NOW, THEREFORE, based on the mutual promises contained herein, the
parties agree as follows:
AGREEMENT
Article I: Federal Reserved Water Rights for Zion National Park
A. To fulfill the purposes for which lands now comprising Zion National Park were reserved from the public domain, the United States has water rights for all federal lands within the present boundaries of Zion National Park that were reserved and withdrawn from settlement, occupancy, or disposal under the laws of the United States. This federal reserved water right originates and is defined in federal law The aliquot part descriptions of these reserved lands are set forth in the applicable proclamations, executive orders, and legislation identified below and in Appendix A. The United States has a reserved right to all water underlying, originating within or flowing through Zion National Park, including perennial, intermittent, and ephemeral streams, springs, seeps, lakes, ponds, ground water, and other natural sources of water, pertaining or belonging to the reserved lands, that was unappropriated as of the dates of reservation of the lands now within the boundaries of the park, which waters are to remain in a free flowing condition, subject to present and future administrative uses necessary to fulfill reservation purposes. The date of priority for either instream or administrative uses of the United States' federal reserved water rights for Zion National Park will be the date on which the place of use was first reserved from the public domain.
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1 B. By virtue of mesne conveyances and appropriations, the United States also
2 holds state appropriative rights in wells, springs and surface diversions on streams,
3 at the locations, in the amounts, and for the uses indicated in the table attached as
4 Appendix B. Water diverted and used for present and future administrative
5 purposes necessary to fulfill reservation purposes will first be satisfied from existing
6 state appropriative rights held by the United States for Zion National Park. In
7 addition to the water provided by the state appropriative rights listed in Appendix B,
8 at least 466 acre-feet per year (AFY) may be diverted and used from those waters
9 reserved for Park purposes, in order to satisfy the administrative needs of the Park.
10 At least 1 80 days prior to placing any increment of this federal reserved water right
11 for administrative purposes to use or changing the use thereof, the United States
12 agrees to provide notice to the State Engineer concerning the location and means of
13 diversion, the source, quantity, and diversion rate of water, depth and diameter of
14 well (if applicable), the nature of use, the anticipated effective date, and a map
15 depicting the existing system and proposed modifications. This information will be
16 publicly available. The total amount of water available for Park administrative
17 purposes under state and federal reserved rights combined shall not exceed 1 295
18 AFY. The state appropriative rights identified in this paragraph and in Appendix B,
19 and the federal reserved water rights for administrative purposes identified in this
20 paragraph, are not subject to the subordination set forth in Article II.
21 C. The purposes for which Zion National Park was established and priority dates
22 to water reserved therefor are as identified in Presidential Proclamation No.877, 36
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1 Stat. 2498, dated July 31, 1909; Presidential Proclamation No.1435, 40 Stat.
2 1760, dated March 18, 1918; the Act of November 19, 1919, 41 Stat. 356;
3 Executive Order No.4181, dated March 24, 1925; Executive Order No. 5037,
4 dated January 28, 1 929; the Act of June 1 3, 1 930; 46 Stat. 582; Presidential
5 Proclamation No.2221, 50 Stat. 1809, dated January 22, 1937; the Act of July
6 11, 1 956, 70 Stat. 527; the Act of February 20, 1 960, 74 Stat. 4; the Antiquities
7 Act of June 8, 1906, 59 Stat. 225, 16 U.S.C. § 431; the Act of October21,
8 1 976, 90 Stat. 2732; and the National Park Service Establishment Act, 64 Stat.
9 535, 1 6 U.S.C. § 1. The purposes and uses of the reserved water rights include
10 the preservation of extraordinary examples of canyon erosion, preservation of the
11 area for scientific research, protection of objects of historic and scientific interest
12 and, pursuant to the National Park Service Establishment Act, conservation of "the
13 scenery and the natural and historic objects and the wild life therein and to provide
14 for the enjoyment of the same in such manner and by such means as will leave
15 them unimpaired for the enjoyment of future generations." 16 U.S.C. § 1.
