Utah Water Law and Water Rights

2012 Legislative Preview on Water Issues

2012-01-21T11:42:00.004-07:00

The following article was written by Matthew Jensen, a partner 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.

The 2012 General Session of the Utah Legislature runs from Monday, January 23, 2012 through Thursday, March 8, 2012. As a result of some major water-related decisions this past summer from the Utah Supreme Court, there will likely be some significant water bills considered during the session. Because of an apparent bottleneck in legislative research and drafting, many of the proposed bills have not yet been formally processed and do not have a bill number assigned. The following legislative preview is divided into three groups: (1) bills addressing significant policy issues; (2) bills proposing technical or minor revisions, refinements, and/or clarifications to the existing laws; and (3) bills that have been discussed but not released for public review and which may or may not surface during the session.

Bills Addressing Significant Policy Issues

S.B. 11 - Department of Environmental Quality Boards Adjudicative Proceedings - This bill, sponsored by Senator Margaret Dayton, creates a distinct type of review proceedings for permits decisions made by five divisions within the Department of Environmental Quality (i.e., Water Quality, Drinking Water, Air Quality, Radiation Control, and Solid & Hazardous Waste). S.B. 11 provides that a permit order may be reviewed by an administrative law judge (ALJ) on the record. Specifically, only issues raised in the initial permit review process may be addressed on review. The ALJ submits a proposed order to the relevant board, which then makes the final decision on the review. The Board's decision can then be appealed to the Court of Appeals for a review of the decision on the record. The Natural Resources, Agriculture, and Environment Interim Committee recommended passage of this bill.

S.B. 21 - Department of Environmental Quality Boards Revisions - This bill, also sponsored by Senator Dayton, revises many attributes and powers of the various boards associated with the Department of Environmental Quality (DEQ). Specifically, the bill assigns executive functions to the division directors rather than the boards. It also changes the composition of the boards and identifies qualifications of individual members. It requires compliance with attendance and conflict of interest standards. And it transfers some powers and duties previously assigned to the boards to the respective directors of the division in DEQ. This bill is currently 187 pages long and represents a significant shift in how decisions are made within DEQ. The Natural Resources, Agriculture, and Environment Interim Committee recommended passage of this bill.

H.B. 67 - Stormwater Capture Amendments - This bill, sponsored by Rep. Fred C. Cox, amends Utah Code section 73-3-1.5, the rainwater harvesting section, to allow for beneficial use of up to 2,500 cubic feet per parcel (18,701 gallons or 0.057 acre-feet) of water without a water right if the primary purpose of capturing the water is stormwater management or pollution control. A person must first submit a simple form to the State Engineer before beneficially using any captured precipitation. This bill was somewhat of a surprise to the water community and was not discussed by either the Water Coalition or the Executive Water Taskforce.

Bills Making Minor Changes or Technical Revisions

Water and Irrigation Amendments - This bill, which has not yet been made public, will be sponsored by Rep. Neal Hendrickson, and is believed to effect a number of largely technical changes proposed by the State Engineer including the following: (1) an amendment of section 73-1-4 that removes a virtual forfeiture exemption for the sometimes-decades-long period between when the State Engineer issues a proposed determination and when a final decree is issued by the court; (2) an amendment of section 73-2-1 that makes rulemaking related to sewage effluent reuse discretionary for the State Engineer; (3) an amendment of section 73-2-22 that updates the name of the Emergency Management Administration Council; (4) an amendment of section 73-3-12 to further define how the State Engineer should assess proof extensions for wholesale electrical cooperatives beyond fifty years; (5) an amendment of section 73-3-16 that removes the requirement that a submission of proof have both a professional engineer stamp and a notary stamp; (6) an amendment of section 73-3-20 that allows small exchange applications that have lapsed to be reinstated with a later priority date; and (7) an amendment to sections 73-4-3, 73-4-4, and 73-4-11 that provides that notices in general adjudications be completed by the Division of Water Rights rather than the court clerk.

Bills That May Surface During the Session

Change Applications I - For the last four years, the State Engineer has requested that the scope of his review of historical beneficial use in acting upon change applications be more clearly defined by statute. This past summer, the Utah Supreme Court issued the Jensen v. Jones opinion that concluded that the State Engineer lacks authority to consider nonuse of a water right when ruling on a change application. As a result, the Water Coalition and Executive Taskforce have recommended approval of a bill that will give the State Engineer statutory authority to consider nonuse and deny or limit a change application if there is nonuse, using a framework that gives the applicant additional notice and protections.

Change Applications II - During 2011, the Utah Supreme Court issued the Salt Lake City v. Big Ditch Irrigation Co. opinion that determined that a water user may be able to file a change application on a water right even if he is not the record owner of the right. As a result, the Water Coalition and Executive Taskforce have recommended approval of a bill that will allow a change application to be filed only by (1) the record owner of the right, (2) one who has permission from that record owner, or (3) a water company shareholder under Utah Code section 73-3-3.5. This proposed amendment will likely be considered as a consolidated bill with the amendment discussed above as Change Application I.

Change Applications III - As an additional response to the Salt Lake City v. Big Ditch Irrigation Co. case, there has been a proposal to amend Utah Code section 73-3-3 to require that a change application on a water right owned by the federal government as part of Bureau of Reclamation project must be signed by both the federal government and the local sponsor of that project.

State Water Development Commission Amendments - This bill, which has not yet been made public, will be sponsored by Senator Margaret Dayton, and is believed to seek conversion of the commission into a permanent legislative task force or commission that addresses water needs of the state.

Other Bill Request Topics - Navajo Water Rights Compensation Account (C. Watkins), Safe Drinking Water Disclosure Act (R. Barrus), Special District Amendments (J. Stevenson)

Are You Ready for the Canal Safety Plan Deadline?

2012-01-21T11:32:00.003-07:00

The following article was written by David Hartvigsen, a partner 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.

In response to the tragic loss of life when a landslide breached the Logan & Northern Canal in Logan on July 11, 2009, the Utah State Legislature passed two canal safety bills - 2010 House Bill 298, Land Use Authority Notification of Canal Development, and 2010 House Bill 60, Water Conveyance Facilities Safety Act (Act). The Utah Association of Conservation Districts (UACD) has helped the Logan & Northern Irrigation Company (LNIC) and the Logan, Hyde Park and Smithfield Canal Company (which is allowing LNIC to use part of its canal to get water around the breach) complete a joint Safety Plan on their canal systems. Though a confidential and protected document under the Act, it follows the template plan that is now available to all irrigation companies through UACD and the Utah Division of Water Resources (DWRe).

The purpose of House Bill 298 was to ensure that residential construction projects within close proximity to a canal do not proceed until the canal owner has been given an opportunity to review the project. Thus the canal owner can protect the integrity of the canal system and assist homeowners and developers to safeguard adjacent water structures. Canal owners had until July 1, 2010 to provide a general description of their canal, including contact information, to each county or municipality in which the canal operates. If you haven't provided this information yet, the sooner the better, because a homeowner or developer could argue that damages or losses could have been avoided if this information had been timely provided.

The purpose of House Bill 60 was to encourage canal owners to identify the risks associated with their canal systems and to develop solutions to reduce or eliminate those risks. This information is to be documented in a Water Conveyance Facility Safety Management Plan ("Safety Plan") by no later than May 1, 2013. As a means of promoting compliance with the Act, DWRe may only provide financial assistance to canal companies that have met this deadline, with some limited exceptions. If your canal company has not yet started on the inspections needed for the Safety Plan, you should be including funding in this year's budget and assessments to get that work done because this summer is the last summer before the deadline to do the inspections and field work. It is very difficult to assess site conditions and certain of the risk factors when the canal is under a blanket of snow.

In January 2011, UACD partnered with various state, federal, and private organizations, including the Strawberry-Highline Canal Company, DWRe, and the U.S. Bureau of Reclamation, to produce a Safety Plan template. Canal companies can use this template as they develop their own Safety Plan. The template, as well as the full text of House Bills 60 and 298, are available online here.

The main canal risk factors that must be addressed in the Safety Plan are slope instability and storm water. Subsection 4 of House Bill 60 places the responsibility on the municipalities to identify storm water inlets into canals and estimate the maximum flow that could occur at each inlet. As canal companies have sought to obtain this information from local governments, it has become apparent that many cities do not have accurate data nor up-to-date maps of their storm water drainage systems. On canals with multiple storm water inlets, canal operators have faced the task of balancing water levels so that there was adequate capacity for storm water each time a large rainfall occurred. However, city governments and canal companies have begun to work more closely together for comprehensive storm water management.

A water company may be exempt from the requirement of adopting a Safety Plan depending on the type of water conveyance facility owned by the company. Natural channels and pipelines are not considered water conveyance facilities according to House Bill 60. In addition, since the bill was meant to address the risks to population and infrastructure, canals that don't have any potential risk locations may also be exempt. A potential risk location is defined as a segment of a water conveyance facility that, if it were to fail, would create a high probability of causing loss of human life or extensive damage to infrastructure. To determine if their canals have potential risk locations, canal companies must consider the following parameters: location, elevation, soil conditions, structural instability, water volume or pressure, or other conditions. Each parameter must be evaluated in relation to existing and future urban development.

As water companies continue to implement House Bill 60, there will be additional issues and concerns that come forth. A recent request was made to DWRe to consider different canal systems within a single company as separate entities. The canal company determined that one canal system had no potential risk locations and was therefore exempt from adopting a Safety Plan, even though other canal systems owned by the company, once they have been fully evaluated, may still require the adoption of a Safety Plan. DWRe will evaluate these types of requests on an individual basis.

Berman v. Yarbrough

2011-12-29T13:48:00.003-07:00

The Utah Supreme Court recently issued its opinion in Berman v. Yarbrough. Mr. Berman owns water rights in both Utah and Wyoming that he uses on property in Uinta County, Wyoming. In the early 2000s, Wyoming water officials determined that part of Mr. Berman’s Utah water rights were not properly documented according to Wyoming procedure, and therefore began delivering only a portion of Mr. Berman’s Utah water rights.

Mr. Berman filed suit in Utah district court, seeking (1) to have his Utah water rights quantified and (2) to have the court require the Wyoming water officials to deliver the water he is entitled to under his Utah water rights. The court issued an order that quantified Mr. Berman’s Utah water rights, but did not order the Wyoming water officials to take any action with respect to the Utah water rights.

A few years later, Wyoming water officials again refused to deliver all of Mr. Berman’s Utah water rights. Mr. Berman filed a Motion to Enforce with the Utah district court, in which Mr. Berman asked the court to force the Wyoming water officials to deliver the water he was entitled to under the court’s prior order. The court denied the Motion to Enforce, holding that it did not have jurisdiction to tell Wyoming water officials how to interpret the order. Mr. Berman appealed the court’s decision to the Utah Supreme Court.

The Supreme Court began its analysis by noting that Motions to Enforce are appropriate only when a party fails to comply with his or her legal obligations under a court order or a binding settlement agreement. The Supreme Court also noted that the court order must contain an unequivocal mandate in order for a Motion to Enforce to be appropriate. In this case, the Utah court’s order quantifying Mr. Berman’s Utah water rights did not contain any mandate for Wyoming water officials, let alone an unequivocal mandate. Accordingly, the Utah Supreme Court determined that the Motion to Enforce was procedurally improper, and therefore properly denied.

To read the full opinion, click here.

Liston v. Liston

2011-12-22T16:17:00.003-07:00

The Utah Court of Appeals recently issued its decision in Liston v. Liston. Although primarily a divorce case, a portion of the opinion addresses an issue of water law.

In the case, the husband and wife went through divorce proceedings. One of their assets was a home. The couple also had four shares of stock in Holliday Water Company. As part of a mediation agreement, the wife agreed to quitclaim her interest in the home to the husband for $10,000. The husband later asserted that the four shares were appurtenant to the home, and therefore belonged to him pursuant to the mediation agreement and the quitclaim deed from the wife. The trial court disagreed, and held that only one share was necessary to supply water for the home, and that this share therefore went to the husband along with the home. The trial court further held that the other three shares were not appurtenant to the home, and therefore the husband and wife were each entitled to half of the value of the shares, which was determined to be $5,000 per share.

In the appeal, the husband asserted that the trial court was incorrect in its conclusions regarding the three shares. The Court of Appeals, however, affirmed the trial court's holding. The Court of Appeals noted that Utah Code section 73-1-11(4) provides that shares of stock in a mutual water company are not deemed appurtenant to land. Accordingly, the Court of Appeals concluded that the three shares could not have passed with the home when the wife quitclaimed her interest in the home to the husband. Thus, the wife was entitled to $7,500, representing half of the value of the three shares.

As an interesting note, the Court of Appeals included a footnote in its opinion that points out that the parties in the case had confused water shares and water rights. The Court of Appeals made it a point to clarify the difference between a water share and a water right.

What Is a Pending Adjudication Claim?

2011-11-30T10:05:00.005-07:00

According to the Utah Division of Water Rights, a Pending Adjudication Claim "is a water user claim submitted to the Division as part of a general adjudication, with no other basis for the claim in [the Division's] records, and without the benefit of being published in a proposed determination and affirmed by the district court."

The most common Pending Adjudication Claim is demonstrated by the following example (based on a real matter that I worked on):
Farmer Jones owns 20 acres of land that he irrigates with water from a small creek, just like his family has done since the 1890s. Although Farmer Jones has a valid water right based on diligence (i.e., pre-1903 water use), no diligence claim has ever been filed to put the water right on record. In the early 1970s, the Utah Division of Water Rights initiates a general adjudication in the area. Farmer Jones fills out and submits a Water Users Claim, under which he seeks to establish the 1890 right to divert water from the creek for the irrigation of 20 acres. Unfortunately, however, the general adjudication process is never completed, and no proposed determination or decree is ever published.

The Division of Water Rights would classify Farmer Jones' claimed water right as a Pending Adjudication Claim. Note that it is a "claimed" water right, as the Division does not recognize it as a fully-established water right. The Division of Water Rights will not allow Farmer Jones to take certain actions on his water right (like file a Change Application) until the water right is fully established, which requires that either (1) Farmer Jones files a diligence claim, or (2) a proposed determination or decree is published in the general adjudication. The likelihood of #2 occurring is very low, since it has been 40 years since the general adjudication began. Thus, Farmer Jones would need to file a diligence claim to establish the water right.

