DDW-2024-007385

ORDER OF THE STATE ENGINEER
Permanent Change Application Number
63-498s (a5rr29)
PageT
UTAH DIVISION OF DRINKING WATER
PO BOX 144830
SALT LAKE CITY UT 84114-4830
State of Utah
DEPARTMENT OF NATURAL RESOURCES
Division of Water Rights
SPENCER J, COX
Governor
DEIDRE M. HENDERSON
Lieutenant Governor
JOEL FERRY
Executive Director
TERESA WILHELMSEN
S tate Engineer/D iv ision Dir e ctor
ORDER OF THE STATE ENGINEER
For Permanent Change Application Number 63-4985 (a51129)
Permanent Change Application Number 63-4985 (a51129) in the name of Shaun C. Low and
Crystal D. Low Trust was filed on December 28,2023,1o change the point of diversion, places of
use, and uses of 0,0409 cubic foot per second (cfs) or 3 .0 acre-feet of water as evidenced by Water
RightNumber 63-4985. Heretofore, the water has been diverted from a surface source located
North 3000 feet and West 600 feet from the SE Comer of Section 19, T19S, R2E, SLB&M
(Spanish Stream). The water has been used for the sole supply irrigation of 1.0 acre (group total
of 40.6 acres) from April I to October 15. The water has been used in all or portions of Sections
18 & 19, T19S, R2E, SLB&M.
Hereafter, it is proposed to divert 0.0409 cfs or 3.0 acre-feet of water from a well located North
1302 feet and East 1294 feetfrom the W% Comer of Section 9, T19S, R2E, SLB&M (8-inch well,
100-400 feet deep). The water is to be used for the year-round, indoor, domestic sole supply
requirements of 3.0 part-time equivalent domestic units (EDUs) and 1.0 full-time EDU; and year-
round use for 10 rental cabins at 150 gallons a day and 30 recreational vehicle (RV) spots at 100
gallons a day for 130 days ayear. The place of use of the water is being changed to all or a portion
of Section 9, T195, R2E, SLB&M.
Notice of the application was published in the Sanpete Messenser on January 18 and 25,2024,
and a protest was received from DMADC. A hearing was not held.
Mabey Wright & James, PLLC, representing DMADC Water Companies, expressed concern that
if this change is granted and depletion to the hydrologic system increases, the rights of the
protestant will be impaired. This protestant stated that the application proposes to move water
rights from a surface source to a more stable source of supply which, if not limited to the
historically available surface waters, would enlarge the water right, increase depletions, and
thereby meeting the definition of quantity impairment in Utah Code $ 73-3-3(1)(e). The protestant
requested that the annual availability of the heretofore source be evaluated, and if necessary,
impose a volume limitation as a condition if the application is approved.
The State Engineer, as decision maker, weighs assertions of quantity impairment and whether
sufficient evidence has been provided by the applicant to support a reasonable belief that the
change will not cause a specific right to experience quantity impairment as defined in Utah Code
$ 73-3-3(1Xe).
The State Engineer has evaluated the annual availability of the heretofore source according to
appurtenant information on file. The Spanish Stream was field inspected in20l2 for Water Right
Numbers 63-3244 and 63-4486. According to the field inspection, the stream was flowing
sufficient for irrigation and stockwatering of the heretofore source's appurtenant water rights. In
1594 West North Temple, Suite 220, PO Box i46300, Salt Lake City, UT 841 14-6300
telephone (801 ) 538-7240 . facsimile (80 I ) 538-7467 . www.waterrights.utah.gov
20000
ORDER OF THE STATE ENGINEER
Permanent Change Application Number
63-498s (asllz9)
Page2
addition, the applicant provided an affrdavit, signed by Jay Yardley, stating the volume of water
has been used-since the 1960s for beneficial use on farm ground. Based on this review, it is the
opinion of the State Engineer that the heretofore source has adequate annual availability for the
hereafter proposal of the application.
In evaluating applications, which propose to change the nature of use of a water right, the State
Engineer believes it is appropriate to examine the rates and arnounts of hydrologic depletion
associated with the historical water use as compared to the proposed use to ensure that there is no
enlargement of the underlying water right. In this case, it is believed that the historical water uses
would have incurred the following rates and amounts of hydrologic depletion:
The application proposes the following uses:
Historical
Beneficial Use
Irrigation 1.0 acre
Prior
Beneficial Use
Domestic 4.0 EDUs2
Other- 10 Rental Cabins3
Other - 30 RV spots a
Totals
Allowed
Diversion
(acre-feet)
3.0
Allowed
Diversion
(acre-feet)
1.2
0.6
1.2
3.0
Rate of
Depletiongt
74.g1
Rate of
Depletion
g!)
20
20
20
Amount of
Depletion
(acre-feet)
2.244
Amount of
Depletion
(acre-feet)
0.24
0.t2
0.24
0.6
Based on the above analysis, it appears that the proposed uses will not exceed the hydrologic
depletion limitations associated with the historical use.
Review has been made of the proposed changes, the underlying right, and the protest. It is the
opinion of the State Engineer that this application can be approved without adversely affecting
prior rights provided certain conditions are imposed. Therefore, the applicant is put on notice that
I Consumptive Use of lrrigation Crops in Lltah, Research Report 145, Utah Agricultural Experiment Station, Utah
State University, Logan, Utah, October 1994, Table 25 Gunnison Station. The benchmark crop for the referenced
calculation is alfalfa, the most typical and consumptive crop evaluated in the study (26.93 inches or 2.244 feet.2.244
feet/3.O acre-feet duty: 74.8%).
2 Domestic use is for 3.0 parttime use (0.25 acre-foot/part-time EDU) and 1.0 full-time use (0.45 acre-foot/full-time
EDU).
