Thursday, December 14, 2017

Training on Aquifer Storage and Recovery

The Division of Water Rights will be hosting a training session on navigating the permitting process for aquifer storage and recovery ("ASR") projects. The following information comes from the Division's notice regarding the training session.

Who:Entities who have current or would like to investigate ASR projects. Consultants who assist in the permitting, design, or construction of ASR projects.
When:February 21, 2018, 9:00 a.m.
Where:Department of Natural Resources, Room 1040
1594 W. North Temple
Salt Lake City, UT 84116
Purpose:This joint training held by the Utah Divisions of Water Rights, Water Quality, Drinking Water and the Utah Geological Service focuses on Aquifer Storage And Recovery. It will expound on how to obtain the necessary permits and how to successfully plan and implement a pilot project. The divisions will also touch on the ways that they are collaborating to ensure that this program is strategic and successful and will answer questions.
Agenda:1. Water Rights ASR Perming Process - James Greer, PE
2. Utah Underground Injection Control (UIC) Program - Candace Cady, MS, PG
3. Drinking Water Requirements - Ying-Ying Macauley, MS, PE
4. Design and Implementation of an ASR pilot project - Paul Inkenbrandt, PG

Please RSVP by e-mailing teresawilhelmsen@utah.gov to reserve a seat.

Monday, December 4, 2017

Public Meeting Concerning Groundwater Policies in Box Elder County

The Utah Division of Water Rights has announced a public meeting regarding an update to the groundwater appropriation policies for the Malad and Bear River drainages within Box Elder County. The information below comes from the meeting notice.

What: Public meeting
Who: Water users in the Malad and Bear River drainages within Box Elder County
When: 3:00 pm on January 10, 2018
Where: Bear River Water Conservancy District, 102 West Forest Street, Brigham City, Utah, 435-723-7034
Purpose: The purpose of the meeting is to present a proposed update to the interim groundwater appropriation policy for the Malad and Bear River drainages within Box Elder County. Personnel from the Division of Water Rights will be available to answer all questions and receive comments provided by the general public and interested parties.

If you are unable to attend the meeting, but would like to provide input, please send your written comments to:
Division of Water Rights
1780 North Research Parkway, Suite 104
North Logan, UT 84341
435-752-8755

Agenda:
1. Introduction - Kent Jones, State Engineer
2. Summary of hydrogeologic information - James Greer, Assistant State Engineer
3. Policy update - Will Atkin, Regional Engineer
4. Public questions/comments

A map of the Malad and Bear River Groundwater Policy Area is available here.

Saturday, December 2, 2017

Utah Stream Access Coalition v. Orange Street Development

The Utah Supreme Court recently issued its decision in Utah Stream Access Coalition v. Orange Street Development. This case focuses on the interpretation of navigability under the Public Water Access Act.

In the 2008 decision in Conatser v. Johnson, the Utah Supreme Court established a broad public easement to utilize the beds of Utah's waterways for recreational purposes. In response to this decision, the Utah legislature adopted the Public Water Access Act in 2010. The Act placed restrictions on the broad easement recognized under Conatser. Specifically, the Act restricted recreational access to water on public property and to waterways that are navigable.

In 2011, Utah Stream Access Coalition ("USAC") filed a lawsuit against Orange Street and other landowners along a one-mile stretch of the Weber River. USAC asserted that the stretch of river was navigable under the Act, and therefore open to recreational access. Following a four-day trial, the district court issued a decision agreeing with USAC's position. The district court concluded that the section of the river was navigable, and the court issued an injunction preventing the landowners and the State from interfering with the public's recreational access to the one-mile section of the river. The district court also determined that the State owned the bed of the river section. Orange Street Development appealed the decision to the Utah Supreme Court.

Orange Street first argued that the district court applied the wrong test for navigability. The district court had applied the test commonly referred to as the "navigability-for-title" test, which is whether a waterway was, at the time of statehood, "used or ... susceptible of being used in [its] ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." The Supreme Court concluded that this test adopted into the Act, as shown by the language of the Act that a waterway is navigable if it "is useful for commerce and has a useful capacity as a public highway of transportation." The Supreme Court therefore held that the district court had employed the correct standard for navigability.

Orange Street also argued that the district court had incorrectly applied the facts of the case to the navigability test. The Supreme Court disagreed, and noted the testimony and evidence that had been presented to the district court showing that the Weber River had been used for regular log drives to supply wood for railroad construction, mining timbers, and sawmills. The Supreme Court determined that this evidence was sufficient to support the district court's determination that the Weber River was used as a highway of commerce, and is therefore navigable.

