Senator Ralph Okerlund has introduced Senate Bill 109 (S.B. 109), entitled "Change Application Procedure." This bill is similar to S.B. 187 from 2012, and is intended to make changes in response to the the Salt Lake City v. Big Ditch case and the Jensen v. Jones case. The bill seeks to better define who is permitted to file a change application. The other major purpose of the bill is to give the State Engineer statutory authority to act as a "gatekeeper" and consider nonuse in the context of a change application. Essentially, it allows the State Engineer to limit the approval of a change application to the amount of water that has been beneficially used in the past seven years.
This bill has produced a lot of discussion and proposed amendments. Accordingly, it is likely that this bill will see several amendments if it is to get passed by both the Senate and the House.
To read the full text of the bill, click here.
For an update on this bill, click here.
Wednesday, February 6, 2013
2013 Legislature: Division of Water Right Revisions
Senator Margaret Dayton has introduced Senate Bill 101 (S.B. 101), entitled "Division of Water Right Revisions." This bill makes mostly re-wording and technical changes to several sections of the Utah Water Code. The bill does make some important changes to the law regarding diligence claims. For example, the bill would allow a court, as part of the general adjudication process, to issue a decree prohibiting any future diligence claims with an area. The bill allows provides some clarification on the filing of a corrected diligence claim.
To read the full text of the bill, click here.
For an update on this bill, click here.
To read the full text of the bill, click here.
For an update on this bill, click here.
2013 Legislature: Water Easement Amendments
Representative John G. Mathis has introduced House Bill 73 (H.B. 73), which is entitled "Water Easement Amendments." The bill seeks to amend Title 57, Chapter 13a of the Utah Code by establishing a procedure a for person who holds a prescriptive easement for a water conveyance (ditch, canal, pipeline, etc.) to abandon all or part of the prescriptive easement. The bill would require the easement holder to publish, provide, and record notice of the abandonment. The bill provides that the abandonment does not affect any rights that others may have to the easement.
To read a copy of the bill, as amended, click here.
For an update on this bill, click here.
To read a copy of the bill, as amended, click here.
For an update on this bill, click here.
Wednesday, January 30, 2013
Public Meeting Concerning the Cedar Valley
The Utah Division of Water Rights has set a public meeting to discuss water right policies for the Cedar Valley area. The following information is from the public meeting notice:
What: Public Meeting
Who: Cedar Valley Water Users
When: March 7, 2013, 3:00 p.m.
Where: Eagle Mountain City Offices, 1650 E. Stagecoach Run, Eagle Mountain, UT 84005
Purpose: The purpose of the meeting is to present a summary of a hydrogeologic study (Hydrogeology and simulation of groundwater flow in Cedar Valley, Utah County, Utah: Utah Geological Survey Special Study 145) completed by the Utah Geological Survey (UGS) and to discuss the water right policies in the area. Personnel from the Division of Water Rights and the UGS will be available to take all questions and comments provided by the general public and interested parties.
If you have water rights in the Cedar Valley area (Area 54), you may want to attend the public meeting, as it appears there may be forthcoming changes to the water right policies in the area.
For more information about the meeting, click here.
For current water right policies in the Cedar Valley area, click here.
What: Public Meeting
Who: Cedar Valley Water Users
When: March 7, 2013, 3:00 p.m.
Where: Eagle Mountain City Offices, 1650 E. Stagecoach Run, Eagle Mountain, UT 84005
Purpose: The purpose of the meeting is to present a summary of a hydrogeologic study (Hydrogeology and simulation of groundwater flow in Cedar Valley, Utah County, Utah: Utah Geological Survey Special Study 145) completed by the Utah Geological Survey (UGS) and to discuss the water right policies in the area. Personnel from the Division of Water Rights and the UGS will be available to take all questions and comments provided by the general public and interested parties.
If you have water rights in the Cedar Valley area (Area 54), you may want to attend the public meeting, as it appears there may be forthcoming changes to the water right policies in the area.
For more information about the meeting, click here.
For current water right policies in the Cedar Valley area, click here.