3 Rental cabins were proposed to divert 0.6 acre-foot (10 cabins x 150 gallons/day x 130 days 17.481gallons/ft3 /
43,560 ftzlacre).
4 RV spots were proposed to divert 1.2 acre-feet (30 RVs x 100 gallons/day x 130 days I 7.481gallons/ft3 / 43,560
fflacre).
ORDER OF THE STATE ENGINEER
Permanent Change Application Number
63-498s (a5t129)
Page 3
diligence must be shown in pursuing the developmelt. of this application' which can be
demonstrated by the compretion of the p-roject u, uppior"d in this order of the State Engineer'
It is, therefore, ORDERED and permanent change Application Number 63-4985 (a51129) is
herety APPROVED subject to prior rights and with the following conditions:
1) The amount of water diverted by the applicant from the well shall be
limited to 0.0409 cfs or 3.0 acre-feet annuaily' The water is to be used
for the year-round, indoor, domestic sole supply requirements-of 3'0
part+ime EDUS and 1.0 full-time EDU; and year-round and year-
round use for 10 rental cabins at 150 gallons a day and 30 RV spots at
100 gallons a daY for 130 daYs ayear'
2) To accommodate the approval of this^permanent change application,
the use of 0.0409 cfs or 3.0 acre-feet of water for sole supply irrigation
of 1.0 acre from April 1 to October 15 at the historical points of
diversion and place of use must cease
3) The applicants shall install and maintain measuring and totalizing
recording devices to meter all water diverted from all sources
pertaining to this application and shall annually report this data to
the Division of Water Rights Water Use Program'
The State Engineer has statutory responsibility to create and maintain water right records based on
an administrative process outlined in statute. The State Engineer is not authorized by statute to
uJ;,rai"u,. wate,ight ,i l. or the validity of established water rights. It is noted that failure to
exercise a water ri[nt wittrin the statutory period could render all or a portion of a water right
invalid through forieiture. parties *ho wish to challenge the validity of a water right are advised
that a declaration offorfeiture is ajudicial action and the courts are available to pursue such suits
(Utah Code $ 73-l-4).
As noted, this approval is granted subject to prior rights. The applicant shall be liable to mitigate
or provide compensation fir any impairmeni of or interference with prior rights as such may be
stipulated among parties or decreed by a court of competent jurisdiction'
The applicant is strongiy cautioned that other permits may be required before any develonmgnJ.of
this application can UJgr" and it is the respotrriUitity of th9 applicant to determine the applicability
of and acquisition of such permits. once all other permits have been acquired, this is your authority
to develop the water under the above referenceilapplication which under Utah Code $$ 73-3-10
and73-3-l2must be diligentty prosecuted to completion. The water must be put to beneficial use
and proof must be filed on oi b"fore April 30. 2029, or a request for extension of time must be
acceptably filed and subsequentty upp.r"a; otrro.rtte, the application will be lapsed' This
approval is limited to the rigits to divlrt and beneficially use water and does not grant any rights
of access to, or use of land or facilities not owned by the applicant.
ORDER OF THE STATE ENGINEER
Permanent Change Application Number
63-498s (a5r129)
Page 4
proof of beneficial use is evidence to the State Engineer that the water has been fully placed to its
intended beneficial use. By law, it must be prepared by a registered engineer or land surveyor, who
will certify to the location, uses, and extent of your water right. Upon the submission of proof as
required by Utah Code g 73-3-16, for this application, the applicant must identify every sourcd of
*ut.r used under this application and the amount of water used from that source. The proof must
also show the capacity of tn sources of supply and demonstrate that each source can provide the
water claimed to be diverted under this right as well as all other water rights, which may be
approved to be diverted from those sources.
Failure on your part to comply with the requirements of the applicable statutes may result in the
lapsing of this permanent change application.
It is the applicant's responsibility to maintain a current address with this office and to update
ownership of their water right. Please notify this office immediately of any change of address
or for assistance in updating ownership. Additionally, if ownership of this water right or the
property with which it is associated changes, the records of the Division of Water Rights
should be updated. For assistance in updating title to the water right please contact the
Division at the phone number below.
Your contact with this offrce, should you need it, is with the Sevier River/Southem Regional
Office. The telephone number is 435-896-2557.
This Order is subject to the provisions of Utah Admin. Code R655-6-17 of the Division of Water
Rights and to Utah Code $$ 63G-4-3 02,63G-4-402, and73-3-14 which provide for filing either a
Request for Reconsideration with the State Engineer or for judicial review with the appropriate
District Court. A Request for Reconsideration must be filed in writing with the State Engineer
within 20 days of the date of this Order. The written request shall be filed in-person, by mail, or
electronically. If the request is filed electronically, it shall be submitted to: [e-mail],
which is the authorized general email for the Division. However, a Request for Reconsideration is
not a prerequisite to filing for judicial review. A petition for judicial review must be filed within
30 days after the date of this Order or, if a Request for Reconsideration has been filed, within 30
days after the date the Request for Reconsideration is denied. A Request for Reconsideration is
considered denied when no action is taken 20 days after the Request is filed.
Dated this 2 A of 2024
P Engineer
ORDER OF THE STATE ENGINEER
Permanent Change Application Number
63-498s (astt2g)
Page 5
Maited a copy of the foregoing Order this 22
Shaun C. Low and Crystal D. Low Trust
Shaun C. Low and Crystal D. Low, Trustees
11498 S. Windsor River Cv
Draper, UT 84020
DMADC
c/o Mabey Wright & James PLLC
175 SouthMain Street, Suite 1330
Salt Lake City, Utah 84111
Utah Division of Drinking Water
PO Box 144830
Salt Lake city, UT 84114-4830
Division of Water Rights
Water Use Program
of 2024 to:
BY
Cannon,Secretary