The Supreme Court did disagree with the district court's decision in one regard. The Supreme Court held that because the parties had specifically agreed that the question of title to the bed of the river was not at issue in the case, the district court erred when it made the determination that the State owned the bed of the river. The Supreme Court therefore reversed on this point, but affirmed the remainder of the district court's decision that the one-mile stretch of the Weber River was navigable, as defined by the Act, and therefore open to public recreational access.

To read the full opinion, click here.

Thursday, November 16, 2017

Public Meeting Concerning the General Adjudication in Mill Creek Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Mill Creek area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 15). The Mill Creek area generally includes Mill Creek Canyon and the area bounded by 700 East on the west, 3300 Southon the north, and 3900 South on the south. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Mill Creek area
When: November 29, 2017, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1040, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729832), 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 Mill Creek Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Mill Creek 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 Mill Creek area, please contact the Division at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

A live stream broadcast of the public meeting will also be available online at this link.

For more information about the meeting, click here.

Friday, November 3, 2017

Training on Supplemental Water Rights

The Division of Water Rights will be hosting a training session on supplemental water rights and water use groups. The training will be held on Thursday, November 16, 2017 at the Department of Natural Resources Building in Salt Lake City (1594 West North Temple) in Room 1040 from 9:00 am to 12:00 pm. Everyone is welcome to attend. Please RSVP to Teresa Wilhelmsen at teresawilhelmsen@utah.gov if you would like to attend or for further information.

For more information, click here.

Monday, October 23, 2017

Online Protest Form

As part of the administrative process for water right applications, the Division of Water Rights publishes notice of the application and gives a 20-day protest period. Any interested party may file a protest on an application during the protest period. Previously, the protests had to be submitted in hard copy via mail or hand-delivery, along with a check for the protest fee.

The Division of Water Rights now allows for protests to be submitted online. Additionally, the protest fee can be paid online using a credit card. The portal for filing protests is located here on the Division's website.

A few items to keep in mind with respect to submitting protests online:
--The online form must be filled out completely and correctly for the protest to be acceptable.
--The protest is not deemed complete until the protest fee has been paid.
--You cannot attach any documents to the online protest. Accordingly, if you have supporting documents to submit with the protest, you must email or mail the documents to the Division and reference the protest number so that the documents can be attached to the protest submitted online.

Monday, October 2, 2017

20-Year Review of the Bear River Compact

The Bear River Compact is an agreement between Utah, Idaho, and Wyoming that governs the distribution and use of water from the Bear River. The Compact was originally signed into law in 1958. The Compact provides that at least every 20 years, the Compact should be reviewed by the Bear River Commission, which is an administrative agency created by the Compact that includes Commissioners from each of the three states.

In April 2017, the Commission officially initiated its 20-Year Review of the Compact. As part of this process, the Commission has scheduled a series of public meetings around the Bear River Basin in order to receive comments from the public regarding the Compact. A schedule of these public meetings is included below.

Additionally, written comments can be submitted to the Commission, but must be received by the Commission before 5:00 pm on December 4, 2017. Comments may be sent by email to review@bearrivercommission.org or by mail to Bear River Commission, RE: 20-Year Compact Review, 106 West 500 South, Suite 101, Bountiful, UT 84010.

For more information about the 20-Year Review, please visit the Bear River Commission's website by clicking here.

Monday, September 25, 2017

Public Meeting Concerning the General Adjudication in Parleys Creek Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Parleys Creek area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 14). The Parleys Creek area generally includes Parley's Canyon and the area bounded by 700 East on the west, 2100 South/Parley's Way on the north, and 3300 South on the south (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Parleys Creek area
When: October 18, 2017, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1050, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729829), 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 Parleys Creek Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Parleys Creek 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 Parleys Creek area, please contact the Division at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

Tuesday, September 19, 2017

Public Meeting Concerning the General Adjudication in Foothill Village Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Foothill Village area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 13). The Foothill Village area generally includes the area from 1100 East on the west to the ridge of Parley's Canyon on the east, and from 2100 South/Parley's Way on the south to Sunnyside Avenue on the north (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Foothill Village area
When: October 4, 2017, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1050, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729829), 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 Foothill Village Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Foothill Village 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 Foothill Village area, please contact the Division at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

Saturday, September 2, 2017

Public Meeting Concerning the General Adjudication in Oakland Place Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Oakland Place area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 12). The Oakland Place area generally includes the area from 300 West on the west to 700 East on the east, and from 2100 South on the north to 2700 South on the south (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Oakland Place area
When: September 13, 2017, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1040, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729829), 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 Oakland Place Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Oakland Place 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 Oakland Place area, please contact Mike Handy at (801)538-7240.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

For more information about the meeting, click here.