Thursday, December 27, 2012
Beryl-Enterprise Groundwater Management Plan
On December 21, 2012, the Utah Division of Water Rights adopted the Beryl-Enterprise Groundwater Management Plan. The objectives of the Plan are to "limit the groundwater withdrawals to safe yield, protect the physical integrity of the aquifer, and protect water quality." The Beryl-Enterprise area has been an area where groundwater has been pumped faster than it can be recharged (also known as groundwater mining). The Division has determined that although the safe yield for groundwater in the area is approximately 34,000 acre-feet per year, current groundwater depletion in the area is approximately 65,000 acre-feet per year.
To address this issue, the Plan provides that total water depletion in the area will be reduced over time until the depletion matches the safe yield. In other words, over time, water rights will be eliminated, with the "newest" water rights being eliminated first. Over the first 40 years, the depletion will be reduced by 10%. For each ten-year period thereafter, the depletion will be reduced by an additional 5%. It is expected that by the year 2130, enough water rights will have been eliminated that the groundwater will stabilize.
The Plan leaves open the opportunity for water users in the area to participate in a voluntary arrangement to manage withdrawals other than by priority date.
To read the entire Plan, click here.
For more information about the Plan, click here.
For a list of the Beryl-Enterprise water rights listed by priority, click here.
To address this issue, the Plan provides that total water depletion in the area will be reduced over time until the depletion matches the safe yield. In other words, over time, water rights will be eliminated, with the "newest" water rights being eliminated first. Over the first 40 years, the depletion will be reduced by 10%. For each ten-year period thereafter, the depletion will be reduced by an additional 5%. It is expected that by the year 2130, enough water rights will have been eliminated that the groundwater will stabilize.
The Plan leaves open the opportunity for water users in the area to participate in a voluntary arrangement to manage withdrawals other than by priority date.
To read the entire Plan, click here.
For more information about the Plan, click here.
For a list of the Beryl-Enterprise water rights listed by priority, click here.
Monday, December 17, 2012
Hardy v. Eagle Mountain City
Last week, the Utah Court of Appeals issued its opinion in Hardy v. Eagle Mountain City. The opinion addresses issues of appurtenance of water rights and trust deeds.
The plaintiffs in the case were lenders who loaned money to a development company. The loan was secured by a trust deed and promissory note. The trust deed secured two parcels of land and "all water rights . . . and appurtenances thereunto belonging." The development company later conveyed a 160 acre-foot water right to a sister company, who in turn conveyed the water right to Eagle Mountain City and received "banked water entitlements" in exchange. When the development company defaulted on its loan, the lenders attempted to foreclose on the 160 acre-foot water right, asserting that the water right was encumbered by the trust deed. This lawsuit followed.
The district court ruled in favor of the lenders, and issued a decree of foreclosure under which the lenders were allowed to foreclose on the remaining banked water entitlements. Eagle Mountain City appealed the decision to the Utah Court of Appeals.
One of the primary arguments put forward by the City was that the trust deed was ambiguous, and that the trial court therefore should have considered extrinsic evidence regarding the parties' intent. The Court of Appeals began its analysis by noting that a trust deed is a conveyance document for purposes of the relevant code section: Section 73-1-11. The Court then determined that none of the exceptions listed under 73-1-11(1) applied in this case. The City had argued that because the promissory note had specifically mentioned other water rights that were put up as collateral, that the exception for "convey[ing] a part of the water right" should apply. The Court rejected this argument on two bases. First, the Court held that the trust deed--and not the promissory note--was the relevant conveyance document, and the trust deed had conveyed all appurtenant water rights. Second, the Court held that even if the promissory note could be considered a conveyance document, the exception still would not apply because the promissory note listed other, separate water rights, and not a portion of the 160 acre-foot water right. The Court also determined that the language in the deed covering "all water rights . . . and appurtenances thereunto belonging" was unambiguous. Accordingly, the Court rejected the City's argument of ambiguity, and interpreted the trust deed based on its unambiguous language. The Court of Appeals also upheld the district court's determination that the water right was appurtenant to one of the parcels of land listed in the trust deed.
