beneficial use

BENEFICIAL USE

Declarations & Apportionment

57-3-109 Water Rights Addenda

• Passed in 2010; effective 7-1-2011• Applies to deeds that

– Convey fee simple title to land– Convey title to water rights without conveying

title to land.

• The addendum– Identifies & describes water rights transferred

OR– States no water rights were transferred

• Both seller & buyer must sign


• Forms available on Division website will be forwarded by county recorders to the Division after July 1, 2011.

• An addendum will serve as a ROC for the specified water right.

• If the grantor is the listed owner of record, the Division will update ownership from the addendum.

• Notice will be provided to grantee when an ownership update has been completed.


WATER DEED LAND DEED

Declarations & Apportionment Summary

• Review– Definitions– When is a Declaration necessary?– Exceptions

• The Declaration process• The Apportionment process

95-16 95-17

95-18 95-19

95-20 95-97

95-16 95-17

95-18 95-19

95-20 95-29

95-97 95-189

WATER USE GROUP No. 618450

(62.64 ac irrigation)

WATER USE GROUP No. 618451

(47.06 ac irrigation)

Beneficial Use Amount the amount of beneficial

use a water right contributes to a water use

group

Sole Supply the amount of beneficial use allowed under a right on its own; the sum of its beneficial use amounts

Beneficial Use

Supplemental Water Rights

DEFINITIONS

When is a Declaration Required?

PROOF OWNERSHIP

NO

YES YES

NO

YES YES

NO NOPROOF ON LESS THAN ALL RIGHTS NO

DOES DEED CONVEYING WR SPECIFY

OR

NO

YES YES YES

RETURN WITH EXPLANATION

NO

NO

NO

NO DECLARATION

REQUIRED MOVE

FORWARD WITH ADMIN.

ACTION

NO DECLARATION REQUIRED MOVE FORWARD WITH

ADMINISTRATIVE ACTION

DOES HEREAFTER OF CHANGE BREAK SUPPLEMENTAL RELATIONSHIP?

YES

CHANGE POD TO SENSITIVE SOURCE?

YES

IS BENEFICIAL USE / SOLE SUPPLY UNDEFINED?

YES

YES

YES

YES

YES

DECLARATION REQUIRED SIGNED BY ALL WATER USERS DOCUMENTATION SE FORM OR EQUIVALENT

IS WATER USER ABLE TO COMPLETE DECLARATION? CANNOT LOCATE OTHER WR HOLDERS? UNCOOPERATIVE WR HOLDER? OTHER?

SUBMIT APPORTIONMENT APPLICATION SE FORM OR EQUIVQLENT

IS DECLARATION COMPLETE, SIGNED AND CONSISTENT WITH STATE ENGINEER RECORD

AMOUNT OF BENEFICIAL

USE CONVEYED?

NO DECLARATION

REQUIRED MOVE FORWARD

WITH ADMINISTRATIVE

ACTIONNO NO

DIFFERENT OWNERS

R655-16 FLOW CHART - DECLARATIONS OF BENEFICIAL USE

NO

CHANGE

CHANGE ON LESS THAN ALL RIGHTS

IN GROUP?

CHANGE REMOVES WR FROM GROUP?

YES

YES

SEGREGATION

SUPPLEMENTAL WITH OTHER RIGHTS IN WATER USE GROUP?

INFORM APPLICANT TO NOTIFY PARTIES

PREPARE PRELIM APPORTIONMENT

YESADEQUATE EFFORT?

AFTER RECONSIDER / APPEAL DEADLINES: MOVE FORWARD

WITH ADMINISTRATIVE ACTION

HOLD HEARING IF NECESSARY

FINAL APPORTIONMENT - OSE UPDATE RECORDS

RECONSIDER - 20 DAYS / APPEAL - 30 DAYS


FILE & UPDATE RECORDS MOVE FORWARD WITH ADMINISTRATIVE ACTION

REQUEST INFO. - 30 DAYS FOR RESPONSE

NOTIFY PARTIES - 30 DAY COMMENT

HOLD PRELIM HEARING IF NECESSARY

COMPLETE AND MEETS CRITERIA?

