This document includes House Committee Amendments incorporated into the bill on Tue, Mar 6, 2018 at 9:47 AM by lerror.



Chief Sponsor: Kevin T. Van Tassell

House Sponsor: Logan Wilde


8     General Description:
9          This bill ratifies the Ute Indian Water Compact.
10     Highlighted Provisions:
11          This bill:
12          ▸     ratifies the Ute Indian Water Compact;
13          ▸     describes the purposes of the Ute Indian Water Compact; and
14          ▸     references the tabulations on file with the state engineer's office.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     ENACTS:
21          73-21-101, Utah Code Annotated 1953
22          73-21-102, Utah Code Annotated 1953
23          73-21-103, Utah Code Annotated 1953
24          73-21-104, Utah Code Annotated 1953
25          73-21-105, Utah Code Annotated 1953
26     REPEALS:
27          73-21-1, as enacted by Laws of Utah 1980, Chapter 74

28          73-21-2, as last amended by Laws of Utah 1995, Chapter 20

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 73-21-101 is enacted to read:

33          73-21-101. Title.
34          This chapter is known as the "Ute Indian Water Compact."
35          Section 2. Section 73-21-102 is enacted to read:
36          73-21-102. Approval of Ute Indian Water Compact.
37          The Ute Indian Water Compact, located at Section 73-21-103, providing for the
38     execution by the State of Utah, the Ute Indian Tribe of the Uintah and Ouray Reservations,
39     Utah, and the United States of America, through their various representatives, is hereby
40     authorized, confirmed, ratified, and approved for the State of Utah.
41          Section 3. Section 73-21-103 is enacted to read:
42          73-21-103. Text.

44          The State of Utah, the Ute Indian Tribe of the Uintah and Ouray Reservation, Utah, and
45     the United States of America, acting through their respective representatives agree to a Ute
46     Indian Water Compact as follows:

Purpose of Compact

49          The purpose of this Compact is to remove the causes of present and future controversy
50     over the quantification, distribution, and use of all waters claimed by or through the Ute Indian
51     Tribe.

Legal Basis for Compact

54          This Compact is made in accordance with the Constitution and Laws of the United
55     States, the State of Utah, and the Ute Indian Tribe.


58          There is hereby apportioned, confirmed, and recognized from the waters apportioned to

59     the State of Utah from the Colorado River System to the United States of America in
60     perpetuity, in trust, as Winters Doctrine water rights for the Ute Indian Tribe and others, the
61     depletion of water in the amount of 248,943 acre-feet per annum, and the related gross
62     diversion requirement of 470,594 acre-feet per annum, from all sources in accordance with and
63     as more fully set out in the "Tabulation of Ute Indian Water Rights" attached hereto and on file
64     with the Utah State Engineer. The priority date of October 3, 1861, is recognized for land
65     groups 1 through 5, except for water supplied from storage in the Central Utah Project, and the
66     priority date of January 5, 1882, is recognized for land groups 6 and 7, unless indicated
67     otherwise in the Tabulation. Tables 1, 2, and 3 of the Tabulation list the total irrigable acreage,
68     maximum allowable depletions and diversion requirements, respectively, for each of the land
69     groups by stream. No water rights held in trust can be transferred from the lands listed in said
70     groups without approval of the Secretary of the Interior.
71          As provided in the Tabulation attached to this Compact, the Tribe shall take from the
72     Green River in lieu of other sources the 57,948 acre-foot depletion of water allocable to the
73     Tribe's group 5 lands. The parties further agree to share the net income from any sale or lease
74     of such Green River water to third parties. The net income will be 80% to the Ute Indian Tribe
75     and 20% to the State of Utah. The payment to the State of Utah will be made promptly upon
76     the receipt by the Ute Indian Tribe of its payment of net income, and will be deposited in the
77     Utah Division of Water Resources' Conservation & Development Fund. Any dispute relating to
78     the calculation of such amounts will be subject to binding arbitration with no right of judicial
79     review. The priority of such water rights for group 5 lands shall be October 3, 1861.
80          In addition to the water allocated under the previous paragraphs, there is hereby
81     apportioned, confirmed, and recognized to the United States of America in perpetuity, in trust,
82     for the Ute Indian Tribe the depletion of 10,000 acre-feet of water annually having a priority
83     date of October 3, 1861, for municipal and industrial purposes, which shall be diverted from
84     the Green River. To the extent that the Tribe or its members use water other than for irrigation
85     purposes, the quantity so used shall be included within said 10,000 acre-feet unless a transfer of
86     water from the land listed in the Tabulation is properly made.
87          No water allocated pursuant to this Compact shall be subject to loss or forfeiture under
88     the laws of the State of Utah or otherwise. Further, the water allocated herein shall not be
89     restricted to any particular use, but may be used for any purpose selected by the Tribe in