The Court of Appeals also upheld the district court's alternative determination that the conveyance from the development company to its sister company was a fraudulent transfer, as no value was given by the sister company. Furthermore, the Court of Appeals upheld the district court's determination that the City did not qualify as a good-faith transferee for value.
In the end, the Court of Appeals affirmed the district court's decision in its entirety and upheld the lenders' ability to foreclose on the banked water entitlements.
To read the full opinion, click here.
The plaintiffs in the case were lenders who loaned money to a development company. The loan was secured by a trust deed and promissory note. The trust deed secured two parcels of land and "all water rights . . . and appurtenances thereunto belonging." The development company later conveyed a 160 acre-foot water right to a sister company, who in turn conveyed the water right to Eagle Mountain City and received "banked water entitlements" in exchange. When the development company defaulted on its loan, the lenders attempted to foreclose on the 160 acre-foot water right, asserting that the water right was encumbered by the trust deed. This lawsuit followed.
The district court ruled in favor of the lenders, and issued a decree of foreclosure under which the lenders were allowed to foreclose on the remaining banked water entitlements. Eagle Mountain City appealed the decision to the Utah Court of Appeals.
One of the primary arguments put forward by the City was that the trust deed was ambiguous, and that the trial court therefore should have considered extrinsic evidence regarding the parties' intent. The Court of Appeals began its analysis by noting that a trust deed is a conveyance document for purposes of the relevant code section: Section 73-1-11. The Court then determined that none of the exceptions listed under 73-1-11(1) applied in this case. The City had argued that because the promissory note had specifically mentioned other water rights that were put up as collateral, that the exception for "convey[ing] a part of the water right" should apply. The Court rejected this argument on two bases. First, the Court held that the trust deed--and not the promissory note--was the relevant conveyance document, and the trust deed had conveyed all appurtenant water rights. Second, the Court held that even if the promissory note could be considered a conveyance document, the exception still would not apply because the promissory note listed other, separate water rights, and not a portion of the 160 acre-foot water right. The Court also determined that the language in the deed covering "all water rights . . . and appurtenances thereunto belonging" was unambiguous. Accordingly, the Court rejected the City's argument of ambiguity, and interpreted the trust deed based on its unambiguous language. The Court of Appeals also upheld the district court's determination that the water right was appurtenant to one of the parcels of land listed in the trust deed.
The Court of Appeals also upheld the district court's alternative determination that the conveyance from the development company to its sister company was a fraudulent transfer, as no value was given by the sister company. Furthermore, the Court of Appeals upheld the district court's determination that the City did not qualify as a good-faith transferee for value.
In the end, the Court of Appeals affirmed the district court's decision in its entirety and upheld the lenders' ability to foreclose on the banked water entitlements.
To read the full opinion, click here.
Thursday, November 15, 2012
Historic Property Effect Evaluations
Last year, the Utah Division of Water Rights began requiring a Historic Property Effect Evaluation (“HPEE”) to be submitted with water right applications, including applications to appropriate, change applications,
and exchange applications.
Recently, the state historic preservation officer and the Division of Water Rights have made a policy change, and a HPEE is no longer required on water right applications.
Recently, the state historic preservation officer and the Division of Water Rights have made a policy change, and a HPEE is no longer required on water right applications.
Monday, October 1, 2012
Stern v. Metropolitan Water District of Salt Lake & Sandy
A few months ago, the Utah Supreme Court issued its ruling in Stern v. Metropolitan Water District of Salt Lake & Sandy. This case relates to the Point of the Mountain Aqueduct ("Aqueduct") that was constructed by Metropolitan Water District of Salt Lake & Sandy ("Metropolitan Water"), specifically to the portion of the Aqueduct that was constructed in the old easement for the Draper Canal.
