water users’ workshop – session 5 06-07 march 2007 dixie center – st. george, utah water...

Water Users’ Workshop – Session 506-07 March 2007

Dixie Center – St. George, Utah

Water Users’ Workshop – Session 506-07 March 2007

Dixie Center – St. George, Utah

Lee H. Sim, P.E. – Assistant State EngineerKerry E. Carpenter, P.E. – Enforcement Engineer

The 2005 StatutesThe 2005 Statutes

• § 73-2-25: State Engineer enforcement powers

• § 73-2-26: Administrative penalties

• § 73-2-27: Criminal penalties

• § 73-2-28: Costs and fees in civil actions

The 2005 Administrative RulesThe 2005 Administrative Rules

• Rule R655-14: Administrative Procedures for Enforcement Proceedings Before the Division of Water Rights

Enforcement AuthorityEnforcement Authority

When an “enforcement action” is authorized: Taking water without

right or in violation of an existing right

Failure to comply with statutes, orders or notices regarding headgates, measuring devices, etc.


Failure to comply with an order or notice regarding dam safety or natural stream channel alteration


When is an enforcement action not authorized:More than one year has

passed since violationCivil disputes between

or among water usersInternal disputes in

water or irrigation companies

Right-of-way, easement or trespass disputes

The Enforcement ProgramThe Enforcement Program

• Administrative Penalties may include:Monetary finesReplacement of waterReimbursement of Division’s

enforcement expenses

What’s New?

• The changes are of two types:

AmendedAmended

statutesstatutes

Amended administrative rules

• The changes are of two types:

AmendedAmended

statutesstatutes

Amended administrative rules

Amendments to StatuteAmendments to Statute

First Sub. HB 48 (2007) amends §73-2-25 to clarify when an enforcement action is authorized in relation to a water right violation. This section of statute will now read:

“The state engineer may commence an enforcement action under this section if the state engineer finds that a person: (i) is diverting, impounding, or using water for which no water right has been established;(ii) is diverting, impounding, or using water in violation of an existing water right. . .”

First Sub. HB 48 (2007) amends §73-2-25 to clarify when an enforcement action is authorized in relation to a water right violation. This section of statute will now read:

“The state engineer may commence an enforcement action under this section if the state engineer finds that a person: (i) is diverting, impounding, or using water for which no water right has been established;(ii) is diverting, impounding, or using water in violation of an existing water right. . .”

Amendments to RulesAmendments to Rules

Section R655-14 was amended in December of 2006.

“Housekeeping” changes Introduction of Subsection R655-14-14:

“Procedures for Determining the Amounts of Administrative Penalties, Enforcement Costs and Water Replacement.”

Section R655-14 was amended in December of 2006.

“Housekeeping” changes Introduction of Subsection R655-14-14:

“Procedures for Determining the Amounts of Administrative Penalties, Enforcement Costs and Water Replacement.”

Subsection R655-14-14Subsection R655-14-14

Administrative penalties based on:• Direct Economic

Benefit, or• Avoided Cost

Multiplied by a factor based on:• Knowing / Unknowing• Injury to others• Duration of violation• Efforts to comply

Administrative penalties based on:• Direct Economic

Benefit, or• Avoided Cost

Multiplied by a factor based on:• Knowing / Unknowing• Injury to others• Duration of violation• Efforts to comply

“Penalty Multiplier Tables” for:• Water Rights

• Direct Benefit• Avoided Cost

• Stream Alteration• Dam Safety• Penalty Reduction

“Penalty Multiplier Tables” for:• Water Rights

• Direct Benefit• Avoided Cost

• Stream Alteration• Dam Safety• Penalty Reduction

Pre-EnforcementPre-Enforcement

Water right enforcement referrals may come from: Region Office personnel Distribution Commissioners Adjudication Team personnel Other water users or affected parties using a

form provided for this purpose

Enforcement Screening Questionnaire / Page 1 of 3

SEAA No. _______________________

Date Received:_______________________

WATER RIGHTS ENFORCEMENT REFERRAL

§§§§§§§§§§

Complete this form by entering the requested information in the blanks provided and by

checking the answer(s) which most clearly apply.