Friday, August 4, 2017

Burr v. Koosharem Irrigation Company

The Utah Court of Appeals recently issued its opinion in the case of Burr v. Koosharem Irrigation Company. The case began in 2014 when Greg Torgerson, a shareholder in Koosharem Irrigation Company, filed a lawsuit against the Company. Shortly thereafter, two additional shareholders, Chad Torgerson and Bret Kouns, joined in the lawsuit. The three plaintiffs filed an Amended Complaint, which included a shareholder derivative claim against the Company and two of the Company's directors. The plaintiffs alleged that these two directors had breached their fiduciary duties to the Company, had engaged in self-dealing, and had failed to act in good faith and with loyalty. The plaintiffs also sought to have the two directors removed from the board due to "rigged elections."

Under the Utah Revised Nonprofit Corporation Act, a court action to remove a director must be commenced "by voting members holding at least 10% of the votes entitled to be cast in the election of the director's successor." The three plaintiffs owned a combined 11.9% of the outstanding shares in the Company. In 2015, however, plaintiff Bret Kouns passed away. The two remaining plaintiffs only owned a combined 5.3% of the outstanding shares.

Following an investigation by a court-appointed committee that determined that a derivative claim was not in the best interests of the Company, the court dismissed plaintiffs' derivative claims. The Company then sought to have the director removal claim dismissed as well, citing to the fact that the two remaining plaintiffs did not own the requisite number of shares.

Burr, another shareholder in the Company, then sought to join the lawsuit by filing a motion to intervene. If Burr was allowed to intervene in the lawsuit, the plaintiffs would collectively have sufficient shares to be above the required 10% threshold. The district court, however, denied Burr's motion to intervene, concluding that Burr had failed to adequately explain why he had waited nearly two years to try to join in the lawsuit. Burr appealed the decision to the Court of Appeals.

The Court began its opinion by noting the standard for a party seeking to intervene, which is that the party must demonstrate "(1) that its motion to intervene was timely, (2) that it has an interest relating to the property or transaction which is the subject of the action, (3) that the disposition of the action may as a practical matter impair or impede its ability to protect that interest, and (4) that its interest is not adequately represented by existing parties." The Court determined that Burr had met these requirements. Although Burr's motion to intervene was not filed for almost two years after the case was initiated, his participation in the case did not become necessary until Kouns passed away. Thus, the motion to intervene was timely. Furthermore, Burr had an interest in the subject matter of the case because he was a shareholder in the Company, and without Burr's participation in the case, the director removal claim would be dismissed and the interests of Burr (and the other two plaintiffs) would be affected. Finally, the Court determined that Burr's interests were adequately represented until Kouns' death -- but after Kouns' death, Burr's interests were not adequately represented by the remaining two plaintiffs who did not own sufficient shares to allow the case to continue.

For these reasons, the Court of Appeals held that Burr should have been allowed to intervene in the case. The Court of Appeals therefore reversed the decision of the district court and sent the case back to the district court to continue.

To read the full opinion, click here.

Utah Water Strategy Report

In 2013, Governor Gary Herbert tasked the State Water Strategy Advisory Team to provide recommendations for a 50-year water strategy for the State of Utah. The Advisory traveled around the state and held town hall meetings, and also invited written comments, to get public input on planning for future water needs.

The Advisory Team has recently published its Recommended State Water Strategy, which is a 200-page report to Governor Herbert containing various recommendations and ideas regarding how Utah should manage its water resources into the future. Some of the topics covered include:
  • Water conservation and efficiency
  • Development of water supplies
  • Water for agricultural lands and food production
  • Preservation of natural water systems
  • Water quality
  • Maintenance and replacement of existing water infrastructure
  • Impacts of climate change on water supplies
  • Utah water law and policy
  • Role of policymakers
  • Science, technology, and innovation
To read the full report, click here.

Monday, July 17, 2017

Public Meeting Concerning the General Adjudication in Liberty Park Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Liberty Park area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 11). The Liberty Park area generally includes the area from 300 West on the west to 1100 East on the east, and from 900 South on the north to 2100 South on the south (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Liberty Park area
When: August 2, 2017, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1050, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729828), 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 Liberty Park Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Liberty Park 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 Liberty Park area, please contact Josh Zimmerman at (801)538-7240.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

For more information about the meeting, click here.

