State of Utah: Proof of Beneficial Use of Water
for the Upper East Union Irrigation Company
Marcos Antonio Perez
A project submitted to the faculty of
Brigham Young University
in partial fulfillment of the requirements for the degree of
Master of Science
Rollin H. Hotchkiss, Chair
A. Woodruff Miller
Norman L. Jones
Department of Civil & Environmental Engineering
Brigham Young University
April 2012
Copyright © 2012 Marcos Antonio Perez
All Rights Reserved
ABSTRACT
State of Utah: Proof of Beneficial Use of Water
for the Upper East Union Irrigation Company
Marcos Antonio Perez
Department of Civil & Environmental Engineering, BYU
Master of Science
Beneficial use is the limit and measure for a water right in Utah. A water right is
different from money in the bank. Money can stay in an account unused by the account holder
and continue to build interest. A water right secures its holder with a quantity of water to be
used for a defined purpose, place, and time. Use is the only value of a water right.
Use is essential to possessing a water right. Unlike a bank account, if a water right is not
beneficially used within a seven year period, it becomes forfeited to public use. Then the state
engineer has responsibility of proportioning the forfeited water for public use. In similar
manner, any changes made to the quantity, purpose, place, or time of use must go through a
proof process. The water right holder must demonstrate to the state engineer that the water is
still being beneficially used after the change occurs.
The UEU recently changed the place where water was diverted as well as the conveyance
system. These changes, after being approved by the state engineer, now require proof of
beneficial use. By using the Provo River Decree, which set forth the UEU water right, and Utah
State Code Title 73 as guides, the proof form provided by the state engineer was filled out and
submitted to the UEU board.
Several challenges arose during the research and data collection for the proof of
beneficial use. First, UEU and one of its principal shareholders were in a legal dispute over the
quantity of water. Second, for the first time, the place of use was required to be more exact than
what the Provo River Decree set forth. Third, once the court case ended, UEU was awarded
more water than the state engineer approved in the change application.
The solution to these issues was to file a proof of beneficial use based on the change
application approved by the state engineer and the current requirements in proof rulings. This
meant that instead of 744.9 acres of land, the UEU only would prove beneficial use for 321.574
acres. Service areas as described in state code were used to delineate place of use instead of the
Provo Division called for in the Provo River decree.
Keywords: Marcos Antonio Perez, upper east union, proof, beneficial use
ACKNOWLEDGMENTS
This project came about due to the time and efforts of several individuals. I appreciate
the time and commitment Dr. Rollin H. Hotchkiss made on my behalf. He introduced the project
to me as a means of solving a real world need that also piqued my interest. Roy Peterman,
president of the Upper East Union Irrigation Company, has also been invaluable to me for the
information he has provided me and his time. John Briem, at the Utah Division of Water Rights,
has also provided consultation and clarification on completing the proof of beneficial use
throughout the year.
I would also like to thank those who were willing to be on the graduate student
committee for the project but were unable due to policy restrictions. Dr. Brigham Daniels, BYU
Law School professor, offered his time and advice for the committee.
Also, Theresa
Wilhelmsen, Regional Director of the Utah Division of Water Rights, was willing to be on the
committee. Paul Reese, licensed professional engineer for BYU, offered to be on the committee
and supported me with documents necessary for the proof of beneficial use. He also provided
the licensed professional engineering stamp required for the proof.
Those who formed the graduate committee I thank for being willing to assist me.
TABLE OF CONTENTS
LIST OF TABLES ...................................................................................................................... vii
LIST OF FIGURES ..................................................................................................................... ix
1
Introduction ........................................................................................................................... 1
2
Why a Proof of Beneficial Use? ........................................................................................... 5
3
2.1
A More Beneficial Use ................................................................................................... 5
2.2
Change Application ........................................................................................................ 6
2.3
Past Changes and Precedence ......................................................................................... 6
The Proof Form ................................................................................................................... 11
3.1
Quantity ........................................................................................................................ 12
3.1.1
The Dispute ............................................................................................................... 12
3.1.2
The Parent Right ....................................................................................................... 12
3.1.3
The Calculated Volume ............................................................................................ 14
3.1.4
Acres are the Key ...................................................................................................... 15
3.2
Purpose of Use .............................................................................................................. 17
3.3
Time Period................................................................................................................... 19
3.3.1
Irrigation Season ....................................................................................................... 19
3.3.2
Time Period for UEU ................................................................................................ 20
3.3.3
Storage ...................................................................................................................... 21
3.4
Place of Use .................................................................................................................. 22
3.4.1
Service Area .............................................................................................................. 25
3.4.2
Method of Calculating Acres within a Service Area ................................................ 25
3.4.3
Checking Assumptions ............................................................................................. 28
v
3.5
Records ......................................................................................................................... 31
4
Waivers to Proof of Beneficial Use .................................................................................... 33
5
Conclusion ........................................................................................................................... 35
REFERENCES ............................................................................................................................ 37
APPENDIX A. The 1937 Change of Point of Diversion........................................................ 39
A.1 Proof Map ........................................................................................................................ 39
A.2 Certificate .......................................................................................................................... 41
APPENDIX B.
Current Diversion Change Documents........................................................ 43
B.1 Change Application ........................................................................................................... 44
B.2 Letter of Approval from State Engineer............................................................................ 47
APPENDIX C. UEU and CUWCD Timeline ......................................................................... 51
APPENDIX D. Applicable Sections of Utah State Code ....................................................... 53
D.1 Chapter 3 of Title 73......................................................................................................... 53
D.2 Chapter 1 of Title 73......................................................................................................... 53
APPENDIX E. Conversations with the Proof Reviewer ....................................................... 54
APPENDIX F.
BYU and other proofs needed ......................................................................59
vi
LIST OF TABLES
Table 3-1: The 1993 State Engineer Volume Calculation for Upper East Union ........................14
Table 3-2: Comparison of Acres on Change Application and Calculated Acres ..........................16
Table 3-3: Total Acres Per Section ................................................................................................30
Table 3-4: Central Utah Water Conservancy Volume Measurements for Upper East Union .......32
Table C-1: UEU and CUWCD Timeline .......................................................................................51
Table F-1: Alfred Young Ditch Diversion .....................................................................................60
vii
viii
LIST OF FIGURES
Figure 1-1: Upper East Union Irrigation Company Parent Right Segregation ................................2
Figure 1-2: East River Bottoms Water Company Parent Rights Heritage.......................................3
Figure 2-1: Excerpt from the Title Block of the 1945 Proof Map ...................................................7
Figure 2-2: Excerpt from 1945 Proof Map Displaying Diverison Change......................................8
Figure 2-3: Excerpt from the 1946 Certificate of Permanent Change .............................................9
Figure 3-1: Aerial View of Provo River and Old Canal Systems ..................................................24
Figure 3-2: Aerial Views Compared Google Map on Left and FSA on Right ..............................26
Figure 3-3: Delineation Using Aerial Maps and AutoCAD Civil 3D ...........................................27
Figure A-1: Proof of Diversion Map .............................................................................................40
Figure A-2: Certificate of Permanent Change ...............................................................................41
Figure B-1: Application for Change Page 1 ..................................................................................44
Figure B-2: Application for Change Page 2 ..................................................................................45
Figure B-3: Application for Change Page 3 ..................................................................................46
Figure B-4: Approval for Change Page 1 ......................................................................................47
Figure B-5: Approval for Change Page 2 ......................................................................................48
Figure B-6: Approval for Change Page 3 ......................................................................................49
ix
x
1
Introduction
Irrigation in Utah began decades before Utah became a State. Irrigation companies
provided the organization needed to construct systems of conveyance and manage diverting
water from its source to farm or rangeland. On becoming a State, Utah state code recognized the
water rights maintained by these irrigation companies by declaring “…the one first in time is
first in rights” in Utah Code Title 73, Chapter 3, Section 1, Part 5a which will be written as 73-31(5)(a) (Utah State 2012).
One such irrigation company is the Upper East Union Irrigation Company (UEU). It was
organized by Robert T. Thomas in the 1870’s. Despite existing before state district courts, the
UEU water rights stem from a district court decree made in the early 1900’s.
