Heal Utah v. Kane County Water Conservancy District ( 2016 )

2016 UT App 153THE UTAH COURT OF APPEALS
HEAL UTAH, ET AL.,1
Appellants,
v.
KANE COUNTY WATER CONSERVANCY DISTRICT,
SAN JUAN COUNTY WATER CONSERVANCY DISTRICT,
BLUE CASTLE HOLDINGS INC., AND KENT JONES,
Appellees.
Opinion
No. 20140429-CA
Filed July 21, 2016
Seventh District Court, Castle Dale Department
The Honorable George M. Harmond
No. 120700009
John S. Flitton and Christie Babalis, Attorneys
for Appellants
John H. Mabey Jr. and David C. Wright, Attorneys
for Appellees Kane County Water Conservancy
District, San Juan County Water Conservancy
District, and Blue Castle Holdings Inc.
Sean D. Reyes, Julie I. Valdes, and Norman K.
Johnson, Attorneys for Appellee Kent Jones
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGE J.
FREDERIC VOROS JR. and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.2
1. The parties on appeal are not limited to those listed, but also
include other parties whose names appear on the notice of
appeal or who have otherwise entered appearances in this court.
2. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
HEAL Utah v. Kane County Water Conservancy District
TOOMEY, Judge:
¶1 In this case we must determine whether the district court
properly approved two change applications requesting to
change the points of diversion and the nature of use of water
already appropriated to Kane County Water Conservancy
District and San Juan County Water Conservancy District
(collectively, the Districts). We conclude that it did and therefore
affirm.
BACKGROUND
¶2 The Districts have leased their existing water rights to
Blue Castle Holdings Inc. for the proposed development of a
nuclear power plant (the Project) near Green River, in Emery
County, Utah. We refer to the Districts and Blue Castle
collectively as the Applicants. The Applicants’ leases are
contingent on approval of the change applications; they also seek
approval to store water in a reservoir on the Project’s site.
¶3 The Project will require the continuous depletion of
nearly all of the Districts’ apportioned water to create steam to
generate power and to cool the power plant. The Project must be
completed in phases and must satisfy certain federal and state
regulations to proceed. Blue Castle has already invested
approximately $17.5 million of the $15 to $20 billion required to
complete the Project, including money spent to secure the
necessary water rights from the Districts and to purchase real
property for the site. The Applicants seek to move the Districts’
approved points of diversion from several small tributaries to a
single location on a larger river upstream from the existing
points of diversion. Before the Project can proceed, an
environmental impact assessment must be conducted and an
application must be submitted to the Nuclear Regulatory
Commission for an Early Site Permit. Furthermore, to build and
operate the Project, any environmental impacts must be
resolved.
20140429-CA 2 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
¶4 Because of the complexity of this case, we provide
background information concerning water rights and change
applications in Utah, but we recite only those facts relevant to
the issues presented on appeal.
I. Change Application Process
¶5 In Utah, water belongs to the public. Utah Code Ann.
§ 73-1-1 (LexisNexis 2012). This ‚*p+ublic ownership is founded
on the principle that water, a scarce and essential resource in this
area of the country, is indispensable to the welfare of all the
people.‛ J.J.N.P. Co. v. Division of Wildlife Res., 655 P.2d 1133, 1136
(Utah 1982). ‚[I]t is essential that putting water to the highest
and best beneficial use should not only be encouraged, but
carefully safeguarded.‛ Green River Canal Co. v. Thayn, 2003 UT
50, ¶ 28, 84 P.3d 1134 (alteration in original) (citation and
internal quotation marks omitted). Accordingly, ‚the State must
therefore assume the responsibility of allocating the use of water
for the benefit and welfare of the people of the State as a whole.‛
J.J.N.P. Co., 655 P.2d at 1136.
¶6 Like many other arid western states, Utah has adopted
the prior appropriation system—a capture system of water
allocationto maximize productive usage of water. Frederic J.
Donaldson, Note, Farmer Beware: Water Rights Enforcement in
Utah, 27 J. Land Resources & Envtl. L. 367, 370–71 (2007)
[hereinafter Donaldson]. ‚The prior appropriation system has
two basic principles: priority and beneficial use.‛ Id. at 371.
‚Priority refers to the general system of first in time, first in
right. This means senior water right holders are entitled to their
full water right before junior water right holders are entitled to
any water.‛ Id. (citations omitted); accord Utah Code Ann. § 73-3-
1(5). ‚The principle of beneficial use means a water right is
acquired by diverting water and putting it to beneficial use; most
uses, such as irrigation or stock watering are considered
beneficial. A right to use water may be abandoned or forfeited
by nonuse for a statutory period of time.‛ Donaldson, at 371
(footnotes omitted).
20140429-CA 3 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
¶7 Through this system, potential users must apply to the
State Engineer for authority to withdraw water from the natural
environment. See Utah Code Ann. §§ 73-3-1 to -2. The application
must set forth ‚the nature of the proposed use,‛ the ‚quantity of
water in acre-feet,‛ ‚the time during which it is to be used,‛ ‚the
name of the stream or other source from which the water is to be
diverted,‛ ‚the place on the stream or source where the water is
to be diverted and the nature of the diverting works,‛ and any
‚other facts that clearly define the full purpose of the proposed
appropriation.‛ Id. § 73-3-2(1)(b). But ‚*a+n appropriation may be
made only for a useful and beneficial purpose.‛ Id. § 73-3-1(4).
So, among other duties, the State Engineer must ensure ‚that the
waters of the state are used by appropriators in accordance with
their priorities and that diverted waters are used for proper
beneficial purposes.‛ Donaldson, at 371 (footnote omitted); see
also Utah Code Ann. § 73-2-1 (explaining that the State Engineer
is responsible for ‚the general administrative supervision of the
waters of the state and the measurement, appropriation,
apportionment, and distribution of those waters‛).
¶8 The State Engineer’s ‚approval of an application to
appropriate is only a preliminary step . . . . It confers upon the
applicant no perfected right to the use of water.‛ Little
Cottonwood Water Co. v. Kimball, 289 P. 116, 118 (Utah 1930).