16 Accordingly, for enforcement purposes, the federal reserved water right for Zion
17 National Park shall be deemed to comprise those waters in the Virgin River Basin as
18 set forth in Article l.A. and l.B., less those quantities subject to the subordinations
19 set forth below The federal reserved water rights recognized hereby include all
20 water rights of every nature and description derived from the reserved water rights
21 doctrine, from all sources of water, both surface and underground, and includes all
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1 types and kinds of uses whatsoever, and encompasses all claims asserted by or
2 through the United States for Zion National Park as now constituted.
3 Article II. Subordination of Federal Reserved Water Rights
4 A. The United States subordinates the non-administrative federal reserved water
5 rights described in Article l.A., subject to the limitations contained herein, to all
6 valid existing perfected water rights and approved applications with priority dates
7 prior to January 1, 1 996, and to certain new diversions and depletions, as set forth
8 more specifically below.
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B. Generally
1. No reservoir shall be located upstream of Zion National Park on the main stems of the East Fork, the North Fork of the Virgin River (North Fork), La Verkin Creek, Deep Creek, Crystal Creek, or on any tributary of the North Fork or East Fork, except as specifically provided herein.
2. Any flood control structure constructed upstream of the Park shall be designed only to attenuate high flows which are dangerous to life or property. The parties agree to consult on flood control proposals and will develop operational guidelines by mutual consent which are consistent with this Agreement and which will protect the resources of Zion National Park.
3. A ground water protection zone shall be established as shown in Appendix C for the drainage basins of the East and North Forks, located up gradient and
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1 within 2 miles of the park boundary. Development of ground water within this
2 zone shall be limited to a diversion rate of 35 gallons per minute (gpm) or less per
3 well, shall withdraw no more than 1 5 AFY per well, and is subject to the overall
4 limitations on depletions contained in Articles ll.C.1. and ll.D.1., respectively.
5 C. North Fork of the Virgin River and Certain Other Streams
6 1. Subject to the limitations contained herein, the United States'
7 subordination extends to new diversions and depletions from surface and ground
8 water sources of up to but not to exceed a total depletion of 6,000 AFY, with no
9 more than 2,500 AFY occurring from surface water, within the composite
10 comprising the drainage basin of the North Fork above the southern boundary of
11 Zion National Park near Springdale, Utah, and the portions of the drainage basins of
12 Ash Creek, La Verkin Creek, North Creek, and Shunes Creek located upstream of
13 Zion National Park (see Appendix D), distributed as described below.
14 a) There may be up to 3,750 AFY of new depletion in the drainage
15 basin of the Upper North Fork (North Fork Virgin River above the confluence with
16 Deep Creek), Crystal Creek, Deep Creek, and Kolob Creek, with no more than
17 1,000 AFY occurring in each the Upper North Fork and Crystal Creek, no more than
18 2,000 AFY in Kolob Creek, and no more than 750 AFY in Deep Creek (excluding
19 Crystal Creek) with a maximum of 250 AFY being taken from surface water in
20 Deep Creek, resulting from the new development of water resources, except that
21 i) if the Washington District develops a project which diverts
22 Crystal Creek flows to Kolob Reservoir (Water Right Number 81-355, A29398 or
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1 other subsequent application filed to cover this project) and such diversions exceed
2 1 ,000 AFY, then no other new depletions within the Crystal Creek drainage are
3 allowed. All depletion of water attributable to the Crystal Creek/Kolob Reservoir
4 project shall be charged against the overall depletion limit of 6,000 AFY for the
5 drainage basin of the North Fork Virgin River and other streams set forth in Article
6 ll.C. 1.,
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ii) the maximum diversion rate from Crystal Creek to Kolob exceed 50 cfs,
iii) the average annual diversion from Crystal Creek to Kolob Reservoir shall not exceed 4,000 acre-feet (AF) less any amounts exchanged to ground water development, based on a 5-year moving average, iv) the maximum annual diversion from Crystal Creek shall not less any amounts exchanged to ground water development,
v) the active storage capacity of Kolob Reservoir shall not be beyond its present capacity by more than 4,000 AF,
vi) the flow of Crystal Creek immediately below its confluence with Spanish Hollow shall be maintained at no less than 0.5 cfs when diversions are being made from Crystal Creek,
vii) new surface water diversions from Deep Creek and its tributaries downstream of the confluence of Deep Creek and Crystal Creek shall not cumulatively exceed 1 cfs,
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1 viii) new surface water diversions on the Upper North Fork shall
2 not exceed the lesser of a) one-half of the existing flow, measured immediately
3 upstream of the diversion, or b) that rate of diversion which maintains a flow of 2
4 cfs in the channel immediately below the diversion, 5 ix) the regulated discharge from Kolob Reservoir shall not
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exceed 35 cfs, except for matters involving dam safety.
