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.

New Adjudication Team Leader

In July, it was announced that James Greer will be the new Adjudication Team Leader at the Utah Division of Water Rights. Mr. Greer replaces Teresa Wilhelmsen, who was recently named the new Regional Engineer for the Utah Lake/Jordan River Area.

For contact information for Mr. Greer and other employees of the Division of Water rights, click here.

For an explanation of what an Adjudication is, click here.

How Do I Find the Names of Officers and Directors of Irrigation and Canal Companies?

Have you ever tried to find out who the president of an irrigation or canal company is? Or have you ever tried to find out who the other officers and directors of an irrigation or canal company are? Here are a few places you can try:

The Utah Division of Water Rights maintains a list of water companies. The companies are listed alphabetically by county. As a caveat, the list is not always up to date and some companies have more listed information than others. Click here to access the list.

Most irrigation companies and canal companies are nonprofit corporations, so they are registered with the Utah Division of Corporations. The Division has a Business Entity Search, which allows you to search for a company. The basic search is free, but the results only list the company's registered agent. To see the officers and directors, you can click on the "Access Principal Information" bottom at the bottom of the page, but there is a $1.00 fee. Click here to access the Business Entity Search.

Also, if you are a shareholder in an irrigation company or canal company, then you have the right to request a list of the names and addresses of the current officers and directors of the company. Click here for more information.

Some water providers are not private companies, but are districts. For a list of service districts, click here.

What is a Nonuse Application?

A nonuse application is an application made to the Utah State Engineer under which a water right owner may cease using the water right for up to seven years without the water right becoming subject to forfeiture.

Under the Utah Code, the State Engineer should not approve a nonuse application unless the applicant shows “reasonable cause” for the nonuse. Reasonable cause includes:

(i) a demonstrable financial hardship or economic depression;
(ii) the initiation of water conservation or efficiency practices, or the operation of a groundwater recharge recovery program approved by the state engineer;
(iii) operation of legal proceedings;
(iv) the holding of a water right or stock in a mutual water company without use by any water supply entity to meet the reasonable future requirements of the public;
(v) situations where, in the opinion of the state engineer, the nonuse would assist in implementing an existing, approved water management plan; or
(vi) the loss of capacity caused by deterioration of the water supply or delivery equipment if the applicant submits, with the application, a specific plan to resume full use of the water right by replacing, restoring, or improving the equipment.

Nonuse applications are advertised, and any interested person can file a protest to the application with the State Engineer. Following a review of the application and any protest (and perhaps an administrative hearing), the State Engineer will either approve or reject the application.

To read the Utah statute regarding nonuse applications, click here.

To access the Utah Division of Water Rights' nonuse application form, click here.

What is a Change Application?

In Utah, water rights have certain components or elements. These components include:

(1) Point of diversion: This is the exact location where the water is diverted. For example, it may be a point on a river or stream where the water is diverted into a ditch, or it may be the location of a well where water is diverted from the underground aquifer.

(2) Place of use: This is the location where the water is used. The location is usually given in terms of quarter-quarter sections (40 acres).

(3) Type of use: This is what the water is used for. The most common uses are irrigation, domestic, stockwatering, industrial, and municipal.

(4) Period of use: This is the period during the year during which the water may be used. For example, an irrigation right may have a period of use from April 1st to October 31st. Other types of rights, such as stockwatering or domestic, may have a period of use for the entire year.

If the owner of a water right wishes to change any of these water rights components, he or she must file a Change Application (the official title is “Application for Permanent Change of Water”) with the Utah Division of Water Rights. For example, if a water right currently permits an individual to divert water from a stream, and the individual wants to get the water from a well instead of the stream, the individual would be required to file a Change Application to change the point of diversion from the stream to the well.

To read the Utah statute regarding Change Applications, click here.

To access the Utah Division of Water Rights' Change Application form, click here.

To learn more about the process that the State Engineer goes through in approving or denying a Change Application, click here.

How to Search for Utah Water Rights

The Utah Division of Water Rights maintains a very useful website that contains information about every water right in Utah. There are several different ways to search for information on a water right on the website.

The easiest way to search is by water right number. If you know the water right number, simply click here, enter the water right number, and hit “Submit Query.” This will bring up the database summary for the water right.

If you don’t know the water right number, but you do know the name of the water right owner, click here, enter the owner name, and click “Display Results.” If the owner is an individual, enter the last name first, then the first name (separate the last name and the first name with a comma). If the owner is a business entity, enter the entity’s name.

If you don’t know the water right number or the owner name, but you know the name of the river, stream, spring, or other source, you can search by the source name. Click here, select “Text Search on Source of Supply,” enter the source name, then click “Display Results.”

