Nielsen v. Cronquist

The Utah Court of Appeals recently issued its decision in Nielsen v. Cronquist. The case addressed the issue of awarding attorney fees in water cases.

The Nielsens and the Cronquists were neighboring landowners in Smithfield, Utah. The parties sued each other over a number of issues, including boundary issues and water issues. The Nielsens' parcel included a retention pond that stored water from Swamp Springs, where "all parties enjoy[ed] established water rights." Two water lines extended from the pond across the Nielsens' property to the Cronquists' property. One line provided water for irrigation and the other line provided water for a horse trough. The Nielsens' parcel also included a water pump that pulled water from Miles Spring. This pump and associated water line provided culinary water to the Nielsens' home and to the Cronquists' home. The Cronquists paid the Nielsens for the electricity required to pump the spring water to the Cronquists' home.

After the lawsuit was filed, the Nielsens disconnected the water line to the Cronquists' horse trough and also intermittently turned off the valve controlling the irrigation water. The parties brought competing claims against each other related to the water, including the Cronquists alleging that the Nielsens had interfered with their water rights and the Nielsens alleging that the Cronquists were "illegally diverting water" from Miles Spring and wrongfully installing water lines across the Nielsens' property. 

Following a five-day trial, the district court granted judgment in favor of the Nielsens. The court concluded that the Nielsens had wrongfully interfered with the Cronquists' water rights in Swamp Springs and that the Nielsens' claims regarding the Miles Spring water were "without merit" and "improperly motivated." The district court also awarded attorney fees to the Cronquists based on Utah Code section 73-2-28 (which allows for attorney fees in cases involving "injuries caused by a diversion of water in violation of an existing water right) and Utah Code section 78B-5-825 (which allows for attorney fees in cases where a claim is found to be "without merit and not brought or asserted in good faith). The Cronquists' attorneys filed affidavits and time records supporting their claimed attorney fees. Because the Cronquists could only collect attorney fees on the water claims (and not the boundary claims and other claims in the case), the attorneys noted that some time entries (related to work solely on water issues) should be collected at 100% while other time entries (related to work on water issues and other case issues) should be collected at 33%. The court determined that the Cronquists' attorneys had "made reasonable efforts in calculating attorney fees" and granted the award of fees.

The Nielsens appealed to the Utah Court of Appeals. The Nielsens asserted that the district court had incorrectly determined the amount of reasonable attorney fees. The Court noted that the Nielsens did not challenge the determination that the Cronquists were entitled to attorney fees, but rather the amount of the fees that were awarded. The Court determined that the affidavits and time entries provided by the Cronquists' attorneys provided a reasonable and rational basis for the fees awarded. The Court therefore concluded that the district court did not abuse its discretion on the amount of attorney fees awarded.

To read the full opinion, click here.

Online Application Portal

The Utah Division of Water Rights has announced a new "Application and Filing Payment Portal" that allows for online filing of water applications. The following applications can now be filed online:

• Application to Appropriate
• Change Application
• Exchange Application
• Report of Conveyance
• Segregation Request
• Consolidation Request

The filing portal can be accessed by clicking here.

Water Horse Resources v. Wilhelmsen

The Utah Supreme Court recently issued its opinion in the case of Water Horse Resources LLC v. Wilhelmsen. This case focused on a proposal to divert water from the Colorado River system in Utah and to use the water in Colorado.

Water Horse filed an export application with the Utah State Engineer to divert 55,000 acre-feet of water from the Green River in Daggett County, Utah. The water was to be piped across Wyoming and used somewhere along the Front Range in Colorado. The application received numerous protests, and the State Engineer held an administrative hearing on the application. The State of Colorado sent a letter stating that it believed that Water Horse was required to follow Colorado's laws and procedures for water rights administration. The Utah State Engineer ultimately concluded that the application did not meet the approval criteria contained in Utah's water export statutes (Utah Code sections 73-3a-101 to -109), and the State Engineer therefore issued an order rejecting the application. Water Horse requested reconsideration, which the State Engineer did not grant. Water Horse appealed to the district court.

In the district court, Water Horse and the State Engineer filed competing motions for summary judgment. After a hearing, the district court granted summary judgment in favor of the State Engineer. Water Horse appealed to the Utah Supreme Court.

Water Horse argued that the Upper Colorado River Basin Compact ("Upper Compact") preempts Utah's export statutes. Specifically, Water Horse cited the Upper Compact language that states that "no State shall deny the right of another signatory State, any person, or entity of any signatory State to acquire rights to the use of water ... or regulating water in an upper signatory State for consumptive use in a lower signatory State, when such use is within the apportionment to such lower State." The Court determined, however, that the Upper Compact and Utah's export statutes do not conflict. The Court noted that the Upper Compact allowed Water Horse to file for the water use but did not guarantee that the water use would be approved. "The Upper Compact only prohibits a state from denying a right to acquire rights to the use of water; it does not guarantee that an applicant will acquire the particular right it seeks." The Court further concluded that the export statutes do not "impede the congressionally ratified purpose of the Upper Compact," but actually further that purpose.  

