Wednesday, January 29, 2014

2014 Legislature: Water Conveyance Facilities Amendments

Representative Carol Moss has introduced House Bill 298 (HB 298), entitled "Water Conveyance Facilities Amendments." This bill makes only one change to existing canal safety laws, which is that it exempts ditch systems that carry less than 15 cubic feet per second (cfs) from the canal safety requirements.

To read the full text of the bill, as introduced, click here.

Monday, January 27, 2014

2014 Legislative Preview: Public Trust

Representative Kay McIff has introduced House Bill 233 (H.B. 233), entitled "Public Trust Obligations and Water Rights Protections."  This bill seeks to define the scope and limits of the public trust doctrine in Utah. The bill also clarifies that a water right is a property right that is protected by the Utah Constitution, and cannot be taken for public use without just compensation.

This bill is nearly identical to HB 68 that Representative McIff ran in 2013.

To read the full text of the bill, click here.

Monday, January 20, 2014

2014 Legislative Preview: County Recorder Water Index

Representative Curt Webb will introduce House Bill 29 (HB 29), entitled "County Recorder Index Amendments."  The bill only makes one change to the statute defining the duties of the county recorders: it requires the county recorders to keep an index of water right numbers that are included in deeds after May 13, 2014.

To read the full text of the bill, as introduced, click here.

Update: This bill was passed on February 24, 2014, and will now go to Governor Herbert for signature.

2014 Legislative Preview: Canal Safety Act

Senator Gene Davis will introduce Senate Bill 114 (SB 114), entitled "Canal Safety Act."  The bill seeks to enact several new statutes to govern canal safety issues.  The bill begins by defining a canal as a water conveyance system that conveys a flow of more than 10 cfs of water.  The bill would require all canal owners to conduct an assessment of the condition of each canal before January 1, 2015, and at least once every five years thereafter.  The canal owner must determine whether each section of the canal is high risk, medium risk, or low risk; determine if any repairs or improvements are necessary to reduce the risk of canal failure; and report the findings to the Utah Division of Water Rights.  The Division would then maintain a "canal action list" to include all canals that are high risk and/or require repairs or improvements.  If a canal is on the canal action list, the canal owner must prepare a remediation plan, which must be approved by the Division of Water Rights and the Division of Water Resources.  The canal owner cannot receive state funding for a project related to the canal unless they have an approved remediation plan.

To read the full text of the bill, as introduced, click here.

2014 Legislative Preview: Water and Irrigation Amendments

Senator Margaret Dayton will introduce Senate Bill 17 (SB 17), entitled "Water and Irrigation Amendments."  The bill is a "clean-up bill" that makes several small changes to the Utah Water Code.  First, the bill would expand the State Engineer's enforcement powers by allowing the State Engineer to pursue an enforcement action against a person who violates the law requiring a stream alteration permit for work done in a natural streambed.  Second, the bill would require assignments of unperfected water rights to be recorded with the proper county recorder instead of just being filed with the Division of Water Rights.  Third, the bill seeks to clarify the criminal penalties for well drillers operating without a current license.  Fourth, the bill proposes changes to the statute governing stream alteration permits, including giving the State Engineer authority to issue orders for repair and restoration of streambeds altered without a permit.  Finally, the bill proposes technical changes to the statute governing the State Engineer's duties to divide and distribute water.

To read the full text of SB 17, as introduced, click here.

Update: This bill was passed on February 13, 2014, and will now go to Governor Herbert for signature.

2014 Legislative Preview: Public Water Access

Representative Dixon M. Pitcher will introduce House Bill 37 (HB 37) during the 2014 legislative session.  The bill seeks to make sweeping changes to the Utah Public Water Access Act.  Under the bill, "public access water" would be defined as a stream that in its natural state during ordinary high water is capable of (1) floating cut lumber six feet in length and six inches in diameter; (2) floating a commercial commodity; or (3) being navigated by a watercraft propelled by oar, paddle, or motor.  The bill would completely repeal several code sections of the current Act and replace them with new code sections.  These new statutes would provide that public access water at or below the ordinary high water mark would be open to public use for lawful activities that utilize the water, including boating, fishing, swimming, and wading.  The bill would limit members of the public from crossing private property to get to the public access water, but would allow the public reasonable portage across private property to avoid obstructions in the waterway.  The bill would also allow the property owner to fence across the waterway, so long as the fence complies with law and does not create an unreasonably dangerous condition to those using the waterway, and provided that the property owner allow public users to use a ladder, gate, or other mechanism to portage around or over the fence.

To read the full text of HB 37, as introduced, click here.

Saturday, January 18, 2014

Nevada Court Ruling on Las Vegas Pipeline Project

The following article was written by David Hartvigsen, one of my partners at Smith Hartvigsen, PLLC, for the Water & The Law newsletter that our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.