Is It Illegal to Harvest Rainwater in Utah?

Collecting and using rainwater has become a hot topic in Utah during the past few months. The issue first made news headlines in August 2008 when a car dealership came under scrutiny of the Utah Division of Water Rights for collecting rainwater from the roof of the dealership’s building, storing the water in a cistern, and then using the water in a car wash. The Division informed the dealership that it needed a water right in order to divert, store, and use the rainwater. This story stirred up lots of curiosity and controversy, with many people (including state legislators) questioning why individuals should not be allowed collect and use rainwater.

During the 2009 legislative session, two bills were introduced that addressed the issue of rainwater harvesting. The first bill was Senate Bill 58, sponsored by Senator Scott McCoy. Under this bill, public water suppliers could allow individuals to capture and beneficially use precipitation under the public water supplier’s approved exchange application. The second bill was Senate Bill 128, sponsored by Senator Scott Jenkins. Under this bill, a person would be permitted to capture and store precipitation in an underground storage container with a maximum capacity of 2,500 gallons. This captured precipitation could be beneficially used without having to obtain a water right or go through the appropriation process.

Both bills passed the Senate, but were not voted on by the House. It is likely that one or both bills will be presented during the 2010 legislative session.

The Division of Water Rights has also prepared a response to the question of whether harvesting rainwater is illegal in Utah. In sum, the Division’s position is that if rainwater is merely controlled or directed (such as with rain gutters and drain piping), then a water right is not needed. However, if rainwater is stored and then later used for some other purpose rather than being released back into the drainage system, then a water right is needed.

To read the text of Utah Bill 58, click here.

To read the text of Utah Bill 128, click here.

New Regional Engineer

On May 19, 2009, the Utah Division of Water Rights announced that Teresa Wilhelmsen will be the new Regional Engineer of the Utah Lake/Jordan River Area. She replaces John Mann, who was appointed the Assistant State Engineer - Applications and Records in April.

For a list of contact information for the regional offices, click here.

Can an Irrigation Company Charge a Shareholder for Copies of Company Records?

Most irrigation companies and water companies are nonprofit corporations, and are therefore subject to the Utah Revised Nonprofit Corporation Act. Under the Act, a nonprofit corporation may charge a reasonable fee to cover the costs of labor and material for copies of any documents provided to a shareholder. The fee may not exceed the estimated cost of production and reproduction of the records.

There is one caveat to the fee rule. If the corporation receives a shareholder’s written request to obtain information regarding the corporation’s assets and liabilities, the corporation must, within 15 days after receiving the request, mail the shareholder a copy the corporation’s most recent annual financial statements and the corporation’s most recently published financial statements. The corporation cannot charge the shareholder for the cost of copying or mailing the financial statements.

To view the Utah Nonprofit Corporation Act, click here.

Does a Shareholder in an Irrigation Company Have Rights to View Company Records?

Most irrigation companies and water companies are nonprofit corporations, and are therefore subject to the Utah Revised Nonprofit Corporation Act.

Under the Act, there are certain records that a nonprofit corporation is required to keep copies of at the nonprofit corporation’s principal office. A member has an absolute right of access to these records during regular business hours at the nonprofit corporation’s principal office, if the member gives the nonprofit corporation written demand at least five business days in advance. These records include:

(a) the articles of incorporation;
(b) the bylaws;
(c) resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;
(d) the minutes of all members' meetings for a period of three years;
(e) records of all action taken by members without a meeting, for a period of three years;
(f) all written communications to members generally as members for a period of three years;
(g) a list of the names and business or home addresses of the current directors and officers;
(h) a copy of the most recent annual report delivered to the Division of Corporations; and
(i) all financial statements prepared for periods ending during the last three years.

In addition to a member’s right to inspect and copy the records mentioned above, a member is entitled to inspect and copy any of the other records of the nonprofit corporation if certain conditions are met. These conditions are (1) the inspection and copying must occur during regular business hours; (2) the inspection and copying must take place at a reasonable location specified by the nonprofit corporation; (3) the member must give the nonprofit corporation written demand at least five days before the date on which the member wishes to inspect and copy the records; (4) the demand must be made in good faith; (5) the demand must be made for a proper purpose; (6) the demand must describe with reasonable particularity the member’s purpose; (7) the demand must describe with reasonable particularity the records the member desires to inspect; and (8) the records requested must be directly connected with the described purpose. A “proper purpose” is defined as “a purpose reasonably related to the demanding member’s . . . interest as a member.”