90     accordance with the procedures provided for in this Compact.
91          The quantities of water apportioned hereby include all water rights of every nature and
92     description derived from the reserved water rights doctrine, from all sources of water, both
93     surface and underground, and includes all types and kinds of uses, whether municipal,
94     industrial, recreational, in-stream uses, sale, exchange, lease, or any other use whatsoever, and
95     encompasses all claims asserted by or through the Ute Indian Tribe, and all persons and entities
96     other than the Tribe whose claims or rights are derived, directly or indirectly, from the reserved
97     water rights of the Tribe. Thus, any water rights adjudicated or otherwise established in the
98     future on behalf of any person or entity and based upon a claim, directly or indirectly, through
99     any reserved water rights of the Tribe shall be included within and as a part of the water
100     quantified by this Compact. Any state water rights acquired by the Tribe for land to which a
101     reserved right is recognized herein shall be forfeited.
102          Included within the practicably irrigable acreages are (1) tribal lands and individual
103     Indian allotments; (2) Uintah Indian Irrigation Project lands, which include tribal lands,
104     allotments, and some private lands which were originally allotted lands, and (3) some few
105     lands distributed to former tribal members terminated in accordance with the Ute Partition Act,

106     approved August 27, 1954 (P.L. 83-671, 68 Stat. 868, 25 U.S.C. Sections 667-667aa). Nothing
107     in this Compact shall enlarge or diminish the scope of or otherwise affect either the United
108     States' trust responsibility, if any, or the Ute Indian Tribe's responsibility, if any, to those
109     persons who have been designated as mixed-bloods under the Act of August 27, 1954 (68 Stat.
110     868). The total acreage under irrigation or susceptible to sustained production of agricultural
111     crops by means of irrigation is recognized as 129,201 acres, reduced by 7% to 120,157 acres to
112     reflect roads, yards, fences, rights-of-way, and other non-productive lands. All lands in the
113     Uintah Indian Irrigation Project are designated assessable or non-assessable. The Secretary of
114     the Interior is authorized to change the designation from one to the other.
115          Nothing contained herein shall be construed to preclude the United States as Trustee for
116     the Ute Indian Tribe, the Ute Indian Tribe, or any of its members from filing application with
117     the Utah State Engineer for the appropriation of additional water under the laws of the State of
118     Utah.
119          The diversion and depletion requirements for the water rights apportioned under this
120     Compact are set forth in Tables 1, 2, and 3 of the Tabulation, consisting of acreage, diversion,

121     and depletion schedules. These requirements shall be utilized in evaluating any application
122     undertaken pursuant to Section 73-3-3, Utah Code Annotated. The delivery schedules set forth
123     in Tables 4, 5, 6, and 7 of the Tabulation shall determine the distribution of the water allocated
124     hereunder. The Utah State Engineer, in a manner consistent with the agreements and covenants
125     contained herein, shall have general administrative supervision of all surface and ground waters
126     apportioned to the United States in trust for the Ute Indian Tribe and others, including
127     measurement, apportionment, and distribution thereof, to the points of diversion from the main
128     sources. The United States and the Tribe shall have general administrative supervision of all
129     water apportioned to the United States, including measurement, apportionment, and
130     distribution thereof, within the canal distribution systems from the various points of river
131     diversion.
132          The United States on behalf of the Tribe, or the Tribe shall comply with the provisions
133     of Section 73-3-3, Utah Code Annoted 1953, with regard to any change in the point of
134     diversion, place, or nature of use; except that neither the United States nor the Tribe need make
135     application to the State Engineer for change of place of use when the new place of use is within
136     the same canal system.
137          Pursuant to the congressional legislation required to ratify this Compact under Article V
138     hereof, and solely as a compromise for the purposes of this Compact, the parties agree that the
139     Tribe may, under the terms of this Compact, voluntarily elect to sell, exchange, lease, use, or
140     otherwise dispose of the reserved water rights secured to the Tribe by this Compact, outside the
141     boundaries of its reservation.
142          If the Tribe so elects to move any of its rights, or a portion thereof, off the reservation,
143     as a condition precedent to such sale, exchange, lease, use or other disposition, that portion of
144     the Tribe's water right shall be changed to a Utah State water right, but shall be such a State
145     water right only during the use of that right off the reservation. Such right, during the period of
146     use off the reservation, shall be fully subject to State laws, federal laws, interstate compact, and
147     international treaties applicable to the Colorado River and its tributaries, including but not
148     limited to the appropriation, use, development, storage, regulation, allocation, conservation,
149     exportation, or quality of such waters.
150          None of the waters secured to the Ute Indian Tribe in this Compact may be sold,
151     exchanged, leased, used, or otherwise disposed of into or in the Lower Colorado River Basin,