Rather, ‚*i+t merely clothes the applicant with authority to
proceed and perfect, if he can, his proposed appropriation by the
actual diversion and application of the water claimed to a
beneficial use.‛ Id.; see also J.J.N.P. Co., 655 P.2d at 1136
(explaining that an ‚appropriation does not confer an ownership
interest in the water itself‛). In other words, it gives an
individual only a usufruct in water—the right to use some
maximum quantity of water from a specified source, at a specific
point of diversion or withdrawal, for a specific use, and at a
specific time. See Delta Canal Co. v. Frank Vincent Family Ranch,
LC, 2013 UT 69, ¶ 30 (explaining that ‚the continuing validity of
a water right depends on its being used‛). Only the amount of
water that is actually put to beneficial use vests into a right. Id.
¶ 25; accord 78 Am. Jur. 2d Waters § 362 (2016) (‚*T+o constitute a
20140429-CA 4 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
valid appropriation of water there must be an intent to
appropriate water and apply it to a beneficial use, as well as the
actual diversion of the water from its natural channel or other source of
supply . . . . If any of the requisite elements are missing, such as
the intent to apply the water to a beneficial use, or the diversion
of water, there is no appropriation and no water rights
obtained.‛ (emphasis added) (footnotes omitted)).
¶9 Once a user obtains the right to use unappropriated
water, ‚a water right holder is entitled to change the point of
diversion or the place or nature of use of water so long as vested
rights are not impaired by the change.‛ Searle v. Milburn
Irrigation Co., 2006 UT 16, ¶ 23, 133 P.3d 382; see also Utah Code
Ann. §§ 73-3-1 to -3 (LexisNexis 2012 & Supp. 2015). Utah Code
section 73-3-3 requires the State Engineer to ‚follow the same
procedures . . . for applications to appropriate water‛ and
‚applications for permanent changes of point of diversion, place
of use, or purpose of use.‛ Utah Code Ann. § 73-3-3(5)(a) (2012).
Notably, the code requires the State Engineer to approve a
change application unless ‚it impairs any vested right without
just compensation.‛ See id. § 73-3-3(2)(b), (6)(b); accord id. § 73-3-
8(1). The Utah Supreme Court has explained that the ‚owner of a
water right has a vested right to the quality as well as the
quantity which he has beneficially used.‛ Crafts v. Hansen, 667
P.2d 1068, 1070 (Utah 1983) (citation omitted). Accordingly, the
presumption is to approve a change application, but the State
Engineer must first determine that the proposed changes will
not impair any vested right to the beneficial use of a certain
quality and quantity of water. Id.¶10 Furthermore, although the State Engineer is ‚the
appropriate officer to initially determine whether an application
seeking permission to initiate such a change should be
approved,‛ Searle, 2006 UT 16, ¶ 23, a person aggrieved by the
State Engineer’s decision ‚may obtain judicial review in
accordance with Title 63G, Chapter 4, Administrative
Procedures Act,‛ Utah Code Ann. § 73-3-14. ‚District courts
have authority to review de novo any final agency action
20140429-CA 5 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
resulting from an informal administrative proceeding, including
an action by the State Engineer.‛ Western Water, LLC v. Olds, 2008
UT 18, ¶ 17, 184 P.3d 578. ‚*A+ district court, when reviewing the
state engineer’s decision to approve or reject an application, is
not sitting in its capacity as an adjudicator of rights, but is
merely charged with ensuring that the state engineer correctly
performed an administrative task.‛ Searle, 2006 UT 16, ¶ 35.
Further, the district court may only consider issues ‚subject to
determination by the [State] Engineer because the effect of the
court’s judgment is the same as it would have been if the
Engineer had reached the same conclusion in the first instance.‛
Western Water, 2008 UT 18, ¶ 18 (alteration in original) (citation
and internal quotation marks omitted). In other words, the
district court stands in the same position as the State Engineer
did, and its judgment is therefore limited to the issues
determined by the State Engineer.
II. The Colorado River Compact
¶11 The water rights underlying the Applicants’ change
applications are located in three bodies of water: Wahweap
Creek, Lake Powell, and the San Juan River. The Applicants’
proposed changes sought to move the diversion point upstream
to the Green River. The Green River is approximately 730 miles
long, roughly 450 miles of which are in Utah. Roy Webb, Utah
History to Go, http://historytogo.utah.gov/utah_chapters/the_lan
d/greenriver.html [https://perma.cc/L34J-HV2E]. Although its
headwaters are in Wyoming, the river drains the entire northeast
corner of Utah, and courses through a series of canyons until it
meets the Colorado River in the middle of Canyonlands
National Park in southern Utah. See id. In particular, the river
flows through the Flaming Gorge Reservoir in northeastern
Utah, which provides for the long-term storage of water for
beneficial use and allows for the regulation of the Colorado
River. Several tributaries below the Flaming Gorge Reservoir
and Dam, including the Yampa, Duchesne, White, Price, and San
20140429-CA 6 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
Rafael rivers, feed the Green River before its confluence with the
Colorado River.3 Id.¶12 The Green River’s water volume changes dramatically
depending on the season—it is generally higher in spring during
runoff and times of precipitation and lower in dry summer
months and in cold winter months when the river ices over. On
average, based on data collected between 1977 and 2007, the
river has an average volume of 3.9 million acre-feet per year.
There are approximately 139 approved water rights (excluding
stock watering rights) on the Green River in the relevant area—
between its confluence with the Price River and its confluence
with the Colorado River. If all of the existing approved rights
were vested or in use, total depletion from the Green River
would be approximately 1.29% of the average volume.
¶13 As the largest tributary of the Colorado River, the Green
River is managed under numerous compacts, federal laws, court
decisions, and regulatory guidelines, including the Colorado
River Compact.4 Under this compact, Utah is allowed to deplete
twenty-three percent of the water allocated to Utah, Colorado,
Wyoming, New Mexico, and Arizona, Utah Code Ann. § 73-13-
3. The Applicants’ change applications sought to divert water
from the Green River below all significant tributaries except the
San Rafael River.
4. In 1921, Arizona, California, Colorado, Nevada, New Mexico,
Utah, and Wyoming entered into the Colorado River Compact
to, among other things, provide for ‚the equitable division and
apportionment of the use of the waters of the Colorado River
System.‛ Utah Code Ann. § 73-12a-2 art. I (LexisNexis 2012). For
further information regarding the various other laws that govern
the Colorado River, see generally U.S. Bureau of Reclamation,
Dep’t of the Interior, Colorado River Storage Project, Law of the
River, http://www.usbr.gov/uc/rm/crsp/index.html#law (last
updated Feb. 03, 2016) [https://perma.cc/85P7-BM73].