Water Horse further argued that it had satisfied the criteria of the export statutes. The Court disagreed. The statutes require an applicant to show that "the water can be transported, measured, delivered, and beneficially used in the recipient state." The Court concluded that Water Horse could not meet this requirement because Water Horse had not filed any application or received any approvals from the State of Colorado for the beneficial use of the water in Colorado. "The reason to believe standard may be low, but it is not so low that an applicant can present a 'we'll figure it out as we go' proposal and obtain an appropriation."

The Court also reviewed and rejected several other minor arguments made by Water Horse. The Court therefore affirmed the district court and upheld the State Engineer's rejection of Water Horse's application.

To read the full opinion, click here.

Marriott v. Wilhelmsen

The Utah Supreme Court recently issued its opinion in the case of Marriott v. Wilhelmsen. This case focuses on the following question: If a person dies while they are challenging the State Engineer's denial of their Application to Appropriate, does their legal challenge die with them?

In 1997, Randy Marriott filed an Application to Appropriate, in which he sought the right to divert and use outflow water from a treatment plant for irrigation and stockwatering uses. In 2018, the State Engineer rejected the Application and also denied Randy's request for reconsideration. Randy then filed an action in district court seeking judicial review of the State Engineer's decision. While the case was pending in the district court, Randy passed away. Randy's attorneys filed a motion with the district court to substitute Kami Marriott, who was the personal representative of Randy's estate, as the plaintiff so that the case could continue. The district court, however, denied the motion and dismissed the case. Kami appealed to the Utah Supreme Court.

Rule 25(a) of the Utah Rules of Civil Procedure provides that substitution of a deceased party is allowed only if "(1) the claims survived the party’s death; (2) the proposed substitute is a proper party; and (3) the motion is timely." The Court began its decision by noting that Kami had the burden to demonstrate that Randy's legal claims survived his death. 

The Court first examined if Randy's claims survived his death under common law. Kami asserted that Randy's claims "related to real property or property rights," and therefore survived under common law. The Court disagreed because Randy never had a perfected water right and that the Application to Appropriate created no right to water. The Court declined to extend the common law to protect Randy's claims because Randy had "no present property interest."

The Court then examined if any statutory provisions allowed Randy's claims to survive his death. Kami asserted that because the Utah water code allows Applications to Appropriate to be assigned to new owners, that claims related to the denial of an Application to Appropriate should survive death. The Court disagreed and noted that assignability and survival are not the same thing. The Court held that because Kami could not point to any statute that would allow for Randy's claims to survive his death, the district court was correct in dismissing Randy's claims following his death.

In the end, the Utah Supreme Court affirmed the district court's decision that Kami could not be substituted as a plaintiff for Randy and that the case should therefore be dismissed.

To read the full opinion, click here.

Hall v. Springville City

The Utah Court of Appeals recently issued its opinion in the case of Hall v. Springville City. This case focuses on Springville City's ownership claims to water rights that were included in the Proposed Determination for the Hobble Creek area. 

The case concerns water rights that were originally associated with the Anderson Ranch and Clark Ranch in Hobble Creek Canyon. The ranches were homesteaded in the late 1800s, and water rights were established by diligence (i.e., by diversion and use of surface water prior to 1903). In 1928, the Springville Irrigation Company was formed, and the Andersons and Clarks conveyed irrigation water rights to the Company in exchange for water shares. In the 1940s, the City determined to buy water rights in Hobble Creek Canyon in order to expand its water system to serve its growing population. The City acquired the Anderson Ranch and the Clark Ranch, along with all water rights and all Company water shares associated with the ranches. A few years later, the City sold the ranches to Ralph Phillips. The land deed noted that "All water and water rights heretofore used on the aforesaid granted premises have been separately sold and transferred and this conveyance is made subject to the reservation of all water rights excepting only a flood water right to which the cultivated or improved part of the aforesaid granted premises shall be entitled when and as long as such flood water is available." The City and Mr. Phillips subsequently entered into agreements allowing Mr. Phillips to use the water rights and water shares until the City needed the water for its own purposes.

Decades later, the subsequent owners of the ranches filed Diligence Claims and Water Users Claims asserting year-round rights from springs for irrigation, domestic, and stockwatering purposes. These asserted water rights were included in the Proposed Determination published in 1986. The City filed objections to the Proposed Determination, asserting that the water rights were invalid because (among other things) the City was "the owner of the entire flow of water from the sources given" for the water rights. 

In 2020, the City filed motions for summary judgment on its objection, in which the City sought to have the district court declare the water rights invalid because the landowners' predecessors had deeded all water rights to the City in the 1940s. The landowners opposed the motions and argued, among other things, that the "flood water" language in the 1940s deed gave them a legitimate basis for their water rights. The Special Master ruled in the City's favor, which the district court later confirmed. The landowners appealed the case to the Utah Court of Appeals.

