Water Right Change Application Process Still Murky
Mara A. Brown
The Utah Supreme Court recently issued an interesting opinion attempting to reconcile prior Utah cases addressing the water right change application process. (Searle v. Milburn Irrigation Co., 2005 UT 58). The Utah Supreme Court considered several issues including the standard of proof required of an applicant for approval of a change application, and whether the application process can be blocked by a protester with evidence that a vested water right is likely to be, although not certain to be, impaired by the change in use. Although the Supreme Court seems to have lowered the preliminary requirements of an applicant in the change application approval process, it also made certain comments, such as stating that an applicant must show that no vested right is impaired in the "proof" stage, that point to the difficulties individuals face in the change application process. The opinion has also prompted the State Engineer and Milburn Irrigation Company ("Milburn") to request a rehearing, as well as prompting a number of municipalities to request that the Supreme Court clarify its opinion.
The underlying facts in this case were that the Searles decided to build a cabin on property they owned in Sanpete County, Utah. As a condition of obtaining a building permit, the Searles were required to show an on-site source of water sufficient to meet the needs of their proposed cabin. Subsequently, the Searles obtained an irrigation water right with a point of diversion located in a well some distance away from their property, and proceeded to file an application with the Utah State Engineer to change the point of diversion to an existing well located near the cabin site, and to change the nature of the use to stockwatering and year-round domestic purposes.
The State Engineer denied approval of the change application based on a protest filed by Milburn that changing the point of diversion to the new well location would impair Milburn’s water rights. Upon review, the District Court agreed with the State Engineer, finding that it was more likely than not that Milburn’s rights would be impaired by the approval of the Searles’ application.
On appeal, the Utah Supreme Court held that the District Court erred in subjecting the Searles to a "preponderance of the evidence" standard, and instead, held that a change applicant is subject to a "reason to believe" standard, which is akin to the "probable cause" standard in the first phase of a criminal proceeding. The Supreme Court also held that the burden of persuasion remains with the applicant during the change application process, rather than shifting to the protestant. The Supreme Court went on to comment that during the "proof" phase, an applicant is "obligated to supply affirmative proof that no harm is being done to the possessors of prior rights by the applicant’s use." Finally, the Supreme Court held that evidence that existing water rights are likely to be impaired may be sufficient to block a change application.
The Utah State Engineer and Milburn have petitioned the Supreme Court to reconsider its opinion. Among other things, Milburn argues that in relying on outdated Utah cases, the Court mischaracterizes the change application process as a two-step process where the State Engineer makes a final decision or "adjudication" as to whether other water rights are impaired by the change application. Importantly, Milburn points out that after a change application is approved and the applicant is given the opportunity to offer proof of the applicant’s water right, the final certificate of beneficial use issued by the State Engineer is issued "subject to prior rights," allowing an impaired user to bring an action in district court. In its Petition, the State Engineer builds on Milburn’s argument, and based on the fact that the initial approval of a change application is not followed by a more stringent "adjudication" process, urges the Supreme Court to reconsider analogizing the "reason to believe" standard with the low-level evidentiary standard of "probable cause." The municipalities also request clarification from the Court with respect to the burden of proof of an applicant at the water right "proof" phase, and indicate that the present opinion appears to increase the burden on the applicant and could jeopardize numerous change applications pending on behalf of these municipalities.
Regardless of whether the Utah Supreme Court reconsiders its opinion, Searle represents a "win" for the State Engineer and the protesting irrigation company, and points to potential pitfalls individuals face in the change application approval process and during the "proof" phase prior to final certification of a water right.
Ms. Brown, an attorney since 1996, practices in the areas of general civil litigation with an emphasis on water law and property law. She also advises clients in land use and administrative matters.
Ms. Brown received her B.A. from Smith College, cum laude, in 1987 and an M.S. in Marine Resources Management from Oregon State University in 1992. She received her J.D. in 1995 from the University of Oregon School of Law, where she was Editor-in-Chief of the Journal of Environmental Law and Litigation, and an Editor of the Western Environmental Law Update. In 1994, Ms. Brown served as a John A. Knauss Federal Sea Grant Fellow with the United States Senate Committee on Commerce, Science and Transportation. Prior to joining the firm, she served as a Law Clerk to the Justice Leonard H. Russon of the Utah Supreme Court.