20140429-CA 7 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
10 art. III (a)(2) (LexisNexis 2012), which equates to about 1.4
million acre-feet per year. The State Engineer estimates ‚that
Utah water users currently deplete approximately one million
acre-feet annually, which represents an underutilization of
Utah’s share of the Colorado River.‛5 But he also concedes that if
all Utah ‚water rights of record were to be fully developed and
put to use,‛ that could deplete more than two million acre-feet,
roughly 600,000 acre-feet more than Utah is allotted under the
compact. Indeed, characteristics of a prior appropriation system
provide ‚the means for continued overappropriation of water‛
where an ‚established user can suddenly find himself in a junior
position without a dependable water supply even in normal
water years.‛ Harrison C. Dunning, State Equitable Apportionment
of Western Water Resources, 66 Neb. L. Rev. 76, 86–87 & n.6 (1987)
(explaining that because of ‚its tendency to lead to
overappropriation, . . . prior appropriation tends to produce
great disparities between paper rights and actual rights‛).
Nevertheless, as the State Engineer points out, there are ‚at least
574,600 acre-feet of approved yet undeveloped water in the
Upper Colorado River in Utah.‛6 So, although water rights are
5. Utah Code section 73-1-2 provides, ‚The standard unit of
measurement of the flow of water shall be the discharge of one
cubic foot per second of time, which shall be known as a second-
foot; and the standard unit of measurement of the volume of
water shall be the acre-foot, being the amount of water upon an
acre covered one foot deep, equivalent to 43,560 cubic feet.‛
6. The Upper Colorado River is part of the Colorado River Basin.
‚The term ‘Colorado River Basin’ means all of the drainage area
of the Colorado River System and all other territory within the
United States of America to which the waters of the Colorado
River System shall be beneficially applied.‛ Utah Code Ann.
§ 73-12a-2 art. II(b). The Colorado River Basin ‚is divided into
two basins, and an apportionment of the use of part of the water
of the Colorado River System is made to each of them with the
provision that further equitable apportionment may be made.‛
(continued…)
20140429-CA 8 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
overapportioned, the amount of water actually in use, or the
number of vested water rights, is significantly less than what is
appropriated. Further, according to the U.S. Bureau of
Reclamation, even under rapid growth in population, by 2060
Utah will have developed 1.38 million acre-feet of the 1.4 million
acre-feet allotted under the compact.7
III. Procedural Background
¶14 In January 2012, the State Engineer approved the
Applicants’ change applications, in which they sought to change
the points of diversion and the nature of the use of the Districts’
existing water rights. The San Juan County Water Conservancy
District enjoys rights to 24,000 acre-feet of water from the San
Juan River in San Juan County to use for a coal-fired steam
generation power plant.8 In its change application, the San Juan
County Water Conservancy District proposed to change the
point of diversion from the smaller San Juan River to the Green
River in Emery County, Utah. The application also proposed that
San Juan County Water Conservancy District’s water would be
stored in a new reservoir and be used for the Project.
(…continued)
Id. § 73-12a-2 art. I. In relevant part, the Upper Basin includes
those areas of Arizona, Colorado, New Mexico, Utah, and
Wyoming from which waters naturally drain into the Colorado
River System above Lee Ferry (‚a point in the Colorado River
one mile below the mouth of the Paria River‛). Id. § 73-12a-2 art.
II.
7. For an overview of the Colorado River in Utah, see generally
D. Larry Anderson, Utah’s Perspective: The Colorado River (2d ed.
May 2002), http://www.water.utah.gov/InterstateStreams/PDF/T
heColoradoRiverart.pdf [https://perma.cc/XB7Q-KWDF].
8. Although the Districts hold state-approved water rights,
neither of the Districts has put its rights to use.
20140429-CA 9 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
¶15 The Kane County Water Conservancy District also sought
changes to its existing water rights. It holds rights to 29,600 acre-
feet of water from Wahweap Creek and Lake Powell in Kane
County, Utah, for steam generation in the abandoned
Kaiparowits Power Project.9 In its change application, the Kane
County Water Conservancy District also proposed to use its
water rights to aid in producing nuclear power for the Project.
Rather than diverting the water from Lake Powell, the Kane
County Water Conservancy District proposed to divert the water
from the same location proposed by the San Juan County Water
Conservancy District in the Green River.
¶16 After the State Engineer advertised the proposed changes,
see Utah Code Ann. § 73-3-6, nearly fifty protests were filed
against the Kane County Water Conservancy District’s
application and close to thirty protests against the San Juan
County Water Conservancy District’s application. In January
2010, the State Engineer held an informal administrative hearing
on each application in Green River, Utah. Two years later, he
approved the applications in separate orders.
¶17 HEAL Utah sought judicial review of both orders in the
district court and named the State Engineer as a respondent. The
district court consolidated the two cases pursuant to a
stipulation and held a bench trial in September 2013. The
Applicants called ten witnesses, including two rebuttal witnesses
and at least four expert witnesses, and HEAL Utah called four
witnesses. The district court’s well-written and thorough twenty-
five-page memorandum decision employed the reason-to-
believe standard, and ruled that the Applicants’ change
applications met the statutory criteria. It therefore approved
them subject to certain conditions. HEAL Utah now appeals the
district court’s decision.
9. The Kaiparowits Power Project was abandoned after the lands
were included as part of the 1996 Grand Staircase-Escalante
National Monument.
20140429-CA 10 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
ISSUES AND STANDARD OF REVIEW
¶18 On appeal, HEAL Utah contends the district court erred
when it approved the Applicants’ change applications because
the Applicants ‚have not satisfied the burden of demonstrating
that the Change Applications meet the requirements of [Utah
Code section 73-3-8+.‛10 Specifically, it argues that (1) there is no
unappropriated water in the proposed source, (2) the proposed
diversion will have an ‚unreasonable impact on the natural
stream environment‛ and is ‚contrary to the public welfare,‛
and (3) the proposed change is not feasible and is speculative.
