Taylor-West Weber Water Improvement District v. Olds

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?

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: Nathan Moses

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

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?

Title insurance policies can be purchased for water rights in Utah. There are two title companies in Utah that currently provide water right title insurance:

• First American Title Insurance Company. Contact Brad Dobson at 801-578-8820.
• Titan Tile Insurance Agency. Contact Rodney Dean at 801-300-0755.

Where Can I Find Utah Water Laws?

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

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?

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

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

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

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.