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.)
Saturday, January 16, 2010
Thursday, January 14, 2010
2010 Legislative Preview: Rainwater Harvesting
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.)
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
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:
To read the complete text of HB 80, click here.
(For an update on this bill, click here.)
- 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.
To read the complete text of HB 80, click here.
(For an update on this bill, click here.)
Monday, January 4, 2010
How Are Utah Water Rights Transferred?
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.
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.
Wednesday, December 23, 2009
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.
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.
Saturday, December 19, 2009
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.
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.
Wednesday, November 18, 2009
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.)
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.)
Tuesday, November 10, 2009
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.
Friday, November 6, 2009
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.
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.
Thursday, November 5, 2009
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.
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.
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