¶19 Before considering the issues identified by HEAL Utah on
appeal, we note that this is not an appeal from an adjudication of
the parties’ rights to use water. Rather, HEAL Utah’s appeal
requires us to determine whether the district court properly
approved the Applicants’ change applications which effectively
authorized Blue Castle to proceed with plans to appropriate the
water. Examining whether a change application meets the
statutory criteria is a mixed question of law and fact, and the
district court is given ‚significant, but not broad, discretion‛ in
applying Utah Code section 73-3-8 to the facts using the reason-
to-believe standard. See Searle v. Milburn Irrigation Co., 2006 UT
16, ¶ 18, 133 P.3d 382.
10. Our analysis of HEAL Utah’s arguments is limited because
its arguments are often inadequately supported and briefed.
Specifically, it has failed to marshal any evidence that
contradicts its assertions and has largely failed to provide
citations to the record. See Utah R. App. P. 24(a)(9). Rather,
HEAL Utah only selectively refers to case law and the district
court’s decision. See State v. Thomas, 961 P.2d 299, 305 (Utah
1998) (explaining that adequate briefing requires ‚not just bald
citation to authority but development of that authority,‛ and
‚this court is not a depository in which the appealing party may
dump the burden of argument and research‛ (citations and
internal quotation marks omitted)).
20140429-CA 11 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
ANALYSIS
¶20 Utah Code section 73-3-8 requires, in relevant part, that a
change application be approved if ‚there is reason to believe‛
that ‚there is unappropriated water in the proposed source,‛
‚the proposed use will not impair existing rights or interfere
with the more beneficial use of the water,‛ the proposed plan is
‚physically and economically feasible‛ and ‚would not prove
detrimental to the public welfare,‛ and ‚the applicant has the
financial ability to complete the proposed works.‛ See Utah Code
Ann. § 73-3-8(1)(a) (LexisNexis Supp. 2015).
¶21 The Utah Supreme Court has explained that ‚the burden
of persuasion [rests] squarely on the change applicant.‛ Searle,
2006 UT 16, ¶ 50. But because a change application is not a final
adjudication of water rights, the reason-to-believe standard puts
‚a fairly low burden on a party seeking approval of a change
application.‛ Id. ¶ 36; see also id. ¶¶ 35–42 (explaining that ‚the
reason to believe standard governs the change application
process‛ and ‚a preponderance standard is reserved for a final
adjudication of rights‛). Despite this low burden of persuasion,
however, ‚there may be situations in which even an unopposed
change application is not approved because the applicant has
failed to adequately persuade the decisionmaker that there is
reason to believe that no harm will result from approval.‛ Id.
¶ 53. Further, ‚any party protesting a change application is . . .
entitled to present evidence in an effort to convince the
decisionmaker that application approval is not warranted under
the circumstance.‛ Id. And ‚*i+f the evidence produced by a
protestant is compelling enough to undermine the
reasonableness of the assertion that the proposed change will not
impair vested rights, the state engineer should reject the
application seeking to effect that change.‛ Id. ¶ 56.
¶22 Nevertheless, the Utah Supreme Court has explained that
because ‚the policy of the law is to prevent waste and promote
the largest beneficial use of water, new appropriations or
changes should be favored and not hindered.‛ Little Cottonwood
20140429-CA 12 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
Water Co. v. Kimball, 289 P. 116, 118 (Utah 1930). Even in ‚a
doubtful case, when the conclusion is not clear, it is more
consistent with sound policy and with the general scheme of the
law, to approve the application to appropriate and afford the
new claimant the legal status and the opportunity to proceed in
due order of law and have the disputed questions definitely and
authoritatively determined, rather than to shut off such
determination by the denial of his application.‛ Id.; accord Lehi
Irrigation Co. v. Jones, 202 P.2d 892, 895 (Utah 1949). Thus, ‚a
change applicant’s burden is satisfied if there is sufficient
evidence to support a reasonable belief that the changes outlined
in the application can be perfected without impairing vested
rights.‛ Searle, 2006 UT 16, ¶ 46. In other words, a ‚change
application cannot be rejected without a showing that vested
rights will thereby be substantially impaired.‛ Crafts v. Hansen,
667 P.2d 1068, 1070 (Utah 1983) (citation omitted). We address
HEAL Utah’s three contentions in turn.
1. There Is Reason to Believe There Is Unappropriated Water
in the Green River for the Proposed Changes.
¶23 HEAL Utah argues there is no unappropriated water in
the Green River and therefore ‚the water rights upon which the
Change Applications are based do not meet the requirements of
[Utah Code section 73-3-8(1)(a)(i)+.‛ Specifically, it argues the
Green River is overapportioned, and the court’s findings
regarding the volume of water in the river was clearly
erroneous.
¶24 Utah Code section 73-3-8 requires the State Engineer to
consider whether there is reason to believe there is
‚unappropriated water in the proposed source.‛ Utah Code
Ann. § 73-3-8(1)(a)(i). The statute does not define
‚unappropriated water.‛11 But it does provide that ‚*b+eneficial
11. This omission seems worth addressing legislatively.
Appropriation is a key concept in water law and the word
(continued…)
20140429-CA 13 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
use shall be the basis, the measure and the limit of all rights to
the use of water in this state.‛ Utah Code Ann. § 73-1-3(LexisNexis 2012). The statute’s plain language expressly
provides that Utah’s water must be put to beneficial use and
indicates that holders have the right to use only the amount of
water that is actually put to beneficial use. Thus, ‚*a+ water
user’s appropriations are limited to the amount that can be put
to beneficial use. . . . ‘regardless of the quantity *of water+ that
has been used for [past] purposes and the length of time it may
have been used.’‛ Green River Canal Co. v. Thayn, 2003 UT 50,
¶ 34, 84 P.3d 1134 (second and third alterations in original)
(quoting Big Cottonwood Tanner Ditch Co. v. Shurtliff, 164 P. 856,
859 (Utah 1916)). In other words, to determine whether there is
unappropriated water in a water source, the State Engineer does
not simply add up all approved users’ appropriation limits (the
most water a particular holder is authorized to use); rather, he
considers the amount of water from the source being put to
beneficial use.
Under the language of the statute it is not a
prerequisite to the approval of an application that
the state engineer find affirmatively that there is
unappropriated water in the proposed source. The
proposition is stated in the negative, and it is only
when there is no unappropriated water in the
source that the application is to be rejected.