One of the most controversial pipeline projects in recent memory was dealt a major blow last month as Nevada District Court Judge Robert Estes issued a ruling against the project, a coalition supported management plan, and the Nevada State Engineer.  We in Utah refer to the project as the “Snake Valley Project” because it affects the aquifer under Snake Valley, which is partially located in Millard County.  The project proposed by the Southern Nevada Water Authority (“SNWA”) also includes pumping water from four other valleys located solely within Nevada, i.e., Spring Valley, Cave Valley, Dry Lake Valley, and Delamar Valley, and then piping the water down to the very thirsty Las Vegas area.  These five valleys are comparable in size to New England, i.e., parts or all of the states of Vermont, New Hampshire, Massachusetts, Connecticut, and New York.  The judge characterized it as “likely the largest interbasin transfer of water in U.S. history.”
The applications to appropriate water from these 5 valleys were first filed in 1989 and hearings were held on the applications in 2006.  However, because Nevada law requires that the State Engineer rule on applications within one year of the protest deadline, the original approvals were vacated by the courts and the process was restarted.  Prior to the second round of hearing in 2011, several federal agencies agreed to withdraw their protests if SNWA agreed to  implement a Hydrologic and Biologic Monitoring, Management, and Mitigation Plan (“MMM Plan”).  The State Engineer incorporated this MMM Plan into his March 2012 approval of the Project applications.
Several of the protestants appealed the approvals and the appeal was presided over by Senior Judge Estes in 7th District Court of Nevada.  Two days of hearings on the appeal where held last June, then the judge went to work reviewing the evidence and the law.  He issued a ruling dated December 10, 2013 in which he vacated the March 2012 approvals and sent them back to the State Engineer for re-evaluation and action consistent with his ruling on four key points: “(1) The addition of Millard and Juab [C]ounties, Utah in the [MMM] Plan so far as water basins in Utah are affected by pumping water from Spring Valley Basin, Nevada; (2) A recalculation of water available for appropriation from Spring Valley assuring that the basin will reach equilibrium between discharge and recharge in a reasonable time; (3) Define standards, thresholds, or triggers so that mitigation of unreasonable effects from pumping of water are neither arbitrary nor capricious in Spring Valley, Cave Valley, Dry Lake Valley, and Delamar Valley; and (4) Recalculate the appropriations from Cave Valley, Dry Lake and Delamar Valley to avoid over appropriations or conflicts with down-gradient, existing water rights.”
The judge pointed out serious flaws and omissions in the MMM Plan and rejected the State Engineer’s calculations under the plan, concluding that the diversion of the amounts approved would exceed the safe yield of the Spring Valley aquifer and that equilibrium would never be reached, despite compliance with the MMM Plan.  The Judge also found the MMM Plan to be “subjective, unscientific, arbitrary and capricious,” stating that it doesn’t even offer a clear definition of what an unreasonable impact might be.  He concluded that the “[g]ranting of water to SNWA is premature without knowing the impacts to existing water right holders and not having a clear standard to identify impacts, conflicts or unreasonable environmental effects so that mitigation may proceed in a timely manner.” 
To read the full court opinion, click here.

Friday, January 3, 2014

Public Meeting Regarding an Update to the Groundwater Appropriation Policies in Pine Valley, Wah Wah Valley, and Sevier Lake Area

The Utah Division of Water Rights has set a public meeting to discuss updates to the groundwater appropriation policies in Pine Valley, Wah Wah Valley, and the Sevier Lake area. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users in Pine Valley, Wah Wah Valley, and the Sevier Lake area
When:  February 4, 2014, 1:00 PM - 2:00 PM
Where: Milford City Offices, 26 South 100 West, Milford, UT 84751
Purpose: The purpose of the meeting is to present a summary of a hydrogeologic study currently being completed by the USGS and to present an update to the groundwater appropriation polices for Pine Valley (WR Area 14), Wah Wah Valley, and the Sevier Lake area (WR Area 69). Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.

1.  Introduction - Kent Jones, State Engineer
2.  USGS Study Update - Phil Gardner
3.  Policy update - Kurt Vest, Southwestern Regional Engineer
4.  Public Questions/Comments
For the current appropriation policies for Pine Valley, click here
For the current appropriation policies for Wah Wah Valley and Sevier Lake area, click here.

For more information about the public meeting, click here.

Thursday, January 2, 2014

Public Meeting Concerning the Proposed Determination of Water Rights in the Birdseye Area

The Utah Division of Water Rights has set a public meeting to discuss the ongoing general adjudication in the Birdseye area. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Birdseye Area
When: January 29th, 2014, 4:00 p.m. to 5:00 p.m.
Where: Spanish Fork City Fairgrounds, High Chapparal Room, 475 South Main Street, Spanish Fork, UT 84660
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 57298), 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 Utah Lake and the Jordan River within Salt Lake County.
The hydrographic survey associated with the Birdseye adjudication has revealed several discrepancies relating to beneficial use, place of use, and ownership of various Strawberry Valley Project water right exchanges.  In an effort to guide water users through the necessary steps to resolve the discrepancies associated with their respective SVP exchange(s), the Division of Water Rights will be holding a Public Meeting.  Following a brief presentation, representatives from the Division of Water Rights will be available to discuss the adjudication process, review SVP exchange(s), and answer questions.

For more information about the public meeting, click here.