b) There may be up to 750 AFY of new depletion per drainage, with no more than 250 AFY per drainage from surface water, from La Verkin Creek, North Creek, and Orderville Canyon, and up to 250 AFY of new depletion per drainage from surface and groundwater combined, from Camp Creek, Clear Creek, Goose Creek, Echo Canyon, Shunes Creek, and Taylor Creek.
c) No new reservoirs upstream of the Park with individual total storage capacities of more than 20 AF shall be constructed in any of the drainages covered by Article ll.C., with the exception of the proposed enlargement of Kolob Reservoir.
d) New reservoirs upstream of the Park with individual total storage capacities which are less than or equal to 20 AF and located in any of the drainages covered by Article ll.C. shall not be limited as to number but shall be subject to the overall limitation upon depletion contained in Article ll.C.1.
D. East Fork of the Virgin River
1. Subject to the limitations contained herein, the United States' subordination also extends to new diversions and depletions from surface and ground water sources in the East Fork upstream or up gradient of the eastern
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1 boundary of Zion National Park, of up to but not to exceed a total depletion of
2 5,000 AFY (see Appendix D), with no more than 3,250 AFY occurring from surface
3 water, as set forth more specifically below.
4 a) One or more new reservoirs with cumulative active storage capacity
5 of up to but not to exceed 6,750 AF may be constructed on Stout Creek, Lydia's
6 Canyon, Muddy Creek or Cove Canyon (not both), East Fork above Stout Canyon,
7 and on other tributaries of the East Fork upstream of Glendale (see Appendix E).
8 b) The number of new reservoirs at the locations described in Article
9 ll.D.1 .a) above, having individual total storage capacities greater than 20 AF, shall
10 not exceed 10.
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c) New reservoirs with individual total storage capacities which are less than or equal to 20 AF shall not be limited as to number but shall be subject to the overall limitation upon depletion in Article ll.D. 1.
2. New surface water diversions on the East Fork or its tributaries shall not cumulatively exceed 60 cfs.
3. The existing flow or 2 cfs, whichever is less, shall be maintained immediately below any new surface water diversion to reservoirs constructed on streams defined in Article ll.D.1 .a).
4. The existing flow or 1 cfs (including seepage), which ever is less, shall be maintained immediately below any new reservoir constructed on streams defined in llD.1 a).
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1 5. Cumulative releases from new reservoirs constructed on streams defined
2 in II.D.1 .a) above, shall not increase the flow measured at the U.S. Geological
3 Survey (USGS) gage on the East Fork Virgin River near Springdale (USGS No.
4 09404900), by more than 25 cfs during any 7-day period and shall not exceed the
5 long-term monthly average at the Springdale gage by more than 1 5 cfs. As
6 measured at said gage, the maximum instantaneous flow attributable to releases
7 from such reservoirs shall not exceed 50 cfs, except for matters involving dam
8 safety.
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6. Surface water diversions to new reservoirs described in II.D.1 .a) above shall not occur except during the period from November 1 to May 31, subject to the by-pass flow requirements described above.