The Draper Canal ("Canal") was constructed in the early 1900s by Utah Lake Irrigation Company ("ULIC"). Rights to construct the Canal across private property were obtained from property owners by voluntary transfer (i.e., deed) or by condemnation judgments. Some of the deeds and judgments referenced that the easement would be used for "canal purposes only." Shortly after its construction, the Canal was conveyed to Draper Irrigation Company. For decades, Draper Irrigation used the Canal to convey irrigation water to its shareholders. Over the years, the canal was also used by Salt Lake County and then Draper City for storm water purposes. In the 1990s, Draper Irrigation Company piped much of its water distribution system and ceased using the portion of the Canal at issue in this case. In 2001, Draper Irrigation Company conveyed the Canal to Draper City so that it could be used for storm water purposes as well as a public trail. Soon afterward, Metropolitan Water negotiated with Draper City to construct the Aqueduct in the Canal easement. The Aqueduct was buried, but some cement structures rose above ground. The Aqueduct transports culinary water to Salt Lake City and others in the Salt Lake Valley.
Four landowners whose property borders the Aqueduct brought suit, alleging that the construction of the Aqueduct exceeded the scope of the Canal easement. The landowners also alleged that the Canal easement had been abandoned. The district court ruled in favor of Metropolitan Water, and the landowners appealed to the Utah Supreme Court.
The Court first examined the portion of the Canal that had been acquired by a stipulated judgment of condemnation. The landowners asserted that the only property interest that ULIC could have obtained through condemnation was an easement interest, and not fee simple ownership. The Court concluded, however, that because it was a stipulated judgment of condemnation, and not a contested judgment, there was no reason why ULIC could not have obtained fee simple ownership of the property. Thus, the Court concluded that Draper City owned the land, and could allow the Aqueduct to be constructed on it.
The Court then examined another portion of the Canal that had been acquired by deed. The landowners asserted that these deeds from their predecessors-in-interest to ULIC conveyed only an easement right and not fee simple ownership. The Court disagreed, and held that the deeds did pass fee simple ownership because the deeds used the phrase "conveys and warrants," which demonstrates intent to pass ownership and not just grant an easement. The Court did hold, however, that the language in the deed limiting use to "canal purposes only" was a covenant that ran with the land.
The Court then had to determine the scope of the "canal purposes only" limitation and determine whether it prohibited an enclosed and buried pipeline to convey culinary water. The Court first determined that "canal purposes" could include conveyance of culinary water. This determination was based largely on the fact that in the early 1900s, canals were used to convey water used for domestic and culinary purposes. The Court then determined that an open canal could be enclosed. This determination was based largely on prior Utah cases that allow ditch and canal owners to improve their methods of conveyance, provided that the improvements are reasonable and do not materially alter the burden on the land. Finally, the Court determined that district court had failed to apply the standard regarding reasonableness and material alteration of the burden. Accordingly, the Court remanded the case to the district court for additional proceedings on the issues of whether Metropolitan Water's improvements related to the Aqueduct were performed reasonably and whether the improvements materially altered the burden on the land.
In a final note, the Court upheld the district court's conclusion that Draper Irrigation had not abandoned the Canal easement. The Court specifically noted that even when Draper Irrigation had ceased using the Canal to convey irrigation water, the Canal was still being used to convey storm water.
To read the full opinion, click here.
The Draper Canal ("Canal") was constructed in the early 1900s by Utah Lake Irrigation Company ("ULIC"). Rights to construct the Canal across private property were obtained from property owners by voluntary transfer (i.e., deed) or by condemnation judgments. Some of the deeds and judgments referenced that the easement would be used for "canal purposes only." Shortly after its construction, the Canal was conveyed to Draper Irrigation Company. For decades, Draper Irrigation used the Canal to convey irrigation water to its shareholders. Over the years, the canal was also used by Salt Lake County and then Draper City for storm water purposes. In the 1990s, Draper Irrigation Company piped much of its water distribution system and ceased using the portion of the Canal at issue in this case. In 2001, Draper Irrigation Company conveyed the Canal to Draper City so that it could be used for storm water purposes as well as a public trail. Soon afterward, Metropolitan Water negotiated with Draper City to construct the Aqueduct in the Canal easement. The Aqueduct was buried, but some cement structures rose above ground. The Aqueduct transports culinary water to Salt Lake City and others in the Salt Lake Valley.