Little Cottonwood Water Co., 289 P. at 118. Thus, if there is
unappropriated water in a proposed source, or ‚it is not clear
that there is no unappropriated water in the proposed source,
and the applicant satisfies the other requirements, the State
Engineer should not withhold his approval.‛ Lehi Irrigation Co.,
(…continued)
appears frequently in title 73 of the Utah Code. In fact, chapter 3
of the title bears the name ‚Appropriation.‛ Yet, the code does
not define it.
20140429-CA 14 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
202 P.2d at 895. Accordingly, when a dispute arises about
whether there is unappropriated water, two questions naturally
arise: (1) What is the total supply? and (2) How much is in use?
See Little Cottonwood Water Co., 289 P. at 117. Only if the State
Engineer finds the amount of water in beneficial use exceeds the
supply can he find that there is no unappropriated water.
¶25 Here, the district court determined there is
‚unappropriated water available for the Project in the Colorado
River Drainage in Utah, and specifically in the Green River.‛
With regard to the first question, the court determined that
under the Colorado River Compact, Utah is allotted
approximately 1.4 million acre-feet per year. The court found
that ‚Utah has developed and uses approximately 1 million acre-
feet per year of its Colorado River allocation, leaving
approximately 400,000 acre-feet . . . per year currently
unappropriated.‛ Further, it found that approximately 369,000
acre-feet of water in the Colorado River Basin is available to be
applied to a beneficial use.
¶26 Second, it found that ‚there are at least 574,600 acre-feet
of approved yet undeveloped water in the Upper Colorado
River Basin in Utah for which the State Engineer has previously
approved appropriation applications, but which remains
unappropriated, including the Kane and San Juan Applications.‛
The court explained, ‚If all of the water represented by the
approved applications for appropriation were actually
appropriated, that is, put to beneficial use, then Utah’s allocation
would in fact be over-appropriated.‛ But, it further reasoned,
because many of the approved applications for appropriation
have not been applied to some beneficial use, ‚the Upper Basin
in Utah is not, in fact, over appropriated.‛ The court further
explained the Applicants’ change applications ‚concern water
already approved for appropriation within the Colorado River
drainage in Utah, but not yet appropriated, or actually applied
to the approved use.‛ Recognizing that ‚all water tributary to
the Colorado River Basin [is] hydrologically connected,‛ it
therefore determined, ‚*a+pproval of the Applications does not
20140429-CA 15 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
constitute a new appropriation of water within the Colorado
River Basin,‛ but instead merely constitutes ‚new diversions
from the Green River, which is part of that Basin.‛
¶27 On appeal, HEAL Utah contends the district court erred
because its determination inappropriately relied on water
released from Flaming Gorge Reservoir during periods of low
flow that ‚is not available for appropriation.‛ Specifically, it
argues that using water released from the Flaming Gorge Dam
and Reservoir will disrupt the natural stream environment. In
other words, Heal Utah essentially argues that water from the
Flaming Gorge Reservoir is ‚legally‛ unavailable for
appropriation and cannot be diverted because it is needed for a
recovery program governed by the Endangered Species Act
meant to protect critical habitats and recover endangered fish.
¶28 Not only are HEAL Utah’s assertions insufficiently
supported, they are incorrect. Except for a general citation to the
Endangered Species Act and a record cite to the U.S. Bureau of
Reclamation’s impact statement for the proposed recovery
program, HEAL Utah cites to no statute or law that mandates
these types of restrictions on the Green River. See Utah R. App.
P. 24(a)(9) (explaining that arguments must contain citation to
‚authorities, statutes, and parts of the record relied on‛). Instead,
HEAL Utah merely asserts that the water from the Flaming
Gorge Reservoir, during low flow or dry seasons, is ‚specifically
calculated to meet flow and temperature targets for all‛ parts of
the Green River and is ‚intended to be left in the river
undiverted from the point of release . . . to maintain and restore
designated critical habitat.‛ But nothing in the record suggests
that water from the Flaming Gorge Reservoir cannot be diverted,
and although the goal of the recovery program is to ‚recover the
listed species of the Upper Colorado River to the point of de-
listing,‛ the program also expressly allows for ‚the continued
operation and development of the water resources of the Upper
Colorado River Basin.‛ Water releases from the Flaming Gorge
Dam and Reservoir are not just for this recovery program;
rather, according to the U.S. Bureau of Reclamation, releases for
20140429-CA 16 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
the recovery program are merely modifications of the regular
operations of the Flaming Gorge Dam ‚to achieve the flows and
temperatures‛ to assist in the recovery of endangered fish
and their habitat. Thus, by its plain language, the recovery
program’s ‚goal is to implement the proposed action and, at
the same time, maintain and continue all authorized purposes of
the Colorado River Storage Project‛—which is to allow Upper
Basin states to utilize their Colorado River Compact
apportionments. See U.S. Bureau of Reclamation, Dep’t of the
Interior, Record of Decision: Operation of Flaming Gorge
Dam Environmental ImpactStatement 1 (Feb. 2006), http://digital
commons.usu.edu/cgi/ viewcontent.cgi?article=1581&context=go
vdocs [https://perma.cc/8J54-JETK]; see also U.S. Bureau of
Reclamation, Dep’t of the Interior, Colorado River Storage Project,
Overview, http://www.usbr.gov/uc/rm/crsp/#overview (last
updated Feb. 3, 2016) [https://perma.cc/TZ98-YW77].
¶29 HEAL Utah’s argument ignores the fact that the Green
River and its tributaries form an interconnected system of which
the Flaming Gorge Reservoir is only a part. The Green River,
with its many tributaries, spans parts of Wyoming, Colorado,
and Utah before joining the Colorado River. Although one
portion of the Green River flow is largely influenced by the
reservoir, according to the U.S. Bureau of Reclamation, the
portion of the river the Applicants propose to use is further
‚influenced by tributary flows from the White, Duchesne, Price,
and San Rafael Rivers.‛ Accordingly, only a portion of the flow
in the Green River at the proposed point of diversion relies on
release from the Flaming Gorge Reservoir. We therefore
conclude the court did not err in determining there is reason to
believe that there is unappropriated water in the Green River.
2. There Is Reason to Believe the Proposed Changes Will
Not Unreasonably Affect Public Welfare and the Natural
Stream Environment.
¶30 HEAL Utah contends that the reduction in flows in the
Green River, specifically in the quantities contemplated under
20140429-CA 17 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
the Applicants’ change applications, will unreasonably affect the
natural stream environment and is contrary to public welfare.