12 Article 111: Other Provisions
13 A. During the month of March each year, a meeting will be scheduled between
14 Zion National Park and the Washington District to discuss forecasted runoff, water
15 evels in Kolob Reservoir and the anticipated schedule and duration for that year's
16 reservoir releases. Other details concerning Kolob Reservoir releases will be worked
17 out by separate agreement, if necessary.
18 B. This Agreement shall be effective immediately upon the completion of a land
19 exchange between the U.S. Bureau of Land Management (BLM) and the
20 Washington District, whereby the Washington District acquires title to BLM public
21 lands at the site of the proposed Sand Hollow Reservoir.
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1 C. If any federal legislative or administrative action hereafter prevents the State of
2 Utah from permitting development and use of water in any drainage or subdrainage
3 subject to the subordination of the United States' federal reserved water right for
4 Zion National Park herein contained, the undeveloped remainder of the water herein
5 listed as available for future development in such drainage or subdrainage shall be
6 made available in one or more other drainages covered by this Agreement. In the
7 event of such federal legislative or administrative action, the parties hereto shall
8 attempt to agree as to the drainage or drainages in which any such relocated
9 quantity may be developed and how the limitations of the United States'
10 subordination will be modified to facilitate the transfer of such water, provided that
11 such development must occur within the drainages herein identified, and that no
12 party will unreasonably withhold consent to such relocation.
13 D. The subordination to listed quantities and locations of future water development
14 shall not be effective to the extent and upon proof that specific wells have caused,
15 are causing, or may cause specific and significant adverse impacts to an identifiable
16 resource or resources of Zion National Park. This notwithstanding, the provisions
17 of this paragraph shall not apply to any groundwater rights presently perfected or
18 approved under State law, with priority dates prior to January 1, 1 996.
19 E. if any provision of this Agreement is found to be unlawful and of no effect, the
20 remaining provisions shall remain in effect and fully binding on the parties, and if
21 necessary, the parties hereto shall resume negotiations to revise any such unlawful
22 provision.
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1 F. Upon a proper showing of necessity, the provisions of this Agreement may be
2 modified, with proper notice and concurrence of the Court, only upon the mutual
3 consent of the parties to this Agreement, which consent shall not be unreasonably
4 withheld .
5 G. Because of the unique nature of Zion National Park, nothing in this Agreement
6 shall constitute an admission, waiver or precedent as to any party for any other
7 federal reserved water right claim in the State of Utah.
8 H. Nothing in this Agree#nent shall be construed or interpreted to:
9 1. in any way affect the water rights of the United States in the Virgin River
10 Basin for agencies and interests other than Zion National Park;
11 2. establish any standard to be used for the quantification of federal reserved
12 water rights in any other judicial or administrative proceeding;
13 3. limit in any way the rights of the parties or any person to litigate any issue
14 or question not resolved by this Agreement;
15 4. restrict the power of the United States to reserve water in the future, or
16 to acquire additional rights to the use of water under the laws of the State of Utah;
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or
S. restrict the power of the State of Utah or the State Engineer in allocating, administering or distributing the waters of the State.
I Upon becoming effective, this Agreement will be the subject of a separate
proposed determination of water rights issued by the State Engineer specifically
covering the portion of the Virgin River Basin encompassing Zion National Park, and
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1 the parties hereto will cooperate to obtain an interlocutory decree covering same. If
2 the parties hereto are not successful in securing such interlocutory decree, this
3 Agreement shall nevertheless remain binding as among the parties hereto until a
4 final decree issues covering these water rights. The water rights of the United
5 States, as set forth and quantified herein, shall be protected under State law in the
6 same manner as any water right originating under State law, without losing its
7 character as or the attributes of a federal reserved water right as provided under
8 federal law.
9 J. The provisions of this Agreement, and particularly the provisions of Article II
10 hereof, shall be taken into consideration by the State Engineer in acting upon
11 applications, under State law, for new appropriations or change applications
12 upstream or up gradient of Zion National Park and shall be afforded the same
13 consideration in such proceedings as state appropriative rights; however, the United
14 States shall have the primary responsibility for protecting its own rights and for
15 filing appropriate protests in any proceedings before the State Engineer.
