Thursday, November 3, 2022

Proclamation Closing Great Salt Lake Basin to New Water Right Appropriations

Governor Spencer Cox has issued a proclamation closing the entire Great Salt Lake basin to new water right appropriations. This includes Bear River and its tributaries, Bear Lake and its tributaries, Jordan River and its tributaries, Weber River and its tributaries, and all other sources tributary to the Great Salt Lake in Box Elder County, Weber County, Davis County, and Salt Lake County.

The proclamation was deemed necessary based on the historic low water levels in the Great Salt Lake. 

The exceptions to the proclamation are:
1--applications for non-consumptive uses; 
2--applications that include a mitigation plan to offset depletion; and
3--applications for small amounts of water that comply with State Engineer basin policies.

To read the press release from the Governor's office, click here.

To read the proclamation, click here.

Public Meeting Concerning Groundwater Policies for Juab Valley

The Utah Division of Water Rights will be holding a public meeting to present the results of a recently published groundwater hydrology study and to present updates to the groundwater appropriation policies for Juab Valley. The information below comes from the public meeting notice.

What: Public Meeting

Who: Juab Valley Water Users

When: December 12, 2022, 6:00 - 8:00 p.m.

Where: County Commission Chambers, 160 North Main, Nephi

Purpose: The purpose of the meeting is to present the results of a recently published groundwater hydrology study performed by the Utah Geological Survey and to present updates to the groundwater appropriation policies in the valley. The development of a groundwater management plan will also be discussed. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.

If you are unable to attend the meeting, but would like to provide input, please send your written comments to:

Division of Water Rights
1594 West North Temple Suite 220
PO Box 146300
Salt Lake City, UT 84114-6300

Agenda for December 12, 2022 Public Meeting
1. Welcome/Introduction
2. Summary of Groundwater Hydrology Study by UGS Staff
3. Updated to Groundwater Appropriation Policy
4. Groundwater Management Plan Discussion
5. Public Questions/Comments

In accordance with the Americans with Disability Act, individuals needing special accommodations should notify Marianne Burbidge at (801) 538-7370 at least three (3) days prior to the meeting. 

Information from the meeting will be posted on the Utah Division of Water Rights website at http://waterrights.utah.gov as a resource for those who are unable to attend the meeting or require additional information.

For more information about the public meeting, click here.



Tuesday, October 25, 2022

2023 Legislation: Water Related Liability Amendments

Rep. Carl Albrecht is sponsoring proposed legislation in response to concerns from his constituents who utilize irrigation water from canals that divert Sevier River water across the Sevier Valley. The irrigation companies that operate the canals have had problems in the past with thunderstorms flowing down the nearby canyons and flooding the canals, which exceeds the capacity of the canals and floods out neighboring properties, particularly when the floodwater fills the canals with debris. Some canals are not insured for flooding, leaving them fully exposed to liability for such events, while others that are insured often lose their insurance when such claims are paid out. In addition, it is fairly common for these canals to be used by municipalities and others to convey stormwater, sometimes without permission, further exposing the canal owners to liability. 

The bill proposes amending Utah Code section 73-1-8, which addresses the duties of canal owners or operators and their liability. The bill would expand the section’s applicability by changing the existing “ditch, canal, flume or other watercourse” language to “water facility,” which includes any facility “used for the diversion, transportation, distribution, measurement, collection, containment, or storage of water.” Identical language has already been inserted into two other sections of Title 73, Chapter 1 that apply to the operation of canals to reflect the changing uses of canals and the need to extend protections to other types of water facilities as well. Among other things, the bill shields the owners or operators of water facilities from liability for damage or injury caused by “the diversion or discharge of water or another substance into the water facility by a third party” without permission, or “an act of God, including fire, earthquake, storm, flashfloods, or similar natural occurrences.” In addition, the bill clarifies that water facility owners or operators have a duty of “ordinary care” to maintain the water facilities to prevent the waste of water or property damage, rather than a higher degree of liability which courts have threatened to impose on canals in particular in recent years.

The Natural Resources, Agriculture, and Environment Interim Committee unanimously adopted this draft legislation as a committee bill in its August 17, 2022 meeting. In addition, the Legislative Water Development Commission endorsed the bill in its September 22, 2022 meeting. As an interim committee-sponsored and approved bill, it should move directly to the House floor without an additional committee hearing when the 2023 General Session of the Utah Legislature gets underway in January.

The text of the proposed bill can be found here.   

  

Monday, September 19, 2022

Utah Water Rights - Interview on Real Estate Edge

I was recently interviewed about Utah water rights and water law on the Real Estate Edge podcast. It was a great opportunity to discuss what water attorneys do, some basics of Utah water law, and water policy considerations. 



Thursday, June 30, 2022

Personnel Changes at Utah Division of Water Rights

In the past few months, there have been several leadership changes at the Utah Division of Water Rights.

James Greer has left the Division and Jared Manning has been appointed to fill his position as Deputy State Engineer.

Blake Bingham has returned from military service and has been appointed to the new Deputy State Engineer position created by House Bill 334.

Eric Jones has been appointed to be the Assistant State Engineer for Applications and Records.

Kirk Forbush has retired and Terry Monroe has been appointed as Regional Engineer for the Sevier River/Southern Regional Office.

Chase McDonald has been appointed as Regional Engineer for the Utah Lake/Jordan River Office.

Tuesday, May 31, 2022

District Court Water Judges - rule adopted

In a prior post, I discussed a proposed amendment to the Utah Code of Judicial Administration that would allow for the appointment of district court water judges. Rule 6-104 has now been formally adopted and will become effective on November 1, 2022. 