Civil case number 2888 of the Utah State Court, 4th Judicial District established the water
rights for irrigation companies, private land owners, businesses, Provo city and others who divert
water from the Provo River. This decree is referred to as the Provo River Decree as well as the
Morse Decree, after the judge C.W. Morse who presided over the case. This latter name, Morse
Decree, is also given to other decrees made along both Big Cottonwood Creek and Little
Cottonwood Creek (Gittins 2010). For the purposes of this paper, Morse Decree refers to the
Provo River Decree.
Since the time of the Morse Decree, the water rights have been segregated, bought and
sold in parts and pieces. The Morse Decree established what has become known as the parent
1
right. For example, UEU was given water rights in the decree but since that time, some of the
water rights have been segregated to others. The figure below shows the parent water right
number with its associated acreage and how it was split or segregated.
Figure 1-1: Upper East Union Irrigation Company Parent Right Segregation
This water right history is relatively simple. The Seven Peaks attempt to split the water
right was rejected by the state engineer. The Utah state engineer has final authority to grant such
segregation. The segregation was approved by the state engineer for the Central Utah Water
Conservancy District (the District). This means that currently, UEU possesses approximately 43
percent of the parent water right and the District the rest.
To demonstrate how lusty the branches of the water right history tree can be, Figure 1-2
shows another irrigation company given water rights from the Morse Decree called the East
River Bottom Water Company (ERB).
2
Figure 1-2: East River Bottoms Water Company Parent Rights Heritage
In Figure 1-2, the parent rights are shown on the second line from the bottom of the chart.
Parent rights are the original rights as defined in the Morse Decree. As shown, the several parent
rights merge into a group maintained ERB and the District also possesses a group of water rights.
Also, in Figure 1-2, the Blue Cliff Irrigation Company completely dissolves and all of its
water rights are divided between ERB and the District.
These histories demonstrate the variation of water right ownership with time. This
ownership change can also bring change in place of use, change in the point of diversion, or
change in the purpose of use. All of these changes must be approved by the state engineer
through a process called proof of beneficial use.
3
UEU received a letter from the state engineer requiring a proof of beneficial use after
changing the point of diversion along the Provo River. The objective of the project is to satisfy
this proof of beneficial use requirement.
4
2
Why a Proof of Beneficial Use?
Beneficial use is state law. Utah Code Title 73-1-3 states, “Beneficial use shall be the
basis, the measure and the limit of all rights to the use of water in this state.” Also, the Morse
Decree states in Section 134 that exercising water rights is subject to the “conditions that they are
required and necessary for beneficial uses.” Furthermore, a court directive shown in Kent Jones’
Utah Water Users Workshop in March 2011 gives more emphasis on use rather than treating the
water right as a quantity stored in the bank. The water right holder does not own the “corpus of
the water but acquires only the right to use …for… beneficial purposes.” It further states that
“the amount reasonably necessary is the limitation…” despite any prior quantities received. No
one owns water, just the permission to use it (Jones 2011).
It can be put to use in a variety of ways. Beneficial uses include irrigation, stock
watering, domestic, municipal, mining, power, and others. However, having a need to use water
does not always ensure appropriation of a water right..
2.1
A More Beneficial Use
Some beneficial uses take precedence over others. “A more beneficial use” is determined
by the state engineer (73-3-1(5)(b)). The state engineer makes this judgment if an application for
a water right interferes with the beneficial use of another water right, “unreasonably affects
5
public recreation or the natural stream environment, or will prove detrimental to the public
welfare” (73-3-8(1)(b)(i)).
Since the water right of UEU originates from a District Court decree, it is considered
perfected. Perfected refers to the quantity of water already being appropriated and having
priority over other requests for water rights (Briem 2011 - 2012). Therefore, no quantity changes
are made to appropriate additional water rights. Only a change in the point of diversion was
made to the UEU water right.
2.2
Change Application
Any change to the point of diversion, purpose of use, or place of use requires a change
application and approval of the state engineer whether permanent or temporary (73-3-3). The
only changes in the UEU system were the point of diversion and the switching of conveyance
systems from an open channel to a pipeline. The state engineer approved the change application
June 2010 and at that time required a proof of beneficial use as written in ORDER OF THE
STATE ENGINEER Permanent Change Application Number 55-1200 (a28923), page 2,
paragraph 4 (Utah Division of Water Rights 2011).
2.3
Past Changes and Precedence
This is not the first time UEU changed the point of diversion. The original point of
diversion prior to 1946, called City Creek, near mouth of Provo Canyon, was abandoned and the
dam destroyed as shown in the drawing labeled Map, Plans, Profile & Drawings. Proof of
Change of Point of Diversion. Application No. A-1372 (Utah Division of Water Rights 2011).
The change application was filed in 1937. Proof during this time consisted only of a map
6
showing the old and new diversions with details of the constructed works. The engineer, Hugo
Price, created the map from a survey done in 1940. He wrote, “…these drawings correctly and
fully represent the location, extent and character of the works…and show such other related
information as will completely define said proof.” The proof itself was titled, “Proof of Change
of Point of Diversion” as shown in Figure 2-1.
Figure 2-1: Excerpt from the Title Block of the 1945 Proof Map
This clearly shows that a proof of change of point of diversion was considered a separate
proof from any other changes. The proof map only shows the old and new diversions. It does not
include any delineation of the place of use. Nor does it include anything that references the
purpose of use or time period.
It does provide information describing the new diversion works as well as location. This
map would be considered only a partial submission according to the current standard for
submitting proof of beneficial use.
7
8
Figure 2-2: Excerpt from 1945 Proof Map Displaying Diversion Change
During this time, no water measurements or delineation of the place of use was required
to obtain certification from the State engineer. The certificate itself also distinguished between a
“permanent change of point of diversion, place or purpose of use of water.” There is a blank left
open on the certificate to specify the type of change. In this case the blank reads, “POINT OF
DIVERSION.”
Figure 2-3: Excerpt from the 1946 Certificate of Permanent Change
This indicates that during this time a change of diversion did not require place of use or
water measurements. Rather, as the last paragraph in the certificate states, “…this certificate is
restricted to the change of point of diversion.” However, in recent years, a policy shift requires
the new point of diversion change to submit more information on the proof of beneficial use than
required previously. Despite the precedence set by the previous proof submittal, the current
proof of beneficial use must follow the current specified format.
9
10
3
The Proof Form
The state engineer furnishes a form for the proof of beneficial use (Utah Code Title 73-316(2)). This form must be completed and reviewed by the regional office of the Utah Division of
Water Rights to check for compliance with the state code.
This form lists thirteen pieces of information the regional office needs to review prior to
certification by the state engineer. Not all of the information applies to UEU. For example, part
6 of the proof form asks for the location of a point of re-diversion. UEU pipeline has no point of
re-diversion. Therefore, this portion of the proof form is not applicable.
Not all parts of the proof were completed so readily. Part 3, the quantity portion of the
form, was under dispute in court during the time of data collection. Also, portions of the proof
appeared difficult to reconcile, specifically parts 10 and 11. These parts require the nature,
extent and period of use along with the place of use. However, given that shares of the UEU
water right could change owners, these parts would also change. Would a change application
and proof of beneficial use be needed every time shareholders changed?
To address such
questions and situations, the Utah State code regulating water rights was used as an instruction
guide as well as the Morse Decree to complete the proof of beneficial use form.
11
3.1
Quantity
Quantity is among the controversial issues surrounding water rights. Beneficial use is the
limit of water rights. Therefore, the amount will vary depending on use. For UEU, state
engineers over the years have assumed the use to be irrigation. Despite this and the acres of land
and flows being specified in the Morse Decree, variations in the total quantity of water have been
calculated and disputed.
3.1.1
The Dispute
Quantity is defined by the Morse Decree in the parent right but was debated in court.
One of the UEU shareholders, the Central Utah Water Conservancy District (the District), made
an agreement with the UEU to construct the pipeline to convey UEU water right to its other
shareholders. In return, the UEU agreed to segregate the remaining shares of UEU from the
District shares. The amount of water right left over for UEU was being disputed in the 4th
District Court. The final decision resulted in the UEU receiving the entire quantity defined by
the parent right. The question arose, “what quantity should the proof of beneficial use address?”