16 K. Upon entry of a decree covering the water rights of the United States for Zion
17 National Park, the East Entrance Well and the Taylor Creek Well, described in
18 Appendix F, will be administered with priority dates of June 1 3, 1 930, and January
19 22, 1937, respectively, pursuant to the terms of Article l.A., and the State
20 appropriative water rights thereon will be withdrawn.
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1 L. Upon written request from the United States, the State Engineer will provide
2 information regarding new diversions and total depletions of water in the respective
3 drainages above the Park pursuant to Article II of this Agreement.
4 M. Depletion amounts attributable to specific diversions, as well as to usage and
5 storage patterns, shall be determined by procedures approved by the parties hereto.
6 N. This Agreement is executed in quintuplicate. Each of the five copies bearing
7 original signatures shall be deemed an original.
8 Article IV: Definitions
9 Acre-foot - The amount of water necessary to cover one acre of land to a depth of
10 one foot, equivalent to 43,560 cubic feet or 325,851 gallons.
11 Active Storage Capacity - The volume of water available for release from a reservoir
12 between the bottom of the outlet and the bottom of the spillway. This shall not
13 include any storage designated as dead storage or a conservation pool.
14 Annual - Period of time which begins on October 1 and ends on September 30
16 Depletion - The amount of water which is consumptively used by any action or
17 process or otherwise removed from a drainage basin and not returned thereto.
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1 Diversion - The removal of water from its natural source by means of a dam, ditch,
2 canal, flume, bypass, pipeline, conduit, well, pump, or other act of man, that
3 results in a decrease in the amount of water in the source at the point of such
4 removal.
5 Existing Flow - Annual, monthly and daily flows which exist as of the effective date
6 of this Agreement, which reflect historical diversions and depletions associated
7 with existing perfected water rights and approved applications (except for Water
8 Right No.81-355, A29398 on Crystal Creek), as determined from available stream
9 gage records and accepted hydrologic methods.
10 Ground Water - Water beneath the surface of the earth in pores, crevices, and
11 spaces in rock and soil, under saturated conditions and in sufficient quantities to
12 supply water to wells, springs, seeps, rivers, streams, creeks, and natural lakes.
13 New - After January 1, 1 996.
14 Reservoir - A man-made impoundment for storing water from which water may be
15 withdrawn for beneficial purposes. Impoundments constructed solely for flood
16 control or sediment retention are specifically excluded.
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1 Surface Water - Water on the surface of the earth in rivers, streams, creeks,
2 channels, lakes, reservoirs and other water bodies. Wells within the 500-year
3 floodplain of the East and North Forks of the Virgin River, Camp Creek, Clear Creek,
4 Crystal Creek, Deep Creek, Echo Canyon, Goose Creek, Kolob Creek, La Verkin
5 Creek, Orderville Canyon, Shunes Creek, or Taylor Creek, which are less than 1 OO
6 feet in depth, shall be considered to draw from surface water.
7 Year - A calendar year commencing January 1 and ending December 31.
It being resolved and agreed to as delineated above, the undersigned parties
For the State of Utah:
Michael 0 Leavitt
Governor, State of Utah
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For the United States:
Bruce Babbitt
6 Secretary of the Interior
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Ted Stewart
Director, Utah Department
of Natural Resources
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Don Falvey
Superintendent, Zion National Park
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Robert L Morgan
Utah State Engineer
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John O. Lesh
Solicitor
Department of the Interior
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Michael M. Quealy
Chief, Natural Resources
Attorney General's Office
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Lois J. Schiffer
Assistant Attorney General
Department of Justice
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John H. Mabey, Jr
Assistant Attorney General
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Andrew F. Walch
Department of Justice
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For the Washington County Water Conservancy District:
Ronald W. Thompson
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For the Kane County Water Conservancy District:
Todd McFarlane
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