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Commission advances 'diligence claims' bill to recognize small homestead retention ponds, with caveats
Summary
Rep. Chu presented an adjusted bill to recognize small homestead-era retention dams (under 20 acre-feet) and include a rebuttable presumption on priority dates; commissioners and the state engineer raised legal questions about the 1903 priority standard and due‑process pathways, and the commission recommended the draft move forward subject to further legal refinement.
Representative James Chu presented an amended concept — renamed in the hearing to 'diligence claims water amendments' — to recognize small homestead-era retention ponds that historically supplied livestock and wildlife. Chu described documentary and physical evidence (e.g., quarter-corner survey markers and homestead photos) and said the draft limits recognized structures to less than 20 acre‑feet to avoid routine permitting requirements.
Commission members pressed the sponsor about priority dates and whether the bill would carve out claims created after 1903. Commissioner Peterson and other members asked the sponsor to ensure the draft would not create a post‑1903 loophole for new, post‑patent constructions. Representative Chu said the bill includes a rebuttable presumption allowing claimants to assert pre‑1903 use and that opponents can rebut those claims with evidence.
Theresa Wilhelmsen, State Engineering Director (Division of Water Rights), told the commission the new language should avoid creating legal limbo for claimants and should preserve an administrable path for resolution so claimants are not forced into decade‑long district-court battles. The sponsor agreed to continue working with the state engineer and commission staff to refine the draft language.
The commission moved and approved a favorable recommendation with the express caveat that sponsors and staff continue to address identified loopholes (notably the interplay with the 1903 priority requirement) before the bill proceeds to standing committee.
What happens next: Sponsor and legislative drafters will continue working with the state engineer and commission staff to clarify priority-date language and rebuttable-presumption mechanics before formal numbering and committee hearings.