Four landowners whose property borders the Aqueduct brought suit, alleging that the construction of the Aqueduct exceeded the scope of the Canal easement. The landowners also alleged that the Canal easement had been abandoned. The district court ruled in favor of Metropolitan Water, and the landowners appealed to the Utah Supreme Court.
The Court first examined the portion of the Canal that had been acquired by a stipulated judgment of condemnation. The landowners asserted that the only property interest that ULIC could have obtained through condemnation was an easement interest, and not fee simple ownership. The Court concluded, however, that because it was a stipulated judgment of condemnation, and not a contested judgment, there was no reason why ULIC could not have obtained fee simple ownership of the property. Thus, the Court concluded that Draper City owned the land, and could allow the Aqueduct to be constructed on it.
The Court then examined another portion of the Canal that had been acquired by deed. The landowners asserted that these deeds from their predecessors-in-interest to ULIC conveyed only an easement right and not fee simple ownership. The Court disagreed, and held that the deeds did pass fee simple ownership because the deeds used the phrase "conveys and warrants," which demonstrates intent to pass ownership and not just grant an easement. The Court did hold, however, that the language in the deed limiting use to "canal purposes only" was a covenant that ran with the land.
The Court then had to determine the scope of the "canal purposes only" limitation and determine whether it prohibited an enclosed and buried pipeline to convey culinary water. The Court first determined that "canal purposes" could include conveyance of culinary water. This determination was based largely on the fact that in the early 1900s, canals were used to convey water used for domestic and culinary purposes. The Court then determined that an open canal could be enclosed. This determination was based largely on prior Utah cases that allow ditch and canal owners to improve their methods of conveyance, provided that the improvements are reasonable and do not materially alter the burden on the land. Finally, the Court determined that district court had failed to apply the standard regarding reasonableness and material alteration of the burden. Accordingly, the Court remanded the case to the district court for additional proceedings on the issues of whether Metropolitan Water's improvements related to the Aqueduct were performed reasonably and whether the improvements materially altered the burden on the land.
In a final note, the Court upheld the district court's conclusion that Draper Irrigation had not abandoned the Canal easement. The Court specifically noted that even when Draper Irrigation had ceased using the Canal to convey irrigation water, the Canal was still being used to convey storm water.
To read the full opinion, click here.
Saturday, September 29, 2012
How Do I Protest a Water Rights Application?
The Utah Division of Water Rights' administrative process for change applications, applications to appropriate, exchange applications, and other water right applications includes advertising of the application and a protest period. During the twenty-day protest period, an interested party can file a protest with the Division in opposition to the application. Although some regional offices keep protest forms at their office, there are no protest forms on the Division's website, and a protest form is not required. The protest can be submitted in the form of a letter. There are, however, a few rules to remember when preparing and filing a protest:
- Clearly identify the water right number, application number, and name of the water right owner/applicant.
- Cite specific reasons for the protest. You may want to review, and possibly cite to, the Utah Water and Irrigation Code for relevant law and requirements regarding the application at issue (for example, Utah Code sections 73-3-3 and 73-3-8 provide requirements for approval of a change application)
- State whether or not you request a hearing on the application.
- Include your name and mailing address so that the Division can send you notice of any hearings, notice of the Division's decision, and other notifications regarding the application.
- Include a $15 protest fee. Keep in mind that the fee is per application, not per protest. Accordingly, if you are filing one protest regarding three different applications, the fee would be $45.
- The protest must be filed (and not just postmarked) by the last day of the protest period.
Thursday, August 2, 2012
Magna Water Company v. Strawberry Water Users Association
The Utah Court of Appeals recently issued its opinion in the case of Magna Water Company v. Strawberry Water Users Association. This case relates to rights use return flow of imported water from the Strawberry Valley Project.
The Strawberry Valley Project is a federal project that imports water from the Colorado River drainage into the Utah Lake basin. When the water is used for irrigation and other purposes, a portion of the water returns to the natural hydrological system, generally through seepage into the groundwater aquifer or as surface runoff to streams and lakes. Both the federal government and the Strawberry Water Users Association ("SWUA") claim the right to recapture and reuse this return flow after it commingles with the natural hydrological system.