John Briem, the proof reviewer at the Utah Division of Water Rights, gave guidance to
continue using the disputed amount, 321.573 acres, since that was the only amount approved by
the state engineer. Roy Peterman, the president of UEU, reaffirmed that guidance to file a proof
based on the change application submitted rather than the entire parent right.
3.1.2
The Parent Right
Specifically, the Morse Decree states in section 7:
Upper East Union Irrigation Company, 744.9 Acres.
12
From May 10th to June 20th, Duty 57, 13.07 second feet
From June 20th to July 20th, Duty 63, 11.82 second feet
From July 20th to May 10th, Duty 70, 10.64 second feet
This outlines the number of acres of land and the duty of water in second feet to be used
on that land as mentioned in the Morse Decree Section 3 (Provo Reservoir Company, a
Corporation, Plantiff versus Provo City et. al. Defendant 1914 - 1921).
Flows vary with the season. High flows are allotted during spring runoff season, while
the lowest flow is allotted during the time spring runoff may be unavailable or in short supply.
The low flow also occurs during the winter months when most water may be in the form of ice
and snow, not readily available to use.
The units of second feet are assumed to mean cubic feet per second. This assumption
comes from Utah Code Title 73-1-2 which states, “one cubic foot per second of time, which shall
be known as a second-foot.” This part of the code has only been in effect since 1953. However,
it is one of the few references in code that explains the units of second-feet.
Also, the flow varies inversely to the “Duty.” From simply multiplying the duty number
and the corresponding amount of flow, the result is approximately 745 for all three time periods.
This indicates that the acreage is a function of duty and flow.
Duty and flow vary with the time period. The length of time specified runs the course of
a full year not just an irrigation season, despite being labeled an irrigation company.
However, in a Memorandum of Decision for temporary change application number t9355-15 filed by the District, the state engineer does not explain the duty but quantifies the amount
13
of water using the dates and the associated decreed flow from the Morse Decree (Utah Division
of Water Rights 2011).
3.1.3
The Calculated Volume
The total volume of water has been calculated differently by State engineers over the
years. In 1993, Robert L. Morgan calculated a total volume of 3750 acre feet. In 2010, Kent L.
Jones calculated a total volume of 2979.6 acre feet. Robert Morgan calculated his number from
the Morse Decree as shown in his Memorandum Decision for temporary change application t9355-15. Table 3-1 summarizes the calculation results assuming a 165 day irrigation season from
April 29 to October 11.
Table 3-1: The 1993 State Engineer Volume Calculation for Upper East Union
Time
Period
April 29 to
May 10
May 10 to
June 20
June 20 to
July 20
July 20 to
Oct 11
Total
Days
Flow, cfs
Flow, ac ft/day
11
10.64
21.1
Volume,
ac ft
232.1
41
13.07
25.9
1062.9
30
11.82
23.4
703.3
83
10.64
21.1
1751.3
165
3749.6
The volume calculation in Table 3-1 results in approximately 5 acre feet per acre (ac
ft/ac).
Kent Jones based his calculation on a duty of 4 ac ft/ac for the Utah Lake Jordan River
Region of the Division of Water Rights, which is the diversion duty standard (Utah Division of
14
Water Rights 2011). The duty was standardized for each region within the jurisdiction of the
Division of Water Rights.
This is based on Dr. Robert W. Hill’s research report entitled
Consumptive Use of Irrigated Crops in Utah. Alfalfa is the default crop used for depletion and
flood irrigation as the irrigation practice as soon on Slide 18 of Kent Jones workshop (Jones
2011). From this standardization, a simple calculation is done by multiplying 4 ac ft/ac and
744.9 acres to obtain the total volume.
The difference in the two methods shows the emphasis each state engineer had at the
time. For Robert Morgan, the Morse Decree provided all the information. The flow and time
period were directly used to calculate volume. For Kent Jones, the acres of land from the Morse
Decree were used and all other information replaced with a standardized duty.
Because beneficial use is the measure and limit, there is room to show that 4 ac ft/ac duty
may not be enough. For example, Roy Peterman, the director of grounds at Brigham Young
University, mentioned during a meeting in August of 2011 that a mature tree will consume more
water per square foot of ground than turf grass. In other words, an acre of turf grass uses less
water than an acre of trees. Horticulture presents a challenge to the standardized duty provided
by the state engineer. This issue arises in the case of irrigation as a beneficial use. The acres of
land specified in the parent water right are used to determine quantity of water needed without
considering the type of crop on that land.
3.1.4
Acres are the Key
This emphasis on using acres of land for calculation is further shown when changing an
irrigation water right to another use, such as industrial. On slide 20 of Kent Jones’ March 2011
Utah Water Users Workshop, he demonstrates that the volume calculated using acres of land and
15
the standardized duty and depletion determine the quantity for industrial use. From a similar
emphasis on acres the acres per share can be easily calculated for UEU shareholders.
Assuming that the number of shares from the UEU records of 1736 is correct, dividing
the acres by the shares gives 0.43 acres/share. Table 3-2 shows what may be the discrepancy in
acres that were disputed in court between UEU and the Central Utah Water District (CUWCD).
Table 3-2: Comparison of Acres on Change Application and Calculated Acres
Company
UEU (all other
shareholders)
CUWCD
Total
Shares
Acres
Calculated
Acres on Change
Application
1100
472.82
321.574
633
1733
272.08
744.9
423.326
744.9
These numbers were part of the dispute in court. In 2003, UEU president, Roy Peterman,
signed two separate quitclaim deeds giving CUWCD rights to 32 percent of the parent right and
then 24.83 percent. The 32 percent represented CUWCD shares in UEU, and the 24.83 percent
represented the save volume of seepage loss due to piping the earthen canal. UEU and CUWCD
came to a final agreement after a court battle to determine the acres associated with the
segregated UEU water right. The 32 percent was returned through a quitclaim deed from
CUWCD to UEU. CUWCD retains ownership of shares but cannot segregate the 32 percent for
other uses until the diversion dam for UEU has been rehabilitated. Although these disputes make
acres of land appear variable, it is the backbone of the method to calculate quantity. On the other
hand, the purpose of use acts as a coefficient varying with circumstance to adjust the quantity
measure.
16
3.2
Purpose of Use
The purposes of using the water are specified for each type of beneficial use. Ruling
655-5 2.7.1 lists each type of beneficial use along with the details needed on the proof map as
shown below:
Irrigation - specific location where water will be applied on a parcel of land.
Domestic - specific location of the residence(s).
Stockwater - specific location where stock will be watered or area where stock are
impounded or grazed.
Instream - specific location of the reach of stream where flows are to occur.
Fish culture - specific location of the pond, lake, reach of stream, or facility.
Mining - specific location or area where water will be used for mining purposes.
Oil well development - specific location of the oil field described in the developing
entity's mineral rights or other development authority or the specific location of the
facility or area where beneficial use occurs.
Power, commercial, industrial, or other - specific location of the facility or area where
beneficial use occurs (Utah Division of Water Rights 2011)
Section 3 of the Morse Decree cites three of the before mentioned beneficial uses. This
section mentions that the purposes of use within the Provo Division are “irrigation, domestic and
municipal uses and for the generation of power.” This list is a summary of the purposes of use
from the many water rights defined as Provo Division Class A. It appears that some of the
purposes apply to only some of the water rights.
17
Shakespeare wrote in his play Romeo and Juliet, “What’s in a name!” Line 85,Act II,
Scene I (Shakespeare n.d.). In the case of the UEU, the name may well define the purpose of
use. The Morse Decree does not list the purpose of use in the section that defines the parent right
of the UEU. However, in other sections, specific language is used to describe purpose of use.
For example, section 4 describes the parent right for Provo City. This particular section
is subdivided into parts describing the uses of each parent right given to Provo City. Parts a and
b read similar to section 7 that defines the UEU parent right: dates are given followed by a duty
number and flow in second feet. Instead of the irrigation company name, parts a and b quantify
“Acres of farmland” and “Acres of City lots,” respectively. Here the name implies that farmland
will be irrigated and city lots irrigated and put to domestic use.
