Committee holds beneficial-use examination rules for further review (Docket 370-302-2401)

The Senate Resources & Environment Committee voted to hold docket 370-302-2401, the Department of Water Resources’ revised beneficial-use examination rules, pending further review and clarification on definitional and measurement issues.

The rules govern certification and standards for certified water-right examiners, the format of examination reports and measurement standards, and license examination fees. The department told the committee it did not change fees in this fee-rule docket and that the chapter was reorganized to improve readability and to align measurement and reporting language with the recently adopted water appropriation rules.

“Before proceeding I would like to emphasize that the rule chapter I'm presenting today is a fee rule however the department did not modify any of the fees in this rule,” said Eric Bowe, Water Compliance Bureau Chief and Rules Regulation Officer, while presenting the docket.

Committee members raised several technical questions. Senators pressed the department on changes such as switching units from cubic feet to gallons for certain reports and a new allowance to use 50 years of climate data to set volumes for commercial snowmaking permits (rule 3501h). Phil Hummer, water-rights section manager and subject-matter expert, said the units change was made for consistency with the water appropriation rules adopted last year and that the 50‑year climate-data approach averages dry years across the dataset.

A recurring policy concern prompted the hold: multiple senators asked whether the rules sufficiently define “beneficial use.” Senator Guthrie said the chapter “centers around beneficial use, and we don't even have a description of what that is,” and requested the department check whether a statutory definition or controlling court decision exists. Deputy Director Shelly Keen told the committee the department had not relied on a single statutory definition, explaining, “There is not a definition of beneficial use in statute that we have relied on for defining water rights. It's been our experience that what is beneficial use, from one water source or in one location might be different than someplace else.” Keen said the director exercises discretion in individual proceedings and that the department maintains a list of beneficial-use categories in its water-rights database.

Senator Van Orden moved to hold the docket “at the call of the chair”; Senator Guthrie seconded. The motion carried by voice vote.

The hold leaves the department asked to provide additional clarification to the committee on the statutory/case-law basis for the term “beneficial use” and on the specific measurement-unit changes and climate-data methodology referenced in the proposed rules.