Water rights that are classified as Pending Adjudication Claims will also have a large warning on the water rights database that states "Please be aware that the claim under this Water Right has NOT been established in accordance with statute and its validity is in question. Therefore, CAUTION is advised when relying upon this record." For this reason, it may be difficult to sell a Pending Adjudication Claim unless the water right has been established by the filing of a diligence claim.

Utah Stream Access Coalition - Motion for Summary Judgment

2011-10-04T16:10:00.007-06:00

A quick update on the Provo River stream access lawsuit between Utah Stream Access Coalition and ATC Realty Sixteen Inc.

First, there have been a few changes in the parties to the lawsuit. The State of Utah has agreed to intervene and defend against the Coalition's constitutional challenges to House Bill 141 passed by the Utah Legislature in 2010. In exchange, the Coalition has agreed to dismiss the Utah Division of Wildlife Resources, the Utah Division of Parks and Recreation, and Sheriff Todd Bonner as defendants.

Second, the Coalition has filed a Motion for Summary Judgment (in essence, a motion for the court to rule in the Coalition's favor without going through a trial). In the Motion, the Coalition argues that HB 141:

"Violates the public's constitutional right to use Utah's natural waters for all recreational activities that use the water and to touch the privately-owned beds of such water in ways incidental to those uses."

"Violates Article XX, Sect. 1 of the Utah Constitution" (public lands held in trust for the people)

"Violates Article V of the Utah Constitution" (distribution of powers between the three branches of government)

"Violates the public trust doctrine" (the principle that public resources should be managed by the government for the benefit of the people)

I have a copy of the Motion for Summary Judgment, and I would be happy to email a copy to anyone who is interested. Click here for my email address.

Montana v. Wyoming

2011-08-10T09:42:00.001-06:00

The following article was written by Matthew Jensen, a partner 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.

It is somewhat rare that the U.S. Supreme Court delves into the world of western water law, but it recently did so in a case between the states of Montana and Wyoming. This case is not an appeal of any decision by a lower court, because when one state sues another, the case goes directly to the U.S. Supreme Court for determination. The central issue in the case is whether Wyoming violated the Yellowstone River Compact because Wyoming water users had converted from flood irrigation to sprinkle irrigation, which increased the consumption of water in Wyoming beyond historic (pre-1950) levels.

Wyoming, Montana, and North Dakota entered into the Yellowstone River Compact in 1951, and Congress then ratified the Compact. The Compact provided that beneficial users of water on the Yellowstone River system with priority dates before January 1, 1950 "shall continue to be enjoyed in accordance with . . . the doctrine of appropriation." Montana claimed, among other claims, that more efficient irrigation practices were consuming more water on the Wyoming (upstream) side, which left less water for the pre-1950 Montana water rights. Montana based its claims first on general principles of the prior appropriation doctrine, and second on the Compact's definition of "beneficial use."

The Court concluded that, although "the law of return flows is an unclear area of the appropriation doctrine," the general rule allows a water user to increase his irrigation efficiency even if that harms downstream users. First, the injury that a change in water use cannot injure other water users does not apply to changes in crop type or irrigation method, but applies to changes in points of diversion, or place or purpose of use. Second, most western states allow an appropriator to recapture and reuse water on the same acreage as long as it remains on the property and within the water user's control. Thus, the general rule already allows increased consumption through recapture.

The Court also rejected Montana's second claim that the compact itself strictly limited Wyoming to a maximum amount of depletion. The Court indicated that other compacts like the Colorado River Compact expressly limit depletion amounts, but the Yellowstone River Compact does not. Therefore, the Court concluded that the Compact's definition of beneficial use simple acknowledged a preference for consumptive uses rather than nonconsumptive uses.

Ultimately, this case is not binding on any state court, including Utah courts. The Supreme Court specifically acknowledged that state courts control the doctrine of prior appropriation. Nevertheless, the discussion found in the case is instructive of general principles of western water law.

(Click here to read the full text of the Supreme Court's Opinion)

Water Rights Addendum

2011-07-05T16:45:00.005-06:00

Beginning July 1 of this year, a person submitting a deed to a county recorder's office may also submit an attached "Water Rights Addendum" (also commonly referred to as a "Deed Rider"). These Water Rights Addenda were originally approved by House Bill 314, passed by the Utah legislature in 2010, which added Section 57-3-109 to the Utah Code.

There are two different forms. The Water Rights Addendum to Land Deeds allows the seller of real estate to specify what water rights (if any) are being conveyed with the land. The Water Rights Addendum to Water Deeds allows the seller of a water right to include additional specification about the water right (or portion of water right) conveyed.

The Water Rights Addenda will be an invaluable tool in clarifying water rights conveyed as part of a real estate transaction. Oftentimes in real estate transactions, there is little or no thought given to the water rights conveyed. Many of the water rights disputes I deal with could have been prevented if the buyer and seller had thought about and specified the water rights conveyed (or not conveyed). The Addenda will go a long way in reducing disputes associated with appurtenance and unclear ownership of water rights--if the Addenda are used correctly.

Even though the Addenda are not required, any buyer or seller of land or water rights will want to use the Addenda, and all real estate agents, title agents, and others involved in real estate transactions should understand and utilize the Addenda. If you are buying or selling land or water rights, it would be wise for you to insist on a Water Rights Addendum being included with the deed.

As a note, an additional bonus of the Addenda is that they can save you the cost of a Report of Conveyance. Under the statute, each county recorder is to forward recorded Addenda to the Division of Water Rights' title department. If the water right owner on the Division's records is the same person as the grantee in the Addendum, the Division will update title without having to file a Report of Conveyance.

Salt Lake City v. Big Ditch Irrigation Company

2011-06-28T17:19:00.002-06:00

Today, the Utah Supreme Court issued its opinion in the case of Salt Lake City v. Big Ditch Irrigation Company. The case centers on a 1905 water exchange agreement (“the Agreement”) between Salt Lake City (“the City”) and Big Ditch Irrigation Company (“Big Ditch”). The Agreement states that Big Ditch “grants, bargains and sells” its right to water from Big Cottonwood Creek, and in return, the City would “perpetually and continuously deliver” water suitable for irrigation to the head of Big Ditch’s canal. Big Ditch and the City have operated under the Agreement for over 100 years. However, the amount of water Big Ditch has received from the City has declined over the years, as residential and commercial development in Big Ditch’s historic service area has reduced the number of irrigated acres.

In 2006, Big Ditch and some of its shareholders filed change applications to modify their use of the exchange water received from the City. The City protested, asserting that Big Ditch and its shareholders did not own the water rights, and were therefore not entitled to file change applications. The City then filed suit against Big Ditch and the shareholders, asserting that (1) under the Agreement, the City holds title to the Big Cottonwood Creek water rights and the exchanged water; (2) that Big Ditch and its shareholders do not have a right to file a change application on the exchanged water; (3) that the City is not in breach of its delivery obligations under the Agreement; and (4) that Big Ditch and its shareholders have the contractual right to receive only the amount of water necessary to satisfy the irrigation needs of Big Ditch shareholders whose lands are served by the Big Ditch system. Big Ditch and the shareholders filed counterclaims against the City, asserting among other things that the City was in violation of the Utah Antitrust Act.

In a series of decisions, the district court ruled in favor of the City. Specifically, the district court (1) denied the individual shareholders’ motion to dismiss the City’s claims against them; (2) held that the City holds title to all of the water under the Agreement; (3) held that Big Ditch did not have the right to file change applications on the exchanged water; (4) held that Big Ditch was barred from demanding the full amount of water to which it was entitled under the Agreement; and (5) dismissed the counterclaim against the City for violation of the Utah Antitrust Act.

The district court’s rulings were appealed to the Utah Supreme Court (“the Court”). The Court reviewed each of the five issues outlined above, ultimately concluding that the district court was correct on some issues, but erred on other issues. The Court’s conclusions on each of the five issues are discussed below.

First, the Court held that the district court erred when it denied the individual shareholders’ motion to dismiss the City’s claims against them. The Court noted that the district court had used the wrong legal standard when reviewing the motion to dismiss. Additionally, the Court noted that the shareholders’ rights were derivative of the corporation (Big Ditch), and that the corporation—and not the individual shareholders—were parties to the Agreement. Accordingly, the Court held the individual shareholder had no privity of contract with or duty to the City. Thus, the Court ruled that the individual shareholders were not properly named as defendants and that the district court should have dismissed all of the City’s claims against the individual shareholders.

Second, the Court affirmed the district court’s ruling that the City holds title to the water under the Agreement. The Court noted that under the Agreement, Big Ditch “grants, bargains and sells” its right to Big Cottonwood Creek water to the City. The Court noted that this was conveyance language that passed title of the water rights from Big Ditch to the City. On the other hand, the City agreed to “perpetually and continuously deliver” water to Big Ditch. The Court noted that this was not conveyance language, and therefore did not transfer title to the exchanged water from the City to Big Ditch. In sum, Big Ditch conveyed its water right to the City in exchange for a contractual commitment by the City to deliver water to Big Ditch. Thus, the Agreement vested in the City title to all of the water rights at issue.

Third, the Court held that the district court erred in its conclusion that because Big Ditch had failed to take the full amount of water to which it was entitled under the Agreement in prior years, Big Ditch was estopped from now demanding the full amount of water. The Court concluded that the legal doctrine of equitable estoppel did not apply because there was no inconsistency in Big Ditch’s conduct of taking less than its entitled amount of water in prior years and then later demanding the full amount of water to which it was contractually entitled. Thus, the Court held that the Agreement as originally drafted remains in force, meaning that Big Ditch may take the full amount of water to which it is entitled and that its use of the water is not limited to irrigation use or to use in Big Ditch’s historic service area.

Fourth, the Court held that the district court erred in its conclusion that because Big Ditch was not the appropriator or owner of the exchanged water, Big Ditch was not entitled to file a change application on the water. The Court distinguished prior cases that focused on ownership of the water right, and noted that “one with an entitlement to use water may file a change application,” as long as their right to use the water is not “subsumed to other competing interests.” The Court concluded that because Big Ditch is contractually entitled to receive the exchanged water from the City in perpetuity, Big Ditch is a “person entitled to the use of water” under Utah Code section 73-3-3, and therefore entitled to file change applications on the exchanged water.

Finally, the Court held that the district court properly dismissed the counterclaim against the City for violation of the Utah Antitrust Act. The Court noted that the Act exempts “the activities of a municipality to the extent authorized or directed by state law.” Because municipalities are expressly permitted to acquire water rights and operate water systems, the Court concluded that the City was exempt from the Antitrust Act.

As a final note, although the Court held that Big Ditch may file change applications based on the exchanged water, the Court specifically stated that it was offering no opinion on whether or not the change applications should be approved by the State Engineer. Each change application will still have to go through the administrative process and be reviewed under the applicable standards. It will be interesting to see how these change applications proceed through the change application process and if they will ultimately be approved.

To read the full opinion, click here.

Jensen v. Jones

2011-06-19T20:08:00.007-06:00

This week, the Utah Supreme Court issued its opinion in the case of Jensen v. Jones (formerly known as Hamblin v. Olds and Hamblin v. Clayton). The question answered by the Court was whether the State Engineer can declare forfeiture of a water right as the basis for denying a change application.

The underlying facts of the case are that Ms. Hamblin owned a water right from Spring Creek, a tributary to the Provo River. Ms. Hamblin filed a change application, seeking to move the water right to wells in Highland City. The State Engineer rejected the change application based on his determination that the water right had not been used for over 20 years. Ms. Hamblin filed a petition for judicial review with the district court. The district court upheld the State Engineer's rejection of the change application, concluding that the water right had been automatically lost to forfeiture long before the change application was filed. The district court also held that recent changes to Utah's forfeiture statute--which require court action before a water right is adjudicated forfeited--did not apply retroactively. (To read the full text of the district court's decision, click here.)

The district court's decision was then appealed to the Utah Supreme Court. Ms. Hamblin argued (1) that the State Engineer lacks the authority in the context of a change application to determine that a forfeiture has occurred; and (2) that the water right was not forfeited because there has been no judicial determination of forfeiture. On the other side, the State Engineer argued that the water right had been forfeited automatically many years ago due to nonuse and that the amendments to Utah's forfeiture statute were not retroactive. The Court ultimately agreed with Ms. Hamblin's argument that the State Engineer cannot consider non-adjudicated forfeiture when reviewing a change application, and therefore did not answer the question of whether the amendments to the forfeiture statute apply retroactively.

The Court noted that the State Engineer is an executive officer tasked with administering and supervising the appropriation of water in the state, and that he acts in an administrative capacity only and has no authority to adjudicate water rights. The Court also noted that in the context of evaluating a change application, the State Engineer is limited to applying the criteria contained in Utah Code section 73-3-8, which do not include forfeiture. Further, the Court noted that in previous cases, the State Engineer had conceded that a forfeiture determination was beyond the State Engineer's authority in approving or rejecting a change application. In sum, the Court concluded that the State Engineer exceeded his authority by rejecting Ms. Hamblin's change application on a determination of forfeiture, and therefore reversed the district court's affirmance of the State Engineer's rejection.

It is important to note that the Supreme Court did not determine whether Ms. Hamblin's water right has or has not been forfeited, as it was beyond the scope of the appeal.

To read the full text of the Supreme Court's opinion, click here.

Utah Stream Access Coalition v. Park

2011-05-28T09:28:00.003-06:00

The Utah Stream Access Coalition has filed a second lawsuit seeking access to rivers and streams for recreation. The first lawsuit centered on the Provo River, and was a constitutional challenge to the 2010 stream access law passed by the Utah Legislature. This second lawsuit centers on the Weber River, and was filed in Summit County.

The complaint alleges that the Weber River was navigable when Utah became a state and, therefore, that the bed of the Weber River belongs to the State and not to the landowners adjoining the river. The complaint further alleges that the defendants, who are adjoining landowners, have wrongfully posted 'No Trespassing' signs, erected barbed wire fences across the river, and otherwise attempted to prevent members of the public from accessing the bed of the river. The Coalition is asking the court for a judgment declaring that the bed of the Weber River belongs to the State and for an injunction prohibiting the defendants from denying the public access to the river bed.

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

Haik v. Sandy City

2011-05-19T21:29:00.003-06:00

The Utah Supreme Court recently issued its opinion in the case of Haik v. Sandy City. The case centered on a title dispute to a water right. As the court noted in the first line of the opinion, the case illustrates the importance of promptly recording a deed for a water right.