To see the full text of the records section of the Utah Revised Nonprofit Corporation Act, click here.

2009 Amendments to Utah Water Rights Laws

(I recently wrote this article for the Utah Water Users Association newsletter.)

The majority of the bills passed during the 2009 session of the Utah Legislature will take effect on May 12, 2009. Included in this list are several important bills relating to water rights. This article examines three water rights bills that were passed during the 2009 legislative session: House Bill 18, House Bill 85, and House Bill 389. All three of these bills were sponsored by Representative Patrick Painter, a friend and ally to the water community who continues to work to improve water rights law and administration.

House Bill 18
HB 18 is entitled “Water Rights Applications and Records.” The bill revises the law on the proof process for applications to appropriate and change applications. Importantly, the bill provides that if a public water supplier is holding an approved application to meet the reasonable future water requirements of the public, it is deemed to be reasonable and due diligence in completing the appropriation or change. This essentially entitles the public water supplier to an extension of time to complete the appropriation or change.

HB 18 also amends the law on requests for segregation. Currently, the law gives the State Engineer discretion to approve or deny a segregation request. Under HB 18, if a water rights owner requests that a water right be segregated into two or more parts, the State Engineer is required to segregate. The bill also provides that applications to appropriate and change applications may be segregated, and that after the State Engineer segregates an application, each segregated part becomes a separate application on the State Engineer’s records. These changes will allow an applicant who has not completed the entire appropriation or change to segregate off the portion that has been completed and prove up that portion. The uncompleted portion becomes a separate application, and the applicant can file for an extension on that portion and prove it up in the future.

Finally, HB 18 permits a water right owner to consolidate water rights. Currently, the law allows water rights to be segregated, but there is nothing in the law that allows the water rights to be rejoined into a single water right. This provision of HB 18 permits the State Engineer to consolidate two or more water rights if the water rights are from the same source, have the same priority, and are sufficiently similar in definition.

House Bill 85

HB 85 is entitled “Mutual Benefit Corporation – Judicial Liens.” The bill protects mutual water companies in lawsuits when cash damages are assessed against them in the form of a judicial lien. Under the bill, if a judicial lien is recorded against a mutual water company’s water rights, water conveyance facilities, or other assets that are necessary to distribute water to the company’s members, a court must wait 180 days before executing the lien or forcing the sale of the assets. This 180-day period allows the mutual water company to make other arrangements to pay the judgment, such as by doing a special assessment or getting financing by using the assets as collateral. Allowing the mutual water company to pay the judgment without losing its water rights and other assets protects the company’s members, whose livelihoods may depend on receiving water from the company.

House Bill 389
HB 389 is entitled “Applications for a Small Amount of Water.” The bill changes the proof requirements for applications to appropriate and change applications for a small amount of water. A “small amount of water” is defined as the amount of water necessary to meet the requirements of one residence, ¼ acre of irrigable land, and ten stock units. Rather than submitting a traditional proof prepared by an engineer, an applicant is permitted to submit an affidavit as proof. The affidavit must declare that a residence has been constructed and is occupied and must specify the amount of land being irrigated and the number of livestock being watered. If the affidavit is filed before the date on which proof is due, the State Engineer will issue a certificate.

If proof or an affidavit is not filed within the time limit set by the State Engineer, the application lapses. However, an applicant may request reinstatement of the application by demonstrating that a residence was constructed and occupied within the original time limit and that the water has been beneficially used. If the applicant meets this burden, the State Engineer will issue a certificate, although the priority date becomes the date the request for reinstatement was filed.

All three bills unanimously passed both the House and the Senate, were signed by Governor Huntsman, and will become effective on May 12, 2009.

A special thanks goes out to Representative Painter for sponsoring these bills and for his continuing efforts to work with the water community to develop and improve Utah water law.

Loss of Preference for Drinking Water

In 1880, the Utah Territorial Legislature enacted a law that established a preference for drinking water and other domestic uses over any other type of use in the event of a serious water shortage. This preference has been an exception to the priority date rule--which provides that earlier water rights have priority over later rights--for almost 130 years. The preference is currently codified in section 73-3-21 of the Utah Code. Most prior appropriation states have a similar statute that grants a preference for domestic use in times of scarcity. Indeed, of the 17 western water law states, only Oklahoma does not have a preference statute.

During the 2009 legislative session, the Utah Legislature, at the prompting of the State Engineer’s office and with the support of the Farm Bureau, repealed this preference through House Bill 241. However, as a result of the heated debate over the issue, the Legislature delayed the effective date of the repeal until May 11, 2010, in order to allow the Legislature to again consider the matter in its session next January.