The Court began its opinion by determining that when the City acquired title to the ranches, the City also acquired all water rights and all water shares. The Court then examined the "flood water" language from the 1940s deed and determined that the language did not convey any water rights from the City to Mr. Phillips but, instead, granted Mr. Phillips the ability to take advantage of any natural flooding that occurred; i.e., any water that naturally escaped the stream channel during periods of high flow. The Court further noted that even if the interpretation of "flood water" was ambiguous, the extrinsic evidence supported the City's assertion that it did not convey any water rights to Mr. Phillips. Additionally, the Court noted that the Utah Constitution prohibits municipalities from selling or conveying away its water rights, which further confirms that the City did not convey any water rights to Mr. Phillips. Finally, the Court disagreed with the landowners' assertion that the City and Mr. Phillips entered into an exchange of water rights.

The Court also examined the landowners' claim that they had been denied due process rights because they had not been given "adequate notice" of the City's claims of ownership of the water rights. The Court determined that the City's objection was satisfactory under the relevant statutes at the time and that the landowners were given sufficient opportunity to engage in discovery and litigate the relevant issues in the adjudication. 

Based on these determinations, the Court of Appeals affirmed the district court's decision that the water rights were invalid.

(The attorneys at Smith Hartvigsen were proud to represent Springville City in this case.)

To read the full opinion, click here.

New Proposed Fee for Public Water Systems

The Utah Division of Drinking Water has issued its proposed new fee policy for public water systems. The fee is based on water delivered for human consumption and other domestic uses, including landscaping, and is set to go into effect in July 2026. The proposed fee is $0.0331 per 1,000 gallons. It is estimated that the fee will be about $0.38 per month, or $4.59 per year, per connection. 

There are several exceptions to the fee, including water wholesaled to another public water system, water used only for agricultural purposes that is not delivered through a public drinking water system, and water delivered to an end user for industrial use. There are also conservation incentives that may reduce the fee by up to 10%. 

There will be several public meetings to discuss the fee, including the following:

Monday, August 18, 2025 at 2:00 pm (DEQ board room, 195 N 1950 W, Salt Lake City)

Thursday, August 21, 2025 at 2:30 pm (virtual meeting online)

Tuesday, August 26, 2025 at 11:30 am (presentation at Rural Water Association of Utah's fall conference)

The official fee hearing will be held on Thursday, September 11, 2025, but the time has not yet been determined.

For more information about the proposed fee and the planned meetings, click here.

To read the draft fee policy, click here.

Adoption of the Great Salt Lake Distribution Management Plan

The Division of Water Rights has published notice of its intent to adopt the Great Salt Lake Distribution Management Plan on October 1, 2025. A copy of the draft Plan can be viewed by clicking here.

For additional information regarding the notice, click here.

Public Meeting to Discuss Draft Distribution Plan for Great Salt Lake

The Utah Division of Water Rights has set a public meeting to discuss a draft of the Great Salt Lake Distribution Management Plan. Information about the public meeting is included below.

In accordance with Chapter 73-33, Utah Code Annotated, the State Engineer has been directed to 'regulate the measurement, appropriation, apportionment, and distribution of water within the Great Salt Lake meander line' through the creation and adoption of a Distribution Management Plan for the Great Salt Lake The public is invited to attend a public meeting wherein a draft of the Great Salt Lake Distribution Management Plan will be presented and the public will have an opportunity to ask questions or provide comments. 

The meeting with be held at the Utah Department of Natural Resources building (1594 West North Temple, Salt Lake City) on July 31, 2025 at 6:00 pm.

Agenda: 

1. Introduction: Teresa Wilhelmsen, P.E. - State Engineer

2. Great Salt Lake Distribution Management Plan presentation: Blake Bingham, P.E. - Deputy State Engineer

3. Public Comments and Questions

For more information about the meeting, click here.

Open House Events for General Adjudication in Benjamin Area

The Utah Division of Water Rights recently initiated a general adjudication of water rights in the Benjamin area of Utah County. (Click here for more information.) Due to the public interest in the general adjudication process, the Division is holding a series of open house events to assist the public during the Water User's Claim filing period. Division staff members will be available to meet individually with members of the public in and discuss any questions they may have about filing a Water User's Claim in the general adjudication.

The open house events will be held in the Heritage Room of the Spanish Fork Library (80 South Main Street) at the following dates and times:

• Tuesday, July 8, 2025 from 2:00 to 6:00 pm
• Thursday, July 10, 2025 from 11:30 am to 3:30 pm
• Wednesday, July 16, 2025 from 3:00 to 7:00 pm

Public Meeting Concerning the General Adjudication in Spanish Fork / Mapleton Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Spanish Fork / Mapleton area in the Utah Lake / Jordan River Drainage (Area 51, Book 8). The Spanish Fork / Mapleton area boundaries are shown on the map below. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Spanish Fork / Mapleton area
When: June 10, 2025, 6:00 to 7:00 pm
Where: Ponderosa Event Center - Spanish Fork Fairgrounds, 475 South Main Street, Spanish Fork

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 360057857), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Spanish Fork/Mapleton Subdivision, Utah County Division, of the Utah Lake and Jordan River drainage in Utah County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Spanish Fork/Mapleton area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Spanish Fork/Mapleton area, please contact the Division of Water Rights at 801-538-5282.

Agenda:
1.  Introduction
2.  Adjudication Process Presentation
3.  Public Comments and Questions

A livestream of the meeting will be broadcast here.

For more information regarding this meeting, click here.