In 1977, Saunders-Sweeney Inc. and Sandy City entered into an "Agreement of Sale," under which Saunders-Sweeney agreed to sell a water right to the City. The City recorded the Agreement of Sale with the Salt Lake County Recorder. Shortly thereafter, the City received a quitclaim deed for the water right from Saunders-Sweeney, but the City did not record the deed.

In 1978, Saunders-Sweeney conveyed the property to which the water right was appurtenant to Judith Saunders. Several years later, the property was conveyed to Lynn Biddulph. In 1999, Saunders-Sweeney also quitclaimed the water right to Ms. Biddulph. Shortly thereafter, Ms. Biddulph filed a change application on the water right. The City protested the change application, but did not claim ownership of the water right. In 2003, Ms. Biddulph conveyed the water right to LWC LLC. Later that same year, LWC LLC conveyed the water right to Kevin Tolton, who then conveyed the water right to the Haik parties. All of the deeds in this chain of title were properly recorded with the Salt Lake County Recorder.

In 2004, the Haik parties filed a change application. In preparing a protest of the change application, the City conducted research and discovered the unrecorded deed from 1977. The deed was finally recorded in April 2004. The City then sought to update title with the Division of Water Rights, but the City's request was denied.

The Haik parties filed an action to quiet title to the water right. The district court ruled that the Haik parties were the legal owners of the water right. The City filed an appeal with the Utah Supreme Court.

The Supreme Court began its analysis by noting that Utah is a race-notice jurisdiction, meaning that a subsequent purchaser for value prevails over a previous purchaser if the subsequent purchaser (1) takes title in good faith and (2) records before the previous purchaser. There was no question that the Haik parties recorded their deed before the City, so Court's analysis focused on whether the Haik parties took title in good faith, i.e., whether the Haik parties had actual or constructive notice of the City's prior, unrecorded interest.

The City contended that the 1977 Agreement of Sale imparted constructive record notice of a conveyance of the water right to the City. The Haik parties, on the other hand, argued that the Agreement of Sale did not provide record notice because it was impossible to know whether the sale was actually finalized and whether a deed was delivered to the City.

In the end, the Court sided with the Haik parties. The Court concluded that the Agreement of Sale did not subvert the Haik parties' claim of having purchased the water right in good faith because (1) the Haik parties reasonably believed they had a clear chain of title to the water right; (2) the City failed to record its deed for nearly 27 years after receiving the deed; (3) the Haik parties' predecessors-in-interest had maintained the water right and filed a change application on the water right in 1999; and (4) the City failed to contest ownership when it protested the 1999 change application. Thus, the Supreme Court upheld the district court's judgment that the Haik parties are the legal owners of the water right.

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

Rules to Remember When Purchasing Water Rights

2011-05-12T13:52:00.002-06:00

Below is an article that I recently wrote for Western AgCredit's FenceLines magazine. A PDF copy of the full magazine can be seen by clicking here.

As an attorney whose practice focuses primarily on Utah water law, I often receive phone calls and questions about water rights. The most common questions I receive are about title to water rights: How is a water right properly conveyed? How do I know if the water right I am buying is valid? Is there paperwork I need to fill out with the Utah Division of Water Rights? The purpose of this article is to provide five general rules to remember when purchasing a water right (or land that includes a water right) in Utah.

1. Research Title to the Water Right
Before purchasing a water right, you should research the true ownership of the water right. In other words, does the seller really have title to the water right that they are trying to sell you? A printout from the Division of Water Rights’ database or a copy of the deed the seller received from a prior owner are not sufficient to establish ownership. Title research must be done in the records at the county recorder’s office and at the Division of Water Rights. If proper title research is not done, you run the risk of paying the seller for something that he/she does not own.

2. Consider Purchasing Water Right Title Insurance
When purchasing land, people almost always buy title insurance. However, people don’t generally think of buying title insurance for water rights. Water right title insurance is now available in Utah, and may be an option to consider if you are spending a lot of money to purchase water rights and/or want some assurance regarding the title to the water rights.

3. Research the Status of the Water Right
You should research the water right’s status and history. In other words, is the water right a valid, recognized water right that will allow you to use it in the manner represented to you? There are a lot of potential issues that a water right may have that can only be discovered by a thorough review of the documentation, maps, decrees, etc. on file with the Division of Water Rights.

4. Have the Water Right Conveyed by Deed
The proper way to convey a water right is by deed. As a buyer, you should request that the deed be a warranty deed rather than a quit-claim deed. If you are purchasing land and the water right, both can be conveyed in the same deed, but the deed should clearly state the water right that is being transferred. I prefer to use language such as: “Together with Water Right No. 33-1452, as identified of record with the Utah Division of Water Rights, including all change applications and other applications pertaining thereto.” You may also use the Water Rights Deed Addendum form, which is available on the Division of Water Rights’ website. The deed must be recorded with the County Recorder’s Office in the county where the water is diverted and the county where the water is used (which are generally the same).

5. File a Report of Conveyance
After the deed has been conveyed, you need to update the title with the Utah Division of Water Rights by filing a Report of Conveyance. The Division maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. Any notices or correspondence that affect a water right will be sent to the owner of record on the Division’s database. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Conveyance to notify the Division when ownership transfers.

Water rights are a valuable asset and a vital resource in most farming operations. Unfortunately, however, people purchasing water rights oftentimes do not spend the time necessary to research and evaluate the water rights prior to the purchase. Following the five steps outlined in this article can go a long way in ensuring that you get what you pay for in your next water rights
purchase.

If I Install a More Efficient Irrigation System, Can I Irrigate More Acreage?

2011-05-06T14:07:00.007-06:00

The question is often asked: If I put in a more efficient irrigation system, can I increase my irrigated acreage (or sell the "saved" water)? Unfortunately, the answer is generally no. The reason why is somewhat complex, but I've summarized in the following explanation and example.

In Utah, beneficial use is the basis, measure, and limit of a water right. The water right has several characteristics, including diversion and depletion limits.

For this example, assume that your water right permits you to irrigate 10 acres and that the the irrigation duty in your area is 4 acre-feet per acre. The water right, in terms of acre-feet, would be 40 acre-feet. The duty, however, is based on flood irrigation, which is not very efficient. The general rule for flood irrigation is that 50% of the water is depleted (i.e., used) and the other 50% returns to the natural system (as runoff, tailwater, or seepage into the underground aquifer). Assuming you flood irrigate, you would likely divert all 40 acre-feet in order to irrigate the 10 acres, but you would only be depleting 20 acre-feet (with the other 20 acre-feet being returned to the natural system). These are the limits of use for your water right: a diversion limit of 40 acre-feet and a depletion limit of 20 acre-feet.

Now assume you install a very efficient sprinkler system. Because the system is so much more efficient than flood irrigating, you only have to divert 22 acre-feet to irrigate the same 10 acres. It would appear that you "saved" 18 acre-feet, which you could use to irrigate 8 more acres. However, doing so would increase the depletion. When you were flood irrigating, you depleted 20 acre-feet; however, with the new system and expanded acreage, you would be depleting 36 acre-feet.

It is for this reason the Utah State Engineer will not allow “spreading” of water based on more efficient systems. The State Engineer believes that the increased depletion would be an enlargement of your water right and would adversely affect other water users. (Additionally, because your water right is limited to the irrigation of 10 acres, expanding the irrigated acreage to 18 acres would enlarge your water right.)

The current State Engineer, Kent Jones, has talked about this topic several times recently. It seems to be one of his primary concerns. If you go to this web address and click on "Presentation - Kent Jones," you can see a PowerPoint slideshow from one of his recent presentations. Slides 13-20 specifically address this issue.

What Are Hydrographic Survey Maps?

2011-05-02T13:17:00.004-06:00

As part of the General Adjudication process, the Utah Division of Water Rights prepare shydrographic survey maps. These maps show all of the water use in a particular area, including the location and acreage of all irrigated land and the location of all streams, wells, springs, and other water sources.

Hydrographic survey maps can be very useful when researching how water was used in the past and when trying to determine appurtenancy and title issues for Reports of Water Right Conveyance.

Most of the hydrographic survey maps are available online by clicking here.

Utah Stream Access Coalition - Amended Complaint

2011-04-27T15:42:00.006-06:00

Last November, the Utah Stream Access Coalition filed a lawsuit in Wasatch County district court challenging the 2010 stream access law passed by the Utah Legislature (aka, the "Recreational Use of Public Water on Private Property Act," House Bill 141, or H.B. 141). Last week, the Utah Stream Access Coalition filed a First Amended Complaint. While some of the information has been changed and reorganized, the general arguments and claims for relief remain the same. Of note, however, is that some of the named defendants have changed. Victory Ranch L.C. and Silver Creek - Robert Larsen Investors LLC have been removed as defendants, and have been replaced by ATC Realty Sixteen Inc. The Utah Division of Parks and Recreation has also been added as an additional defendant.

I have a copy of the First Amended Complaint, and I would be happy to email a copy to anyone who is interested. Click here for my email address.

To read an update on this case, click here.

Can Owners of Ditches, Canals, and Pipelines Be Liable for Damage?

2011-04-15T11:41:00.005-06:00

Utah Code section 73-1-8 law imposes an affirmative duty on “[t]he owner of any ditch, canal, flume or other watercourse [to] maintain it to prevent waste of water or damage to the property of others.” An easement holder violates this statutory mandate only if he is found to be negligent by failing to follow the standard of care and damage results to the property of another. The law establishes that this standard of care is determined by the reasonable care taken by a person who is “of some experience and skill in the management of water, who would have an awareness of the various hazards in the failure to properly control them and would therefore exercise the degree of foresight and precaution which people of such experience and skill would observe to avoid injury or damage to others and their property.” This statutory duty and standard of care have been applied to pipelines, such that owners of pipelines used to convey water are required to exercise reasonable care in the construction and maintenance of the pipeline. A pipeline owner can be found negligent if the pipeline is not properly constructed or maintained, causing the pipeline to leak and cause damage to another’s property.

In sum, the owner of a ditch, canal, or pipeline can be held liable for flooding or other damage to property if the owner is negligent in constructing or maintaining the ditch, canal, or pipeline.

Does an Easement for a Ditch Include the Right to Maintain the Ditch?

2011-04-07T11:47:00.006-06:00

In Utah, like most parts of the arid West, water oftentimes has to be conveyed a long distance between the source and the place of use. Accordingly, there are a lot of ditches, canals, and pipelines that cross one person's private property in order to convey water to another private party. The person using the ditch, canal, or pipeline generally has an easement, either by prescription or by an express grant of easement. Whether prescriptive or express, the easement includes the right to maintain the ditch, canal, or pipeline.

Utah case law establishes that the easement holder has the right to enter upon the land of the other party in order to maintain, clean, and/or repair the ditch, canal, or pipeline--provided that the easement holder does not cause any unnecessary damage or create additional burdens on the land. Additionally, the easement holder has the right to improve the method of carrying the water; i.e., the easement holder generally has the right to convert an unlined ditch into a lined ditch, or convert an open canal to a pipeline.

The property owner cannot limit the easement holder's access to the easement for maintenance and repairs. For example, the property owner should not "fence out" the easement holder with locked gates, unless the property owner provides the easement holder with keys for the locks.

The underlying property owner also does not have the right to interfere with the easement holder's use of the easement. For example, the property owner cannot change the course of the ditch or canal without the easement holder's consent. The property owner also cannot construct facilities on or in the easement that would restrict the easement holder's access to or use of the easement.

Draft Environmental Impact Statement for Logan & Northern Canal

2011-03-28T11:09:00.007-06:00

The USDA Natural Resources Conservation Service (NRCS) recently issued its draft Environmental Impact Statement (EIS) for the Logan and Northern canal reconstruction project. NRCS has identified the "Purple Alternative" as its preferred alternative. This alternative proposes to move the point of diversion to the Logan, Hyde Park, and Smithfield canal point of diversion (below Second Dam) and put the combined flows into a box culvert until the Lundstrom Park / 1500 North area, at which point a pipeline will carry 40 cfs down to the old Logan and Northern canal.

A summary of the draft EIS is available by clicking here.

A full copy of the draft EIS, along with other documents and information related to the reconstrucion project, is available by clicking here.

The public is invited to make comments on the draft EIS. NRCS will host a public open house on Thursday, March 31, 2011 at BATC (1000 West 1400 North, Logan) from 5:30 to 7:30 pm. Those attending the meeting can provide written or oral comments. Comments can also be emailed or mailed to NRCS. Comments must be received by May 2, 2011 to be considered in the final Environmental Impact Statement. For more information about submitting comments, click here.

Lowry v. G&L Enterprises

2011-03-26T09:45:00.008-06:00

The Utah Court of Appeals recently issued its opinion in Lowry v. G&L Enterprises, LLC. The case was between the Carol L. Lowry Irrevocable Trust and Fred Lowry (collectively, "Lowry") and G&L Enterprises LLC, Guy Palmer, and Lynda Palmer (collectively, "G&L").

Lowry and G&L own adjacent parcels of property near Manti in Sanpete County. A spring known as Crystal Springs is located on State property east of G&L's property. The water from Crystal Springs forms a natural stream that flows west across G&L's property to Lowry's property. Lowry has a right to use six-sevenths of the flow from the Springs, and G&L has the right to use the other one-seventh. A dispute arose when Lowry sought to replace the Crystal Springs stream on G&L's property with a pipeline. G&L opposed Lowry's efforts. Lowry filed suit, seeking to establish a prescriptive easement for a road crossing G&L's property.

Although Lowry only asked for a prescriptive easement across the road, which the district court granted, the district court also determined that Lowry was entitled to a prescriptive easement in the stream bed across G&L's property. The district court relied on Utah Code section 57-13a-102, which provides that a prescriptive easement for water conveyance may be established by continuous, open, and adverse use for twenty years. G&L sought review of the district court's decision from the Utah Court of Appeals.

The Court of Appeals identified the relevant issue as whether section 57-13a-102 applies to a natural stream. The Court of Appeals looked to section 57-13a-101's definition of a "water conveyance," which is "a canal, ditch, pipeline, or other means of conveying water." Based on this definition, the Court of Appeals determined that section 57-13a-102 applies only to artificially created watercourses, and not natural streams like Crystal Springs stream. Thus, the Court of Appeals ultimately concluded that the district court had erred in granting Lowry a prescriptive easement in Crystal Springs stream across G&L's property.