152     below Lees Ferry, unless water rights within the Upper Colorado River Basin in the State of
153     Utah held by non-federal, non-Indian users could be so sold, exchanged, leased, used, or
154     otherwise disposed of under Utah State law, federal law, interstate compacts, or international
155     treaties pursuant to a final, non-appealable order of a federal court or pursuant to an agreement
156     of the seven States signatory to the Colorado River Compact. Provided, however, that in no
157     event shall such transfer of Indian water rights take place without the filing and approval of the
158     appropriate applications with the Utah State Engineer pursuant to State law.
159          Nothing in this Compact shall:
160          (1) constitute specific authority for the sale, exchange, lease, use or other disposition of
161     any federal reserved water right off the reservation;
162          (2) constitute specific authority for the sale, exchange, lease, use, or other disposition
163     of any tribal water right outside the State of Utah;
164          (3) be deemed or construed a congressional determination that any holders of water
165     rights do or do not have authority under existing law to sell, exchange, lease, use, or otherwise
166     dispose of such water or water rights outside the State of Utah; or,
167          (4) be deemed or construed to establish, address, or prejudice whether, or the extent to
168     which, or to prevent any party from litigating whether, or the extent to which, any of the
169     aforementioned laws do or do not permit, govern or apply to the use of the Tribe's water
170     outside the State of Utah.
171          This Article is not intended to relieve the responsibility of the parties involved in the
172     Midview Exchange Agreement.


175          For purposes of compelling compliance with the terms of this Compact, each party
176     waives the defense of sovereign immunity as to actions brought by any other party, including
177     any defense under the Eleventh Amendment to the United States Constitution. The United
178     States District Court for the District of Utah is hereby granted jurisdiction to adjudicate any
179     claim made by a party to this Compact that any other party, or its officials, are acting to impair
180     or violate any right or privilege in this Compact. The federal court jurisdiction provided for
181     herein shall not be diminished by reason of a related state court proceeding. While the parties
182     agree that the primary responsibility for protecting and preserving the Ute Tribe's reserved

183     water rights rests with the United States and the Tribe, the State of Utah, through the State
184     Engineer, shall use its best efforts to see that the reserved water rights of the Ute Tribe secured
185     in this Compact are protected from impairment; provided, however, that nothing herein shall
186     subject the State of Utah or its officers or employees to a claim for monetary damages in its
187     efforts to so protect tribal water rights.

Ratification and Amendment

190          Each party acknowledges that in order for this Compact to constitute a final and
191     permanent settlement of tribal reserved water rights, this Compact must be approved or ratified
192     by the United States Congress, the Legislature of the State of Utah, and the Ute Indian Tribe
193     through referendum of the Tribe's membership. The parties shall use their best efforts to have
194     the approvals or ratifications undertaken as expeditiously as possible. The parties hereto agree
195     that the terms of this Compact have the force and effect of law and agree to adopt all statutes,
196     regulations and ordinances that are, or may be, necessary to harmonize existing statutes,
197     regulations and ordinances with this Compact, and agree that this Compact may be included
198     within any general stream adjudication. The Secretary of the Interior is authorized to take all
199     actions necessary to implement this Compact.
200          This Compact is the result of a voluntary compromise agreement between the Ute
201     Indian Tribe, the State of Utah, and the United States of America. Accordingly, no provision of
202     this Compact or its adoption as part of any pending general stream adjudication shall be
203     construed as altering or affecting the determination of any issues relating to the claimed
204     reserved water rights which may belong to other Indian tribes.
205          DATED:_________________________     UTE INDIAN TRIBE
206                                        By