SWUA petitioned the district court for an interlocutory decree regarding use of the return flow in the general adjudication of the Utah Lake and Jordan River drainage. The State Engineer issued a proposed determination supporting the recapture and reuse of the Strawberry Valley Project water. Magna Water Company and others ("the Objectors") filed an objection to the proposed determination, asserting that the State Engineer's recommendations in the proposed determination departed from Utah law and that Objectors' water rights and interests would be adversely affected. The district court ruled that the Objectors lacked standing, and therefore could not participate in the court proceedings. Accordingly, the court dismissed the Objectors' claims. The Objectors then appealed to the Utah Court of Appeals.
The Court of Appeals first examined whether the Objectors had "traditional standing." The Court held that the Objectors did not meet the first prong of the traditional standing test, which is the showing of a distinct and palpable injury. The Objectors had argued that the recapture and reuse of return flow would result in reduced diversions from the Objectors' wells. The Court, however, concluded that the Objectors' wells were upgradient from and not affected by Utah Lake and the Jordan River. Thus, the Court upheld the district court's determination that the Objectors had failed to show injury, and were therefore not entitled to traditional standing.
The Court of Appeals next examined whether the Objectors had "alternative standing." The test for alternative standing is that the party must show that it is an appropriate person to raise issues of significant public importance. The Court determined that the Objectors were appropriate persons because they had the interest necessary to effectively assist the court in developing and reviewing relevant factual and legal issues. The Court also determined that the recapture and reuse recommendations contained in the proposed determination were of significant public importance because many water users will be affected by the proposed determination and because the recapture and reuse issues are uncharted areas of law in Utah. Thus, the Court held the Objectors had alternative standing.
In the end, the Court of Appeals held that the district court had erred in dismissing the Objectors' claims, and the case was sent back to the district court for further proceedings, with the Objectors' participation.
To read the full opinion, click here.
The Strawberry Valley Project is a federal project that imports water from the Colorado River drainage into the Utah Lake basin. When the water is used for irrigation and other purposes, a portion of the water returns to the natural hydrological system, generally through seepage into the groundwater aquifer or as surface runoff to streams and lakes. Both the federal government and the Strawberry Water Users Association ("SWUA") claim the right to recapture and reuse this return flow after it commingles with the natural hydrological system.
SWUA petitioned the district court for an interlocutory decree regarding use of the return flow in the general adjudication of the Utah Lake and Jordan River drainage. The State Engineer issued a proposed determination supporting the recapture and reuse of the Strawberry Valley Project water. Magna Water Company and others ("the Objectors") filed an objection to the proposed determination, asserting that the State Engineer's recommendations in the proposed determination departed from Utah law and that Objectors' water rights and interests would be adversely affected. The district court ruled that the Objectors lacked standing, and therefore could not participate in the court proceedings. Accordingly, the court dismissed the Objectors' claims. The Objectors then appealed to the Utah Court of Appeals.
The Court of Appeals first examined whether the Objectors had "traditional standing." The Court held that the Objectors did not meet the first prong of the traditional standing test, which is the showing of a distinct and palpable injury. The Objectors had argued that the recapture and reuse of return flow would result in reduced diversions from the Objectors' wells. The Court, however, concluded that the Objectors' wells were upgradient from and not affected by Utah Lake and the Jordan River. Thus, the Court upheld the district court's determination that the Objectors had failed to show injury, and were therefore not entitled to traditional standing.
The Court of Appeals next examined whether the Objectors had "alternative standing." The test for alternative standing is that the party must show that it is an appropriate person to raise issues of significant public importance. The Court determined that the Objectors were appropriate persons because they had the interest necessary to effectively assist the court in developing and reviewing relevant factual and legal issues. The Court also determined that the recapture and reuse recommendations contained in the proposed determination were of significant public importance because many water users will be affected by the proposed determination and because the recapture and reuse issues are uncharted areas of law in Utah. Thus, the Court held the Objectors had alternative standing.
In the end, the Court of Appeals held that the district court had erred in dismissing the Objectors' claims, and the case was sent back to the district court for further proceedings, with the Objectors' participation.
To read the full opinion, click here.
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