To read the full case, click here.

2011 Legislature: More Water Bills Passed by Utah Legislature

2011-03-10T09:37:00.006-07:00

Here are more water bills that have passed both the House and the Senate:

HB 247: Water Development Amendments
HB 428: Water Issues Task Force (click here to read the amended bill)
SB 103: Joint Use of a Canal or Ditch (click here to read the amended substituted bill)
SCR 3: Concurrent Resolution Supporting Continued Federal Funding of the Central Utah Project (click here to read the amended concurrent resolution). Governor Herbert has declined to sign SCR 3.

2011 Legislature: Water Bills Passed by Utah Legislature

2011-02-14T15:45:00.007-07:00

Several water bills have already passed both the House and the Senate and are awaiting the governor's signature. These bills include:

HB 39: Water Rights Amendments
SB 10: Local District Amendments
SB 20: Management of Water Rights Amendments
SB 25: Share Certificates in Water Companies (click here to read amended bill)
SB 26: Water Law Modifications
SB 102: Temporary Water Shortage Emergency - Military Facilities (click here to read the amended bill)

2011 Legislature: Substituted Bill About Joint Use of Ditches

2011-02-04T14:06:00.007-07:00

Senator Dennis Stowell has introduced a substituted bill for Senate Bill 108 (S.B. 108) regarding joint use of ditches and canals.

Like the original bill, the substituted bill requires a person seeking to jointly use a ditch or canal to enter into a contract with the ditch or canal owner prior to using or enlarging the ditch or canal. The substituted bill adds that unless the contract provides otherwise, the person using the ditch or canal: (1) does not acquire voting rights in the entity that owns the ditch or canal (i.e., ditch company, canal company, or irrigation company); (2) cannot add water that reduces the water quality in the ditch or canal; (3) cannot add water that exceeds the capacity of the ditch or canal; (4) must pay an equitable proportion of construction or upgrade costs incurred by the ditch or canal owner within the past five years; (5) is proportionally responsible for liability arising out of operation or maintenance of the ditch or canal; and (6) is solely responsible for any liability caused solely by the person. The substituted bill also clarifies that the statute only applies to ditches and canals (i.e., does not apply to pipelines).

To read the full text of Substituted SB 108, click here.

For an update on this bill, click here.

2011 Legislature: Repeal of Phosphorus Limit

2011-01-27T10:01:00.002-07:00

Representative Stephen Sandstrom has introduced House Bill 246 (H.B. 246) entitled "Repeal of Phosphorus Limit in Dishwashing Detergent." The bill seeks to repeal Utah Code section 19-5-24, which was enacted by the Utah Legislature in 2008. Section 19-5-24 prohibits the sale of household dishwashing detergents that contain 0.5% or more phosphorus by weight. The purpose of the law is to keep phosphorus out of Utah's waterways because it causes algae blooms. Recently, however, people have been complaining that the new detergents with lower levels of phosphorus are not getting their dishes clean. These complaints may be the impetus for this bill.

For a news article and video regarding the phosphorus limits in dishwashing detergent, click here.

To read HB 246, click here.

2011 Legislature: Water Rights Amendments

2011-01-25T08:51:00.005-07:00

Representative Jack Draxler has introduced House Bill 39 (H.B. 39), which is entitled "Water Rights Amendments." The bill makes some technical changes to Utah Code section 73-3-18. The bill deletes an incorrect reference to "forfeited" applications and corrects a cross-reference to Utah Code section 73-3-12. The bill also makes wording changes regarding (1) the State Engineer's authority to lapse applications and (2) assigning uncertificated applications to appropriate.

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

(For an update on this bill, click here.)

2011 Legislature: Lost Share Certificates

2011-01-24T13:54:00.006-07:00

2011 Legislature: Joint Use of Ditches

2011-01-20T14:15:00.007-07:00

Senator Dennis Stowell has introduced Senate Bill 108 (S.B. 108), which is entitled "Joint Use of Water Infrastructure." The bill modifies Utah Code section 73-1-7, which allows a person to enlarge and/or convey water through an existing canal or ditch owned by another person or company if the person pays for any damage and pays an equitable proportion of the maintenance costs.

The bill makes some minor modifications to the language of the statute, including requiring the person to pay a proportional share of the maintenance and operation costs of the ditch or canal. More importantly, the bill requires the person seeking to enlarge and/or use the ditch or canal to enter into a contract with the ditch or canal owner before the enlargement and/or use can commence. The contract should set forth the terms of use, including the payment terms. The bill requires the person seeking to use the ditch or canal and the ditch or canal owner to negotiate the contract in good faith.

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

(Update: This bill has been replaced by a substitute bill. To read more, click here.)

Policy Change Regarding Municipal Use Water Rights

2011-01-19T18:04:00.004-07:00

The Utah Division of Water Rights recently adopted a new policy regarding who is entitled to have municipal use water rights. The text of the State Engineer's policy change is included below:

It has been the policy of the Division to approve municipal use only for public entities or entities which are contractually obligated with public entities for public water supply service. Applications in the name of other parties with the concurrence of a public entity to whom the water right is to be conveyed have been approved with the condition the application must be conveyed to the public entity and perfected in their name. Current practice is to approve change applications for public entities to municipal use from other uses with a condition which limits the approval to a specific acre foot diversion and depletion quantity related to the historic use and a requirement the public water supplier maintain records of actual diversion and use sufficient to demonstrate depletions associated with use under the application do not exceed the specified depletion limitation.

Effective immediately, the entities which qualify for municipal use on application approval are to be expanded from public entities to "Public Water Suppliers" as defined in 73-1-4(1)(b) UCA. Please note this expands the universe of qualifying entities to include private water companies regulated by the PSC and community water systems (normally non-profit corporations) serving at least 100 connections or 200 year round residents which are controlled by the residents they serve. This change in policy will allow these entities to submit applications to cover the universe of uses under the umbrella of municipal use expected in a metropolitan setting without the overhead of change applications for each particular use type, the flexibility of accounting for their uses in terms of diversion and depletion, and submit proof on that basis for uses in their service area. With this new found flexibility these entities must also accept the responsibility to maintain records of diversion and use to demonstrate their compliance with the limitations of their applications and are expected to submit data to the water use program consistent with other public entities which are now reporting.

Historic Property Effect Evaluations

2011-01-17T10:24:00.005-07:00

Under Utah Code section 9-8-404, a state agency is not supposed to approve any undertaking without taking into account the undertaking’s possible effects on historic property and providing the state historic preservation officer with a written evaluation of any effect the undertaking may have on the historic property. In order to implement this statute, the Utah Division of Water Rights now requires applicants to fill out a Historic Property Effect Evaluation (“HPEE”). A completed HPEE must be submitted with all applications to appropriate, change applications, exchange applications, well rush letters, well replacements, non-production well authorizations, geothermal well applications, dam applications, and stream gage installations.

The HPEE form asks the applicant to (1) describe the physical effects to the land will occur to the land surface under the proposed project; (2) describe any historic properties that could be affected by the proposed project; (3) describe any historic property survey that has been conducted at or near the site of the proposed project; and (4) state whether there is a federal or state connection to the proposed project that would require a historic property evaluation. The HPEE form is to be completed by the applicant, but is to be signed by a representative of the Division of Water Rights.

The HPEE form is available by clicking here.

2011 Legislature: Temporary Water Shortage Emergency

2011-01-05T16:50:00.004-07:00

Senator Ralph Okerlund has introduced Senate Bill 102 (S.B. 102), which is entitled "Temporary Water Shortage Emergency - Military Facilities." The bill makes one change to Utah Code section 73-3-21.1. The bill adds military facilities to the list of those who have a preferential right to use water for drinking, sanitation, and fire suppression purposes during a temporary water shortage emergency.

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

To read about the 2010 bill that enacted section 73-3-21.1, click here.

(For an update on this bill, click here.)

2011 Legislature: Water Law Modifications

2010-12-21T09:54:00.004-07:00

Senator Margaret Dayton has introduced a bill to make some changes to Utah Code section 73-3-17. The bill has been numbered Senate Bill 26 (S.B. 26) and is entitled "Water Law Modifications."

Most of the proposed changes in the bill are small, technical changes. The most significant change relates to certificates of beneficial use (aka certificates of appropriation) that are issued by the State Engineer. Currently, the law requires the water right owner to record the certificate with the appropriate county recorder's office within 30 days after the certificate has been issued. This bill removes the recording requirement, but provides that a water right owner may record the certificate if he/she wants to.

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

(For an update on this bill, click here.)

What Is the Process for Approval of a Change Application or Application to Appropriate?

2010-12-17T10:12:00.005-07:00

After a Change Application or Application to Appropriate has been filed with the Utah Division of Water Rights, there is a process that the application must go through before it is approved or denied.

The application must first be advertised once a week for two successive weeks in a newspaper of general circulation in the county. Advertising may not be required on a temporary change application or on an application on a small amount of water (defined as the amount of water necessary for one residence, 0.25 acres of irrigation, and stockwater for ten ELUs).

Interested parties may file a protest with the State Engineer. The protest period is for twenty days following the advertisement. A hearing may held if a protestant requests a hearing or if the Division of Water Rights has other reasons or concerns for holding a hearing.

Following the hearing (or following the protest period, if no hearing is required), the Division will review all of the information before it, including the application, the protests, the information obtained at the hearing, and other data on file with the Division. The Division may also conduct a field investigation or request additional information from the applicant.

The State Engineer will then issue an order either approving or rejecting the application. The order will also generally contain limitations and conditions of approval. There is no real timeline for when the order will be issued. Generally, it takes six to eight weeks from the date of the hearing, but on more complex applications, it may take several months or even years for an order to be issued.

If a party disagrees with the State Engineer's order, he/she can file a request reconsideration within twenty days from the date the order is issued. The State Engineer may grant the request for reconsideration and issue an amended order. The State Engineer may also deny the request for reconsideration, either by expressly denying the request or by not taking any action on the request for twenty days after the request is filed (at which point the request is deemed denied). The aggrieved party then has thirty days to appeal to the district court.

For a flow chart of the application process, click here.

To read the statutes about the application process, click here.

Introduction to Wetland Laws and Regulations

2010-12-08T13:44:00.002-07:00

The following article was written by Bryan Bryner, an associate 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.

Even though Utah is the second-driest state in the nation, wetlands issues frequently arise in many different situations, including land development, mining and mineral extraction, agriculture, and stream alteration. The Clean Water Act (CWA) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," i.e. to make the nation's waters fishable and swimmable. The CWA seeks to do this by preventing future contamination and pollution of waters. The central feature of the CWA is section 301, which prohibits the discharge of any pollutant into a navigable water, including wetlands, unless otherwise authorized by a permit. One of the most common permits issued under the CWA is a section 404 wetlands permit issued by the Army Corps of Engineers (Corps) for certain discharges of "dredged or fill material" into wetlands.

In determining whether a wetlands permit is required for a particular project, it must first be determined whether the area that will be impacted by a proposed activity is within the Corps' regulatory jurisdiction under the CWA. Waters within the Corps' jurisdiction include navigable waters; tributaries to navigable waters; interstate wetlands; wetlands that could affect interstate or foreign commerce; and wetlands "adjacent" to any of the above. Wetlands are determined based on the presence of three elements: soils, hydrology, and vegetation. The physical boundaries of a wetland are determined by a "delineation" conducted by either the Corps or a licensed professional.

The U.S. Supreme Court recently muddied the waters regarding the extent of the Corps' jurisdiction over wetlands not immediately adjacent to traditionally navigable waters. See Rapanos v. United States, 547 U.S. 715 (2006). In a divided opinion, the Court established two different standards for determining jurisdiction, neither of which has gained traction as the official test.

Second, the proposed activity must also be within the Corps' regulatory jurisdiction under the CWA for a permit to be required. Section 404 prohibits the "discharge of dredged or fill material into the navigable waters" except upon issuance of a permit. Certain activities that otherwise constitute a "discharge of dredged or fill material" are exempted from regulation. Projects should be analyzed to see if they qualify for an exemption.

If both the area and the activity are within the Corps' section 404 regulatory jurisdiction, any activity that impacts the wetland must obtain a permit from the Corps. General Permits are issued for regulated discharges with minimal adverse effects, while individual permits are required for potentially significant impacts to wetlands. The individual permit process is more involved, requiring compliance with criteria established in the EPA's 404(b)(1) Guidelines. An individual permit may also be denied if it "would be contrary to the public interest."

Under either type of permit, if impacts to a wetland are unavoidable, the permittee must attempt to minimize the impacts in the design of the project. If impacts to the wetlands remain after minimization, the permittee must provide compensatory mitigation, which primarily involves restoration, enhancement, creation, and preservation of other wetlands. The Corps now approves of, and in fact prefers, mitigation banking and in-lieu-fee mitigation as alternatives to traditional compensatory mitigation. With proper planning many difficulties in dealing with wetlands issues can be prevented.

Click here for a more detailed article discussing wetlands regulation, determining Corps jurisdiction, exemptions from jurisdiction, and the permit process.

How Does the Law Treat Lost Share Certificates in Water Companies?

2010-12-08T13:31:00.009-07:00

The following article was written by Matthew Jensen, a partner 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.

When the pioneers settled Utah in the 1800s, they often banded together to construct common water diversion, storage, and distribution facilities. Over time, these associations of water users were incorporated into nonprofit mutual water corporations. In these companies, the water rights are held in the name of the corporation for the benefit of its members. Shares of stock were issued to signify how much water each individual is entitled to receive. In most cases, to transfer the shares of stock, the shareholder would need to endorse the certificate to a new owner. Thus, the certificate was critical to establish and transfer ownership of the shares and the attendant right to water delivery.

This system works well in most cases, but it presents a challenge whenever a certificate is lost, destroyed, or stolen. Under the Uniform Commercial Code, a portion of which is applicable to transfers of shares of stock in a water corporation, the corporation cannot simply re-issue the share with impunity. If the lost or stolen certificate is later discovered, the corporation would usually need to honor both the replacement certificate and the original. Because shares of a water corporation represent a right to delivery of a proportionate share of the corporation's water rights, dilution of the shares in this manner is especially unpalatable to the other shareholders. To account for these risks, many water corporations have a series of requirements before they will issue a replacement certificate. For example, many corporations require the person requesting a new certificate to post or obtain a perpetual bond to protect the corporation in the event the original certificate surfaced. Recently, however, it has become more and more difficult to secure such a bond.