Friday, June 23, 2017

Training on Water Right Conveyances

The Division of Water Rights will be hosting a training session on ownership and conveyance of water rights. The training will be held on Wednesday, August 30, 2017 at the Department of Natural Resources Building in Salt Lake City (1594 West North Temple) in Room 1040 from 9:00 am to 12:00 pm. Please RSVP to Chris York at cyork@utah.gov if you would like to attend or for further information.

Wednesday, April 26, 2017

Public Meeting Concerning the General Adjudication in Dry Creek Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Dry Creek area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 10). The Dry Creek area generally includes the Dry Creek drainage in the mountains east of Salt Lake City and a portion of Salt Lake City from 700 East on the west to Mario Capecchi Drive on the east, and from Yale Avenue on the south to the City Creek drainage on the north (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Dry Creek area
When: May 16, 2017, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1050, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 360057297), 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 Dry Creek Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Dry Creek area to survey existing water rights and investigate water user's claims. 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 Dry Creek area, please contact Blake Bingham at (801)538-7345. The meeting will also be viewable online at the following YouTube link.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

For more information about the meeting, click here.


Thursday, April 13, 2017

Water "Hall of Fame or Shame"

The Utah Division of Water Resources is rolling out a new program called "Hall of Fame or Shame." The program allows members of the public to notify the Division of people who are doing a good job of conserving water ("Fame"), as well as people who are wasting or otherwise improperly using water ("Shame"). After an online report is filed, the Division will forward the information on to the appropriate city or public water supplier so that recognition or correction (as the case may be) may be given. To file a report online, click here.

Wednesday, March 29, 2017

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District

The Ninth Circuit Court of Appeals recently issued its decision in the case of Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District. The case started when the Tribe filed a court action seeking a declaration that it has a federally reserved water right to groundwater underlying the Tribe's reservation. The federal government intervened in the case and also asserted that the Tribe had a reserved right to groundwater. The case was divided into three phases, with the first phase being to determine if the Tribe has a reserved right to groundwater. In the first phase, the federal district court ruled in the Tribe's favor, and the ruling was appealed to the Ninth Circuit.

The Ninth Circuit acknowledged that under the Winters doctrine, federal reserved water rights are directly applicable to Indian reservations, but recognized that prior applications of the Winters doctrine had been only for surface water and that no court had squarely addressed the question of whether the doctrine extended to groundwater. The Court looked at the primary purposes of the reservation and extended the Winters doctrine to include groundwater. The Court noted that some reservations lack perennial streams and therefore depend on pumping groundwater for present and future survival sustainability.
 
To read the full decision, click here.

Sunday, March 19, 2017

Haik v. Salt Lake City Corporation

The Utah Supreme Court recently issued its opinion in the case of Haik v. Salt Lake City Corporation. The case started nearly 20 years ago when Mark Haik filed a lawsuit in federal court against Salt Lake City. Mr. Haik asserted that Salt Lake City was required to supply water to his undeveloped property in the Albion Basin Subdivision. Mr. Haik's complaint against Salt Lake City included claims for unlawful taking and violation of equal protection. The federal court ruled against Mr. Haik, and concluded that Salt Lake City had no duty to provide water to Mr. Haik's property.

In 2012, Mr. Haik filed a second lawsuit in federal court against Salt Lake City, again seeking for the court to order Salt Lake City to provide water to his property. This lawsuit alleged different legal claims (including claims of civil conspiracy and fraud on the court), but was based on the same underlying facts as the first lawsuit. The federal court again ruled against Mr. Haik and determined that he had no claim against the City.

In 2014, Salt Lake City filed a lawsuit in state district court seeking an administrative review of State Engineer orders approving change applications related to the Albion Basin area. As part of the lawsuit, Salt Lake City also brought claims to adjudicate and quiet title to water rights in Little Cottonwood Creek, including water claimed by Mr. Haik. In response, Mr. Haik brought counterclaims against Salt Lake City that were nearly identical to the claims brought in his 2012 federal lawsuit. The district court dismissed Mr. Haik's counterclaims on the grounds that they were barred by res judicata, which is a legal principle that prohibits a party from bringing the same claims multiple times. The district court's decision was appealed to the Utah Supreme Court.