Ms. Brown is a member of the American Bar Association, the Utah State Bar, and the Women Lawyers of Utah. She is an active member of the Ogden Nature Center, a member of the Ogden/Weber -Women In Business, and serves on the Ogden Revitalization Fund Committee of the Utah Heritage Foundation.
The underlying facts in this case were that the Searles decided to build a cabin on property they owned in Sanpete County, Utah. As a condition of obtaining a building permit, the Searles were required to show an on-site source of water sufficient to meet the needs of their proposed cabin. Subsequently, the Searles obtained an irrigation water right with a point of diversion located in a well some distance away from their property, and proceeded to file an application with the Utah State Engineer to change the point of diversion to an existing well located near the cabin site, and to change the nature of the use to stockwatering and year-round domestic purposes.
The State Engineer denied approval of the change application based on a protest filed by Milburn that changing the point of diversion to the new well location would impair Milburn’s water rights. Upon review, the District Court agreed with the State Engineer, finding that it was more likely than not that Milburn’s rights would be impaired by the approval of the Searles’ application.
On appeal, the Utah Supreme Court held that the District Court erred in subjecting the Searles to a "preponderance of the evidence" standard, and instead, held that a change applicant is subject to a "reason to believe" standard, which is akin to the "probable cause" standard in the first phase of a criminal proceeding. The Supreme Court also held that the burden of persuasion remains with the applicant during the change application process, rather than shifting to the protestant. The Supreme Court went on to comment that during the "proof" phase, an applicant is "obligated to supply affirmative proof that no harm is being done to the possessors of prior rights by the applicant’s use." Finally, the Supreme Court held that evidence that existing water rights are likely to be impaired may be sufficient to block a change application.
The Utah State Engineer and Milburn have petitioned the Supreme Court to reconsider its opinion. Among other things, Milburn argues that in relying on outdated Utah cases, the Court mischaracterizes the change application process as a two-step process where the State Engineer makes a final decision or "adjudication" as to whether other water rights are impaired by the change application. Importantly, Milburn points out that after a change application is approved and the applicant is given the opportunity to offer proof of the applicant’s water right, the final certificate of beneficial use issued by the State Engineer is issued "subject to prior rights," allowing an impaired user to bring an action in district court. In its Petition, the State Engineer builds on Milburn’s argument, and based on the fact that the initial approval of a change application is not followed by a more stringent "adjudication" process, urges the Supreme Court to reconsider analogizing the "reason to believe" standard with the low-level evidentiary standard of "probable cause." The municipalities also request clarification from the Court with respect to the burden of proof of an applicant at the water right "proof" phase, and indicate that the present opinion appears to increase the burden on the applicant and could jeopardize numerous change applications pending on behalf of these municipalities.
Regardless of whether the Utah Supreme Court reconsiders its opinion, Searle represents a "win" for the State Engineer and the protesting irrigation company, and points to potential pitfalls individuals face in the change application approval process and during the "proof" phase prior to final certification of a water right.
Ms. Brown, an attorney since 1996, practices in the areas of general civil litigation with an emphasis on water law and property law. She also advises clients in land use and administrative matters.
Ms. Brown received her B.A. from Smith College, cum laude, in 1987 and an M.S. in Marine Resources Management from Oregon State University in 1992. She received her J.D. in 1995 from the University of Oregon School of Law, where she was Editor-in-Chief of the Journal of Environmental Law and Litigation, and an Editor of the Western Environmental Law Update. In 1994, Ms. Brown served as a John A. Knauss Federal Sea Grant Fellow with the United States Senate Committee on Commerce, Science and Transportation. Prior to joining the firm, she served as a Law Clerk to the Justice Leonard H. Russon of the Utah Supreme Court.
Ms. Brown is a member of the American Bar Association, the Utah State Bar, and the Women Lawyers of Utah. She is an active member of the Ogden Nature Center, a member of the Ogden/Weber -Women In Business, and serves on the Ogden Revitalization Fund Committee of the Utah Heritage Foundation.
Copyright 2005. Published for general informational purposes only, and should not be construed as legal advice. If you need legal advice please consult with your attorney.