To address this difficulty, the Utah Executive Water Task Force has recently approved a draft bill in an attempt to streamline this process. The bill is expected to be presented to the 2011 Utah State Legislature for consideration. The present draft of the bill continues to give the corporation the ability to establish its own requirements for issuing a new certificate in its Articles of Incorporation or Bylaws. Without such requirements, however, the new law would provide some options for the water corporation to both protect itself and allow a new share to be issued. For example, the proposed bill would give the water corporation the option to, at the expense of the person requesting the new certificate, publish and mail notice of the request to issue a replacement certificate. The bill then outlines a process that the corporation can use to resolve share ownership disputes. There will undoubtedly be further revisions of the bill before it is passed, but it is a step toward solving this challenge that often faces water corporations and shareholders.

(Update: Click here to read about the bill introduced in the 2011 Utah Legislature.)

2010 Utah Groundwater Report

2010-11-28T20:11:00.001-07:00

Each year, the United States Geological Survey (USGS) publishes a report on groundwater conditions in Utah. The report is prepared and published in cooperation with the Utah Division of Water Resources, the Utah Division of Water Rights, and the Utah Division of Water Quality. The report is a valuable resource containing information on well construction, groundwater withdrawal, groundwater level changes, groundwater quality, and much more.

The 2010 report is available online and can be accessed by clicking here.

What is an ELU?

2010-11-27T13:44:00.000-07:00

Records of the Utah Division of Water Rights often utilize the term “ELU.” This abbreviation stands for Equivalent Livestock Unit, which is a standardized measure related to the watering of various sized livestock. For example, 1 ELU could represent 1 large animal, such as a cow or horse; 5 medium-sized animals, such as sheep or goats; or 33.33 small animals, such as chickens or turkeys. Accordingly, if you have a water right that allows for stockwatering of 50 ELUs, you would have enough water for 50 cows, or 250 sheep, or 1,666 chickens (or a combination of animals, such as 40 cows and 50 sheep).

What Are Supplemental Groups and Sole Supply?

2010-11-23T10:56:00.002-07:00

Generally, each water right in Utah is limited to a defined quantity for a defined use. Sometimes, however, multiple water rights are used together for one particular use. For example, three water rights may be jointly used to irrigate ten acres of land, or ten water rights may be jointly used to provide water for 200 head of cattle. In such cases, the water rights are said to be "supplemental" to each and are listed together in a “supplemental group.”

The water rights in the supplemental group are usually not assigned an individual limit, which is not an issue if the same person owns all of the water rights in the supplemental group and continues to use the group for the specified use. However, when some of the water rights in the supplemental group are sold to different people and/or an owner wants to file a change application on some of the water rights in the supplemental group, a determination has to be made regarding how much of the group total is to be apportioned to each water right in the group. This is what is referred to as “sole supply.” For example, if ten water rights are in a supplemental group that provides water for 200 head of cattle, each of the ten water rights could be apportioned a sole supply of 20 head of cattle. Alternatively, five of the water rights could be apportioned a sole supply of 40 head of cattle each, and the other five water rights could be apportioned a sole supply of 0 head of cattle each. The Division of Water Rights essentially allow the water right owner(s) to apportion the sole supply in any way they want, as long as the sum of the water rights does not exceed the group total and the allocation is consistent with the governing water right documents.

The Utah Division of Water Rights has recently issued Utah Administrative Rule R655-16 regarding supplemental groups and sole supply. The Rule provides that in order to allocate sole supply among the water rights in a supplemental group, all of the water right owners in the group must sign a Declaration of Beneficial Use (formerly called a Group Contribution Statement). If a water right owner has exhausted all reasonable efforts and has been unable to locate or get signatures from all of the other water right owners, the owner may ask the Division of Water Rights to initiate an informal proceeding to allocate the sole supply. To read more about Rule R655-16, click here.

Utah Stream Access Coalition v. Victory Ranch

2010-11-20T14:06:00.008-07:00

On November 12, 2010, a lawsuit was filed in the Wasatch County district court challenging the 2010 stream access law passed by the Utah Legislature (aka, the "Recreational Use of Public Water on Private Property Act," House Bill 141, or H.B. 141). The lawsuit was filed by Utah Stream Access Coalition, and names Victory Ranch L.C., Silver Creek - Robert Larsen Investors LLC, Utah Division of Wildlife Resources, and Wasatch County Sheriff Todd Bonner as defendants.

The complaint alleges that the Act violates Article I, section 25; Article XVII, and Article XX of the Utah Constitution and the Public Trust doctrine "to the extent it purports to abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public water and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in [Conatser v. Johnson] and other Utah Supreme Court decisions."

The complaint also alleges that the Act violates Article I, section 23; Article V; Article VI; and Article VIII of the Utah Constitution and the separation of powers doctrine "to the extent that it purports to (a) adjudicate the constitutional rights of the Coalition's members and defendants, (b) declare that Conatser's recognition of public rights constitutes a taking of private property, and (c) abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public waters and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in Conatser and other Utah Supreme Court decisions."

The Coalition is asking the court for a judgment (1) declaring that the Act violates the Utah Constitution, the public trust doctrine, and the separation of powers doctrine; (2) declaring that the public has an easement for recreational access across private beds, including those on the Victory Ranch and Larsen properties; (3) enjoining Victory Ranch and Larsen from prohibiting, impeding, or restricting public access across private beds on their properties; and (4) enjoining the Division of Wildlife Resources and the Wasatch County Sheriff from citing members of the public for criminal trespass for accessing private beds on the Victory Ranch and Larsen properties.

I have a copy of the Coalition's complaint that was filed with the court. I would be happy to email a copy to anyone who is interested. Click here for my email address.

Update: The Coalition has filed an Amended Complaint. Click here to read more.

Utah Waterways Task Force Meeting in Salt Lake City

2010-11-04T11:56:00.001-06:00

The Utah Waterways Task Force has scheduled its fourth meeting for Thursday, November 18, 2010 at 11:00 am. The meeting will be held in Room 250 of the State Capitol.

To view the meeting notice and other information about the Task Force, click here.

Livestock Water Use Certificates

2010-10-23T11:13:00.002-06:00

In 2008, the Utah Legislature passed House Bill 208 (HB 208) entitled "Livestock Watering Rights." The bill enacted Utah Code section 73-3-31, which attempted to limit the right of the Bureau of Land Managment (BLM) and other public land agencies from acquiring livestock water rights. To read the 2008 bill, click here.

In 2009, the Utah Legislature passed House Bill 256 (HB 256) to amend Utah Code section 73-3-31. The bill provided that after May 12, 2009, a public land agency can only acquire a livestock watering right if it does so jointly with the beneficial user (i.e., the holder of the grazing permit). The bill also clarified that the State Engineer cannot approve a change application on a livestock water right unless the beneficial user consents to the change. The public land agency and/or the beneficial user can request a livestock water use certificate. To read the 2009 bill, click here.

To read the current version of Utah Code section 73-3-31, click here.

To access the Utah Division of Water Right's online livestock water certificate application form, click here.

For an interesting article about the history and legal analysis of the livestock watering law, click here.

What Is Duty of Water?

2010-09-30T16:57:00.008-06:00

"Duty of water" (usually referred to as simply "duty") refers to the quantity of water, as determined by the Utah Division of Water Rights, that is required to satisfy the irrigation water requirements in a given area. The underlying concept is that only so much water may be beneficially used. The duty in an area is based on the irrigation requirements of alfalfa, and duties vary across the state. For example, Summit County has a duty of 3 acre-feet per acre (per annum), whereas portions of Washington County have a duty of 6 acre-feet per acre (per annum). The Division of Water Rights' determinations of duty are based mainly on the report entitled Consumptive Use of Irrigated Crops in Utah by Robert W. Hill (Utah State University), which is available here.

To determine the duty in your area, you can refer to the Division's PDF map or interactive map.

What Are the Policies for the Water Right Areas in Utah?

2010-09-28T09:54:00.005-06:00

For administrative purposes, the Utah Division of Water Rights divides the state into a number of areas. In a water right number, the digits preceding the hyphen identify the area in which the water right is located. For example, a water right starting with “25-” is located in Area 25, which covers Cache County.

Each area has a page that contain information and policies that are specific to that area. You can view the area information and policies by accessing the area map located here, then clicking on the area that you wish to read more about.

Area pages contain the following information:
Description: explains the boundaries of the area and important characteristics of the area.
Management: describes decrees, proposed determinations, distribution systems, groundwater management plans, compacts, and other documents that relate to the management and distribution of water in the area.
Sources: describes the appropriation policies for the area (i.e., whether the area is open to appropriation of surface water or groundwater), as well as policies related to change applications.
General: describes which newspaper(s) notices are published in, the irrigation duty for the area, and other information.
References: contains links to groundwater studies, hydrologic data, and other studies and publications relating to the area.
Map: shows the boundaries of the area and the cities/towns located in the area.

Utah Waterways Task Force Meeting in Duchesne

2010-09-15T13:34:00.002-06:00

The Utah Waterways Task Force has scheduled its third meeting for Thursday, September 30, 2010 at 11:00 am. The meeting will be held at the Duchesne County Administrative Offices, 734 North Center, Duchesne.

To view the meeting notice and other information about the Task Force, click here.

The State Engineer's New Supplemental Water Rights Rule

2010-08-31T15:00:00.010-06:00

The following article is a combination of two articles written by Matthew Jensen, a partner 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.

A foundational principle of Utah water law is that beneficial use is the basis, measure, and limit of a water right. The concept of duty is implicit in this principle in that there can be only a certain amount of beneficial water use for any particular use. For example, in the Tooele Valley, the irrigation duty is four acre-feet of water per acre of land. In other words, the application of water for irrigation in Tooele Valley in excess of four acre-feet per acre would be wasteful, and irrigation of one acre can support only four acre-feet of water right.

Often, however, multiple water rights combine to supply a particular beneficial use. When this occurs, the rights are said to be supplemental to each other. In 2006, the State Engineer implemented the supplemental group system to facilitate clarification of supplemental water rights. In essence, the State Engineer gave a unique supplemental group number to each particular beneficial use and linked that number to any water right that may provide water for that use. Typically, the amount of water actually contributed from each water right to the supplemental group was shown as unevaluated. To promote evaluation, the State Engineer began requiring Sole Supply Statements or Group Contribution Forms for most change applications. These forms required an applicant to determine how much beneficial use each water right contributes to particular supplemental group and to get signatures from all water rights holders in favor of that allocation. But the process of evaluating supplemental groups is often complicated and expensive, and water rights holders are often hesitant to sign the form regardless of how logical or fair the allocation is. Accordingly, the process resulted in an unexpected expense and delay for a number of change applicants.

Perhaps in response to the objections of many change applicants to completing the Sole Supply Statements, the State Engineer published a proposed administrative rule in the summer of 2008. In response to the many comments submitted in opposition to the rule as originally proposed, the State Engineer published a revised rule in the Utah State Bulletin on November 1, 2009. Although there were again a number of comments to the rule, the tenor of those comments was generally more positive than before. The version of Rule R655-16 that is now in effect was published in the Utah State Bulletin on March 1, 2010 with a few additional changes from the November 2009 version. As a result of those changes, it is significantly less onerous than the original policy of the State Engineer.

First, the rule does not require a Declaration of Beneficial Use Amounts (the new name for the Statement of Sole Supply or Statement of Group Contribution forms) for every change application, but only for change applications that fall within a narrowly defined set of circumstances where a change application is seeking to separate a water right from its historical supplemental group. Second, there are significant exemptions for many types of change applications. For example, public water suppliers, such as municipalities and districts, need not file a Declaration for supplemental groups created for water use within their service areas. Furthermore, the State Engineer may waive the Declaration requirement for temporary change applications and may remove water rights from a group if it would be unduly burdensome (e.g., for large water rights that cover an expansive area and are therefore part of many supplemental groups). Third, the rule now requires only that the beneficial use amount for the water right being changed be declared as opposed to every water right in the group. And finally, in instances where the other water right holders refuse to sign a Declaration, the rule provides for an administrative process to establish the beneficial use amounts and allow the change application to proceed. The new rule R655-16 contains many nuances and should be studied thoroughly before a change application is filed. The full text of the rule is available on the State’s website or through the following link: Utah Administrative Code Rule R655-16.

Where Can I Get Copies of Water Decrees?

2010-08-17T11:06:00.003-06:00

Utah water law provides for a general adjudication process under which all water rights in an area are adjudicated. The final step in this process is for the court to enter a decree that establishes the water rights. In many areas of the state, these decrees become the most important document with respect to water rights. Copies of decrees are available on the Utah Division of Water Rights' website. Click here to access the complete list of decrees, which have been organized by county.

Below, I have provided the links to some of the most common decrees:

Provo River Decree (1921) - available here or here

Weber River Decree (1937) - click here

Ogden River Decree (1948) - click here

Sevier River Decree [aka “Cox Decree”] (1936) - click here

Big Cottonwood Creek Decree [aka “Morse Decree”] (1914) - click here

Little Cottonwood Creek Decree [aka “Morse Decree”] (1910) - click here

How Do I Receive Email Notification of Action Taken on My Water Right?

2010-08-10T12:38:00.007-06:00

The Utah Division of Water Rights has a service that sends you an email notification when new documents are placed your water right file. The notification service is free, and is easy to use. To use the service, click here and follow the directions below.

If you are a new user, click on the “Register Here” button. You will then be asked to provide your email address and a password. You can then enter the water right or change application number, and hit the “Add Application” button. This will add the water right to your notification list.

You can add as many water rights to your notification list as you want. You are also not limited to tracking your own water rights, so if there are water rights owned by others that you want to track, you can add those water rights to your notification list as well.

Although the notification service is very useful, it is not a complete substituting for receiving notices by mail. Accordingly, water right owners should ensure that their address is current on the Division of Water Rights’ database.

How Do I Check the Status of a Report of Conveyance?

2010-08-08T09:35:00.005-06:00

If you have submitted a Report of Conveyance ("ROC") to the Utah Division of Water Rights, you can check its status by clicking here. If the ROC has not yet been processed, it will be in the “Pending” tab. If the ROC has been processed and approved, it will be in the “Completed” tab. If the ROC has been processed but has been rejected, it will be in the “Returned” tab.