Whereas, in parts c through e, purposes for each water right are specifically mentioned.
Part c is for irrigation and power generation. Part d is for the Mill race way that may be
considered commercial or industrial use.
Part e is for domestic and municipal purposes.
Another example is section 12 that includes water use for sugar beet processing. Despite the
name implying the type of use, specific use was decreed to differentiate the subparts of the water
rights.
Sections 78 and 79 mention fish culture as a use. Section 99 mentions stockwatering.
Each of these sections gave water rights to an individual. Hence, it would be necessary in these
cases to specify use as the name of the individual does not readily imply the type of use.
These examples show that the name must imply the purpose. Therefore, Upper East
Union Irrigation Company must have irrigation as its beneficial use.
18
Current shareholders may disagree.
Shareholders use water for stockwatering, fish
culture, water features for landscape, and irrigation. The proof of beneficial use aims to give
shareholders clear guidance. The Morse Decree does not specify any other use than what is
given from the name of the company. The purpose of UEU water right is irrigation.
3.3
Time Period
The time period varies with the purpose of use. For example, domestic and stock water
uses are required all year round to provide water to sustain animal life, whereas, irrigation use is
restricted to an irrigation season. This is emphasized in Section 134 of the Morse Decree that
“…use for culinary and domestic purposes are continuous through the year…and use for
irrigation purposes is confined to the irrigation season…” This restriction on irrigation for the
UEU is taken into account despite the fact that the Morse Decree gives dates for flow for an
entire year in section 7.
3.3.1
Irrigation Season
Irrigation season is associated with the growing season for crops. The growing season is
determined by the freeze dates of each year. These dates occur when temperatures are greater
than 28 degrees Fahrenheit. The Morse Decree describes the irrigation season as the time
between “Spring” and “Autumn.” The decree clearly states that none of said parties shall divert
waters during the non-irrigation season.
Section 130 of the Morse Decree shows how to calculate the assessment on the irrigation
water. Section 129 explains that an assessment is used to pay the administrative expenses of
19
distributing water from the Provo River. For purposes of this assessment the irrigation season
for the Provo Division was set at 165 days.
Typically, the irrigation season can begin in April and will end in October or early
November. This is shown in the Division of Water Rights record for water right number 5511851. The period of use starts the first of April and goes to the first of November. This is a
total of 214 days. This shows the variability in the irrigation season. It can change from one
region of the state to another. It is dependent on climate conditions.
3.3.2
Time Period for UEU
To ensure proper diversion, flow meters along the Provo River are installed and records
are reported to the state engineer. Records obtained from the Central Utah Water Conservancy
District (CUWCD) from flow meters located along the UEU/East River Bottom pipeline indicate
that water has been diverted as early as the first of April and as late as the 16th of November.
Such extensions beyond the typical irrigation season are negotiated between the President of the
UEU and the state engineer based on need.
Indeed, the approval letter from the state engineer indicates his thoughts for the time
period. The last line in the first paragraph states, “The water has been used for the irrigation of
321.547 acres from April 1 to October 31.” This appears to be the common time period allotted
for irrigation. This time period is also given on the Division of Water Rights website under the
link called Proof forms and other information, “Generally the irrigation season is described as
April 1 to October 31 and/or the general frost free period in the area.”
For the purpose of this proof, the earliest date and latest date from historical records
maintained by CUWCD are used as the time period. This restricts the time period defined by the
20
Morse Decree but takes into account recent historical needs. The time period for the proof is
from the first of April to the 16th of November.
3.3.3
Storage
This time period does not apply to reservoirs or any form of storage such as a pond or
tank. “Any person having stored his appropriated water in a reservoir for a beneficial purpose
shall be permitted to withdraw the water at the times and in the quantities as his necessities may
require if the withdrawal does not interfere with the rights of others” (73-3-20(1)).
The UEU does not possess a central storage reservoir for all year round storage. There
may be an option for the UEU to store water at Deer Creek Reservoir. This option would require
collaboration with the state engineer, the Provo River commissioner, UEU, and the CUWCD.
First, UEU would have to demonstrate the need. Second, CUWCD would have to agree and
coordinate with the Provo River commissioner to divert the water. The storage would need to be
accounted for to the state engineer through a proof of beneficial use.
Another option is for individual shareholders to have their own reservoirs or irrigation
ponds. This reduces the administration expense of the UEU board members, since coordinated
efforts to determine how much longer or earlier water needs to be diverted would fall to the
individual shareholder. Storage lets the shareholder use the water whenever they need but not
for whatever they want. The use of the water cannot be changed but must continue to be used for
irrigation purposes.
Some shareholders already have storage ponds. The Utah State Hospital, the Courtyard
at Jamestown Associates, and Craig Peay are examples of UEU shareholders who have ponds.
BYU, despite being the largest shareholder, does not actively store water. There locations on
21
campus at BYU that could function as storage ponds. There are several water features on
campus that could serve as water storage locations. In this manner, water could be storage
without losing aesthetics. However, surface water is typically subject to contamination and algal
growth. This would require filtration and minor treatment before being pumped into sprinklers
or micro irrigation systems.
Storing water provides an option for water right holders, whether irrigation companies or
its shareholders, to extend the period of time water can be applied to beneficial use.
3.4
Place of Use
The Morse Decree states in section 116, “…none of the parties shall change the place of
use…” The stipulation is based on the idea of impairing others rights by diverting the seepage
and drainage (runoff) away from the Provo River, canals and other lands irrigated by that water.
It also specifies that UEU is part of the Provo Division. The Provo Division is described
in section 2 of the Morse Decree as “…all that area below and including what is known as and
commonly called the Wright Ranch, which is near the head of Provo Canyon, in Wasatch County
Utah.” The word “below” is suggestive of elevation given that the conveyance is typically
gravity feed.
From another 4th District Court case Civil No. 34701, it states that “…the Morse Decree
is not ambiguous…” Therefore, it appears that the place of use is defined by section 2 of the
Morse Decree. However, it is not any more specific than the Provo Division.
In conversation with Boyd Rollins, water master for East River Bottoms Canal Company
and president of the same for several years, he intimated the idea that water could be taken from
22
the Provo River and brought down in a truck to Salem, Utah. This shows the concept of an
ambiguous place of use.
However, from the court case mentioned, the Morse Decree is not ambiguous, not even in
its definition of the place of use. In some instances, the Morse Decree was more exact in its
description of the place of use. For example, the water right decreed in section 24 of the Morse
Decree includes a section, township, and range within the Provo Division. Also, the water right
in section 23 stipulates that acres of land “lie below the Lands irrigated by the Lake Bottom
Canal, and on the north side of Provo River.” This is less exact than a township, section, and
range yet hones in on a specific area within the Provo Division.
In the case of the UEU, no such specific place of use was given to the water right. There
may be a case for place of use based on the conveyance system. Older USGS topographic maps
show the hydrography of the canals within Provo. A shapefile for water features from the US
Census Bureau’s Topologically Integrated Geographic Encoding and Referencing system
(TIGER) was used to create a map showing the old canal systems. Figure 3-1 shows how the
canals run nearly parallel to the Provo River providing water below.
The blue line represents the Provo River. The old canal systems are shown using aqua
blue lines with dashers running perpendicular to the old canal alignment. There are several canal
systems shown. The Timpanogos Canal system diverted water further upstream than the other
canal systems. The next canal systems diverting water from the Provo River are the Upper East
Union Irrigation Canal and the East River Bottoms Canal. During the time these canal systems
were in operation, there was also a Lower East Union Irrigation Canal. This canal had been put
out of commission before the other systems were piped.
23
Figure 3-1: Aerial View of Provo River and Old Canal Systems
The location of the conveyance systems each of the individual irrigation companies
possessed at the time would have limited the place of use. These earthen canals would have been
limited by seepage and evaporation losses. If the water was conveyed too far, there would not be
enough head to flood irrigate the last field. Also water could not be conveyed uphill without the
use of a pump. Certainly, the historical service areas for the irrigation canals in Provo could act
as a starting point for delineation with consideration of the ability to tap into the current pipelines
that replaced the irrigation canals.
