Utah Stream Access Coalition - Amended Complaint

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 Victory Ranch L.C. and Silver Creek - Robert Larsen Investors LLC have been removed as defendants, and have been replaced by ATC Realty Sixteen Inc. The Utah Division of Parks and Recreation has also been added as an additional defendant.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?

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?

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

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

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

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

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

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

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.


To read HB 246, click here.

2011 Legislature: Water Rights Amendments

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.)