Utah Waterways Task Force Meeting in Richfield

2010-07-21T14:23:00.005-06:00

The Utah Waterways Task Force has scheduled its second meeting for Wednesday, August 25th, at 9:00 a.m. The meeting will be held in Rooms 147 A & D of the Administration Building at the Snow College Richfield Campus (800 West 200 South, Richfield).

To view the meeting notice and other information about the Task Force, click here.

What Is a Surplus Water Agreement?

2010-07-20T09:22:00.003-06:00

Under Article XI, § 6 of the Utah Constitution, a municipality cannot “directly or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply” owned or controlled by the municipality. However, under Section 10-8-14 of the Utah Code a municipality is authorized to “sell and deliver the surplus product or service capacity of [its water system] not required by the city or the city’s inhabitants, to others beyond the limits of the city.” Accordingly, municipalities can enter into surplus water agreements under which the municipality allows a person to use the municipality’s surplus water until the water is required to meet the municipality’s demands.

What Is a Report of Conveyance?

2010-07-01T13:31:00.006-06:00

As discussed in a previous blog post, water rights in Utah are generally transferred either by deed or through appurtenance. Thus, true ownership of a water right is determined by researching the deeds at the county recorder’s office. The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Water Right Conveyance (more commonly referred to as a Report of Conveyance or a "ROC") to notify the Division when ownership transfers. Thus, the purpose of a Report of Conveyance is to notify the Division of Water Rights of the true ownership of a water right.

It is important that a water right owner update title with the Division of Water Rights. Any notices or correspondence that affect a water right will be sent to the owner of record on the Division of Water Rights' database. There have been many unfortunate occasions where, because title was not updated with the Division, a water right owner has not received communications regarding important deadlines that affect their water rights. Furthermore, until title is updated with the Division, a water right owner cannot file proof, file a change application, etc.

There are two different Report of Conveyance forms: a 100% conveyance form and a portion conveyance form. The 100% conveyance form is used if the grantor (seller) is conveying all of his/her interest in the water right. The portion conveyance form is used if the grantor (seller) is conveying only a portion of his/her interest in the water right.

In certain situations (e.g., when a water right has passed by appurtenance), the Report of Conveyance must include a certification by a licensed attorney, professional engineer, title insurance agent, or professional land surveyor. Copies of all relevant deeds must be included with the Report of Conveyance, as well as maps if the water passed by appurtenancy. For a helpful guide for determining if your Report of Conveyance will meet the Division's standards for processing, you should refer to the Report of Water Right Conveyance Review Checklist. This is the same checklist the Division's title department will use when reviewing the Report of Conveyance to see if it is complete.

To review the Utah Administrative Code rules regarding Reports of Conveyance, click here.

Rainwater Harvesting Registration

2010-06-02T09:47:00.003-06:00

This year, the Utah Legislature passed Senate Bill 32, which permits the capture and storage of precipitation (i.e., rainwater harvesting). The bill has now been codified as section 73-3-1.5 of the Utah Code. One of the requirements of the new law is that a person who wants to harvest rainwater must first register with the Utah Division of Water Rights. The Division now has an online registration form (click here to access), which asks for the person's name, phone number, address, email address and storage size. Once the information is submitted, the person will receive a rainwater harvesting registration certificate.

Bingham v. Roosevelt City

2010-05-29T10:27:00.004-06:00

The Utah Supreme Court recently issued its opinion in Bingham v. Roosevelt City. The case centered around five City wells, known as the Hayden Well Field, through which the City pumped water out of an unconfined, shallow aquifer underlying the Hayden area. The water level in the area dropped significantly due to the City's pumping. For example, the static water level at one well dropped from 14.3 feet to 94.6 feet.

A group of people who owned land near the Hayden Well Field were affected by the decreased water levels. The landowners found that when they applied water to their fields, the water was quickly drawn down deep into the soil. Thus, the landowners found it more costly and, in some instances, practically impossible to raise crops and livestock. The landowners filed suit against the City, claiming three causes of action: interference with water rights, takings, and negligence.

In the district court, the City moved for summary judgment on all three of the landowners' causes of action. The district court granted summary judgment, so the landowners filed an appeal with the Utah Supreme Court. The Utah Supreme Court affirmed in part and reversed in part.

First, the Court held that there was no taking because the City was using its lawfully appropriated water rights. The Court determined that the landowners' interest in the water table underlying their property was not a protectable interest under the Utah Constitution or the United States Constitution.

Second, the Court held that the landowners' interference claimed failed as a matter of law. Although the Court acknowledged that the City's pumping from the Hayden Well Field affected the soil saturation and the water table, the City was not interfering with the landowners' rights and ability to divert their water rights (which were diverted from surface sources).

Third, the Court held that the district court erred when it granted summary judgment in favor of the City on the landowners' negligence claim. The Court held that the negligence claim was not barred by the statute of limitations because the City's pumping--which caused the alleged damage--was a continuing tort. The Court also held that the City did owe a duty to the landowners to exercise reasonable care in obtaining its water. The Court recognized that the landowners would be able to prevail on their negligence claim if the facts support the landowners' assertion that there were alternative means for the City to obtain its water without adversely affecting the landowners. The case was remanded to the district court for additional proceedings on the negligence claim.

To read the full opinion, click here.

Utah Waterways Task Force

2010-05-20T13:17:00.002-06:00

The Utah Waterways Task Force has set its first meeting for June 24, 2010 at 10:00 am at the Department of Natural Resources building (1594 West North Temple, Salt Lake City). The meeting notice can be viewed here.

Senator Dennis Stowell, the sponsor of the bill that established the Task Force, explained the purpose of the Task Force as follows:

"This task force will be made up of 12 legislators that will study . . . areas of the state which have conflicts between fishermen and landowners. The task force will hold public hearings to allow the landowners and fishermen testify about the conflicts in these areas. This process will help the legislature better understand how the problem may be solved. The task force will also address funding issues in regards to expanding the DWR Walk-in Access program, funding to permanently purchase access rights from landowners, and establishment of cooperative fishing management units (CFMU’S)."
(Click here for source of quote.)

The Task Force is made up of the following six representatives and six senators:
Rep. Melvin R. Brown (Co-Chair)
Sen. Dennis E. Stowell (Co-Chair)
Sen. Curtis S. Bramble
Sen. Margaret Dayton
Rep. Jack R. Draxler
Rep. Ben C. Ferry
Rep. James R. Gowans
Rep. Lynn N. Hemingway
Sen. Peter C. Knudson
Sen. Benjamin M. McAdams
Rep. Kay L. McIff
Sen. Karen W. Morgan

What Is the Difference Between a Water Right and a Water Share?

2010-04-19T14:52:00.002-06:00

In the many conversations I have had with others regarding water-related issues, the most common mistake I hear is the confusion between "water right" and "water share." Hopefully the following discussion will clarify the distinction.

In Utah, all water is owned by the public. The Utah Code provides that "All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof. " The Utah Division of Water Rights administers the water on behalf of the public. In order to legally use water, a person must have a water right; in other words, the person must have permission from the Utah Division of Water Rights to use some of the public's water.

Many water rights are owned or held by mutual water companies (e.g., canal companies, ditch companies, or irrigation companies). The company issues stock to shareholders. By owning stock, a shareholder is entitled to use a portion of the company's water right. For example, if a ditch company owns a water right for 1,000 acre-feet of water and the company has 1,000 shareholders, each share represents the right to use 1 acre-foot of water from the company's water right.

The two terms are not interchangeable. Water shares ARE NOT water rights. The distinction between water rights and water shares is important for many reasons. For example, the manner of transferring water rights and water shares differs drastically. To transfer water rights (which are generally considered real property), a seller must convey the water right by deed, the deed must be recorded in the proper county recorder's office, and a Report of Conveyance must be filed with the Division of Water Rights. (Click here for more information.) Water shares (which are generally considered personal property) are transferred internally according to the water company's rules and regulations--generally by the seller endorsing the back of the share certificate and then having the company secretary issue a new share certificate to the buyer.

2010 Legislature: Governor Signs Stream Access Bill

2010-03-31T13:27:00.003-06:00

Today, Utah Governor Gary Herbert signed second substitute House Bill 141 into law. HB 141 was sponsored by Representative Kay McIff.

To read more about second substitute House Bill 141, click here.

Brown v. Utah Division of Water Rights

2010-03-16T09:34:00.002-06:00

Last week, the Utah Supreme Court issued its opinion in Brown v. Division of Water Rights. This case began in 2006 when the Browns' neighbor applied to the Division for a stream alteration permit so that he could build a bridge across Little Cottonwood Creek. The Browns protested the permit, asserting that the bridge would diminish the Creek's ability to handle high water flow and would adversely impact the natural stream environment. Despite the Browns' protest, the Division issued the permit. The Browns filed a request for reconsideration, which the Division denied. The Browns then filed a petition for administrative review with the district court.

The neighbor filed a motion to dismiss the Browns' petition, arguing that the Browns lacked standing because they failed to allege a distinct and palpable injury. The district court agreed, and dismissed the Browns' petition for lack of standing. The Browns appealed to the Utah Court of Appeals, who affirmed the district court's decision. The Browns then appealed to the Utah Supreme Court. The Supreme Court reversed the Court of Appeals and district court, holding that the Browns did have standing because their allegations established a reasonable probability of future injury. The case has now been remanded for additional proceedings consistent with the Utah Supreme Court's decision.

To read the full opinion, click here.

2010 Legislature: Water Bills

2010-03-12T10:04:00.004-07:00

Here are two more water bills that passed the Utah legislature this session:

HB 60 - Water Conveyance Facilities Safety Act (click here to read the substituted bill)
SB 281 - Public Access to Stream Beds - Utah Waterways Task Force

There were several bills that were considered, but were not passed:

HB 84 - Water Banking
HB 171 - Water Rights Revisions
HB 290 - Recreational Use of Privately Owned Stream Beds
HB 343 - Great Salt Lake Advisory Council
HJR 1 - Joint Resolution Amending Provision on Municipal Water Rights
SB 185 - Adoption of Canal Safety Act

2010 Legislature: New Stream Access Bill

2010-03-10T18:16:00.004-07:00

Senator Dennis Stowell has introduced Senate Bill 281 (SB 281), entitled "Public Access to Stream Beds - Utah Waterways Task Force."

The bill creates the Utah Waterways Task Force, made up of six state senators and six state representatives, to "study issues concerning private property rights and public recreational access on public waters." These issues include restrictions of access to private beds of public waters, state purchases of access rights, and development of cooperative fish management units. The Task Force is to create a final report, including any proposed legislation, by November 30, 2010.

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

(For an update on this bill, click here.)

2010 Legislature: Substituted Stream Access Bill Passes

2010-03-10T17:55:00.006-07:00

Representative McIff's stream access bill (HB 141) was substituted yesterday. The substituted bill is quite different from Representative McIff's original bill or first substitute.

The second substituted bill recognizes a "limited recreational floating right." The bill affirms the right to float that was granted by the Utah Supreme Court in JJNP Co. v. State, but limits the broader recreational access granted by the Utah Supreme Court in Conatser v. Johnson. Essentially, a person has the right to float down a stream (if the stream is capable of being floated on) across private property and can fish while floating, but may not stop on the private property. Incidental touching and portaging are allowed. If a person wants the broader recreational access (i.e., being able to stand on the private streambed to fish), public recreational access will have to be established by showing open, notorious, and adverse recreational use for at least 10 years.

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

Yesterday, the second substitute bill passed the Senate by a vote of 19 in favor and 10 against. Click here to see how each senator voted.

Today, the second substitute bill passed the House by a vote of 43 in favor, 28 against, and 4 absent or not voting. Click here to see how each representative voted.

The second substitute bill will now be enrolled and sent to Governor Herbert for his signature.

(For an update on this bill, click here.)

2010 Legislature: More Water Bills Passed

2010-03-10T17:31:00.006-07:00

Here is an update on more water bills that have passed both the House and the Senate:

HB 231 - Water Rights Priorities in Times of Shortage (click here to read amended bill)
HB 314 - Water Rights Addendums to Deeds (click here to read substituted bill)
HB 298 - Land Use Authority Notification of Canal Development (click here to read substituted bill)
HJR 26 - Joint Resolution Approving Water Rights Addendum Form (click here to read the substituted resolution)
SB 32 - Rainwater Harvesting (click here to read the substituted bill)

As a note, SB 99 (Water Companies and Water Right Change Requests) failed in the Senate.

To see other bills that have passed this session in the Utah legislature, click here and here.

2010 Legislature: More Water Bills Passed

2010-03-05T10:50:00.005-07:00

Here is an update on more water bills that have passed both the House and the Senate.

HB 54 - Property Tax Exemption for Water Facilities
HJR 2 - Joint Resolution on Property Tax Exemption for Water Facilities
SB 20 - Local District Amendments

To see other water bills that have passed this session, click here.

2010 Legislature: Change Applications

2010-03-05T10:43:00.006-07:00

Representative Kerry Gibson has introduced House Bill 171 (HB 171), entitled "Water Rights Revisions." The purpose of the bill is to allow the State Engineer, in change application proceedings, to review the historical use of the water right and to limit approval of the proposed change to the quantity of water that has been "reasonably applied to beneficial use."

The bill has been amended so that the State Engineer must presume the water right has been used to its full extent--thereby placing the burden on a protestant to show nonuse--and to clarify that any unapproved portion of the water right is not considered forfeited or abandoned.

The amended bill has passed the House and is now being considered in the Senate.

Click here to read the full text of the amended bill.

(For an update on this bill, click here.)

2010 Legislature: McIff's Stream Access Bill Passes in the House

2010-02-23T11:37:00.005-07:00

Representative Kay McIff's stream access bill (HB 141), as substituted, has passed the Utah House of Representatives. The vote was 50 in favor and 25 against. The bill will now move to the Utah Senate.

For a complete list of how each representative voted, click here.

(For an update on this bill, click here.)

2010 Legislature: Water Bills Passed

2010-02-23T11:18:00.005-07:00

Here is an update on the water bills that have passed both the House and the Senate:

HB 33 - Groundwater Recharge and Recovery Act Amendments
HB 34 - Water Storage Projects
HB 69 - State Engineer's Plugging of Wells Repealer
HB 98 - State Engineer Bonding Requirements
HB 226 - Well Driller's License - Pump Installation
HB 229 - Water Rights General Adjudication Amendments

2010 Legislature: Representative Fowlke's Stream Access Bill Defeated

2010-02-22T17:35:00.003-07:00

Representative Lorie Fowlke's stream access bill (HB 80) was voted down in the House today. The vote was 23 in favor, 50 against, and 2 absent or not voting.

