Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 98 (2018GS)

Sponsor

Sen. Van Tassell, K.

Final action

Governor Signed 3/19/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• ratifies the Ute Indian Water Compact;
• describes the purposes of the Ute Indian Water Compact; and
• references the tabulations on file with the state engineer's office.

Every vote on this bill

Bill text

RATIFICATION OF THE UTE INDIAN WATER COMPACT
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kevin T. Van Tassell
House Sponsor: 
Logan Wilde
LONG TITLE
General Description:
This bill ratifies the Ute Indian Water Compact.
Highlighted Provisions:
This bill:
▸ ratifies the Ute Indian Water Compact;
▸ describes the purposes of the Ute Indian Water Compact; and
▸ references the tabulations on file with the state engineer's office.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
ENACTS:
73-21-101
, Utah Code Annotated 1953
73-21-102
, Utah Code Annotated 1953
73-21-103
, Utah Code Annotated 1953
73-21-104
, Utah Code Annotated 1953
73-21-105
, Utah Code Annotated 1953
REPEALS:
73-21-1
, as enacted by Laws of Utah 1980, Chapter 74
73-21-2
, as last amended by Laws of Utah 1995, Chapter 20
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
73-21-101
 is enacted to read:
CHAPTER 21. UTE INDIAN WATER COMPACT
 73-21-101.
Title.
This chapter is known as the "Ute Indian Water Compact."
Section 2. Section 
73-21-102
 is enacted to read:
 73-21-102.
Approval of Ute Indian Water Compact.
The Ute Indian Water Compact, located at Section 
73-21-103
, providing for the
execution by the State of Utah, the Ute Indian Tribe of the Uintah and Ouray Reservations,
Utah, and the United States of America, through their various representatives, is hereby
authorized, confirmed, ratified, and approved for the State of Utah.
Section 3. Section 
73-21-103
 is enacted to read:
 73-21-103.
Text.
UTE INDIAN WATER COMPACT
The State of Utah, the Ute Indian Tribe of the Uintah and Ouray Reservation, Utah, and
the United States of America, acting through their respective representatives agree to a Ute
Indian Water Compact as follows:
ARTICLE I
Purpose of Compact
The purpose of this Compact is to remove the causes of present and future controversy
over the quantification, distribution, and use of all waters claimed by or through the Ute Indian
Tribe.
ARTICLE II
Legal Basis for Compact
This Compact is made in accordance with the Constitution and Laws of the United
States, the State of Utah, and the Ute Indian Tribe.
ARTICLE III
Water
There is hereby apportioned, confirmed, and recognized from the waters apportioned to
the State of Utah from the Colorado River System to the United States of America in
perpetuity, in trust, as Winters Doctrine water rights for the Ute Indian Tribe and others, the
depletion of water in the amount of 248,943 acre-feet per annum, and the related gross
diversion requirement of 470,594 acre-feet per annum, from all sources in accordance with and
as more fully set out in the "Tabulation of Ute Indian Water Rights" attached hereto and on file
with the Utah State Engineer. The priority date of October 3, 1861, is recognized for land
groups 1 through 5, except for water supplied from storage in the Central Utah Project, and the
priority date of January 5, 1882, is recognized for land groups 6 and 7, unless indicated
otherwise in the Tabulation. Tables 1, 2, and 3 of the Tabulation list the total irrigable acreage,
maximum allowable depletions and diversion requirements, respectively, for each of the land
groups by stream. No water rights held in trust can be transferred from the lands listed in said
groups without approval of the Secretary of the Interior.
As provided in the Tabulation attached to this Compact, the Tribe shall take from the
Green River in lieu of other sources the 57,948 acre-foot depletion of water allocable to the
Tribe's group 5 lands. The parties further agree to share the net income from any sale or lease
of such Green River water to third parties. The net income will be 80% to the Ute Indian Tribe
and 20% to the State of Utah. The payment to the State of Utah will be made promptly upon
the receipt by the Ute Indian Tribe of its payment of net income, and will be deposited in the
Utah Division of Water Resources' Conservation & Development Fund. Any dispute relating to
the calculation of such amounts will be subject to binding arbitration with no right of judicial
review. The priority of such water rights for group 5 lands shall be October 3, 1861.