Currently, the place of use is still limited even though the conveyance works have been
piped. For the purpose of this proof, an attempt is made to delineate the place of use to
something more specific than the Provo Division.
24
3.4.1
Service Area
According to Utah Administrative Code Rule R655-5-2.7.2, a service area is used to
describe place of use on the proof map. This rule defines a service area as “--in the case of
mutual irrigation companies…the place of beneficial use is the water using entity's service area.
The service area boundaries shall be described in sections or 40-acre tracts of each section,
township, and range. Service areas are not required to be continuous nor consist of entirely
contiguous parcels...” The service area concept is used to delineate the place of use for the UEU.
To address the issue of changing shareholders and changing exact place of use, a
generalization was made within the sections surrounding the UEU pipeline. A current account of
shareholders and their acreage within a section was totaled. In this manner, the map would show
the section and an associated amount of acres that could be irrigated. This is not the most
flexible method but does allow for shares to change within the service areas. Although, the acres
of land are not evenly distributed among the sections, the service areas or sections cater more
toward the larger shareholders.
3.4.2
Method of Calculating Acres within a Service Area
Utah county parcel data provided the initial information for the place of use. The initial
phase operated under the assumption that parcels owned by shareholders of UEU were irrigated
by the water shares owned. This resulted in a large amount of acres more than double what
water right number 55-12000 possessed, which is a meager 321.574 acres. Brigham Young
University (BYU) alone as a shareholder showed a parcel of 640 acres. This measurement
included parking lots, buildings, and other areas that do not use irrigation.
25
The next phase was to isolate the actual acres irrigated of the larger shareholders. For the
UEU, the two largest shareholders are BYU, with 51.3 percent of the shares, and the Utah State
Hospital, with 24.4 percent.
The method for delineating the specific place of use for BYU and the Utah State Hospital
was the same. An aerial photo of the locations from 2010 was used to trace and locate arable
areas. These areas included grassed areas, shrubs, trees in parking lots, green houses, and
orchards. This method has disadvantages. First, aerial views tend to be naturally spherical. This
can be seen by comparing Farm Service Agency (FSA) and Google Map aerial views. The
photographs of aerial views from the FSA show the Eastern portion of the buildings while the
Google Map views show the western portion. Aerial views are not exactly plan views of the
buildings as shown in Figure 3-2.
Figure 3-2: Aerial Views Compared Google Map on Left and FSA on Right
Some information is hidden depending on how the picture was taken. For this proof, care
was taken to reference both aerial views depicting each side of a building to obtain better
reference as to arable areas.
26
Besides the skewed nature of the aerial imagery, both BYU and the Utah State Hospital
own shares in other irrigation companies.
BYU leases its shares in the other irrigation
companies. Thus, these other irrigation company shares do not need to be included on the map.
Also, the arable areas that are planned to be irrigated with Timpanogos Canal Company water
shares were left out of the service areas. The Utah State Hospital stores its water shares in a
pond. From the pond, the operator of the irrigation may take water as needed. These practices
made the shares in other irrigation companies negligible.
Once the delineation was finished, AutoCAD Civil 3D was used to create parcels with
boundaries at the section lines. This allowed for finding the amount of acres per section. Figure
3-3 shows an example of the delineation.
Figure 3-3: Delineation Using Aerial Maps and AutoCAD Civil 3D
27
This delineation, excluding the Temple, Missionary Training Center and Wymount,
brought the acres for BYU down to approximately 156 acres from a parcel size of 640 acres.
The Utah State Hospital went from a parcel of 311 acres to a more reasonable 36 acres of arable,
irrigated land.
Once the delineation was completed, shapefiles were created from AutoCAD Civil 3D to
use in ESRI’s ARC GIS software. Using parcel data from Utah County, shareholder parcels
were selected based on parcel owner name and exported as a separate shapefile. The acres from
the shareholder parcel shapefile would be totaled along with the delineation shapefile in each
section from the public land survey system. In this manner, a calculation of acres per section
could be made.
3.4.3
Checking Assumptions
Once a preliminary map was made, an Excel spreadsheet aided the calculations. A listing
of shareholders, shares, acres, along with the section, township, and range was made. However,
the current phase of the map assumed that because a shareholder owned a parcel near the
pipeline, that parcel was being irrigated using shares of UEU.
To verify actual land irrigated, a guided tour of the pipeline was given by the UEU board
president, Roy Peterman. During the tour, Roy showed the location of shareholders and turnouts
along the pipeline. He understood who was using the water and who was not but was unsure in
some cases.
As a second means of verifying the map, phone conversations with each shareholder were
conducted. Admitting, not all shareholders were contacted or responded to voice messages. Still,
this verification step proved helpful. Of the 45 shareholders, 14 phone calls were made. Some
28
shareholders did not require phone calls based on information provided from the guided tour of
the pipeline. The 14 phone calls resulted in positive verification for 19 of the shareholders.
Several of the shareholders were relatives.
During the phone conversations, the shareholders were asked where they use the water
and how they use the water. It was discovered that several shareholders were not using the
water. To assist them in putting their water to use several suggestions were given.
The first suggestion was always, lease the shares to someone who can use them. A list of
possible interested parties was made based on proximity to the pipeline. As another suggestion,
land that had not been in production could be put back into production. The Natural Resources
Conservation Service offers cost sharing for producers who are interested in growing organic
produce. This cost share may be incentive for shareholders to put land back into production and
use those water shares. Another option is to segregate the individual share and change the place
or purpose of use to suit the shareholder’s needs. This is in accordance with Utah code Title 733-3.5. It also requires approval of the UEU board before a change application can even be filed.
A final suggestion was to sell the shares. Similar to leasing, this requires finding someone
interested in buying and using. A BlogSpot was created called www.ueuic.blogspot.com to help
shareholders understand their responsibility to use their shares.
Another discovery showed that the municipal shareholders, Provo City and Provo School
Districts, are not clear where the water shares are being used. From the tour, there is one park
area that has turnouts from the pipeline to divert their shares. However, the Provo School
Districts may not be using their shares fully. A list based solely on proximity to the pipeline was
created to help determine where the water could be used for the Provo School District. The list is
as follows: Canyon Crest Elementary, Edgemont Elementary, Provost Elementary, Rock Canyon
29
Elementary, Spring Creek Elementary, Wasatch Elementary, Centennial Middle School, Provo
High school, and Timpview High school. This list isolates the Provo School Districts total acres
of 310 acres to something more feasible.
Wasatch Elementary was assumed to be using
irrigation water for the calculation.
Also, if the three shareholders, Woody Family Trust, Dennis Chapman, and Red Cedar
Properties lease their shares or put them to use on their parcels of land, the 321.574 acres is
nearly reached. As shown in Table 3-3, the total acres are short by 0.1 acres if both values are
rounded to the nearest tenth.
Table 3-3: Total Acres Per Section
Township Range Section
T6S R3E 7
T6S R3E 18
T6S R2E 24
T6S R3E 19
T6S R2E 25
T6S R3E 30
T6S R2E 36
T6S R3E 31
T6S R3E 32
T7S R2E 1
T7S R3E 6
T7S R3E 5
T7S R3E 7
T7S R3E 8
T7S R3E 18
T7S R3E 17
TOTAL:
Acres
3.44
3.73
4.11
13.92
22.54
3.67
23.56
122.56
7.83
0.00
47.99
27.25
9.13
27.95
0.00
3.79
321.47
During a shareholders’ meeting on February 6, 2012, it was discovered that another
shareholder, Durrant, was also putting his shares to use on approximately 2 acres. These acres of
30
land will be added to the map and the Table 3 – 3 will be updated. Such updates will occur as
shareholders reveal how and where they are using their water.
The shareholders who are not included in this calculation of acres are as follows: Bernice
Warren, F.W.C Heathenbrook, Karl Wright (who wants to lease), Pioneer Drive Inn Theater Inc,
Provo City (only one park is included but two more in development), and Provo School District
(only Wasatch Elementary was included). Despite the fact that these shareholders are not
accounted for directly on the map. The assumption using the entire parcel of the smaller
shareholders as arable land allows time for these entities to put their shares to use. In this
manner, the proof can be filed for the acres of land specified on the change application without
exceeding the actual acres that would be measured if only arable land on all property was
counted.