For a complete list of how each representative voted, click here.

2010 Legislature: Substituted Stream Access Bill

2010-02-22T17:31:00.005-07:00

Representative Kay McIff's stream access bill (HB 141) has been amended and substituted. Although the general thrust of the bill remains the same, there are some additional definitions and some modified provisions in the substituted bill.

Click here to read the full text of the substituted bill.

(For an update on this bill, click here.)

2010 Legislature: New Canal Safety Bill

2010-02-18T13:20:00.005-07:00

The text of Senate Bill 185, which was previously numbered without substance, has now been released. The bill would make administration of canal safey more similar to the administration of dam safety. The Utah Division of Water Rights would be required to assess the level of risk of every canal in the state by January 1, 2012, and at least once every five years thereafter. The Division would assess whether a canal is high risk, medium risk, or low risk. If a canal is high risk or requires repairs or maintenance, the canal would be placed on a "canal action list." The canal company would then be responsible to develop a remediation plan to make the necessary repairs or maintenance. A canal company is not eligible for funding from the Division or from the Board of Water Resources unless the an approved remediation plan is in place.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Substituted Rainwater Harvesting Bill

2010-02-18T13:05:00.006-07:00

Senate Bill 32, regarding rainwater harvesting, has been amended and substituted. The changes are:

Harvested water can be stored and used on a "parcel," which is now a defined term (the bill previously used the word "property").
There is a limit of one underground storage container per parcel.
There is a limit of two covered storage containers per parcel.
The maximum size of covered storage containers was increased to 100 gallons (previously, it was 55 gallons).

Click here to read the full text of the substitute bill.

(For an update on this bill, click here.)

2010 Legislature: Development Near Canals

2010-02-18T12:51:00.008-07:00

Representative Ben Ferry has introduced a new bill regarding development near canals. The bill is number House Bill 298 (HB 298) and is entitled "Land Use Authority Notification of Canal Development."

The bill seeks to amend the municipal and county land use, development, and management acts (commonly referred to as "LUDMA") by requiring municipalities and counties to notify canal companies of proposed development within 100 feet of the center line of a canal. In order to facilitate this notice requirement, canal companies will be obligated to provide the municipalities and counties with the company's contact information and a general description of the location of their canal(s).

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Water Rights Deed Addendum

2010-02-10T11:14:00.005-07:00

Representative Ben Ferry has introduced House Bill 314 (HB 314) entitled "Water Rights Addendums to Deeds." The bill would require a water rights addendum (i.e., a "deed rider") to be included with every deed that conveys land or water rights. The purpose of the bill is to ensure that it is clear to both buyer and seller whether water rights are included with the purchase of the property. The deed rider would help reduce the problems associated with appurtenance and unclear ownership of water rights.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Representative McIff's Stream Access Bill

2010-02-09T09:23:00.007-07:00

The substance of Representative Kay McIff's stream access bill has been released. The bill has been numbered House Bill 141 (HB 141) and is entitled "Recreational Use of Public Water on Private Property."

This bill much more restrictive than other stream access bills that have been previously proposed at the Utah legislature. This bill declares that the Utah Constitution's private property protections do not permit the government to grant a public recreation easement to access public water on private property. The bill is very critical of the Utah Supreme Court's decision in Conatser v. Johnson, and essentially overturns the Conatser decision.

The bill allows very limited public recreational access. Recreational access can be established only if the private streambed has been used by the public for recreational access for at least 10 consecutive years that begin after September 22, 1972. The public use must be continuous, open, notorious, adverse, and without interruption. A person or the Division of Wildlife Resources may bring a quiet title action in court to obtain a judicial declaration of the existence of a right to public recreational access.

This bill is sure to receive strong protest from the fly fishing community.

Click here to read the full text of Representative McIff's bill.

Click here to read about other stream access bills.

(For an update on this bill, click here.)

2010 Legislature: More Stream Access Bills

2010-02-08T09:46:00.005-07:00

Two more bill files have been opened at the Utah legislature regarding stream access.

Senator Curtis Bramble has opened a bill file that has been numbered Senate Bill 267 (SB 267) and is entitled "Public Access to Stream Beds."

Representative Kay McIff has opened a bill file that has been numbered House Bill 141 (HB 141) and is entitled "Recreational Use of Public Water on Private Property."

Both bills were numbered without substance, so it is still unknown exactly what is in the bills. It has been rumored that Representative McIff's bill will essentially overturn the Utah Supreme Court decision in Conatser v. Johnson.

Two steam access bills have already been proposed: House Bill 80 by Representative Lorie Fowlke and House Bill 290 by Representative Curt Webb.

2010 Legislature: New Canal Safety Bill

2010-02-08T09:39:00.007-07:00

Senator Gene Davis has opened a new bill file for a canal safety bill. The bill has been numbered Senate Bill 185 (SB 185) and is entitled "Canal and Irrigation Safety and Inspections." However, the bill was filed without any substance, so the contents of the bill are still unknown. It appears that this bill will go up against House Bill 60, the other canal safety bill sponsored by Representative Fred Hunsaker.

(For an update on this bill, click here.)

2010 Legislature: New Stream Access Bill

2010-02-05T11:07:00.007-07:00

Representative Curt Webb has introduced a new stream access bill. The bill has been numbered House Bill 290 (HB 290), and is very similar to the House Bill 80, sponsored by Representative Lorie Fowlke.

The major difference between the two bills is the definition of stream bed. Under Representative Fowlke's bill, the bed is defined as the area within the "ordinary high water mark." Under Representative Webb's bill, the bed is defined as the area "below a public water in the area actually wetted by the public water." Thus, it appears that Representative Webb's bill is a "wet foot" bill; i.e., a person fishing in a stream that crosses private property must actually be in the water to avoid trespassing.

A second difference between the two bills is that Representative Webb's bill does not require a person to get a public access certificate from the Division of Wildlife Services before accessing public streams that cross private property.

Click here to read the full text of Representative Webb's bill.

(For an update on this bill, click here.)

2010 Legislature: Preference for Drinking Water

2010-01-28T17:14:00.007-07:00

Last year, the Utah legislature passed House Bill 241, which repealed the law giving priority to domestic use in times of water shortage. (Click here to read my blog post from last year.) The legislature postponed the effective date of the repeal until May 11, 2010, in order to allow this year's legislature to consider the repeal again.

Representative Kerry W. Gibson, who sponsored last year's bill, is sponsoring a new bill this year that will keep the priority statute in place, with some amendments. The bill is numbered House Bill 231 (HB 231). The bill clarifies the priority of water uses during times of water shortage. Generally speaking, the use of water for drinking, sanitation, and fire suppression has a preferential right over all other uses. Next in priority is the use of water for irrigation and stockwatering. The bill also provides that an appropriator whose water use is interrupted due to the prefernce must be compensated for crop loss and other consequential damages.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Shareholder Change Applications

2010-01-28T17:02:00.005-07:00

Senator John Valentine has introduced a bill that modifies Utah Code section 73-3-3.5 regarding shareholder change applications. The bill is numbered Senate Bill 99 (SB 99). The bill clarifies that a water company (i.e., irrigation company, canal company, or ditch company) cannot deny a shareholder's request for a change application merely because the change would result in water being used outside of the water company's historic service area. The bill also clarifies that the water company may charge the shareholder for the costs of the change application, including the costs for the water company's engineers and/or attorneys and the costs associated with submitting proof. The water company must, however, provide the shareholder of an accounting of the fees and costs and copies of invoices for the fees and costs.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Pump Installer Licensing

2010-01-28T16:55:00.006-07:00

Representative Patrick Painter has introduced a bill that would require well pump installers to be licensed and regulated in the same way that well drillers are. The bill is numbered House Bill 226 (HB 226). The purpose of the bill is to prevent health risks that can occur when non-professionals install pumps onto wells without properly sanitizing the pumps, pipes, and well. A person who is installing a pump on their own well is not required to have a license, but is required to register with the State Engineer's office.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Water Banking

2010-01-28T16:47:00.007-07:00

Representative Jack Draxler has introduced a bill that would allow the banking of water rights. The bill is numbered House Bill 84 (HB 84). The bill would allow local districts to bank water. Counties or portions of counties that are not within the boundary of a water conservancy district may also bank water. Representative Draxler has been working on this bill with Cache County, who is worried about losing forfeited water rights in the Bear River to Idaho water users.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislative Preview: Leasing of Municipal Water Rights

2010-01-21T17:49:00.006-07:00

Representative Kay McIff has proposed a constitutional amendment that would allow a city or town to lease water rights that it owns, if the city or town does not currently need the water. The term of the lease agreements may not exceed seven years. The Utah Constitution currently prohibits municipalities from leasing or selling any of their water rights. If two-thirds of the Senate and House approve the Joint Resolution, the constitutional amendment would then have to be adopted by a majority of Utah voters in the next general election.

Click here to read the full text of the Joint Resolution.

(For an update on this bill, click here.)

2010 Legislative Preview: Artesian Wells

2010-01-21T17:39:00.005-07:00

Representative James Gowans has registered a bill that would repeal the State Engineer's duty to plug certain artesian wells. The bill is numbered House Bill 69 (HB 69), and was requested by the State Engineer. The bill repeals Utah Code section 73-2-21, an archaic statute that required the State Engineer to plug certain artesian wells that were no longer in use and were wasting water. The motive behind the repeal is so that the owner of the well--and not the State Engineer--bears the burden of plugging it when it is no longer in use.

Click here to read the statute that will be repealed.

(For an update on this bill, click here.)

2010 Legislative Preview: Canal Safety

2010-01-16T14:49:00.007-07:00

Representative Fred Hunsaker has registered a bill aimed at canal safety. The bill, numbered House Bill 60 (HB 60), is in response to last summer's catastrophic canal failure in Logan that resulted in the death of three people.

Under the bill, owners of canals and ditches are to prepare a written management plan for each segment of the canal or ditch that constitutes a hazard because of location, elevation, soil conditions, structural instability, water volume, or other reasons. The management plans are to be submitted to the Utah Division of Water Resources, who reports to a legislative committee.

There is no real penalty if a management plan is not submitted. The only thing a canal or ditch company loses is the right to receive state funds or state loans for water development, including funds or loans to repair or improve the canal or ditch.

The bill also provides that the management plans cannot be obtained through a government records request, nor can they be introduced into evidence in any civil litigation.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislative Preview: Rainwater Harvesting

2010-01-14T11:05:00.007-07:00

Senator Scott Jenkins has registered a rainwater harvesting bill for the upcoming session of the Utah legislature. The bill has been numbered Senate Bill 32 (SB 32), and is similar to the Senate Bill 128 that Senator Jenkins ran last year.

Under this bill, a person could capture and store rainwater in an underground storage tank (with a maximum capacity of 2500 gallons) or in covered storage containers above ground (with a maximum capacity of 55 gallons per container).

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislative Preview: Stream Access

2010-01-14T10:44:00.007-07:00

Representative Fowlke has registered a stream access bill for the upcoming session of the Utah legislature. There are quite a few differences between the registered bill and the original draft that I blogged about a few months ago. Here are some differences that I noticed:

The definition of "bed" is now "the area within the ordinary high water mark."
The definition of "recreational activity" now includes waterfowl hunting.
A person must obtain a public access certificate to engage in recreational activities on private streambeds. This requirement replaced the earlier idea of making those who purchase a fishing license also purchase a public access stamp.
An owner of a private streambed can place a fence across the stream, as long as the fence is for a legitimate purpose and not just to block recreational access.
The Division of Wildlife Resources will create a free public education program to teach the public about recreational access to private streambeds. The program will be available by Internet, and once a person has completed the program, they can obtain a public access certificate.

This bill (House Bill 80) may see some changes during the legislative session, but it appears that this is the bill that will be introduced to the legislature.

To read the complete text of HB 80, click here.

(For an update on this bill, click here.)

How Are Utah Water Rights Transferred?

2010-01-04T15:28:00.008-07:00

Under Utah law, water rights can be transferred in two ways.

First, water rights can be transferred by deeding the water right and recording the deed in the county (or counties) where the water is diverted and used. Utah Code section 73-1-10.

Second, water rights can pass by appurtenance, which occurs when land is conveyed and an appurtenant (i.e., “attached”) water right automatically passes with the land. Utah Code section 73-1-11.

Thus, true ownership of a water right can be determined only by researching the deeds at the county recorder’s office.

The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Conveyance to notify the Division when ownership transfers.

Sometimes, individuals are conveyed a water right through a properly recorded deed or through appurtenance, but do not notify the Division of the conveyance. Thus, there can be a discrepancy between the true ownership (based on recorded deeds) and the Division’s database of ownership.

Taylor-West Weber Water Improvement District v. Olds

2009-12-23T14:02:00.006-07:00

Yesterday, the Utah Supreme Court released its opinion in the case of Taylor-West Weber Water Improvement District v. Olds. The opinion examined whether a late protestant could intervene in an applicant's appeal of a State Engineer decision.

Several years ago, the District filed an Application to Appropriate water through seven wells. Roy City filed a late protest, which the State Engineer considered. The State Engineer approved the District's Application, but placed a ten-year limitation on the right. The District filed an appeal in court, asserting that the State Engineer's conditional approval was incorrect. Roy City sought to intervene in the court case, but their request to intervene was denied by the court.

Roy City appealed the denial to the Utah Supreme Court, asserting that it should have been allowed to intervene under the Utah Rules of Civil Procedure. The District and the State Engineer argued that Roy City was prohibited from intervening under the Utah Administrative Procedures Act.

Ultimately, the Court found in favor of Roy City. The Court ruled that the Procedures Act did not prevent intervention and that the lower court should have looked to the Rules of Civil Procedure to determine if intervention was proper. Accordingly, the Court reversed and remanded the case to the lower court for reconsideration of Roy City's motion to intervene under the Rules of Civil Procedure.

To read the full opinion, click here.

What Are the Regional Offices of the Utah Division of Water Rights?

2009-12-19T11:32:00.004-07:00

To assist the State Engineer in administering the water rights in Utah, the Division of Water Rights has divided the state into seven regions. Each region has an office with a Regional Engineer and staff.