The Utah Supreme Court reviewed the principles of res judicata to determine if the district court had correctly dismissed Mr. Haik's counterclaims against Salt Lake City. The Supreme Court noted that this was not the second time, but the third time, that Mr. Haik had brought his claims against Salt Lake City. The Supreme Court noted that although some of Mr. Haik's counterclaims differed slightly from the claims he asserted in federal court, they were claims that could have been--and should have been--asserted in his federal court actions, and were therefore barred under res judicata. Mr. Haik asserted that his claims were not barred because he was bringing them as counterclaims in the state court action, rather than as direct claims as he did in his federal court actions, and that his counterclaims were necessary to mount a proper defense. The Supreme Court did not find his distinction to be persuasive (although the Supreme Court did note that a future decision may be necessary to determine if Mr. Haik will be prohibited from raising certain defenses in the state court action due to his prior federal court actions).

In the end, the Supreme Court affirmed the district court's dismissal of Mr. Haik's counterclaims. The Supreme Court summarized its decision as follows: "'What has been will be again, and what has been done will be done again; there is nothing new under the sun.' Ecclesiastes 1:9. Certainly not Mr. Haik's lawsuit."

To read the full opinion, click here.

Tuesday, March 14, 2017

2017 Legislative Review of Water-Related Bills

The 2017 General Session of the Utah Legislature ended on Thursday, March 9. The last day for the Governor to sign or veto bills is March 29. Here are the highlights of the water-related bills that passed and didn't pass during the session:
 
BILLS THAT PASSED
 
HB 84 - Water Law - Nonuse Requirements
Rep. Tim Hawkes
House Bill 84, which was recommended by the Executive Water Rights Task Force, clarifies that: (1) an approved nonuse application excuses the requirement of beneficial use from the nonuse application's filing date; (2) the filing or approval of a nonuse application, or a series of nonuse applications, does not constitute beneficial use or protect a water right that is already subject to forfeiture; and (3) a nonuse application does not bar a water right owner from using the water as permitted under the water right or from claiming any available defense against forfeiture. The bill also modifies the procedures for instituting a forfeiture action for nonuse.
 
HB 118 - Authority of State Engineer
Rep. Tim Hawkes
House Bill 118, which was recommended by the Executive Water Rights Task Force, allows the State Engineer to develop rules regarding the "duty of water" or in other words, a quantification of the maximum amount of water that can be beneficially used, without waste, for a particular purpose. Although the State Engineer and the courts in General Adjudications have used this concept for over 100 years, there is no statutory authority for this concept. This bill gives the State Engineer express authority to do what is already being done with respect to the duty of water.

HB 180 (2nd Sub.) – Water Right Transfer Amendments
Rep. Logan Wilde
House Bill 180 modifies Utah Code section 73-3-18 regarding assignment of an unperfected application to appropriate. If an assignment is made using the Division of Water Rights’ assignment form, and it is recorded and forwarded to the Division, the assignment will be treated as a report ofconveyance for updating title on the Division’s database.

HB 181 – State Engineer Fee Application Amendments
Rep. Logan Wilde
House Bill 181, which was recommended by the Executive Water Rights Task Force, updates the name of an "extension of time in which to resume use application" to its current name used elsewhere in the code, i.e., a "nonuse application."

HB 301 (1st Sub.) – Canal Safety Amendments
Rep. Scott D. Sandall
House Bill 301 removes a requirement that a canal owner receive notice from a municipality or county of any proposed subdivision located within 100 feet of the canal. The bill adds a more defined requirement that a municipality or county not approve or reject a subdivision that is located within 100 feet of canal until after the municipality has provided at least 20 days’ notice of the subdivision to the canal owner so that the canal owner can provide input regarding access to the canal, maintenance of the canal, canal protection, and canal safety. The bill also makes minor changes to the requirement that canal owners provide contact information and canal location information to each municipality and county in which its canal is located.

SB 11 (2nd Sub.) - Water Development Commission Amendments
Sen. Margaret Dayton
Senate Bill 11 renames the State Water Development Commission to the Legislative Water Development Commission and modifies the membership of the Commission. The bill removes all of the non-legislative, non-voting members from the Commission: the state treasurer; two representatives of the Governor's Office, including one representative from the Governor's Office of Management and Budget; nine representatives of different river districts; the executive director of the Department of Natural Resources; the executive director of the Department of Environmental Quality; the commissioner of agriculture and food; a member of the Board of Water Resources; a representative of an organized environmental group; a representative of agricultural production; and a representative with experience with finance and economics. The bill adds that non-voting members can be appointed to two-year terms by the Legislative Management Committee upon recommendation of the Commission co-chairs.