207                                        STATE OF UTAH
208                                        By

209                                        UNITED STATES OF AMERICA
210                                        By

211          Section 4. Section 73-21-104 is enacted to read:
212          73-21-104. Tabulations.
213          The tabulations described in Sections 73-21-103 and 73-21-105 are on file and more

214     fully described at the state engineer's office.
215          Section 5. Section 73-21-105 is enacted to read:
216          73-21-105. Tabulation of Ute Indian Water Rights.

218          This tabulation of Ute Indian Water Rights is prepared pursuant to and in accordance
219     with the Ute Indian Water Compact of 1990 between the Ute Indian Tribe of the Uintah and
220     Ouray Indian Reservation, Utah, the State of Utah and the United States of America concerning
221     the water rights of the Ute Indian Tribe. The purpose of this Tabulation is to fully identify and
222     define all federal reserved water rights of the Ute Indian Tribe.

224          In December, 1960 the Ute Tribe submitted to the Utah State Engineer a report entitled
225     Water Right Claims, Uintah and Ouray Indian Reservation, Utah, prepared by E.L. Decker,
226     tribal engineer, and commonly referred to as the Decker Report. This report was prepared to
227     identify both the Tribe's present irrigated acreage and also those lands that are susceptible to
228     irrigation, for which a water right was claimed under the doctrine expressed in Winters v.
229     United States, 207, U.S. 546 (1908). The acreages listed in the Decker report, as amended,
230     were used as a basis for this Tabulation.
231          The Decker Report divided the lands into seven different groups for identification
232     purposes, which are incorporated herein:
233          Group (1): Lands included within the Uintah Indian Irrigation Project, the water right to
234     which has been certificated by the State of Utah and included within Federal Court Decrees
235     adjudicating water rights of the Lakefork, Yellowstone, Uinta and Whiterock Rivers.
236          Group (2): Lands included in the Uintah Indian Irrigation Project, the water right to
237     which has been certificated by the State of Utah, served from the Ĥ→ [
Duschense] Duchesne ←Ĥ
237a      River, including
238     the townsites of Ĥ→ [
Duschense] Duchesne ←Ĥ , Randlett and Myton.
239          Group (3): Lands that are or can be served from the Ĥ→ [
Duschense] Duchesne ←Ĥ River
239a     through the
240     facilities of the Uintah Indian Irrigation Project which lands have not been certificated by the
241     State of Utah.
242          Group (4): Lands which have been found to be productive and economically feasible to
243     irrigate from privately constructed ditch systems on the Ĥ→ [
Duschense] Duchesne ←Ĥ River
243a     or its tributaries
244     above the Pahcease Canal.
245          Group (5): Lands which have been found to be susceptible to irrigation and are
246     proposed to be developed within the Central Utah Project.
247          Group (6): Lands lying east of the Green River served from the White River for which
248     Applications to Appropriate Water were once filed with the State of Utah.
249          Group (7): Lands lying east of the Green River which have been found to be productive
250     and economically feasible to irrigate from privately constructed ditch systems now in operation
251     or to be constructed along the Green River, White River, Willow Creek, Bitter Creek, Sweet
252     Water Creek and Hill Creek.
253          A summary of the Ute Indian Tribe's total irrigable acreage, maximum allowable
254     depletion and diversion requirement for each of the land groups, by streams, are contained in
255     tables 1, 2, and 3, respectively.
256          Delivery schedules specifying the quantity of water to be diverted from the various
257     streams are shown in tables 4 through 7. The quantity of water to be diverted into the various
258     canals and/or ditches shall be determined based on the irrigable acreage as shown in the
259     acreage tabulation, times the flow rate per acre corresponding to the period of time on the
260     appropriate delivery schedule. The delivery schedules may be modified by mutual consent of
261     the Tribe, State and other affected water users or through the pending general adjudication
262     process. No delivery of water shall be made to lands until the lands are developed or an
263     appropriate change application is filed and approved. For the Group 1 lands the diversion
264     requirement was established at 3.40 acre-feet per acre under the 1980 Ute Indian Water
265     Compact, of which 3.00 acre-feet per acre was to have been supplied from direct streamflow in
266     accordance with the appropriate delivery schedule and the remaining 0.40 acre-feet per acre
267     was to have been supplied from storage under the proposed Uintah and Upalco Units of the
268     Central Utah Project. Such water delivered from storage (0.40 acre-feet per acre) was to
269     assume, or if developed in the future will assume, the priority date of the Bureau of
270     Reclamation water rights to accomplish the equitable allocation of water to all subscribers of
271     the projects. Under the 1990 Compact such water will not be developed or delivered under the
272     Upalco and Uintah Units. Nevertheless, this tabulation leaves in place the diversion and
273     depletion quantities with respect to these Group 1 lands established under the 1980 Compact.
274          Within the group 1 lands there are 9,300 acres commonly referred to as Midview
275     Exchange lands. As a result of this exchange these lands are now served from the
275a      Ĥ→ [
Duschesne] Duchesne ←Ĥ