¶31 Utah Code section 73-3-8 provides,
If the state engineer, because of information in the
state engineer’s possession obtained either by the
state engineer’s own investigation or otherwise,
has reason to believe that an application [to
appropriate water] . . . will unreasonably affect
public recreation or the natural stream
environment, or will prove detrimental to the
public welfare, the state engineer shall withhold
approval or rejection of the application until the
state engineer has investigated the matter.
Utah Code Ann. § 73-3-8(1)(b) (LexisNexis Supp. 2015). ‚If an
application does not meet the requirements of this section, it
shall be rejected.‛ Id. § 73-3-8(1)(c).
¶32 With the information in its possession, the district court
found there was reason to believe the proposed changes would
not affect public recreation or the natural stream environment,
and there would be no detriment to the public welfare. In
particular, based on evidence presented by the Applicants, the
court found that ‚99% of the time the width of the river will be
reduced less than 1.5 feet, out of an average width of
approximately 350 feet‛ and ‚99% of the time the depth of the
river would be reduced less than 1.5 inches.‛ The court also
found that, although the ‚stretch of the Green and Colorado
Rivers from Flaming Gorge Reservoir to Lake Powell includes
critical habitat‛ for the four species of endangered fish unique to
the Colorado River system, HEAL Utah’s evidence and experts
were unable to demonstrate the extent of impact the diversions
would have on the fish or stream. Specifically, it found that,
based on expert testimony offered by HEAL Utah, ‚the depth
necessary for the fish larvae and fry to survive and thrive was
between 29 and 38 centimeters (i.e., approximately 11 to 14
20140429-CA 18 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
inches).‛ Then, the court restated that the evidence showed a
change in depth less than 1.5 inches ‚99% of the time‛ and less
than 1 inch ‚95% of the time.‛ It reasoned that to accept HEAL
Utah’s argument would be illogical because ‚no one between
Flaming Gorge and the confluence of the Green and Colorado
rivers would be able to divert or use any water‛ to ‚satisfy the
requirements of the Endangered Species Act.‛ The court
therefore concluded ‚that there is reason to believe that there
will not be any unreasonable effect on the natural stream
environment.‛
¶33 Importantly, the court emphasized that the nuclear power
plant licensing process is comprehensive and requires Blue
Castle to ‚undergo a safety review, an environmental review
and antitrust review.‛ ‚In order to construct or operate a nuclear
power plant,‛ the court explained, ‚an applicant must submit a
Safety Analysis Report,‛ which contains the design information
of the plant, comprehensive data on the proposed site,
discussion of various hypothetical accident situations and safety
features of the plant, and a comprehensive assessment of the
plant’s environmental impact. Thus, it determined that, in light
of the heavy regulation of nuclear power plants and the U.S.
Supreme Court’s decision in Power Reactor Development Co. v.
International Union of Electrical, Radio and Machine Workers, AFL-
CIO, 367 U.S. 396 (1961), which explains that nuclear power
plant licenses ‚‘can be issued only consistently with the health
and safety of the public,’‛ the court has ‚reason to believe that
the proposed plan will not prove detrimental to the public
welfare.‛ (Quoting id. at 404.) Essentially, the court pointed out
that there are stringent federal and state regulations concerning
the construction and operation of nuclear power plants, and the
State Engineer has continued ‚jurisdiction to participate in the
review and approval (or disapproval) of diversion structure
plans and the construction of water storage facilities.‛ Then, it
concluded that although concerns regarding the environmental
impacts and the radiological health are valid, federal and state
oversight of building and operation of nuclear production,
‚together with a lack of evidence indicating negative‛ impacts,
20140429-CA 19 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
means that federal or state agencies will not allow the Project to
proceed in a manner that will be detrimental to the public
welfare.
¶34 On appeal, as it did in the district court below, HEAL
Utah argues that the Applicants’ proposed diversions would
‚undermine‛ the recovery program at the Flaming Gorge
Reservoir and Dam by threatening fish populations and this
negatively affects the nature of the stream. Again, HEAL Utah
argues that to protect the fish species in the Colorado River, the
U.S. Fish and Wildlife Service has called for the ‚[l]egal
protection of Green River flows from Flaming Gorge Dam and
Lake Powell.‛ It further argues that the proposed change ‚will
negatively impact the agricultural economy of Green River that
is wholly dependent on vested water rights.‛ HEAL Utah
essentially asserts that the small benefit of nuclear power is
outweighed by negative consequences for tourism, local
economies, and agriculture.
¶35 But HEAL Utah has failed to meet its burden of
persuasion on appeal. Mere probabilities and speculative
evidence may be sufficient to challenge a change application; a
protestant need only produce enough compelling evidence ‚to
undermine the reasonableness‛ of the change application. Searle
v. Milburn Irrigation Co., 2006 UT 16, ¶¶ 55–56, 133 P.3d 382(explaining that ‚*d+eterminations of whether impairment
would result from application approval often hinge on
probabilities,‛ but that ‚circumstantial evidence showing a
possibility of impairment‛ does not always justify denying an
application). But on appeal, considering the ‚significant‛
deference enjoyed by the district court when determining
whether evidence ‚is sufficiently compelling to foreclose
application approval,‛ see id. ¶ 18, the appellant must ‚marshal
all the supporting evidence and demonstrate its insufficiency‛ to
challenge the court’s findings, see Cowley v. Porter, 2005 UT App
518, ¶ 32, 127 P.3d 1224 (citation omitted). ‚*A+ party challenging
a factual finding or sufficiency of the evidence to support a
verdict will almost certainly fail to carry its burden of persuasion
20140429-CA 20 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
on appeal if it fails to marshal.‛ State v. Nielsen, 2014 UT 10, ¶ 42,
326 P.3d 645.
¶36 HEAL Utah has not actually challenged the district
court’s factual findings. Rather, it provides the history and
details of the recovery program, a description of the relationship
between water in the Green River and the local community, and
then asserts that residents in other states, not Utah residents, will
benefit from the nuclear power generated by the Project. HEAL
Utah cites no legal authority to support its arguments, and offers
no references to the parts of the record on which it relies. See
State v. Thomas, 961 P.2d 299, 305 (Utah 1998); see also Utah R.