SB 45 – Retail Water Line Disclosure Amendments
Sen. Karen Mayne
Senate Bill 45 affects public entities that provide culinary water service to customers. The bill requires that twice per calendar year, these public retail water providers must provide a disclosure to its customers that states whether the property owner or the provider is responsible for repairs to the water line that serves the customer. The purpose of this requirement is to give better clarification of where the provider's responsibility for water line maintenance ends and where the property owner's responsibility for water line maintenance begins. The bill modifies Utah Code section 11-8-4, which was enacted in 2016 and requires the same disclosure for sewer service providers relative to sewer line maintenance responsibilities.

SB 63 (1st Sub.) - Nonprofit Corporation Amendments – Water Companies
Sen. Margaret Dayton
Senate Bill 63 modifies the Utah Revised Nonprofit Corporation Act to change the default rule on the transferability of shares in a water company from non-transferrable to transferrable, unless the articles or bylaws of the water company specify otherwise. The bill further specifies that any restrictions on the transfer of shares in a water company must be reasonable, adopted in good faith and for a legitimate purpose, adopted in the best interests of the water company and its shareholders, and not discriminate against any individual shareholder or class of shareholders. The bill also clarifies that a shareholder in a water company has “an equitable, beneficial interest in the use of the water supply of the water company, proportionate to the shareholder’s shares in the water company, which is an interest in real property” and has a right to receive his/her proportionate share of the company’s water. The bill also expressly allows a water company to purchase delinquent shares of stock and clarifies the process for distributions to shareholders in a water company.
 
SB 214 (1st Sub.) - Public Water Supplier Amendments
Sen. Jani Iwamoto
Senate Bill 214 originally proposed to modify Utah's instream flow statute (Section 73-3-30) to allow public water suppliers to change perfected water rights for instream use. The substituted bill acknowledged that the instream flow issue is very complex and that additional work and input from a number of stakeholders is necessary before any changes are made to the instream flow statute. The bill encourages the Water Development Commission and the Executive Water Task Force to study possible options for expanding the list of those who can file for instream flow rights.
 
SJR 11 - Joint Resolution Regarding the Central Utah Project
Sen. Curtis S. Bramble
Senate Joint Resolution 11 urges the United States Congress and the new administration to budget sufficient funds to enable the Bonneville Unit of the Central Utah Project to be completed.
 
BILLS THAT DID NOT PASS
 
HB 225 – Water Commissioner Amendments
Rep. Scott Chew
House Bill 225 exempts the State Engineer from the Utah Procurement Code with respect to the Water Commissioner Fund, but requires the State Engineer to make administrative rules governing the use of the Fund. The bill also clarifies and expands the items that can be paid from the Fund, including benefits for commissioners, expenses approved by a distribution system committee, and administration expenses of a distribution system committee.

HB 304 (1st Sub.) – Water Conservation Amendments
Rep. Gage Froerer
House Bill 304 modifies water conservation plan requirements, including requiring each water conservancy district and each retail water provider to have a water conservation plan that includes goals for reduction in residential, commercial, and industrial uses, and water conservation measures for these same uses, and including landscaping. The bill also changes some recommended components of a water conservation plan into required components, such as information regarding the installation of water efficient fixtures and appliances; retail water rate structures designed to encourage conservation; and existing or proposed regulations designed to encourage conservation, including restrictions on grass landscaping.

HB 444 – Water Appropriation Modifications
Rep. Merrill F. Nelson
House Bill 444 clarifies which State divisions, departments, and entities can file applications to appropriate water. The bill adds language that these State entities must go through the same appropriation process as a private property owner would have to go through, and that the State entities have no special rights by virtue of being a public entity or public water supplier.
 
SB 228 (1st Sub.) - Water Infrastructure Revisions
Sen. J. Stuart Adams
Senate Bill 228  seeks to modify rules about loans from the Board of Water Resources, including a requirement that the Board establish a plan to require loan applicants to submit their project plans for an independent value engineering review to examine ways that the project’s value can be increased through reducing costs and improving function.
 
SB 271 - Canal and Ditch Modifications
Sen. David P. Hinkins
Senate Bill 271 seeks to allow a property owner whose land is crossed by a canal, ditch, drain, or “buried irrigation conduit” to change the location of the canal, ditch, drain, or “buried irrigation conduit,” subject to several requirements and limitations. The property owner must provide written notice to the water owner, including detailed plans and specifications prepared by a licenses engineer. The property owner must provide contact information for two other engineers to independently review the plans and specifications, and must pay for the cost of this independent review if the water owner elects to use one of the two engineers suggested by the property owner. Alternatively, the water owner can select its own independent engineer, but is responsible for paying the costs incurred for this independent review. The property owner and water owner must negotiate terms regarding any restrictions or impediments to the flow of water through the water channel. This bill would not allow for culinary water lines or secondary water lines to be moved.
 