YES

Online Instructions

Declaration Form

Return Letter

Acceptance Letter

Online Instructions

Application Form

LetterRequest Letter

Hearing Notice

Notice of Preliminary Apportionment

OSE

Acceptance Letter

Hearing Notice

General Guidelines • Whenever an administrative action

requires a definition of a supplemental water right in a water use group that isn’t defined (change application or segregation)

• Whenever someone is attempting to define a supplemental water right in a water use group that isn’t defined (proof or ownership).

Exceptions • Declarations not required for water

use groups created for public water suppliers that group rights within a geographic area rather than describe extent of beneficial use.

• Declarations may be waived for temporary changes

The Declaration Process

PROOF OWNERSHIP

NO

YES YES

NO

YES YES



OR

NO

YES YES YES


NO

NO

NO

NO DECLARATION

REQUIRED MOVE

FORWARD WITH ADMIN.

ACTION




YES


YES


YES

YES

YES

YES

YES






USE CONVEYED?

NO DECLARATION


WITH ADMINISTRATIVE

ACTIONNO NO

DIFFERENT OWNERS


NO

CHANGE


IN GROUP?


YES

YES

SEGREGATION




YESADEQUATE EFFORT?












YES

Online Instructions

Declaration Form

Return Letter

Acceptance Letter

Online Instructions

Application Form


Hearing Notice


OSE

Acceptance Letter

Hearing Notice

http://www.waterrights.utah.gov/

APPLICATIONS & FORMS PAGE

DECLARATION OF BENEFICIAL USE FORM








Declaration Review

• Who Can Sign– The water right holder shown on

the SE records– Ownership must be updated before

a water user can sign a declaration.– An authorized agent of the water

right holder shown on the SE records (a written authorization must be filed)

Declarations Review

• Acceptable Methods - Dividing Beneficial Use– Based on the long-term average

annual beneficial use of each water right

– Based on any other evaluation method consistent with the SE's records.

– May require additional documentation.

Check boxes that correspond to the flaw

in the declaration

Explanation if declaration is not consistent with SE

records

Sent to all WR owners shown on S.E. database

Sent to all WR owners shown on S.E. database

The Apportionment Process

PROOF OWNERSHIP

NO

YES YES

NO

YES YES



OR

NO

YES YES YES


NO

NO

NO

NO DECLARATION

REQUIRED MOVE

FORWARD WITH ADMIN.

ACTION




YES


YES


YES

YES

YES

YES

YES






USE CONVEYED?

NO DECLARATION


WITH ADMINISTRATIVE

ACTIONNO NO

DIFFERENT OWNERS


NO

CHANGE


IN GROUP?


YES

YES

SEGREGATION




YESADEQUATE EFFORT?












YES

Online Instructions

Declaration Form

Return Letter

Acceptance Letter

Online Instructions

Application Form


Hearing Notice


OSE

Acceptance Letter

Hearing Notice


APPLICATIONS & FORMS PAGE

APPLICATION TO APPORTION BENEFICIAL USE AMOUNTS








Acceptable Effort

• Did the applicant seek qualified professional assistance in resolving any of the issues preventing the completion of a Declaration?

Acceptable Effort• Identify and Locate

– Research S.E. records?– Research county recorders records?– Research state & federal agency?– Contact neighboring water users /

property owners?– Research historical records?– Contact local water use groups /

authorities/– Internet search?– Telephone search?– Log of efforts?

Acceptable Effort

• Contact – Contact every water right owner or

successor by phone on in person?– Send a certified letter, response

requested to every water right owner or successor.

– Follow up after 30 days with regular mail letter?

– Receive returned envelope showing no forwarding address?

Acceptable Effort• Reach Agreement

– Meet or communicate with other water users and determine no possibility of reaching agreement?

– Were water users willing but unable to determine how to divide beneficial uses?

• Sworn & Verified Affidavit– Steps taken and efforts made– Unsuccessful results and reasons– Why water users cannot agree– Other problem that cannot be resolved.