App. P. 24(a)(9). It has, accordingly, not demonstrated that the
district court erred in finding a reason to believe that the change
will not unreasonably affect public recreation or the natural
stream environment, or be a detriment to the public welfare.
3. There Is Reason to Believe the Proposed Changes Are
Feasible and Not Speculative.
¶37 HEAL Utah finally contends that the Applicants’ change
applications do ‚not provide the necessary statutory information
to support an approval by the State Engineer.‛ Specifically, it
argues the information the Applicants provided in their
applications ‚demonstrates that the proposed beneficial use of
water—supplying a currently unbuilt nuclear power plant—is
neither financially feasible nor anything more than a purely
speculative use of water.‛
¶38 Utah Code subsection 73-3-8(1)(a) provides that the State
Engineer should approve an application if ‚there is reason to
believe‛ that (A) ‚the proposed plan . . . is physically and
economically feasible,‛ and (B) ‚the application was filed in
good faith and not for purposes of speculation or monopoly.‛
Utah Code Ann. § 73-3-8(1)(a)(iii)–(v) (LexisNexis Supp. 2015).
These determinations are fact-intensive.
20140429-CA 21 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
A. Physical and Economic Feasibility
¶39 HEAL Utah argues that the Applicants failed to
demonstrate that the proposed plan is physically feasible
because they did not present any evidence from the Nuclear
Regulatory Commission. Similarly, it argues that the Applicants
failed to demonstrate the proposed plan is economically feasible
because they ‚failed to provide any credible evidence or expert
testimony regarding the economic feasibility of the project.‛ The
information contained in the record, HEAL Utah argues,
‚amounts to little more than vague generalizations regarding
‘power need.’‛
¶40 ‚To prove that a potential use of property is feasible, three
specific elements must be established.‛ Cf. City of Hildale v. Cooke,
2001 UT 56, ¶ 24, 28 P.3d 697 (discussing the determination of
feasibility with regard to the use of condemned property).
First, it must be demonstrated that the use is
physically feasible—that the land is physically
suited or adaptable to the potential use. Second, it
must be established that the use is legally
feasible—that the land is legally available for the
potential use, or that any legal restrictions
currently preventing the potential use have a
reasonable probability of being modified so that
they no longer pose a barrier. Finally, it must be
proven that the potential use is economically
feasible—that there is sufficient demand for the
potential use.
Id. (citations omitted). ‚[A] landowner may testify concerning
the individual elements of feasibility, but that landowner must
offer the testimony of a properly qualified expert to prove the
actual feasibility of a potential use.‛ Id. ¶ 25. The Utah Supreme
Court has explained,
20140429-CA 22 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
While landowners may testify as to a proposed use
they may have for the land . . . , including their
own foundational testimony establishing what
steps have been taken to realize a transformation in
use of their property, they may not testify to the
highest and best use of the property itself unless a
foundation is laid establishing their expertise.
Id. (citations omitted).
¶41 The district court considered the proposed site for the
Project and examined its feasibility. With regard to its physical
feasibility, the court considered the site’s proximity to necessary
rail transportation, highways, and electrical transmission lines,
along with the fact that ‚*u+nder the supervision of the Nuclear
Regulatory Commission (‚NRC‛), the Project has conducted
geological testing and archaeological studies, has installed
seismic monitoring equipment, and has completed
approximately 50% of the NRC Early Site Permit application, at
a total cost of $17.5 million to date.‛ Although Blue Castle had
not decided on a reactor design, the court explained that ‚*n+o
physical impediments have been identified that would prohibit
construction of the Project‛ and that the permit process
necessarily ‚resolves site safety, environmental protection, and
emergency preparedness issues independent of a specific
nuclear plant design.‛ It concluded ‚that there is reason to
believe the proposed plan is physically feasible because the
physical site proposed for the Project so far meets all the criteria
necessary for the construction of the proposed works.‛
¶42 With regard to the Project’s economic feasibility, the court
found that Utah’s position as the third fastest growing state in
the United States will increase the demands for electrical power.
The court made further findings of fact regarding energy supply
and demand for both Utah and the nation. Specifically, it
determined that at Utah’s growth rate, ‚by 2025 Utah will
require 1,440 megawatts of new power beyond that currently
produced in the state.‛ The court weighed the benefits and
20140429-CA 23 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
problems with alternative sources of power, such as solar power
and natural gas, and particularly that ‚98% of Utah’s electricity
is currently generated by fossil fuel power plants‛ and that it ‚is
highly unlikely that any new coal plants will be constructed in
Utah, or in the western region where the Project would likely
serve.‛ Then, it determined that, based on Blue Castle’s
proposal, ‚*n+uclear power is ideal for base load‛ because it
‚produces no carbon or particulate emissions and does not result
in visual pollution.‛ It further explained that Blue Castle had
‚established the cost-effectiveness of supplying nuclear power,‛
particularly that ‚nuclear’s production costs are lower than any
other thermal resource‛ and that ‚nuclear power *is+
permanently competitive with‛ coal and natural gas production.
The court recognized the high cost of plant construction, but the
cost of power generation ‚is equivalent to or cheaper than other
alternatives.‛ Finally, although the court recognized that it was
unclear if Blue Castle could ‚find partners to construct the
nuclear plant itself,‛ the court found that ‚Blue Castle’s business
plan shows the Project, if built, will eventually be profitable.‛
The court explained, ‚Blue Castle is not required to have a
business plan that is certain to succeed, but rather it is only
required to establish that its plan is economically feasible.‛ It
then concluded, ‚Even though there are high construction costs
associated with a nuclear plant, at this point . . . there is reason to
believe the Project is economically feasible.‛
¶43 Similarly, the district court determined there is reason to
believe Blue Castle has the financial ability to complete the
Project. The Project will cost between $15 and $20 billion, and
Blue Castle was on track with its ‚staged plan to build the
Project,‛ including the $17.5 million already raised and raising
the approximately $50 million necessary for the early site permit.