Most of the oldest water rights in Utah, and therefore those with the highest priority, are irrigation rights. Accordingly, without the drinking water preference exception, in times of scarcity, those high priority irrigation rights will have to be fully satisfied before junior priority drinking water rights receive any water. This is obviously a concern to cities, towns, and other public water suppliers because it places plants over people when there is a critical shortage.

During the next few months, the water law attorneys at Smith Hartvigsen, PLLC will be involved in the discussions regarding the drinking water preference statute. If you have any input on the matter, we would love to hear from you.

To read House Bill 241, click here.

New Fee Schedule for Utah Division of Water Rights

Effective July 1, 2009, the Utah Division of Water Rights will have a new fee schedule. The following is a summary of some of the more important fee changes.

The cost of filing for most applications will double. This includes fees for:

--Permanent change applications
--Temporary change applications
--Applications to appropriate
--Exchange applications
--Extensions of time to submit proof

The cost for filing a diligence claim will also double. Additionally, the diligence claim investigation fee will increase from $200 to $500.

The fee for filing a report of conveyance will increase from $25 to $40.

Currently, the Division does not charge a fee for stream alteration permits. However, the Division will charge $2,000 for commercial entities, $500 for governmental entities, and $100 for non-commercial entities.

Perhaps the biggest change is that the Division will now charge a fee for protests. Currently, protestants may file their protests for free. However, beginning July 1, it will cost $15 to file a protest with the Division. It will be interesting to see if this new fee will have an effect on the number of protests filed.

So if you are planning to file anything with the Division of Water Rights in the near future, you may want to try to file before July 1 so that you can pay the current, cheaper fee.

To view a full comparison of the current fees and the fees effective July 1, click here.

What Is a General Adjudication?

Under Utah law, the State Engineer may initiate an action in state court in order to analyze and settle all competing claims to the use of water in an area. This action is called a General Adjudication. After a General Adjudication has been initiated, the State Engineer notifies all known water users of the adjudication and provides public notice of the adjudication. Each person claiming a right to use water in the area must file a Water User’s Claim with the State Engineer. In the Claim, the water user states, among other things, the flow of water used, the point where the water is diverted, the place where the water is used, and what the water is used for. The State Engineer also prepares a hydrographic survey of the area. When the survey is complete and all of the Claims have been evaluated, the State Engineer prepares a Proposed Determination. The Proposed Determination is the State Engineer’s recommendation to the court of the status and quantification of water rights in the area. A copy of the Proposed Determination is mailed to each claimant. If a claimant is dissatisfied with the Proposed Determination, the claimant has ninety days to file an objection with the court. After all objections have been resolved and, if necessary, modifications made to the Proposed Determination, the court enters a Decree that establishes all of the water rights for the area.

To read the statutes regarding general adjudications, click here.

HB 187: The Aftermath of Conatser v. Johnson

In an attempt to limit the broad public access granted in the Conatser v. Johnson opinion, Representative Ben Ferry (R-Corinne) introduced HB 187, entitled “Recreational Use of Public Waters,” during the 2009 legislative session. 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,” which included sections of the Bear River, Little Bear River, Logan River, Price River, Jordan River, Duchesne River, Strawberry River, Sevier River, Weber River, Provo River, Ogden River, White River, and Blacksmith Fork River. This initial list of public waters would be amenable to change. For this reason, the bill sought to establish the Recreational Access Board (“the Board”) within the Department of Natural Resources. The Board would provide recommendations to the Legislature regarding segments of rivers that should be added to the list of “public waters.” The Board would also provide recommendations to the Legislature regarding segments of rivers that should be removed from the list. Ultimately, however, the Legislature would have the final say on the list of public waters that would be open to recreation.

The bill received a favorable recommendation from the House Natural Resources, Agriculture, and Environment Committee. The House amended the bill several times, resulting in several substitute bills. Ultimately, the bill was defeated in the House by a vote of 34-41. The bill was reconsidered, but was again defeated by a vote of 31-43.

Although HB 187 was defeated, there is already discussion regarding a bill to be introduced in the 2010 legislative session that will seek to strike a balance between the broad public access granted in Conatser and the private property rights of landowners whose property abuts rivers and streams. At this time, the details of the bill are unknown, and it is unclear if the bill will be a modified version of HB 187 or if the bill will present an entirely different scheme.

To read the full text of the bill, as originally introduced, click here.

