Water Rights Addendum

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.

2010 Legislature: Governor Signs Stream Access Bill

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.

2010 Legislature: Water Bills

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.)