 

Friday, February 24, 2017

Klamath Irrigation v. United States

The United States Court of Federal Claims recently issued its decision in the case of Klamath Irrigation v. United States. The case dealt with a taking of water rights by the federal government.

The case started when a group of landowners, irrigation districts, and private corporations in California and Oregon alleged that the United States Bureau of Reclamation had effected a taking of their water rights in 2001. The plaintiffs were all water users in the Klamath River Basin. The Klamath Project is managed and operated by the United States Bureau of Reclamation, and is subject to the requirements of the Endangered Species Act. In early 2001, the Bureau determined that the year would be a critically dry year due to drought, and that three species of fish (Lost River sucker, shortnose sucker, and SONCC coho salmon) would likely be affected. As a result, the Bureau terminated delivery of Klamath Project water. The plaintiffs claimed that the Bureau's action of terminating the delivery of water from the Klamath Project constituted a taking of their water without just compensation in violation of the Fifth Amendment to the U.S. Constitution.

The primary issue in the case was whether the plaintiffs' taking claims should be analyzed as regulatory takings or as physical takings. The distinction is important because physical takings are per se takings that require the government to compensate the owner without any further inquiry, but regulatory takings are analyzed and compensated differently. The Court looked to prior cases and precedent to answer the question. In the end, the Court determined that the federal government's action in this case should be analyzed as physical takings rather than as regulatory takings.

To read the full court opinion, click here.

Friday, February 17, 2017

ABA Water Law Conference

The American Bar Association is holding its 35th Annual Water Law Conference at the Loews Hollywood Hotel in Los Angeles, California, on March 27-29, 2017. The Conference will bring together prominent water attorneys and other water professionals from around the country. Smith Hartvigsen has played a key role in the Conference’s development, with Nathan Bracken chairing the meeting. Craig Smith will also speak on recent developments involving the public trust doctrine. Other topics include agricultural water conservation, state and federal conflicts over groundwater management, climate-related impacts on infrastructure, and other issues. The deadline for early registration is Monday, February 20. Click here for the conference brochure and here for the general hotel and conference logistics information.

Thursday, February 16, 2017

Public Meeting Concerning the General Adjudication in City Creek Area


The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the City Creek area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 9). The City Creek area generally includes the City Creek drainage in the mountains east of Salt Lake City and a portion of Salt Lake City from 700 East on the east to 300 West on the west, and from 900 South on the south to the Salt Lake County / Davis County line on the north (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the City Creek area
When: March 15, 2017, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1050, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729826), 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 City Creek Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the City Creek area to survey existing water rights and investigate water user's claims. 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 City Creek area, please contact Blake Bingham at (801)538-7345.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

For more information, click here.
 


Tuesday, February 7, 2017

Water Rights Certification Course

The Rural Water Association of Utah, in conjunction with the Utah Division of Water Rights, offers a two-day water rights training course. The course covers a variety of water right topics, including priority, change applications, water rights vs. water shares, water right title, well regulations, and much more. At the end of the training course, there is a certification exam that you can take.

This course is very informative, and I highly recommend it to anyone wanting to learn about Utah water rights. I took the course when it was first offered in 2014 (in fact, I was the first person to complete the certification exam), and I learned a lot from attending.

The course is being offered on April 6-7, 2017. For more information about the course, click here.

Friday, January 20, 2017

2017 Legislative Preview

The 2017 legislative session begins next week. Below are a list of bills relating to water that may be considered during the session.

Bills That Have Been Numbered. The following bills have been numbered and the text of the proposed bills have been released.

H.B. 84: Water Law - Nonuse Applications
House Bill 84, which is sponsored by Representative Tim Hawkes and has been recommended by the Executive Water Rights Task Force, clarifies that: (1) an approved nonuse application excuses the requirement of beneficial use from the nonuse application's filing date; (2) the filing or approval of a nonuse application, or a series of nonuse applications, does not constitute beneficial use or protect a water right that is already subject to forfeiture; and (3) a nonuse application does not bar a water right owner from using the water as permitted under the water right or from claiming any available defense against forfeiture. The bill also modifies the procedures for instituting a forfeiture action for nonuse.

H.B. 118: Authority of State Engineer
House Bill 118, which is sponsored by Representative Tim Hawkes and has been recommended by the Executive Water Rights Task Force, allows the State Engineer to develop rules regarding the "duty of water" or in other words, a quantification of the maximum amount of water that can be beneficially used, without waste, for a particular purpose. Although the State Engineer and the courts in General Adjudications have used this concept for over 100 years, there is no statutory authority for this concept. This bill gives the State Engineer express authority to do what is already being done with respect to the duty of water.