Conatser v. Johnson

In July 2008, the Utah Supreme Court issued the its opinion in the case of Conatser v. Johnson. In Conatser, the Utah Supreme Court was asked to determine whether members of the public who are using a stream for recreational purposes, such as fishing or floating, have the right to touch the privately owned beds beneath the water. The Court noted that because the waters of the state belong to the public, the public has an easement to utilize the waters for recreational purposes. The Court then determined that touching the bed is “reasonably necessary” in order for the public to effectively enjoy the easement and that such touching does not cause unnecessary injury to the owner of the bed. The Court placed limitations on the public’s right, including (1) the public may engage only in lawful recreational activities, (2) the recreational activities must utilize the water, (3) the public must act reasonably in touching the bed, and (4) the public may not cause unnecessary injury to the owner of the bed. The effect of the ruling is 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.

The Court’s opinion left several questions unanswered. First, it is unknown whether the members of the public must actually be in the water in order to not be trespassing or whether the members of the public can use the bed up to the ordinary high-water mark (or some other point). Second, it is yet to be determined how the Court’s ruling can be reconciled with rules regarding fencing. For example, how does a rancher fence across a small stream in order to keep his cattle on his land without “fencing out” members of the public wishing to use the stream for recreational purposes? These questions, along with others, will have to be determined in future cases or by legislation.

To read the full opinion, click here.

What Is a "Diligence Right" or "Diligence Claim"?

According to the Utah Division of Water Rights website, a diligence claim is “a claim to the use of surface water where the use was initiated prior to 1903.” In 1903, statutory administrative procedures to appropriate water were first established. Accordingly, after 1903, the exclusive method of obtaining a new surface water right is through filing an application to appropriate with the State Engineer and ultimately obtaining a certificate of beneficial use by “proving up” the water right. Prior to 1903, the method for obtaining the right to use water was to simply put the water to beneficial use. These water rights are known as diligence rights and require beneficial use prior to 1903. In order to memorialize a diligence right, a written diligence claim must be filed with the State Engineer. The State Engineer’s acceptance of a diligence claim cannot be considered an adjudication of the claim’s validity. Any person injured by a diversion pursuant to a diligence claim may file an action in district court to determine the validity of the claim. In such an action, the claimant has the burden of proof as to the validity of the diligence claim.

To read the statute regarding diligence claims, click here.

Otter Creek Reservoir Co. v. New Escalante Irrigation Co.

On March 3, 2009, the Utah Supreme Court issued its opinion in the case of Otter Creek Reservoir Company v. New Escalante Irrigation Company. The case involves adverse use of water. Prior to 1939, water rights in Utah could be obtained by seven years of adverse use. In 1939, the Utah legislature passed a statute which abolished adverse use of water. However, an important question remained: Could a water right be obtained by adverse use if the seven years of adverse use began before 1939 but were not complete before 1939? This case presented the opportunity for the Utah Supreme Court to finally address the question.

The case began when Otter Creek brought suit against New Escalante, claiming that New Escalante was diverting and using water to which Otter Creek was entitled. New Escalante counterclaimed that it had a diligence claim or, in the alternative, that it had obtained right to use the water through adverse use. The district court held that New Escalante had lost its diligence right because it failed to participate in the general adjudication that resulted in the Cox Decree, which was issued in 1936. However, the district court determined that New Escalante began adversely using the water the day after the Cox Decree was issued. The court then determined that because New Escalante began its adverse use prior to 1939, its adverse use could ripen into a water right based on adverse use.

Otter Creek filed an interlocutory appeal on the limited issue on whether the district court correctly determined that if adverse use began prior to 1939, the adverse user could complete the seven years of adverse use after 1939. The Supreme Court began its analysis by discussing past dicta contained in prior opinions. The Court noted that the issue had never been squarely before the Court, resulting in dicta that appeared to support both positions. Ultimately, the Court elected to reject its previous dicta and to construe the 1939 statute based on its plain language. The Court noted that the statute provides that "no right to the use of water . . . can be acquired by adverse use or adverse possesion." The Court also noted that adverse use rights can only be acquired after the seven years of adverse use are completed. Until that time, the adverse user only has an expectation or hope of acquiring the right by adverse use. Thus, the Court determined that the seven years of adverse use must be completed before 1939. The district court's decision was reversed and the case was remanded for further proceedings.

To read the full opinion, click here.

Welcome to the Blog!

I am an attorney who specializes in water rights and water law. As a water rights lawyer, I love learning about water law, discussing water law, and teaching others about water law. Accordingly, I have started this blog about Utah water law and Utah water rights. I hope to make this blog a source for all things related to Utah water law: updates about new laws affecting water rights in Utah, reports of recent Utah cases regarding water rights, articles about basics of Utah water rights, and more. Check back often for updates, and feel free to comment!