In addition to the water allocated under the previous paragraphs, there is hereby
apportioned, confirmed, and recognized to the United States of America in perpetuity, in trust,
for the Ute Indian Tribe the depletion of 10,000 acre-feet of water annually having a priority
date of October 3, 1861, for municipal and industrial purposes, which shall be diverted from
the Green River. To the extent that the Tribe or its members use water other than for irrigation
purposes, the quantity so used shall be included within said 10,000 acre-feet unless a transfer of
water from the land listed in the Tabulation is properly made.
No water allocated pursuant to this Compact shall be subject to loss or forfeiture under
the laws of the State of Utah or otherwise. Further, the water allocated herein shall not be
restricted to any particular use, but may be used for any purpose selected by the Tribe in
accordance with the procedures provided for in this Compact.
The quantities of water apportioned hereby include all water rights of every nature and
description derived from the reserved water rights doctrine, from all sources of water, both
surface and underground, and includes all types and kinds of uses, whether municipal,
industrial, recreational, in-stream uses, sale, exchange, lease, or any other use whatsoever, and
encompasses all claims asserted by or through the Ute Indian Tribe, and all persons and entities
other than the Tribe whose claims or rights are derived, directly or indirectly, from the reserved
water rights of the Tribe. Thus, any water rights adjudicated or otherwise established in the
future on behalf of any person or entity and based upon a claim, directly or indirectly, through
any reserved water rights of the Tribe shall be included within and as a part of the water
quantified by this Compact. Any state water rights acquired by the Tribe for land to which a
reserved right is recognized herein shall be forfeited.
Included within the practicably irrigable acreages are (1) tribal lands and individual
Indian allotments; (2) Uintah Indian Irrigation Project lands, which include tribal lands,
allotments, and some private lands which were originally allotted lands, and (3) some few
lands distributed to former tribal members terminated in accordance with the Ute Partition Act,
approved August 27, 1954 (P.L. 83-671, 68 Stat. 868, 25 U.S.C. Sections 667-667aa). Nothing
in this Compact shall enlarge or diminish the scope of or otherwise affect either the United
States' trust responsibility, if any, or the Ute Indian Tribe's responsibility, if any, to those
persons who have been designated as mixed-bloods under the Act of August 27, 1954 (68 Stat.
868). The total acreage under irrigation or susceptible to sustained production of agricultural
crops by means of irrigation is recognized as 129,201 acres, reduced by 7% to 120,157 acres to
reflect roads, yards, fences, rights-of-way, and other non-productive lands. All lands in the
Uintah Indian Irrigation Project are designated assessable or non-assessable. The Secretary of
the Interior is authorized to change the designation from one to the other.
Nothing contained herein shall be construed to preclude the United States as Trustee for
the Ute Indian Tribe, the Ute Indian Tribe, or any of its members from filing application with
the Utah State Engineer for the appropriation of additional water under the laws of the State of
Utah.
The diversion and depletion requirements for the water rights apportioned under this
Compact are set forth in Tables 1, 2, and 3 of the Tabulation, consisting of acreage, diversion,
and depletion schedules. These requirements shall be utilized in evaluating any application
undertaken pursuant to Section 
73-3-3
, Utah Code Annotated. The delivery schedules set forth
in Tables 4, 5, 6, and 7 of the Tabulation shall determine the distribution of the water allocated
hereunder. The Utah State Engineer, in a manner consistent with the agreements and covenants
contained herein, shall have general administrative supervision of all surface and ground waters
apportioned to the United States in trust for the Ute Indian Tribe and others, including
measurement, apportionment, and distribution thereof, to the points of diversion from the main
sources. The United States and the Tribe shall have general administrative supervision of all
water apportioned to the United States, including measurement, apportionment, and
distribution thereof, within the canal distribution systems from the various points of river
diversion.
