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New rules are being put into place that will effect groundwater development across the state of Utah. Here's what that means for you and your business.

New Rules Influence Groundwater Development

In September, the Utah State Engineer’s Office adopted a new Groundwater management plan for the Snyderville Basin and Park City (referred to as the Basin in this article). The management plan applies to portions of East Canyon Creek and Silver Creek. The management plan, along with a map showing its extent, can be found at this link

The current management plan is best understood with some background. In the mid-1990s, the State Engineer observed that population in the Basin was growing rapidly and water use was shifting from historic mining and agricultural uses to residential, resort, and commercial uses. The State Engineer also recognized that water users were using contracts (e.g., contracts with the Weber Basin Water Conservancy District) to file exchange applications and develop new water rights in the Basin. To address these evolving trends, the State Engineer adopted an Interim Groundwater Policy in 1999 and amended it in 2002.  

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The Interim Policy

In 2019, the State Engineer set out to modify the Interim Policy. The Interim Policy was nearly 20 years old and water use patterns had continued to shift in response to rapid development and population growth. More importantly, the hydrology of the Basin changed, primarily because of the Lost Creek Project. The Lost Creek Project diverts water from Rockport Reservoir, near Peoa, and imports it to the Silver Creek drainage. Imports from the Project help to protect streamflow and groundwater levels in the Silver Creek drainage. The East Canyon drainage, on the other hand, generally does not benefit from the Lost Creek Project, and it continues to suffer from low stream flows and water quality concerns. 

The need to revise the Interim Policy was brought into sharp focus by several change and exchange applications filed in 2016. The applications proposed to transfer water from East Canyon Creek to Silver Creek. The Interim Policy prohibited these applications. But the changed hydrology in Silver Creek meant that this type of application could be reviewed and approved without adversely affecting the hydrologic system or existing water rights.  

The management plan contains detailed rules regarding whether water may be moved into the Basin. It continues the State Engineer’s longstanding prohibition on new change or exchange applications that propose moving a water right’s source of supply from outside the Basin into it. The State Engineer will, however, consider applications to replace existing water rights that have already transferred a source from outside the Basin into it. The management plan permits importation of water into the Basin (i.e., it permits projects similar to the Lost Creek Project), and it encourages other projects that will enhance groundwater in the Basin.

The management plan also includes detailed rules governing transfer of water rights within the Basin. It states that the State Engineer “will not approve” change or exchange applications to move water rights from the Silver Creek drainage to the East Canyon drainage, unless the applicant can demonstrate that the hydrologic system is not adversely affected. On the other hand, the management plan indicates that the State Engineer “will consider” change or exchange applications to move water rights from the East Canyon drainage into the Lower Silver Creek drainage, if the applicant can demonstrate that the overall health of the groundwater system will not be impaired. The management plan forbids relocation of points of diversion from the East Canyon Creek drainage to the Upper Silver Creek drainage. 

This language highlights an important distinction in how the State Engineer will review in-Basin transfers. The management plan establishes a presumption that the State Engineer “will not approve” change or exchange applications that move water sources from the Silver Creek drainage to the East Canyon drainage. An applicant can only overcome this presumption with persuasive evidence (like hydrologic modeling) that a transfer from the hydrologically stable Silver Creek drainage will not adversely affect the hydrologically stressed East Canyon drainage and the water rights located there. On the other hand, the Management plan demonstrates greater willingness to “consider” change or exchange applications that move water sources from the East Canyon Creek drainage to the Lower Silver Creek drainage. These different standards arise because of the differing hydrologic conditions in Silver Creek and East Canyon Creek. 

Return Flows

The management plan also modifies the State Engineer’s approach to evaluating return flows. Return flows are the portion of water that is diverted, but returns to the hydrologic system because it is not consumptively used (e.g., in irrigation, return flow is the portion of water that is not used by the crop and, as a result, returns to a stream or aquifer). The management plan states that evaluation of new change or exchange applications will include analysis of return flows and may require mitigation of impacts to the hydrologic system. Applications will receive the most scrutiny if they propose significant changes in how, where, and when return flows will occur. This is particularly true if return flows will accrue to a different drainage from where they historically accrued.  

The management plan offers some new flexibility in how the State Engineer administers water rights. For instance, it eliminates caps on water use established by the Interim Policy. The Management plan also removes the Interim Policy’s requirement that applicants provide data from new wells for geologic analysis and that applicants for certain new wells complete a well yield test. 

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The management plan creates a complex scheme for how water rights may be moved and developed within the Basin. New development in the hydrologically stressed East Canyon drainage will generally have to rely on changes to existing water rights in that drainage. This creates a small and competitive market for water rights. On the other hand, the Management plan offers increased flexibility to change existing water rights in the Silver Creek drainage, including the ability to move water rights from the East Canyon Creek drainage to the Lower Silver Creek drainage. Because of these complex rules, those considering purchasing water rights, changing their water rights, or pursuing new development in the Basin may want to consider a careful review to ensure that their plans satisfy the requirements of the management plan.

Graham Gilbert is an associate at Snell & Wilmer, focusing his practice on water, land use and environmental laws. He regularly works on issues related to appropriation, management and sale of water rights; acquisition, entitlement, development and disposition of commercial and residential real estate; purchase, sale and cleanup of environmentally impaired properties; and wetlands and water quality permitting.

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