3.5
Records
The Central Utah Water Conservancy District (CUWCD) maintains records of flow rates
and volumes in the pipeline. Flows are measured from magnetic meters and sent to mainframe
servers using radio signals. CUWCD provides the state engineer with an annual report showing
a daily average in acre feet for each irrigation company every water year. This is part of the
Provo River Commissioner’s Report that must be submitted annually.
The measurements are subject to error due to various failures. Power outages, lightning
strikes, cloudy weather affecting solar panels or open channel flow in magnetic meters can all
cause error in the data. These errors are taken out of the daily average. Volume is measured
using ultrasonic flow meters which can account for less than full pipe flow. These too are
subject to errors in data.
31
The maximum flow must be less than the specified flow in the water right. According to
CUWCD records, the maximum volume in water year 2010 was 12 acre feet. This occurred on
30 July 2010. The raw data shows several consecutive days with zero as well as other negative
measurements. Table 3-4 shows the maximum values for each water year since the canal
conveyance was changed to a pipeline.
Table 3-4: Central Utah Water Conservancy Volume Measurements for Upper East Union
Water
Year
2004
2005
2006
2007
2008
2009
2010
2011
Total
Maximum
Volume, Date Max
Volume,
AcreOccurred
Acre-feet
feet
21
713
7/4/2004
15
808
4/20/2005
20
961
4/25/2006
14
730
8/10/2007
18
711
10/20/2008
12
799
7/6/2009
12
1012
7/30/2010
9
873
8/10/2011
These volumes show that UEU has stayed under the 1286.269 ac-ft allotted on the water
right. Also shown in Table 3-4, the maximum volume values occurred in the hotter months of
July and August. This is reasonable since crops would demand more water during this time of
high temperature. However, there are some values in April and one in October. The cause of
this could be management practices or meter errors.
32
4
Waivers to Proof of Beneficial Use
Within the State code there are several situations that allow the State engineer to waive
parts or even all of the proof of beneficial use.
During the change application process leading to a proof, the State engineer may waive
notice for a permanent change application involving only a change in point of diversion of 660
feet or less. Unfortunately, the UEU does not meet this criterion of 660ft or less. The change in
the UEU diversion occurs 2260ft away from the old diversion. Therefore, a proof of beneficial
use was required after the State engineer approved the change application.
Another instance that waives the entire proof of beneficial use occurs when court
proceedings are being used to determine water rights. According to Utah Code Title 73-316(8)(b), The State engineer may waive the requirements and allow each owner to submit a
“statement of water users claim…in lieu of proof of appropriation or proof of change.” The
owner, in this case UEU, would have to elect the option if given and submit a “verified
statement” to that effect. This is an option the State engineer may give during the instance of a
court determined water right. This option may be available to UEU. However, the court
proceedings just recently ended in early December. As of yet, this option has not been given by
the State engineer. The representative of the Division of Water Rights, John Briem, encouraged
proceeding with the proof in its current state of 43 percent of the parent water right.
33
There are certain waivers even if the proof of beneficial use is required. For example, the
mapping requirement of the proof may be waived in certain instances. Each of these instances
depends on the opinion of the State engineer. For example, Rule 655-5-3.1 states that mapping
may be waived “if in his[State engineer’s] opinion the written application or proof adequately
describes the location of the point of diversion, the diverting works, the location of the place of
beneficial use, and the nature and extent of beneficial use” (Utah Division of Administrative
Rules 2012). Similar language is used in Utah Code Title 73-3-16 (6)(b). In this instance, the
mapping requirement would not be needed if the written description convinces the State
engineer. One possible written description that would satisfy the State engineer would be a
metes and bounds description prepared by a licensed surveyor. However, this idea has not been
verified with the Utah Division of Water Rights. The next passage in the ruling specifies that the
mapping requirement for mutual irrigation companies and qualifying water companies serving
subdivisions may be waived if the State engineer determines the written description of the
hereafter place of use is sufficiently clear (Rule 655-5-3.3.2). This passage narrows the instance
to mutual irrigation companies working with subdivisions and specifies that the “hereafter” place
of use be clear. The limiting concept to this waiver is that a picture is worth a thousand words.
A map, therefore, will more often provide a “sufficiently clear” description than written words.
34
5
Conclusion
A proof of beneficial use for water right number 55-12000 must be completed. However,
before submitting a completed proof, efforts need to be made to ensure all shareholders are
putting their shares of water to use. The first recommendation to help shareholders is to put land
into production. However, many prefer to lease shares to others along the pipeline. If necessary,
an extension of the proof requirement can be filed with the state engineer. Also, a closer
investigation of the history of the Central Utah Water Conservancy (CUWCD) claim to 56.83
percent of the parent water right for Upper East Union Irrigation Company (UEU) should be
made. According to the UEU shareholder records, CUWCD only possesses 633 shares that is the
equivalent of 271.61 acres, which is approximately 36.5 percent of the parent water right not
56.83 percent. This investigation would determine if a proof of 321.574 acres is accurate.
Another reason for this investigation stems from finding that the 321.574 acres of land is nearly
reached before all shareholders are included. This may be due to the method of counting the
entire parcel of the smaller shareholders despite the fact that not all the parcel is arable land.
Exceeding the acre limit on the proof is referred to as enlargement and is illegal. For this reason,
a justifiable number of acres must be determined. The litigation also raised question to the
number of acres. The 321.574 acres was used since this is what was approved by the state
engineer for the change application. The number of acres is crucial to completing a correct
proof.
35
On the other hand, the proof rules seem to dictate limiting the original parent right with
respect to place of use and the time period. The parent right mentions only the Provo Division as
the place of use and shows a time period running throughout the year. Although water right
number 55-12000 has been segregated from the parent right, the place of use should be
maintained as the Provo Division rather than specifying service areas. However, because it is a
requirement of the proof, it is also recommended that Timpanogos Canal Company, East River
Bottom Water Company, and the Upper East Union Irrigation Company work together to
determine boundaries within the Provo Division that will be appropriate service areas. The main
considerations should be proximity to the pipelines and total arable land in the service areas.
Thus service areas would be established that reduce or eliminate any overlap. This would
facilitate flow measurements and also aid in determining possible areas to lease shares.
To address the time period, it must be understood that the irrigation season depends on
the weather. As such it is subject to climatic changes. Leaving a full year period within the
proof gives the flexibility that determining the irrigation season needs. It has already been
shown that irrigation has occurred beyond the October 31 date that is commonly held as the end
of the irrigation season.
At this juncture, it is clear that the Upper East Union Irrigation Company (UEU) needs to
complete a proof of beneficial use. Before being completed priority needs to be placed on
eliminating shareholder nonuse and determining the correct amount of acres left to UEU since
the litigation has ended.
36
REFERENCES
Briem, J., interview by M. Perez. Conversations with the Proof Reviewer (2011 - 2012).
Gittins,
J.
Utah
Water
Law
and
Water
Rights.
August
17,
http://utahwaterrights.blogspot.com/2010/08/where-can-i-get-copies-of-waterdecrees.html.
2010.
Jones, K. L. "How Far Can I Stretch My CFS?" Utah Water Users Workshop. St. George, 2011.
12.
Provo Reservoir Company, a Corporation, Plantiff versus Provo City et. al. Defendant. Civil
2888 (Utah 4th District Court, 1914 - 1921).
Shakespeare, W. Romeo and Juliet. n.d.
Utah Division of Administrative Rules. "UT Admin Code 655-5." Administrative Rules Department
of
Administrative
Services.
2012.
http://www.rules.utah.gov/publicat/code/r655/r655-005.htm.
Utah Division of Water Rights. "Document Listing For Folder: 55-11008." Utah Division of
Water
Rights.
August
15,
2011.
http://waterrights.utah.gov/cgibin/docview.exe?Folder=55-11008.
—. Water Right Information. July 19, 2011. http://www.waterrights.utah.gov/wrinfo/default.asp
(accessed 2011).