The United States on behalf of the Tribe, or the Tribe shall comply with the provisions
of Section 
73-3-3
, Utah Code Annoted 1953, with regard to any change in the point of
diversion, place, or nature of use; except that neither the United States nor the Tribe need make
application to the State Engineer for change of place of use when the new place of use is within
the same canal system.
Pursuant to the congressional legislation required to ratify this Compact under Article V
hereof, and solely as a compromise for the purposes of this Compact, the parties agree that the
Tribe may, under the terms of this Compact, voluntarily elect to sell, exchange, lease, use, or
otherwise dispose of the reserved water rights secured to the Tribe by this Compact, outside the
boundaries of its reservation.
If the Tribe so elects to move any of its rights, or a portion thereof, off the reservation,
as a condition precedent to such sale, exchange, lease, use or other disposition, that portion of
the Tribe's water right shall be changed to a Utah State water right, but shall be such a State
water right only during the use of that right off the reservation. Such right, during the period of
use off the reservation, shall be fully subject to State laws, federal laws, interstate compact, and
international treaties applicable to the Colorado River and its tributaries, including but not
limited to the appropriation, use, development, storage, regulation, allocation, conservation,
exportation, or quality of such waters.
None of the waters secured to the Ute Indian Tribe in this Compact may be sold,
exchanged, leased, used, or otherwise disposed of into or in the Lower Colorado River Basin,
below Lees Ferry, unless water rights within the Upper Colorado River Basin in the State of
Utah held by non-federal, non-Indian users could be so sold, exchanged, leased, used, or
otherwise disposed of under Utah State law, federal law, interstate compacts, or international
treaties pursuant to a final, non-appealable order of a federal court or pursuant to an agreement
of the seven States signatory to the Colorado River Compact. Provided, however, that in no
event shall such transfer of Indian water rights take place without the filing and approval of the
appropriate applications with the Utah State Engineer pursuant to State law.
Nothing in this Compact shall:
(1) constitute specific authority for the sale, exchange, lease, use or other disposition of
any federal reserved water right off the reservation;
(2) constitute specific authority for the sale, exchange, lease, use, or other disposition
of any tribal water right outside the State of Utah;
(3) be deemed or construed a congressional determination that any holders of water
rights do or do not have authority under existing law to sell, exchange, lease, use, or otherwise
dispose of such water or water rights outside the State of Utah; or,
(4) be deemed or construed to establish, address, or prejudice whether, or the extent to
which, or to prevent any party from litigating whether, or the extent to which, any of the
aforementioned laws do or do not permit, govern or apply to the use of the Tribe's water
outside the State of Utah.
This Article is not intended to relieve the responsibility of the parties involved in the
Midview Exchange Agreement.
ARTICLE IV
Enforcement
For purposes of compelling compliance with the terms of this Compact, each party
waives the defense of sovereign immunity as to actions brought by any other party, including
any defense under the Eleventh Amendment to the United States Constitution. The United
States District Court for the District of Utah is hereby granted jurisdiction to adjudicate any
claim made by a party to this Compact that any other party, or its officials, are acting to impair
or violate any right or privilege in this Compact. The federal court jurisdiction provided for
herein shall not be diminished by reason of a related state court proceeding. While the parties
agree that the primary responsibility for protecting and preserving the Ute Tribe's reserved
water rights rests with the United States and the Tribe, the State of Utah, through the State
Engineer, shall use its best efforts to see that the reserved water rights of the Ute Tribe secured
in this Compact are protected from impairment; provided, however, that nothing herein shall
subject the State of Utah or its officers or employees to a claim for monetary damages in its
efforts to so protect tribal water rights.
ARTICLE V
Ratification and Amendment
Each party acknowledges that in order for this Compact to constitute a final and
permanent settlement of tribal reserved water rights, this Compact must be approved or ratified
by the United States Congress, the Legislature of the State of Utah, and the Ute Indian Tribe
through referendum of the Tribe's membership. The parties shall use their best efforts to have
the approvals or ratifications undertaken as expeditiously as possible. The parties hereto agree
that the terms of this Compact have the force and effect of law and agree to adopt all statutes,
regulations and ordinances that are, or may be, necessary to harmonize existing statutes,
regulations and ordinances with this Compact, and agree that this Compact may be included
within any general stream adjudication. The Secretary of the Interior is authorized to take all
actions necessary to implement this Compact.