The adopted rule has a few changes from the original proposed rule. 

First, section 6 of the original proposed rule required water judges to publish any opinion that decided a water law case of first impression. Some people were concerned that publishing the opinions gave the impression that they were binding decisions. Section 6 of the adopted rule requires judges water judges to post decisions in water law cases of first impression. 

Second, section 8 was added to clarify that nothing in the rule affects the venue of a water law case.

To read the full text of the adopted rule, click here 

Friday, May 20, 2022

Ute Indian Tribe v. McKee

The Tenth Circuit Court of Appeals recently issued its decision in the case of Ute Indian Tribe of the Uintah and Ouray Reservation v. McKee et al. This court focused on the issue of whether a tribal court had jurisdiction over a dispute between the tribe and a non-Indian about rights to water on non-Indian land within reservation boundaries.

McKee is not a member of the Ute Indian Tribe, but he owns non-Indian fee land that is located within the boundaries of the Ute reservation. McKee used water from two irrigation canals to irrigate his property. The tribe asserted that the water belonged to the United States in trust for the tribe. The tribe sued McKee in tribal court and won. The tribe then petitioned the federal district court to recognize and enforce the tribal court judgment. But the district court determined that the tribal court lacked jurisdiction over the dispute and dismissed the case. The tribe then appealed to the 10th Circuit Court of Appeals.
The court noted the general rule that tribes can regulate only their territory and their members on the reservation, and that they have no general authority over nonmembers of the tribe -- even when nonmembers engage in activity on the reservation and especially when they do so on non-Indian fee land. There are only two exceptions to this general rule: (1) tribes can regulate the activity of nonmembers who enter into consensual relationships with the tribe or its members and (2) tribes can regulate the activity of nonmembers on reservation land if that activity threatens the tribe's political integrity, economic security, or health and welfare. The tribe bears the burden of showing that one of these exceptions exists.
The tribe argued that the court should create a third exception that a tribe can exercise civil jurisdiction over a nonmember's use of a natural resource if the tribe claims an interest in that natural resource. The court rejected this argument and held that a tribe's authority does not extend to a nonmember's use of a natural resource on non-Indian land. 
The court then looked to see if either of the exceptions applied. The tribe argued that the first exception should apply because McKee has agricultural leases on tribal lands and a farming partnership with a tribe member. But the court noted that neither of facts related to the land and water at issue. Accordingly, the court held that the first exception did not apply. The court noted that for the second exception to apply, the challenged conduct cannot merely injure the tribe but must be "catastrophic for tribal self-government." The court determined that the water dispute between the tribe and McKee did not rise to this level, and therefore held that the second exception did not apply. Because neither exception applied, the court concluded that the tribal court lacked jurisdiction over the water dispute and upheld the district court's dismissal of the case.

The attorneys at Smith Hartvigsen were pleased to represent Mr. McKee in this case.

To read the full opinion, click here.

Thursday, April 21, 2022

Drought Emergency Order

Gov. Spencer J. Cox declared a state of emergency due to the dire drought conditions affecting the entire state. This declaration activates the Drought Response Committee and triggers increased monitoring and reporting. It also allows drought-affected communities, agricultural producers and others to report unmet needs and work toward solutions.

To read the full text of the governor's executive order, click here.



Tuesday, April 12, 2022

Public Meeting Concerning the General Adjudication in Jordanelle Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Jordanelle area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 13). The Jordanelle area boundaries on shown on the map below. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Jordanelle area
When: April 21, 2022, 6:00 to 7:00 pm
Where: Wasatch County Senior Center, 465 East 1200 South, Heber City

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729852), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Jordanelle Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Wasatch County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Jordanelle area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Jordnalle area, please contact the Division of Water Rights at 801-538-5282.

Agenda:
1.  Introduction (Mike Drake - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

A live stream broadcast of the public meeting will also be available online at this link.

For more information regarding this meeting, click here.





Friday, March 18, 2022

Public Meetings Regarding General Adjudication of Water Rights Within the Navajo Nation Subdivision

The Utah Division of Water Rights has set a series of public meetings regarding the General Adjudication of water rights within the Navajo Nation subdivision, San Juan Division of Southeastern Colorado River (Book 09-1). Information regarding the four public meetings is provided below, along with a map showing the boundaries of the adjudication area.

Public Meeting in Monticello
March 30, 2022, 4:00 pm to 5:00 pm
The Hideout Community Center
648 South Hideout Way
Monticello, Utah

Public Meeting in Blanding
March 30, 2022, 7:00 pm to 8:00 pm
USU Blanding Arts & Events Center
715 West 200 South
Blanding, Utah

Public Meeting in Aneth
March 31, 2022, 10:00 am to 11:00 am
Aneth Chapter House
SR 162 and Riverside Ct
Aneth, Utah

Public Meeting in Monument Valley
March 31, 2022, 3:00 pm to 4:00 pm
The Navajo Welcome Center 
SR 163 and Monument Valley Road
Oljeto-Monument Valley, Utah

In accordance with Chapter 73-4, Utah Code Annotated, and the Seventh Judicial District Court (Civil No. 810704477), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Navajo Nation Subdivision, San Juan River Division of the Southeastern Colorado River General Adjudication.

Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Navajo Nation area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions.

If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Navajo Nation area, please contact the Division of Water Rights at (801) 538-5282.

A recording of the public meeting will also be available on-line under the meetings tab on the Division's website.