—. "Water Rights Decrees - Provo River Decree (Civil 2888)." Utah Division of Water Rights.
June 30, 2011. http://www.waterrights.utah.gov/adjdinfo/decrinfo/provo.htm.
—. "Water Rights Training for Proof Professionals." Salt Lake City, 2008. 15.
Utah
State. "Utah Code/Constitution." Utah State Legislature Home Page.
http://le.utah.gov/UtahCode/chapter.jsp?code=73.
37
2012.
38
APPENDIX A.
The 1937 Change of Point of Diversion
The following are the documents that support the idea that a change application and the
subsequent proof varied depending on what was being changed. If only a change in the point of
diversion occurred than only a proof showing the change of diversion was necessary.
The documents were obtained from the Utah Division of Water Rights using the website
search engine.
These documents may be found on the website by going to
www.waterrights.utah.gov. Then click on the link called “Water Rights”. Next click on the link
on the left called “Search”. Then click the link called “Water Right Number”. Enter the number
“55-11008” in the query box. Click the drop down arrow in the box with “Select Related
Information.”
Select “Scanned Documents”.
The documents titled “Proof Map” and
“Certificate” are the location of the following documents.
A.1 Proof Map
This is the map used to obtain a certificate from the state engineer. This map shows the
first change in the point of diversion prior to the current change in the point of diversion. The
map is simple. It describes the diversion works and shows the old and new points of diversion.
It offers no other information except to establish a precedence of changing the diversion
works without having to submit a full proof on place of use or purpose of use. This precedence
is of no avail given the current requirements of the Division of Water Rights.
39
40
Figure A-1: Proof of Diversion Map
Figure A-2: Certificate of Permanent Change
A.2 Certificate
41
42
APPENDIX B.
Current Diversion Change Documents
The following documents show the change application and the approval of change from
the state engineer. The change application has two corrections and specifies irrigation as the
only beneficial use. It also maintains the timer period described in the Morse Decree with the
phrase, “same as heretofore.”
In the approval of change document, the state engineer seems to agree with irrigation as
the only beneficial use but adds in a time period of April 1 to October 31.
The state engineer may be using a default time period suggested by the Division of Water
Rights’ website.
This reference can be found by clicking on the “Water Rights” link for
www.waterrights.utah.gov. The following sequence represents the links to click to obtain the
time period reference:
“Proof of Beneficial Use”, on top left
“Proof form and other information”, under Proof Professional bullet
“Diversions and Depletion Quantities”, under Proof Rules and Requirments
In the paragraph beginning with “IRRIGATION:”
This statement is found, “Generally the irrigation season is described as April 1 to
October 31 and/or the general frostfree period in the area. Some court decrees and early rights
authorize differing periods.”
43
B.1 Change Application
Figure B-1: Application for Change Page 1
Figure B-1: Application for Change Page 1
44
Figure B-2: Application for Change Page 2
45
Figure B-3: Application for Change Page 3
46
B.2 Letter of Approval from State Engineer
Figure B-4: Approval for Change Page 1
47
Figure B-5: Approval for Change Page 2
48
Figure B-6: Approval for Change Page 3
49
50
APPENDIX C.
UEU and CUWCD Timeline
Table C-1: UEU and CUWCD Timeline
Date
23-Nov-45
18-Jan-46
20-Feb-91
4-Apr-91
7-Jun-91
25-Mar-93
25-Mar-93
25-Mar-93
5-Apr-93
6-Apr-93
15-Apr-93
22-Apr-93
26-May-93
27-May-93
16-Jun-93
16-Jun-93
16-Jun-93
20-Jul-93
16-Jun-94
7-Jan-03
7-Jan-03
28-Mar-03
11-Jul-03
30-Mar-04
5-Apr-04
Event
proof map signed for change of point of diversion from City Creek
certificate for change of point of diversion from City Creek signed
Double D Associates purchases 4 shares of UEU from a total of 1723 shares
letter from Double D Associates to Kent Jones (DWR Eng) enclosing copies of the 13 UEU shares
Double D Associates purchases 9 shares of UEU from a total of 1723 shares
temporary change application t93-55-15 received by Division of Water Rights
temporary change application t93-55-15 received by Division of Water Rights
temporary change application t93-55-15 identifies uses as "irrigation, stockwatering, and domestic
purposes" in part 5 of form
signed lease agreement between CUWCD and Double D Associates for 13 shares of UEU
temporary change application t93-55-15 reviewed
temporary change application t93-55-15 published in Herald
temporary change application t93-55-15 protest period ends
temporary change application t93-55-15 done publishing
temporary change application t93-55-15 designated for approval by Kent Jones (Division of Water
Rights Eng)
temporary change application t93-55-15 approved by Robert Morgan (State Eng)
temporary change application t93-55-15 approved by Robert Morgan (State Eng) with listed
conditions in Memorandum
temporary change application t93-55-15 approved by Robert Morgan (State Eng) in letter to Double
D Associates
temporary change application t93-55-15 clarified by James E Riley (Regional Eng) in letter to CUWCD
stating "credited for historic consumption"
temporary change application t93-55-15 expires
Quitclaim deed grants 32% of 744.9 acres to CUWCD from UEU, signed by Roy Peterman
Quitclaim deed grants 24.83% of 744.9 acres to CUWCD from UEU, signed by Roy Peterman
temporary change application t27679 for 55-11008 744.9 acres time period April 1 to October 31 to
change point of diversion signed by Roy Peterman
temporary change application t27679 approved by Jerry Olds (State Eng)
Report of conveyance submitted for 184.958 and 238.368 acres from UEU to CUWCD
permanent change application (a28923) signed by Roy Peterman (UEU) for 321.573 acres
51
Table C-1: Continued
26-Apr-04 permanent change application (a28923) for change of point of diversion gives time period of April 1
to Oct 31 and 321.574 acres
26-Apr-04 55-12000 separated from 55-11008 created by NJANKO claiming 423.326 acres for 5511008(CUWCD)
4-Jun-04 permanent change application (a28923) received by Division of water rights for 321.573 acres
(different from 321.574 acres)
20-Sep-04 Letter with enclosures for permanent change application (a28923) from Jerry Olds (State Eng)
20-Sep-04 Jared Hansen (CUWCD) emails Jim Riley (Division of Water Rights Regional Eng) correcting diversion
location for change app (a28923)
15-Jun-10 Approved permanent change application (a28923) for point of diversion of 321.574 acres by Kent
Jones (State Eng)
27-Dec-11 Report of conveyance submitted for 238.36 acres from CUWCD to UEU
11-Jan-12 Report of conveyance completed by Division of Water Rights, letter from Kent Jones (State Eng)
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APPENDIX D.
D.1
Appicable Sections of Utah State Code
CHAPTER 3 OF TITLE 73
Section 1
Appropriation -- Manner of acquiring water rights.
Permanent or temporary changes in point of diversion, place of use, or purpose of
Section 3
use.
Application for a change of point of diversion, place of use, or purpose of use of
Section 3.5
water in a water company made by a shareholder.
Approval or rejection of application -- Requirements for approval -- Application for
Section 8
specified period of time -- Filing of royalty contract for removal of salt or minerals.
Proof of appropriation or permanent change -- Notice -- Manner of proof -Section 16 Statements -- Maps, profiles, and drawings -- Verification -- Waiver of filing -Statement in lieu of proof of appropriation or change.
Right to divert appropriated waters into natural streams -- Requirements -- Storage
Section 20
in reservoir -- Information required by state engineer -- Lapse of application.
D.2
CHAPTER 1 OF TITLE 73
Section 1
Section 2
Section 3
Waters declared property of public.
Unit of measurement -- Of flow -- Of volume.
Beneficial use basis of right to use.
Reversion to the public by abandonment or forfeiture for nonuse within seven years
Section 4
-- Nonuse application.
Authorization for water companies to allocate water rights lost by forfeiture or
Section 4.5
nonuse -- Redemption and retirement of water shares.
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APPENDIX E.
Conversations with the Proof Reviewer
15 NOVEMBER 2010
Phone conversation with Jared Manning, the Division of Water Rights
Question: What are the basics for completing an irrigation proof?