S.B. 11: Water Development Commission Amendments
Senate Bill 11, which is sponsored by Senator Margaret Dayton and has been recommended by the Natural Resources, Agriculture, and Environment Interim Committee, modifies the membership of the State Water Development Commission. The bill removes the following nonvoting members from the Commission: the state treasurer; two representatives of the Governor's Office, including one representative from the Governor's Office of Management and Budget; the executive director of the Department of Natural Resources; the executive director of the Department of Environmental Quality; the commissioner of agriculture and food; a member of the Board of Water Resources; and a representative with experience with finance and economics. The bill adds one nonvoting member to the Commission: a representative of the governor's cabinet or the Governor's Office.

S.B. 45: Retail Water Line Disclosure Amendments
Senate Bill 45, which is sponsored by Senator Karen Mayne, affects public entities that provide culinary water service to customers. The bill requires that these public retail water providers must provide an annual disclosure to its customers that states whether the property owner or the provider is responsible for repairs to the water line that serves the customer. The purpose of the bill is to give better clarification of where the provider's responsibility for water line maintenance ends and where the property owner's responsibility for water line maintenance begins. The bill modifies Utah Code section 11-8-4, which was enacted in 2016 and requires the same disclosure for sewer service providers relative to sewer line maintenance responsibilities.

S.B. 63: Nonprofit Corporation Amendments - Water Companies
Senate Bill 63, which is sponsored by Senator Margaret Dayton and has been recommended by the Executive Water Rights Task Force, modifies the Utah Revised Nonprofit Corporation Act to change the default rule on the transferability of shares in a water company from non-transferrable to transferrable, unless the articles or bylaws of the water company specify otherwise. It states that a shareholder in a water company has "an equitable, beneficial interest in the use of the water supply of the water company, proportionate to the shareholder's shares in the water company, which interest is in the nature of real property." It also now expressly allows a water company to purchase delinquent shares of stock and clarifies the process for distributions to shareholders in a water company. The transferability of shares in a water company is an issue that was raised in the Utah Supreme Court case of Southam v. South Despain Ditch Company.

Bills That Have Not Been Numbered. The following bill files have been opened, but the text has not been released -- although preliminary drafts of some bills have been issued.

Fee List Amendments (Rep. Logan Wilde)
Preliminary drafts of this bill, which has been recommended by the Executive Water Rights Task Force, update the name of an "Extension of Time to Resume Use Application" to its current name used elsewhere in the code, i.e., a "Nonuse Application."

Assignment Addendums (Rep. Logan Wilde)
Preliminary drafts of this bill, which has been recommended by the Executive Water Rights Task Force, allow "Water Right Deed Addendums" to be used and recorded with water right "Assignments" and to have those Addendums be forwarded to the State Engineer.

Public Water Supplier Amendments - Instream Flows (Sen. Jani Iwamoto)
Preliminary drafts of this bill modify Utah's instream flow statute (Section 73-3-30) to allow public water suppliers to change perfected water rights for instream use. The instream flows must be located within the public water supplier's jurisdictional boundaries and the related change application can be up to ten years. The bill would also specify that all approved instream flow change applications will be administered according to the change application's priority date relative to all other rights in the stream system, thereby making the application the most junior right in the system. This represents a change from the current statute, which specifies that change applications for instream flows are distributed according to the application's priority date relative only to other rights the stream section specified in the application, rather than the entire stream system.

Public Water Supplier Amendments (Rep. Merrill Nelson)

Great Salt Lake Commission (Rep. Merrill Nelson)

Water Commissioner Expenses (Rep. Scott Chew)

Water Infrastructure Revisions (Sen. Stuart Adams)

Water Law - Protected Purchaser Amendments (Sen. Margaret Dayton)

Canal Safety
The Executive Water Task Force is recommending changes to the process municipalities follow when notifying canal owners of subdivisions that have been approved within 100 feet of the center line of a canal. Currently, municipalities mostly rely on information they receive from canal owners. The Task Force recommends legislation that would require cities to also use the State Engineer's canal inventory along with information provided by the surveyor who makes the plat for the subdivision. The Task Force also recommends that surveyors consult with the owners of canals that are located within a proposed subdivision or within 100 feet of the subdivision when preparing subdivision plats. Lastly, the Task Force recommends that the State Engineer include enclosed canals within its canal inventory and recommends extending the deadline to complete the inventory until 2019.