1. The alleged violator is:

1.1. Name: ___________________________________________________________

1.2. Address:__________________________________________________________

1.3. Telephone: _______________________________________________________

2. If the alleged violator is other than an individual (e.g., irrigation company, mutual

water company, corporation, LLC, etc.), the point of contact will be:

2.1. Name: ___________________________________________________________

2.2. Office / Title: _____________________________________________________

3. Did the alleged violation occur or continue to occur during the past 12 months?

3.1. □ Yes

3.2. □ No (If “No,” the violation is not subject to enforcement action.)

4. The alleged violation arises from:

4.1. □ a person diverting or using water for which no right has been established;

4.2. □ a person diverting or using water in violation of an existing right (This

would be a situation in which water is being taken from a source or used in a

manner, time or place not authorized by the person’s water rights.);

4.2.1. Water right/application number(s), if known :

_____________________________________________________________


This form is available on the Division’s website or from any Division office.

As a rule, anonymous referrals will not be pursued. Reasonable efforts will be made to protect a complainant’s identity as circumstances warrant.


This form is available on the Division’s website or from any Division office.

As a rule, anonymous referrals will not be pursued. Reasonable efforts will be made to protect a complainant’s identity as circumstances warrant.

Water Rights Water Rights Enforcement Enforcement Referral FormReferral Form

Required Referral InformationRequired Referral Information

• Alleged violator’s identity and contact information

• Date(s) and duration of alleged violation

• Nature of the alleged violation

• Water right or application numbers

• Details, photos, etc.

• Alleged violator’s identity and contact information

• Date(s) and duration of alleged violation

• Nature of the alleged violation

• Water right or application numbers

• Details, photos, etc.

• Referring party’s identity and contact information

• Referring party’s desire to remain anonymous

• NOTE: Anonymity is never guaranteed!

• Referring party’s identity and contact information

• Referring party’s desire to remain anonymous

• NOTE: Anonymity is never guaranteed!

Pre-EnforcementPre-Enforcement

Upon receipt of a referral: Alleged violations are investigated. Alleged violator is advised of findings of

investigation. The alleged violator is invited to respond with

information and/or seek compliance. An informal resolution will be considered.


If warranted, an enforcement action will be initiated:

As justified by the prior investigation and an informal resolution is not feasible, an “Initial Order” is issued.

The “Initial Order” details the alleged facts, declares the penalties, orders compliance, and describes actions to be taken by the alleged violator to participate in the process.

If warranted, an enforcement action will be initiated:

As justified by the prior investigation and an informal resolution is not feasible, an “Initial Order” is issued.

The “Initial Order” details the alleged facts, declares the penalties, orders compliance, and describes actions to be taken by the alleged violator to participate in the process.


“Participation” by the alleged violator may take several forms:

Respond with a desire to negotiate a settlement (Consent Order)

Respond to dispute the allegations and/or request a hearing (Consent or Final Order)

No response (Default Order)

The Enforcement ProgramThe Enforcement Program Consent Order:

A stipulated “Consent Order” is not subject to reconsideration nor to a formal court appeal.

Consent Order:

A stipulated “Consent Order” is not subject to reconsideration nor to a formal court appeal.

Final / Default Order:

A “Final Order” issued by the State Engineer is subject to informal reconsideration or appeal in district court.

Final / Default Order:

A “Final Order” issued by the State Engineer is subject to informal reconsideration or appeal in district court.

Case Study :: TimelineCase Study :: Timeline

• 03 June: Referral Form received

• 15 June: Investigation completed and letter sent to alleged violator

• 18 July: No response received; Initial Order issued

• 31 July: Response: Request for extension of time and hearing

Case Study :: TimelineCase Study :: Timeline

• 17 August: Preliminary Conference, followed by acreage reduction, submission of affidavits, change applications, etc.

