVest could not pursue the Hammerschmid Trust’s interests in the appeal. As the Supreme Court noted,”a non-objecting party’s interests can piggyback on another party’s objection, but only as far as the objecting party is willing to travel. Once the objecting party chooses to end its objection’s journey, the non-objecting party cannot take over.
Based on these determinations, the Supreme Court dismissed the appeal for lack of appellate jurisdiction.
WATER OUTLOOK
By Troy Brosten
Water year (WY) 2018 started out with a whimper and ended with a whimper, a whine, and sigh of relief as summer departs through the door. About half the snowpack of a normal winter followed by four months of hot summer temperatures with abundant forest fires and little rain. September set a record low for monthly precipitation at many of our SNOTEL sites. Sites that did not break a record low ranged from 3% to 20% of average. This amounted to less than half an inch of rain, reported by the SNOTEL network, across Utah for the month of September. Going back to the past four months, June through September, we find the precipitation period of record average ranged from 20% to 50% across the state with the exception of Southwestern Utah receiving some relief from seasonal monsoonal moisture. Accumulative precipitation for WY2018 ranged from 76% on the Bear River Basin to 51% in Southeastern Utah with most basins reporting within the 60% range.
Reservoirs have seen heavy use with little to no water left in the bank to add to next year’s water levels. Across the state reservoir storage is at 54% of capacity compared to 70% last year. The one bit of good news is the NOAA one-month outlook forecasts above normal precipitation across Utah. With luck this wet pattern will continue as we march our way into fall and winter.
WEATHER UPDATE – NATIONAL WEATHER SERVICE
By Brian McInerney
The past summer was one to forget if you are in anyway shape or form in the Utah water business. It was hot and dry, with added smoke thrown in to make it more palatable. Temperatures through the July through September time frame averaged around 4 degrees F above the 30 year average for the majority of the state. Although some areas in the west and central desert regions were around 2 degrees F above.
As far as rainfall is concerned, June was basically void of any precipitation, with July showing approximately 150% of average in the south. This comes with a caveat, as that amount of precipitation came in the form of intense thunderstorms that lasted for about 3 days. Flash flooding ensued, and we then returned to our regular dry climate. Northern Utah was again shut out of any significant rainfall once again during July. Then August rolled in with the potential for a greater monsoonal surge only to see about 25% of what we typically expect across the state.
I even went back and totaled up the actual number of days we measured rainfall in Salt Lake City. I only made it to 8 days, with most of those registering a few hundredths.
On top of this, Central Utah started to burn, and burn it did. We experienced over 100 fire starts across the state, with about a dozen that are now causing us issues with debris flows when it does rain.
I know this sounds depressing, but it is. Reservoir storage is down about 40% depending on how you average it out from last season’s carryover, and it’s still hot as of this writing.
Let’s shoot for an abundant 2019 water year with lots of storms and such. Nice thought. We’ll see if this shakes out anytime soon.
MESSAGE FROM THE DIRECTOR’S CORNER
By Carly Burton
We’ve Moved
Due to unforeseen circumstances we had to move the Water Users office in mid- September. The new address is as follows: 6856 S. Bateman Dell Way, West Jordan, Utah 84084. The new office phone number is 801-561-3967. The new e-mail is carlybarbaraburton@gmail.com. My cell phone will remain the same at 801-560-2533. Please direct all future correspondence to the new address and phone number.
Utah Water Summit Conference
Man, time is flying by and it is almost time for our annual Utah Water Summit Conference on October 23, 2018 at the Utah Valley Convention Center. We have a great program lined up again this year and our theme is “Our Changing Climate and its Impacts on Water Regulations and Water Law”. It seems to me that the weather and climate extremes have impacted everyone’s daily lives for many years, especially the difficult decisions that water managers have to make to try and stretch limited water supplies and dwindling reservoir storage.
We mailed out the Summit brochures about a month ago but if you did not receive one you can go to our website at www.utahwaterusers.com to get the agenda and registration information. To find out about parking just Google Utah Valley Convention Center. Click on parking & directions and scroll down to download parking map. The closest free parking is 1 block north and 1 block east of the Convention Center or ½ block west of the Convention Center. See you there.