Friday, January 16, 2015

2015 Legislative Preview: Change Application Modifications

Two identical bills have been introduced that seek to change the definition of a person entitled to file a change application.  Senator Margaret Dayton has introduced Senate Bill 35 (SB 35), entitled "Water Rights Amendments," and Representative Keith Grover has introduced House Bill 58 (HB 58), entitled "Change Application Modifications."  Other than the names, these two bills are exactly the same.

These bills are in response to the 2011 Utah Supreme Court ruling in the Salt Lake City v. Big Ditch case that concluded that Big Ditch, while not the owner of certain water rights, could file a change application on those water rights because it was a “person entitled to the use of water” as that phrase is used in the “Change Application” statute, pursuant to a contract it has with Salt Lake City.  Attempts to pass a bill that addressed both this issue and the issue raised in the Jensen v. Jones case (see HB 25) have failed in the last three sessions.  These bills clarify and redefine who is entitled to file a change application, i.e., (1) a holder on an approved but unperfected application to appropriate water; (2) the record owner of a perfected water right; (3) a person who has written authorization from a person described in (1) or (2) above to file the application of that person’s behalf; and (4) a shareholder in a water company who files in accordance with the existing “Shareholder Change Application” statute.

To read the full text of SB 35 as introduced, click here.
To read the full text of HB 58 as introduced, click here.

2015 Legislative Preview: Shareholder Change Applications

Representative Kay L. McIff has introduced House Bill 43 (HB 43), entitled "Water Rights - Change Application Amendments."  This bill seeks to change the procedures for shareholders of a mutual water company requesting the filing of a change application. It requires mediation if the company refuses to file the change application or if the shareholder and mutual water company cannot agree to conditions of the change application. It also allows the shareholder to advance the change application to the State Engineer for administrative review regardless of the mutual water company decision. If the mutual water company declines the change application request, the company is required to state the reasons why.

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

Thursday, January 15, 2015

2015 Legislative Preview: Change Applications

Representative V. Lowry Snow has introduced House Bill 25 (HB 25), entitled "Water Law - Application Revisions." This bill is in response to the 2011 Utah Supreme Court ruling in the Jensen v. Jones case that concluded that the State Engineer did not have statutory authority to use the prior non-use of water as a reason to reject a change application or reduce the amount of water approved under a change application.  This bill seeks to give the State Engineer express statutory authority to do so, subject to certain procedures and limitations.  This bill is the product of a small group of stakeholders that got together after attempts to pass such legislation failed in 2012, 2013, and 2014 for a variety of different reasons.  The members of that group were the General Managers of Central Utah, Jordan Valley, Washington, and Weber Basin Water Conservancy Districts, along with representatives from the Farm Bureau and the League of Cities and Towns. 

The bill allows a person filing a change application to have a private, non-binding discussion with the State Engineer on any potential issue, including non-use, before filing the change application.  The bill then provides the State Engineer a 90-day window after a change application is filed to give the applicant notice of any concerns he may have regarding non-use and the resulting impact (defined in terms of “quantity impairment”) that the proposed change may have on one or more specifically identified water rights.  If the State Engineer gives such notice, or if a timely protest is filed alleging quantity impairment because of the unexcused non-use of water, then the applicant has the burden of proving that quantity impairment will not occur and the State Engineer may reject the change application or reduce the amount approved to the extent that such quantity impairment is likely to occur.  The bill also reorganizes the application to appropriate and change application statutes and makes some minor technical changes to the wording.
To read the full text of the bill as introduced, click here.

Tuesday, January 13, 2015

2015 Legislative Preview: Stream Access

Representative Dixon M. Pitcher has introduced House Bill 108 (HB 108), entitled "Public Waters Access Act."  This bill seeks to make significant changes to the Utah Public Water Access Act, which governs stream access issues in the State.  The bill would modify the definition of “public access water” to include a requirement that the stream or waterway must, in its natural state during ordinary high water, be capable of floating a commercial commodity or being navigated by watercraft.  The bill then provides that a public access water, at or below the ordinary high water mark, is open to year-round public use for any lawful activity that utilizes the water, including boating, fishing, swimming, or wading.  Members of the public may not, however, use private land to access public access water, but may use private land for reasonable portage around manmade or natural obstructions.  The bill also allows landowners the right to place a fence across a public access water, provided that the fence comply with all laws and is constructed in a manner that does not create an unreasonable danger to the public using the public access water, and provided that the landowner allows the public to use a ladder, gate, or other mechanism to portage around the fence.

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

2015 Legislative Preview: Withdrawal of Applications

Senator Margaret Dayton has introduced Senate Bill 40 (SB 40), entitled "Water Law - Application Withdrawal." This bill seeks to amend Utah Code section 73-3-6 to allow for the withdrawal of water right applications, including applications to appropriate and change applications.  Although the Division of Water Rights has historically allowed for applications to be withdrawn, this bill would provide specific statutory authorization and explanation for withdrawals.  The bill provides that an applicant or an applicant’s successor-in-interest may withdraw an unperfected application (even if already approved) by filing a written withdrawal request with the Division.  Upon receipt of the withdrawal request, the Division must promptly update its records to show that the application has been withdrawn and is of no further force or effect.  An applicant who withdraws an application is not entitled to a refund of the application filing fees.

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

2015 Legislative Preview: Forfeiture Exemptions

Senator Margaret Dayton has introduced Senate Bill 15 (SB 15), entitled "Water Law - Forfeiture Exemptions." This bill seeks to amend Utah Code section 73-1-4 regarding nonuse and forfeiture.  The bill adds some clarifying language that the section does not apply to “a period of nonuse of a water right during the time the water right is subject to an approved change application where the applicant is diligently pursuing certification”

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

2015 Legislative Preview: Public Trust

Representative Kay McIff has introduced House Bill 47 (HB 47), entitled "Protection of Water Rights."  This bill seeks to define the scope and limits of the public trust doctrine in Utah, including a provision that to the extent a State public trust obligation exists relative to public ownership of water, the State fulfills its public trust obligation through legislative enactments of laws regulating the use of water. 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 House Bill 233 that Representative McIff ran in 2014 and House Bill 68 that Representative McIff ran in 2013.

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