276     River and thus have a diversion requirement of 4.0 acre-feet per acre. Water for these lands
277     shall be supplied in accordance with terms of the Midview Exchange Agreement.
278          The priority date of the group 1 through 5 lands is October 3, 1861. The source of
279     supply for the group 5 lands has been transferred to the Green River, within the exterior
280     reservation boundaries, and the Tribe waives any and all claims to develop the Group 5 lands in
281     place as set forth in the Decker Report and identified in this tabulation. In transferring the
282     Group 5 lands, 19,809 acres (which includes the 7 percent reduction) are transferred on an
283     acre-per-acre bases, and 7,271 acres (which includes the 7 percent reduction) are transferred
284     based upon depletion. In making the transfer based upon depletion the irrigable acreage is
285     reduced by 1885.0 acres. The priority date of the group 6 and 7 lands is January 5, 1882, except
286     those group 7 lands bearing the notation "To be determined" under the Priority Date. As to
287     those certain group 7 lands the priority date shall be determined by mutual agreement, among
288     the parties to the Compact on or before any call for such water is made or by binding
289     arbitration using the following guidelines:
290          1. All matters are deemed resolved herein except the issue of the priority date for
291     certain parcels of group 7 lands. That issue shall be submitted to an arbitrator who shall have
292     the authority under Utah Revised Code Sections 78-31-1, et seq., to decide the unresolved
293     factual issue as to the precise priority date for any parcel of group 7 lands specified in the
294     Tabulation.
295          2. To reach a determination of the priority date, either the State of Utah or the Ute
296     Tribe may request a panel of five water law experts. With the State of Utah striking first, the
297     Ute Tribe and the State shall alternately strike names from the list until one name remains and
298     such person shall be the arbitrator.
299          3. The decision of the arbitrator shall be final and shall conclusively determine the
300     priority date in question.
301          4. The procedures of the American Arbitration Association shall govern any
302     proceedings and the costs and expenses of the arbitrator shall be shared equally by the State
303     and the Ute Tribe.
304          The acreage tabulations herein lists the land group, source of supply, canal or ditch (if
305     applicable), point of diversion, irrigable acreage and place of use. The quantity of land to be
306     irrigated is limited to the acreage listed as Irrigable Acreage and shall be located within the area

307     described.

309          In addition to the quantities of water set forth herein for the irrigable acreage of the Ute
310     Indian Tribe, the United States of America in trust for the Ute Indian Tribe is allocated the
311     depletion of 10,000 acre-feet of water annually for municipal, industrial and related purposes
312     from the Green River. To the extent that the tribe or its members use water, other than for
313     irrigation purposes, the quantity so used shall be included within said 10,000 acre feet unless a
314     transfer of water from land listed in the tabulation is properly made. The priority date for the
315     water provided under this paragraph is October 3, 1861. The Tribe and the State shall conduct a
316     cooperative inventory to identify all existing non-irrigation water uses of the Tribe or its
317     members to determine the remaining quantity of water available for diversion.
318          Section 6. Repealer.
319          This bill repeals:
320          Section 73-21-1, Approval of Ute Indian Water Compact.
321          Section 73-21-2, Text.

Legislative Review Note
Office of Legislative Research and General Counsel