This Compact is the result of a voluntary compromise agreement between the Ute
Indian Tribe, the State of Utah, and the United States of America. Accordingly, no provision of
this Compact or its adoption as part of any pending general stream adjudication shall be
construed as altering or affecting the determination of any issues relating to the claimed
reserved water rights which may belong to other Indian tribes.
DATED:_________________________
UTE INDIAN TRIBE
By 
_________________________________
STATE OF UTAH
By 
_________________________________
UNITED STATES OF AMERICA
By 
__________________________________
Section 4. Section 
73-21-104
 is enacted to read:
 73-21-104.
Tabulations.
The tabulations described in Sections 
73-21-103
 and 
73-21-105
 are on file and more
fully described at the state engineer's office.
Section 5. Section 
73-21-105
 is enacted to read:
 73-21-105.
Tabulation of Ute Indian Water Rights.
PURPOSE
This tabulation of Ute Indian Water Rights is prepared pursuant to and in accordance
with the Ute Indian Water Compact of 1990 between the Ute Indian Tribe of the Uintah and
Ouray Indian Reservation, Utah, the State of Utah and the United States of America concerning
the water rights of the Ute Indian Tribe. The purpose of this Tabulation is to fully identify and
define all federal reserved water rights of the Ute Indian Tribe.
FORWARD
In December, 1960 the Ute Tribe submitted to the Utah State Engineer a report entitled
Water Right Claims, Uintah and Ouray Indian Reservation, Utah, prepared by E.L. Decker,
tribal engineer, and commonly referred to as the Decker Report. This report was prepared to
identify both the Tribe's present irrigated acreage and also those lands that are susceptible to
irrigation, for which a water right was claimed under the doctrine expressed in Winters v.
United States, 207, U.S. 546 (1908). The acreages listed in the Decker report, as amended,
were used as a basis for this Tabulation.
The Decker Report divided the lands into seven different groups for identification
purposes, which are incorporated herein:
Group (1): Lands included within the Uintah Indian Irrigation Project, the water right to
which has been certificated by the State of Utah and included within Federal Court Decrees
adjudicating water rights of the Lakefork, Yellowstone, Uinta and Whiterock Rivers.
Group (2): Lands included in the Uintah Indian Irrigation Project, the water right to
which has been certificated by the State of Utah, served from the Duchesne River, including
the townsites of Duchesne, Randlett and Myton.
Group (3): Lands that are or can be served from the Duchesne River through the
facilities of the Uintah Indian Irrigation Project which lands have not been certificated by the
State of Utah.
Group (4): Lands which have been found to be productive and economically feasible to
irrigate from privately constructed ditch systems on the Duchesne River or its tributaries above
the Pahcease Canal.
Group (5): Lands which have been found to be susceptible to irrigation and are
proposed to be developed within the Central Utah Project.
Group (6): Lands lying east of the Green River served from the White River for which
Applications to Appropriate Water were once filed with the State of Utah.
Group (7): Lands lying east of the Green River which have been found to be productive
and economically feasible to irrigate from privately constructed ditch systems now in operation
or to be constructed along the Green River, White River, Willow Creek, Bitter Creek, Sweet
Water Creek and Hill Creek.
A summary of the Ute Indian Tribe's total irrigable acreage, maximum allowable
depletion and diversion requirement for each of the land groups, by streams, are contained in
tables 1, 2, and 3, respectively.