¶44 Much like its other arguments HEAL Utah has not
actually challenged the district court’s findings. Rather, it
essentially argues the Applicants could not have met their
burdens without ‚‘a properly qualified expert to prove the
actual feasibility of a potential use.’‛ (Quoting City of Hildale,
20140429-CA 24 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
2001 UT 56, ¶ 25.) But by its plain language, section 73-3-8 only
requires the Applicants to demonstrate there is a ‚reason to
believe‛ the Project is feasible. Utah Code Ann. § 73-3-8(1)(a)(iii)
(LexisNexis Supp. 2015). Our supreme court has explained that
this ‚reason to believe‛ standard is a low hurdle. Indeed, to
satisfy this burden, the Applicants merely must demonstrate by
less than a preponderance of the evidence that the Project is
feasible. See Searle v. Milburn Irrigation Co., 2006 UT 16, ¶ 46, 133
P.3d 382 (explaining that the ‚reason to believe‛ standard falls
‚between the preponderance standard applicable in final
adjudications‛ and ‚the lowest of hurdles‛).
¶45 Despite the relatively early stage of the Project, the
Applicants offered considerable evidence that the Project is
feasible, including a detailed business plan, purchase contracts
for land, lease agreements for the Districts’ water rights, and
evidence that shows it has had discussions with eighteen utilities
expressing an interest in the plant’s power. More importantly,
contrary to HEAL Utah’s assertions, the Applicants offered
expert testimony from at least one designated expert in the field
of energy economics and regulatory consultation, who testified
regarding the Project’s economic feasibility, the quality of Blue
Castle’s development plan and business model, and ‚the
embedded optionality in the project as proposed.‛ In particular,
an expert testified that Blue Castle’s business model was based
on reasonable assumptions and that the ‚growth in demand in
Utah, driven by macro-economic and demographic growth,
taken in aggregate in the coming decades, more than justifies‛
Blue Castle’s plan. In sum, the expert testified that various
factors, including Utah’s demand for cleaner energy and the
reasonableness of Blue Castle’s business plan, made the Project
economically feasible. So, although the Project is a risky venture
and has not yet been licensed through the Nuclear Regulatory
Commission, the Applicants presented evidence that the Project
is both physically and economically feasible. Therefore, in light
of the low burden on the Applicants and HEAL Utah’s failure to
adequately challenge the district court’s factual findings, we
cannot conclude the court erred.
20140429-CA 25 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
B. Speculation and Monopoly
¶46 HEAL Utah argues the Project is speculative because Blue
Castle has failed to take title of the proposed site. It also argues
the Applicants have not shown that they ‚inten[d] to divert and
use water allocated under the application‛ because they ‚are
merely attempting to claim water for future use by another.‛ It
asserts that the Applicants ‚do not contest this description of the
limited role that they will play in the proposed diversion or
beneficial use of the water.‛ Rather, HEAL Utah argues that, by
Blue Castle’s own account, ‚Blue Castle will shoulder the project
through licensing and then [unidentified] utility participants
effectively use their own credit facilities to construct the project.‛
(Alteration in original.) (Internal quotation marks omitted.)
¶47 The district court found, ‚While the Project is certainly
ambitious, Blue Castle has mapped out a clear pathway to
achieve its plan.‛ It explained that Blue Castle ‚intends to
market *the Project+ through a ‘derisking’ process to make the
Project attractive to investors‛ but that ‚does not amount to
speculation within the meaning of the statute.‛ Rather, the court
concluded that, within the context of Utah Code section 73-3-8,
‚‘speculation’ means holding the water itself for the purposes of
speculation.‛ Further, the court determined that the fact that
Blue Castle has spent upwards of $17.5 million working on the
Project demonstrated that its use of the water was not
speculative.
¶48 By its plain language, the statute requires an applicant to
apply for apportionment in a good faith manner. See Utah Code
Ann. § 73-3-8(1) (LexisNexis Supp. 2015). The Utah Supreme
Court has emphasized that ‚speculation in the public waters of
this state is against the best interests of its people.‛ Frailey v.
McGarry, 211 P.2d 840, 847 (Utah 1949). It further explained,
‚Although the legislature has given formal expression to this
principle, the principle would be equally true in the absence of
statute.‛ Id. But no case law has defined what it means to apply
20140429-CA 26 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
for appropriation of water for the ‚purposes of speculation,‛ and
there are few Utah cases regarding speculative uses of water.
¶49 In one such case, the Utah Supreme Court determined
that an application was properly rejected where the applicant
sought to obtain water for speculative purposes. In Western
Water, LLC v. Olds, the Utah Supreme Court determined that an
application was speculative where the applicant had various
alternative plans to use ‚water from virtually every source in the
Salt Lake and Utah Valley watersheds‛ to sell to others. 2008 UT
18, ¶ 26, 184 P.3d 578. Further, it ‚listed over 150 separate
diversion points‛ to be ‚salvaged and stored for new and more
efficient uses.‛ Id. ¶ 5. But the applicant’s proposed plans were
so complex that the State Engineer characterized them as
‚grandiose and highly speculative.‛ Id. ¶ 4 (internal quotation
marks omitted). As the supreme court explained, the application
essentially asked the State Engineer to ‚root around for
unappropriated water and then award that water.‛ Id. ¶ 26.
Essentially, ‚the only proposed beneficial use for the water was a
plan to sell it to others.‛ Id. ¶ 8. Yet the applicant had ‚no lands,
facilities, customers, or contracts‛ in support of the various
proposed plans. Id. (internal quotation marks omitted).
¶50 But here, there are contracts in place assigning the
Districts’ current water rights to Blue Castle. Although Blue
Castle does not intend to build the power plant without the
assistance of other entities, the purpose and use of the water is
clearly defined—it will be used for the generation of nuclear
power. Unlike the applicants in Western Water, Blue Castle has
proposed a site for the plant, invested money to develop the
plant, and offered a detailed description of the purpose for the
water and specific amount of water needed. This enormous risk
and detailed plan for the nuclear plant demonstrates that Blue
Castle’s interest in obtaining this water is not merely speculative.
In sum, HEAL Utah has not shown that the district court erred in
concluding the change applications were filed in good faith and
are not speculative or for monopoly of the water.
20140429-CA 27 2016 UT App 153HEAL Utah v. Kane County Water Conservancy District
CONCLUSION
¶51 Because the Applicants put forth enough evidence to
demonstrate that the proposed changes can be undertaken
without impairing vested rights, we conclude the district court
properly approved the Applicants’ change applications.
Although it has identified some evidence to undermine the
Applicants’ reasoning, HEAL Utah’s unsupported arguments
are not sufficient to compel the denial of the change applications.
We therefore affirm the district court’s decision.
20140429-CA 28 2016 UT App 153