Check boxes that correspond to the flaw

in the application

Explanation if effort to complete a Declaration is

not adequate

Sent only to applicant

Assigned to Regional Office

Applicant must notify other parties in water

use group

Description of apportionment process

WR Owner Possible WR Owner

Generally addressed Specifically addressed

Requirement – update title to be recognized as a party

REQUEST FOR INFORMATION

WR Owner Possible WR Owner

If ownership not updated may not receive further correspondence

REQUEST FOR INFORMATION

PROOF OWNERSHIP

NO

YES YES

NO

YES YES



OR

NO

YES YES YES


NO

NO

NO

NO DECLARATION

REQUIRED MOVE

FORWARD WITH ADMIN.

ACTION




YES


YES


YES

YES

YES

YES

YES






USE CONVEYED?

NO DECLARATION


WITH ADMINISTRATIVE

ACTIONNO NO

DIFFERENT OWNERS


NO

CHANGE


IN GROUP?


YES

YES

SEGREGATION




YESADEQUATE EFFORT?












YES

Online Instructions

Declaration Form

Return Letter

Acceptance Letter

Online Instructions

Application Form


Hearing Notice


OSE

Acceptance Letter

Hearing Notice

NOTICE OF HEARING

PROOF OWNERSHIP

NO

YES YES

NO

YES YES



OR

NO

YES YES YES


NO

NO

NO

NO DECLARATION

REQUIRED MOVE

FORWARD WITH ADMIN.

ACTION




YES


YES


YES

YES

YES

YES

YES






USE CONVEYED?

NO DECLARATION


WITH ADMINISTRATIVE

ACTIONNO NO

DIFFERENT OWNERS


NO

CHANGE


IN GROUP?


YES

YES

SEGREGATION




YESADEQUATE EFFORT?












YES

Online Instructions

Declaration Form

Return Letter

Acceptance Letter

Online Instructions

Application Form


Hearing Notice


OSE

Acceptance Letter

Hearing Notice

Apportioning Beneficial Use• Which WR must be apportioned?• Gather & Review Information

– Info from application– Info received pursuant to request– Other pertinent information (including SE

records)

• Field inspection– Extent of observable beneficial use– Relationship of sources and place(s) of

use.

Apportioning Beneficial Use• Things to consider:

– Water use patterns & history– Priority dates– Land use patterns– Relative sizes of parcels /ownership– Relative flows/AF allowed under each WR– Relationship of sources and place(s) of use

• Is there adequate info to apportion all WR in the group?

“Unevaluated” label on those rights not

apportioned

No right of appeal at this stage of the process

How to comment on the preliminary apportionment

Description of the remainder of the process

Sent to all water right owners in water use

group and the applicant

PROOF OWNERSHIP

NO

YES YES

NO

YES YES



OR

NO

YES YES YES


NO

NO

NO

NO DECLARATION

REQUIRED MOVE

FORWARD WITH ADMIN.

ACTION




YES


YES


YES

YES

YES

YES

YES






USE CONVEYED?

NO DECLARATION


WITH ADMINISTRATIVE

ACTIONNO NO

DIFFERENT OWNERS


NO

CHANGE


IN GROUP?


YES

YES

SEGREGATION




YESADEQUATE EFFORT?












YES

Online Instructions

Declaration Form

Return Letter

Acceptance Letter

Online Instructions

Application Form


Hearing Notice


OSE

Acceptance Letter

Hearing Notice

Order of the State Engineer

• Beneficial use amount of each water right apportioned

• Process similar for issuing OSEs on other applications

• Final action– May request reconsideration (20 days)

– May file for de novo review (30 days)

PROOF OWNERSHIP

NO

YES YES

NO

YES YES



OR

NO

YES YES YES


NO

NO

NO









NOTIFY PARTIES - 30 DAY PROTEST



YESINFORM APPLICANT TO NOTIFY PARTIES


YESADEQUATE EFFORT?


NO

CHANGE


IN GROUP?


YES

YES

SEGREGATION


NO DECLARATION


WITH ADMINISTRATIVE

ACTIONNO NO

DIFFERENT OWNERS

YES

YES

YES

YES






USE CONVEYED?

NO DECLARATION

REQUIRED MOVE

FORWARD WITH ADMIN.

ACTION




YES


YES


YES

Online Instructions

Declaration Form

Online Instructions

Application Form

QUESTIONS?

beneficial use

Documents

water use groupsole

water rightbased

specified water

water rights addendapassed

extent of beneficial

public water suppliers

signthe water right

group rights