Answer:
The “trick” is to show acres under irrigation. Map all acres.
Obtain Provo River Commissioner records
Show the company is able to divert and distribute the 5.64 cfs
Use spot measurements
Historical records
Find out who the shareholders are
If using more – make and show corrections
If using less – file extension or find other shareholder to put the land under
irrigation
If units not irrigation
File change order for stock water
Amendatory change application
Provo River Decree
Court cases can be “vague”
May exist incidental uses
May not need to break down by share holder
Need the “total picture”
NOTE: The answers to these questions are NOT verbatim. They stem from notes made during
the phone conversation and memory.
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19 JANUARY 2011
Phone conversation with John Briem, water rights technician
Question: Will the proof for the Upper East Union Irrigation Company need maps?
Answer: Yes. Since the water right is based on a court decree, the place of use is vague.
The proof helps the Division of Water Rights understand how and where the water is used. Stan
Roberts, the River Commissioner, will have diversion records. This particular water right is
within the Utah Lake/Jordan River Region. This is the office that will be reviewing the proof
before sending it to the State Engineer for approval.
NOTE: The answers to these questions are NOT verbatim. They stem from notes made during
the phone conversation and memory.
1 FEBRUARY 2011
Phone conversation with John Briem, water rights specialist, Utah Division of Water
Rights
Question: The water right record available on line indicates that “proof is to be
submitted” under the section showing segregation of the water right. Is this the reason that proof
of quantities is needed?
Answer: Proof is not required due to segregation since the decree makes it “perfected”
Question: In the past, a change of diversion was made without having to show quantities.
Why is a proof of quantities due when only a diversion change has been made?
Answer: Yes, in the past only a proof showing the change of diversion was allowed by
the Division to facilitate water right owners. However, due to issues within the past 10 years, the
Division requires the full extents of the code be followed for change applications. This requires
a proof showing quantities as well as location of the new diversion. Teresa Wilhelmson can
provide information on the specific issues that lead to the internal policy change.
Question: How can service areas best be delineated?
Answer: R655-5 section 3.6 refers to the general requirements for a permanent change.
The service areas may be shown in 40 acre tracts or sections. They need to cover the “extents of
use.”
NOTE: The answers to these questions are NOT verbatim. They stem from notes made during
the phone conversation and memory.
19 MAY 2011
Clear amount
Forms filled correctly
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Presentable
Easy to follow
The lay person look at it and tell what is going on
Regulatory pond, pump, 5”line to pivot, ditch,
Half alfalfa, flood irrigated.
Where and how, it what we want to know
Beneficial use is the basis of measure
Duty value 4acft per acre
Comingling – timp, erb, ueu
With the utilization of other shares
Quantify all shares, show 100 acres of ERB, 300 of UEU, include this in part 13 of form
called “Explanatory”
Define a larger place of use (where the service area could reach to)
Reference: Title 73-1-19 , 73-3.
My note: The comingling allows for more water to be used on acres.
Need to check to see if ERB, Timp, and UEU shares add up to acres covered on campus.
18 NOVEMBER 2011
Question: A lawsuit just recently settled declared the percentage of water right number
55-11008 that Upper East Union Irrigation Company owns is now 100 percent. How does this
affect the proof on water right number 55 – 12000?
Answer: The approved change application was specifically for 55-12000 which only
shows 321 acres. The proof will need to address the 321 acres definitely but may also show the
additional acreage. The additional acres can be explained on the proof form. At this point, there
is no reason to assume that the additional acreage can be lumped together with the proof but that
only the 321 acres would be certified.
Question: How would segregation work for this situation?
Answer: First, A report of conveyance ($40) would have to be filled out to update the
title. Any documents showing the legal action giving UEU the rest of 55-11008 must be
included. Second, a request segregation application would need to be filled out showing number
of acre ft and acres. A new water right number would be assigned at this point. Third, file
another change application with the new water right number for the point of diversion.
Also mentioned: It appears from the mail log of water right 55-11008 that a Quitclaim
deed (pursuant a Report of Conveyance) has been sent by Robinson Seiler & Anderson, LC on
16 November 2011. This may have something to do with the recent court case settlement
between CUWCD and UEU.
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Also mentioned: in the additional comments part of the proof form add pharse
“additional acreage was awarded”
NOTE: The answers to these questions are NOT verbatim. They stem from notes made during
the phone conversation and memory.
Email:
From: John Briem ([email protected])
Sent: Thu 2/02/12 10:06 AM
To: [email protected]
Hey Marcos
I've spoken with my supervisor (Teresa) regarding the proof for 55-12000. There are numerous
peripheral issues surrounding this water right application as a whole leading me to believe that proof
should not be submitted at this time. For instance, there are diversion records indicating that water has
been delivered under this application, but what about the parent water right (of which I believe is
involved in litigation)? I think Stan Roberts may have also told you or the company that proof should not
be filed at this time due to said litigation.
You and I are middle-men in this whole situation so it may be preferable to involve representatives of the
company and/or Mr. Roberts in future communications. Give me a ring when you get a chance (before
Monday) so we can determine whether to meet on the 6th or if another time may be better. Thanks
John Briem
Engineering Technician
Division of Water Rights
Utah Lake/Jordan River Office
(801) 538-7385
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APPENDIX F.
BYU and Other Proofs Needed
In researching other water rights that are diverted through the Timpanogos Diverison, I
discovered that there are several water right that diverted through the old UEU diversion also
known as the Alfred Young Ditch. In an email from Paul Reese, secretary of UEU and someone
who has years of experience with the irrigation canals in Provo, he wrote:
“The Alfred Young Ditch used to begin at the south side of the Country Club. It was at
the end of the East River Bottom Canal. It originally had 49 acres but we transferred 52
acre-feet/year of water up to Aspen Grove. We still get assessments for this water from
the State Engineer as a separate water entity.
Now the water is mingled with the UEUIC water at the new diversion with Timp Canal.
It has a diversion from the UEUIC canal at the old Roberts property (now office
buildings just north of the North Playfields of BYU. This line is (was) used to irrigate the
fields around the materials handling area, such as the tree farm that is there. Some of the
irrigated land is where we are storing excess dirt from construction projects on campus. I
would imagine that this area will be converted back to irrigated lands in the future. We
should transfer the point of diversion location of this water to the Timp location like the
UEUIC.”
The following is a list of water rights that the Division of Water Rights has on record as
diverting through the Alfred Young Ditch. This was obtained by using the search feature on the
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Division of Water Rights’ website. When searching for the water right number 55-12000, a link
on the information page takes the user to a map showing all nearby water rights that divert
through the same area.
Table F-1: Alfred Young Ditch Diversion
Water Right Number
55-10000
55-11008
55-11011
55-11019
55-11027
55-11030
55-11031
55-11032
55-11033
55-11035
55-11849
55-11851
55-12000
55-12002
55-12003
55-12004
55-12307
55-7051
55-7958
55-9225
Owner
BRIGHAM YOUNG UNIVERSITY
CENTRAL UTAH WATER CONSERVANCY DISTRICT
CENTRAL UTAH WATER CONSERVANCY DISTRICT
CENTRAL UTAH WATER CONSERVANCY DISTRICT
RIVERSIDE COUNTRY CLUB
BRIGHAM YOUNG UNIVERSITY
TRUSTEE BRIGHAM YOUNG UNIVERSITY
VIRGINIA BIRK
CENTRAL UTAH WATER CONSERVANCY DISTRICT
TRUSTEE BRIGHAM YOUNG UNIVERSITY
BRIGHAM YOUNG UNIVERSITY
CENTRAL UTAH WATER CONSERVANCY DISTRICT
UPPER EAST UNION IRRIGATION COMPANY
EAST RIVER BOTTOM WATER COMPANY
EAST RIVER BOTTOM WATER COMPANY
EAST RIVER BOTTOM WATER COMPANY
CENTRAL UTAH WATER CONSERVANCY DISTRICT
CENTRAL UTAH WATER CONSERVANCY DISTRICT
UPPER EAST UNION IRRIGATION COMPANY
NEAL R. AND BRENDA J. DASTRUP
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