Northern Regional Office (Logan)
Regional Engineer: Will Atkin

Weber River/Western Regional Office (Salt Lake City)
Regional Engineer: Ross Hansen

Utah Lake/Jordan River Regional Office (Salt Lake City)
Regional Engineer: Teresa Wilhelmsen

Eastern Regional Office (Vernal)
Regional Engineer: Bob Leake

Southeastern Regional Office (Price)
Regional Engineer: Marc Stilson

Sevier River/Southern Regional Office (Richfield)
Regional Engineer: Kirk Forbush

Southwestern Regional Office (Cedar City)
Regional Engineer: Kurt Vest

To find out which region you are in, you can reference this map.

For contact information for each regional office, click here.

New Sole Supply Rule

2009-11-18T09:32:00.006-07:00

The Utah Division of Water Rights is in the process of adopting a new administrative rule regarding sole supply (now called "beneficial use limitations"). The proposed rule will be Utah Administrative Code rule R655-16, entitled "Administrative Procedures for Declaring Beneficial Use for Supplemental Water Rights." The following purpose and summary are taken from the Utah State Bulletin, where the proposed rule is published.

PURPOSE: "The purpose of this rule is to define procedures for resolving supplemental water right beneficial use quantification issues by agreement among the water right owners. The rule also defines state engineer assistance in apportioning beneficial use among water rights in a water use group."

SUMMARY: "This rule provides for a 'Declaration of Individual Beneficial Use Amounts' form to enable water right holders to declare beneficial use information and document agreement with that declaration by those with supplemental water rights. The rule provides conditions under which a water user may petition the state engineer for assistance in apportioning beneficial use among water rights in a water use group. The rule formalizes the procedure the state engineer will follow in the apportioning beneficial use among water rights in a water use group."

To view the entire proposed rule, click here. (The rule begins on page 62 of the document.)

(For an update on the new sole supply rule, click here.)

Is Title Insurance Available for Water Rights?

2009-11-10T13:09:00.005-07:00

Title insurance policies can be purchased for water rights in Utah. There is, however, only one company in Utah that currently provides water right title insurance: First American Title Insurance Company. For more information on water right title insurance from First American, contact Brad Dobson at 801-578-8820.

Where Can I Find Utah Water Laws?

2009-11-06T09:39:00.005-07:00

Utah water law can be found in several different sources, some of which are listed below:

The main source of Utah water law is the Utah Water Code, which contains Utah's statutes regarding water and water rights. The Utah Water Code which can be found in Title 73 of the Utah Code.

Utah administrative rules regarding water rights can be found in Title R655 of the Utah Administrative Code.

Utah administrative rules regarding water resources can be found in Title R653 of the Utah Administrative Code.

Utah administrative rules regarding drinking water can be found in Title R309 of the Utah Administrative Code.

Utah administrative rules regarding water quality can be found in Title R317 of the Utah Administrative Code.

New Stream Access Bill

2009-11-05T09:07:00.007-07:00

A few days ago, I received the first draft of a bill regarding recreational access to streams that could be introduced in the 2010 legislative session. This bill is being sponsored by Representative Lorie Fowlke (R-Orem). The bill is a "starting point for discussion" and will likely see some changes prior to being introduced in the 2010 legislative session, but I wanted to provide a brief summary of the bill as it currently stands.

In July 2008, the Utah Supreme Court issued its decision in Conatser v. Johnson. The court held that members of the public may enter a stream at a public access point and follow the stream through private land to float, hunt, fish, swim, or do any other recreational activity that utilizes the water without committing trespass.

In the 2009 legislative session, Representative Ben Ferry (R-Corinne) introduced House Bill 187. Under the bill, the public would be allowed to engage in recreational activities in rivers that cross private property only if the rivers are designated “public waters." The bill contained an initial list of "public waters" that could be amended by a recreational access board. The bill faced some stiff opposition, and was ultimately defeated in the House.

Since the 2009 session, Representative Fowlke has been working with many of the interested parties to craft a new bill. Here are some "highlights" of the bill:

-Persons engaged in recreational activities are permitted to touch a private bed under public waters (natural streams, rivers, lakes, etc.). Unlike the 2009 bill, this bill does not limit access to only larger rivers and streams. There is a limitation, however, that the recreational activity must be "consistent with the amount of water actually present at the time the activity occurs."

-The "bed" of a stream is defined as the area that is beneath the ordinary high water mark and within five feet of the water body. Thus, under the bill, a fisherman does not have to have "wet feet" to avoid trespassing. Some landowners do not like this definition, and want to see the defintion of "bed" changed to be only the part of the bed that is actually covered by water.

-A person may enter private land to portage around manmade obstructions (e.g., fences), but may not enter private land to portage around natural obstacles (e.g., boulders).

-Hunting is specifically excluded as a recreational activity.

-Each person who purchases a fishing license must purchase a $5.00 public access stamp. The money obtained will be used to stock fish, enforce public access laws, educate the public about public access laws, and construct fence ladders and other improvements to fences across public waters. The public access stamp requirement is already raising some protest, and could be removed from the bill.

Overall, Representative Fowlke's bill is a vast improvement from the 2009 bill, but may still face opposition and may see many changes prior to and during the 2010 legislative session.

If you would like to view the draft bill, it is availabe here.

How Do You Update Your Address with the Utah Division of Water Rights?

2009-09-26T15:58:00.006-06:00

In a previous post, I explained how to look up water rights on the Utah Division of Water Rights’ website. Each water right has an owner (or owners) listed at the top of the water right printout, with a corresponding mailing address. Many times, I find that the mailing address listed is incorrect or out-of-date. It is important that water right owners keep this address current. Any notices or other correspondence related to the water right will be mailed to the address on file with the Division. The Division will not actively ensure that the address is correct; rather, the Division relies on the water right owners to notify the Division of any changes.

The procedure to change an address is very simple and can be done online. Once you have pulled up the water right on the Division’s website (see instructions here), click on the drop-down menu in the top left corner and select "Modify an Owners Address." A list of owners will appear. Click the circle next to the owner whose address is to be modified. A new screen will appear where you can fill in the new address. It will also ask for a telephone number and email address to complete the submission.

It is important to note that the address modification procedure can be used only to update the address of a current owner. If the owner has changed (e.g., the water right has been sold, transferred to a trust, etc.) or if the owner’s name has changed (e.g., through marriage), this information must be updated by using a Report of Conveyance.

Division of Water Rights Public Information Meetings

2009-09-25T09:07:00.004-06:00

The Southeastern Regional Office of the Utah Division of Water Rights will be holding a series of public information meetings in Price, Green River, and Moab. The purpose of the meetings is to discuss water policies, processes, recent legislative changes. The agenda includes discussions of the Endangered Fish policy, the Colorado River policy, the appropriation policy in Willow Basin and Upper Mill Creek, and federal reserved water rights for Arches National Park.

The meeting schedule is as follows:

Price--Tuesday, September 29th, 6:00 pm, CEU Alumni Room

Green River--Wednesday, September 30th, 10:00 am, Green River City Hall

Moab--Wednesday, September 30th, 2:30 pm, Grand Center

To view a flyer containing more information, click here.

To view the agendas for the meetings, click here.

Snake Valley Agreement

2009-09-19T13:55:00.003-06:00

A proposed "Agreement for Management of the Snake Valley Groundwater System" was released a few weeks ago. This purpose of the proposed agreement is to establish "a cooperative relationship between the States of Utah and Nevada regarding the management of interstate groundwater resources." The proposed agreement has caused quite an uproar in Utah (click here for a sample news article from the Deseret News), as many residents in the Snake Valley area feel that Nevada is getting the better end of the deal.

To read the proposed agreement, click here.

2009 Utah Groundwater Report

2009-09-19T13:46:00.003-06:00

Each year, the United States Geological Survey (USGS) publishes a report on groundwater conditions in Utah. The report is prepared and published in cooperation with the Utah Division of Water Resources, the Utah Division of Water Rights, and the Utah Division of Water Quality. The report is a valuable resource containing information on well construction, groundwater withdrawal, groundwater level changes, groundwater quality, and much more.

The 2009 report was recently released. It is available online here.

New Adjudication Team Leader

2009-08-04T10:25:00.004-06:00

In July, it was announced that James Greer will be the new Adjudication Team Leader at the Utah Division of Water Rights. Mr. Greer replaces Teresa Wilhelmsen, who was recently named the new Regional Engineer for the Utah Lake/Jordan River Area.

For contact information for Mr. Greer and other employees of the Division of Water rights, click here.

For an explanation of what an Adjudication is, click here.

How Do I Find the Names of Officers and Directors of Irrigation and Canal Companies?

2009-07-15T19:42:00.009-06:00

Have you ever tried to find out who the president of an irrigation or canal company is? Or have you ever tried to find out who the other officers and directors of an irrigation or canal company are? Here are a few places you can try:

The Utah Division of Water Rights maintains a list of water companies. The companies are listed alphabetically by county. As a caveat, the list is not always up to date and some companies have more listed information than others. Click here to access the list.

Most irrigation companies and canal companies are nonprofit corporations, so they are registered with the Utah Division of Corporations. The Division has a Business Entity Search, which allows you to search for a company. The basic search is free, but the results only list the company's registered agent. To see the officers and directors, you can click on the "Access Principal Information" bottom at the bottom of the page, but there is a $1.00 fee. Click here to access the Business Entity Search.

Also, if you are a shareholder in an irrigation company or canal company, then you have the right to request a list of the names and addresses of the current officers and directors of the company. Click here for more information.

Some water providers are not private companies, but are districts. For a list of service districts, click here.

What is a Nonuse Application?

2009-06-26T15:56:00.004-06:00

A nonuse application is an application made to the Utah State Engineer under which a water right owner may cease using the water right for up to seven years without the water right becoming subject to forfeiture.

Under the Utah Code, the State Engineer should not approve a nonuse application unless the applicant shows “reasonable cause” for the nonuse. Reasonable cause includes:

(i) a demonstrable financial hardship or economic depression;
(ii) the initiation of water conservation or efficiency practices, or the operation of a groundwater recharge recovery program approved by the state engineer;
(iii) operation of legal proceedings;
(iv) the holding of a water right or stock in a mutual water company without use by any water supply entity to meet the reasonable future requirements of the public;
(v) situations where, in the opinion of the state engineer, the nonuse would assist in implementing an existing, approved water management plan; or
(vi) the loss of capacity caused by deterioration of the water supply or delivery equipment if the applicant submits, with the application, a specific plan to resume full use of the water right by replacing, restoring, or improving the equipment.

Nonuse applications are advertised, and any interested person can file a protest to the application with the State Engineer. Following a review of the application and any protest (and perhaps an administrative hearing), the State Engineer will either approve or reject the application.

To read the Utah statute regarding nonuse applications, click here.

To access the Utah Division of Water Rights' nonuse application form, click here.

What is a Change Application?

2009-06-25T11:06:00.007-06:00

In Utah, water rights have certain components or elements. These components include:

(1) Point of diversion: This is the exact location where the water is diverted. For example, it may be a point on a river or stream where the water is diverted into a ditch, or it may be the location of a well where water is diverted from the underground aquifer.

(2) Place of use: This is the location where the water is used. The location is usually given in terms of quarter-quarter sections (40 acres).

(3) Type of use: This is what the water is used for. The most common uses are irrigation, domestic, stockwatering, industrial, and municipal.

(4) Period of use: This is the period during the year during which the water may be used. For example, an irrigation right may have a period of use from April 1st to October 31st. Other types of rights, such as stockwatering or domestic, may have a period of use for the entire year.

If the owner of a water right wishes to change any of these water rights components, he or she must file a Change Application (the official title is “Application for Permanent Change of Water”) with the Utah Division of Water Rights. For example, if a water right currently permits an individual to divert water from a stream, and the individual wants to get the water from a well instead of the stream, the individual would be required to file a Change Application to change the point of diversion from the stream to the well.

To read the Utah statute regarding Change Applications, click here.

To access the Utah Division of Water Rights' Change Application form, click here.

To learn more about the process that the State Engineer goes through in approving or denying a Change Application, click here.

How to Search for Utah Water Rights

2009-06-22T18:09:00.005-06:00

The Utah Division of Water Rights maintains a very useful website that contains information about every water right in Utah. There are several different ways to search for information on a water right on the website.

The easiest way to search is by water right number. If you know the water right number, simply click here, enter the water right number, and hit “Submit Query.” This will bring up the database summary for the water right.

If you don’t know the water right number, but you do know the name of the water right owner, click here, enter the owner name, and click “Display Results.” If the owner is an individual, enter the last name first, then the first name (separate the last name and the first name with a comma). If the owner is a business entity, enter the entity’s name.

If you don’t know the water right number or the owner name, but you know the name of the river, stream, spring, or other source, you can search by the source name. Click here, select “Text Search on Source of Supply,” enter the source name, then click “Display Results.”

Is It Illegal to Harvest Rainwater in Utah?

2009-05-30T14:44:00.006-06:00

Collecting and using rainwater has become a hot topic in Utah during the past few months. The issue first made news headlines in August 2008 when a car dealership came under scrutiny of the Utah Division of Water Rights for collecting rainwater from the roof of the dealership’s building, storing the water in a cistern, and then using the water in a car wash. The Division informed the dealership that it needed a water right in order to divert, store, and use the rainwater. This story stirred up lots of curiosity and controversy, with many people (including state legislators) questioning why individuals should not be allowed collect and use rainwater.

During the 2009 legislative session, two bills were introduced that addressed the issue of rainwater harvesting. The first bill was Senate Bill 58, sponsored by Senator Scott McCoy. Under this bill, public water suppliers could allow individuals to capture and beneficially use precipitation under the public water supplier’s approved exchange application. The second bill was Senate Bill 128, sponsored by Senator Scott Jenkins. Under this bill, a person would be permitted to capture and store precipitation in an underground storage container with a maximum capacity of 2,500 gallons. This captured precipitation could be beneficially used without having to obtain a water right or go through the appropriation process.

Both bills passed the Senate, but were not voted on by the House. It is likely that one or both bills will be presented during the 2010 legislative session.

The Division of Water Rights has also prepared a response to the question of whether harvesting rainwater is illegal in Utah. In sum, the Division’s position is that if rainwater is merely controlled or directed (such as with rain gutters and drain piping), then a water right is not needed. However, if rainwater is stored and then later used for some other purpose rather than being released back into the drainage system, then a water right is needed.

To read the text of Utah Bill 58, click here.

To read the text of Utah Bill 128, click here.

To read the Utah Division of Water Right's response, click here.