Delivery schedules specifying the quantity of water to be diverted from the various
streams are shown in tables 4 through 7. The quantity of water to be diverted into the various
canals and/or ditches shall be determined based on the irrigable acreage as shown in the
acreage tabulation, times the flow rate per acre corresponding to the period of time on the
appropriate delivery schedule. The delivery schedules may be modified by mutual consent of
the Tribe, State and other affected water users or through the pending general adjudication
process. No delivery of water shall be made to lands until the lands are developed or an
appropriate change application is filed and approved. For the Group 1 lands the diversion
requirement was established at 3.40 acre-feet per acre under the 1980 Ute Indian Water
Compact, of which 3.00 acre-feet per acre was to have been supplied from direct streamflow in
accordance with the appropriate delivery schedule and the remaining 0.40 acre-feet per acre
was to have been supplied from storage under the proposed Uintah and Upalco Units of the
Central Utah Project. Such water delivered from storage (0.40 acre-feet per acre) was to
assume, or if developed in the future will assume, the priority date of the Bureau of
Reclamation water rights to accomplish the equitable allocation of water to all subscribers of
the projects. Under the 1990 Compact such water will not be developed or delivered under the
Upalco and Uintah Units. Nevertheless, this tabulation leaves in place the diversion and
depletion quantities with respect to these Group 1 lands established under the 1980 Compact.
Within the group 1 lands there are 9,300 acres commonly referred to as Midview
Exchange lands. As a result of this exchange these lands are now served from the Duchesne
River and thus have a diversion requirement of 4.0 acre-feet per acre. Water for these lands
shall be supplied in accordance with terms of the Midview Exchange Agreement.
The priority date of the group 1 through 5 lands is October 3, 1861. The source of
supply for the group 5 lands has been transferred to the Green River, within the exterior
reservation boundaries, and the Tribe waives any and all claims to develop the Group 5 lands in
place as set forth in the Decker Report and identified in this tabulation. In transferring the
Group 5 lands, 19,809 acres (which includes the 7 percent reduction) are transferred on an
acre-per-acre bases, and 7,271 acres (which includes the 7 percent reduction) are transferred
based upon depletion. In making the transfer based upon depletion the irrigable acreage is
reduced by 1885.0 acres. The priority date of the group 6 and 7 lands is January 5, 1882, except
those group 7 lands bearing the notation "To be determined" under the Priority Date. As to
those certain group 7 lands the priority date shall be determined by mutual agreement, among
the parties to the Compact on or before any call for such water is made or by binding
arbitration using the following guidelines:
1. All matters are deemed resolved herein except the issue of the priority date for
certain parcels of group 7 lands. That issue shall be submitted to an arbitrator who shall have
the authority under Utah Revised Code Sections 78-31-1, et seq., to decide the unresolved
factual issue as to the precise priority date for any parcel of group 7 lands specified in the
Tabulation.
2. To reach a determination of the priority date, either the State of Utah or the Ute
Tribe may request a panel of five water law experts. With the State of Utah striking first, the
Ute Tribe and the State shall alternately strike names from the list until one name remains and
such person shall be the arbitrator.
3. The decision of the arbitrator shall be final and shall conclusively determine the
priority date in question.
4. The procedures of the American Arbitration Association shall govern any
proceedings and the costs and expenses of the arbitrator shall be shared equally by the State
and the Ute Tribe.
The acreage tabulations herein lists the land group, source of supply, canal or ditch (if
applicable), point of diversion, irrigable acreage and place of use. The quantity of land to be
irrigated is limited to the acreage listed as Irrigable Acreage and shall be located within the area
described.
MUNICIPAL AND INDUSTRIAL WATER
In addition to the quantities of water set forth herein for the irrigable acreage of the Ute
Indian Tribe, the United States of America in trust for the Ute Indian Tribe is allocated the
depletion of 10,000 acre-feet of water annually for municipal, industrial and related purposes
from the Green River. To the extent that the tribe or its members use water, other than for
irrigation purposes, the quantity so used shall be included within said 10,000 acre feet unless a
transfer of water from land listed in the tabulation is properly made. The priority date for the
water provided under this paragraph is October 3, 1861. The Tribe and the State shall conduct a
cooperative inventory to identify all existing non-irrigation water uses of the Tribe or its
members to determine the remaining quantity of water available for diversion.
Section 6. 
Repealer.
This bill repeals:
Section 
73-21-1
,
Approval of Ute Indian Water Compact.
Section 
73-21-2
,
Text.