• 03 October: Consent Order issued

Case Study :: Penalty Case Study :: Penalty CalculationCalculation

• “Economic Benefit”• 23.5 acres alfalfa• Annual 4.5 Ton/acre• “Stack price” $90/Ton• Benefit: $9,517.50/year• 214-day period of use

(Apr 1 – Oct 31)• Daily benefit: $44.47• 123 days of violation

• Base Penalty = Economic

Benefit: $5,469.81$5,469.81

• “Economic Benefit”• 23.5 acres alfalfa• Annual 4.5 Ton/acre• “Stack price” $90/Ton• Benefit: $9,517.50/year• 214-day period of use

(Apr 1 – Oct 31)• Daily benefit: $44.47• 123 days of violation

• Base Penalty = Economic

Benefit: $5,469.81$5,469.81

• “Penalty Multiplier”• Unknowing violation – 0.5• Unmeasured injury to

others – 0.50• Duration of known violation

< 1 yr. – 0.50• Minimal compliance effort –

0.75• Total: 2.25

• Administrative Penalty =

$12,307.07$12,307.07

• “Penalty Multiplier”• Unknowing violation – 0.5• Unmeasured injury to

others – 0.50• Duration of known violation

< 1 yr. – 0.50• Minimal compliance effort –

0.75• Total: 2.25

• Administrative Penalty =

$12,307.07$12,307.07

Case Study :: Penalty Case Study :: Penalty CalculationCalculation

• Water replacement

• 123/214 days = 57.48%• 57.48% of 23.5 acres =

13.50 acres• 13.50 x 2.25 (multiplier) =

30.39 acres to be “idled”• Statutory limit of 200% =

27.0 acres27.0 acres to be “idled” for one full season

• Water replacement

• 123/214 days = 57.48%• 57.48% of 23.5 acres =

13.50 acres• 13.50 x 2.25 (multiplier) =

30.39 acres to be “idled”• Statutory limit of 200% =

27.0 acres27.0 acres to be “idled” for one full season

• Enforcement costs

• Established by affidavits of time and expenses

• Includes costs of travel, field work, research, conferences, etc.

• Base costs are multiplied by an overhead factor (currently 69%)

• $5,279.47$5,279.47 in this case

• Enforcement costs

• Established by affidavits of time and expenses

• Includes costs of travel, field work, research, conferences, etc.

• Base costs are multiplied by an overhead factor (currently 69%)

• $5,279.47$5,279.47 in this case

First Year :: 2006-07First Year :: 2006-07

Regulation Referrals:Dam Safety – 5Stream Alteration – 1Well Drilling – 8Distribution – 36Water Rights – 17

First Year :: 2006-07First Year :: 2006-07

Enforcement outcomes: Not subject to formal

enforcement – 3Referred to Region office /

Informal resolution – 6Consent Order – 5Final/Default Order – 2Still under active

investigation – 9Under active litigation – 1

Enforcement outcomes: Not subject to formal

enforcement – 3Referred to Region office /

Informal resolution – 6Consent Order – 5Final/Default Order – 2Still under active

investigation – 9Under active litigation – 1

www.waterrights.utah.govwww.waterrights.utah.gov

Contact InformationContact Information

• Enforcement Engineer• Kerry Carpenter, P.E.

Enforcement Engineer

88 E Fiddlers Cyn Rd – Ste F

Cedar City, UT 84720

• [email protected]• (435) 592-2376

• Enforcement Engineer• Kerry Carpenter, P.E.

Enforcement Engineer

88 E Fiddlers Cyn Rd – Ste F

Cedar City, UT 84720


• Presiding Officer• Lee H. Sim, P.E.

Asst. State Engineer

1594 W North Temple

PO Box 146300

SLC, UT 84114-6300


• Presiding Officer• Lee H. Sim, P.E.

Asst. State Engineer

1594 W North Temple

PO Box 146300

SLC, UT 84114-6300


mailto:[email protected]




Conclusion – Q & A

water users’ workshop – session 5 06-07 march 2007 dixie center – st. george, utah water...

Documents

enforcement engineer

water right violation

enforcement action

water replacement

existing water

enforcement costs

enforcement proceedings

division of water rights