Senator Margaret Dayton has introduced a bill to make some changes to Utah Code section 73-3-17. The bill has been numbered Senate Bill 26 (S.B. 26) and is entitled "Water Law Modifications."
Most of the proposed changes in the bill are small, technical changes. The most significant change relates to certificates of beneficial use (aka certificates of appropriation) that are issued by the State Engineer. Currently, the law requires the water right owner to record the certificate with the appropriate county recorder's office within 30 days after the certificate has been issued. This bill removes the recording requirement, but provides that a water right owner may record the certificate if he/she wants to.
To read the full text of the bill, click here.
(For an update on this bill, click here.)
Tuesday, December 21, 2010
Friday, December 17, 2010
What Is the Process for Approval of a Change Application or Application to Appropriate?
After a Change Application or Application to Appropriate has been filed with the Utah Division of Water Rights, there is a process that the application must go through before it is approved or denied.
The application must first be advertised once a week for two successive weeks in a newspaper of general circulation in the county. Advertising may not be required on a temporary change application or on an application on a small amount of water (defined as the amount of water necessary for one residence, 0.25 acres of irrigation, and stockwater for ten ELUs).
Interested parties may file a protest with the State Engineer. The protest period is for twenty days following the advertisement. A hearing may held if a protestant requests a hearing or if the Division of Water Rights has other reasons or concerns for holding a hearing.
Following the hearing (or following the protest period, if no hearing is required), the Division will review all of the information before it, including the application, the protests, the information obtained at the hearing, and other data on file with the Division. The Division may also conduct a field investigation or request additional information from the applicant.
The State Engineer will then issue an order either approving or rejecting the application. The order will also generally contain limitations and conditions of approval. There is no real timeline for when the order will be issued. Generally, it takes six to eight weeks from the date of the hearing, but on more complex applications, it may take several months or even years for an order to be issued.
If a party disagrees with the State Engineer's order, he/she can file a request reconsideration within twenty days from the date the order is issued. The State Engineer may grant the request for reconsideration and issue an amended order. The State Engineer may also deny the request for reconsideration, either by expressly denying the request or by not taking any action on the request for twenty days after the request is filed (at which point the request is deemed denied). The aggrieved party then has thirty days to appeal to the district court.
For a flow chart of the application process, click here.
To read the statutes about the application process, click here.
The application must first be advertised once a week for two successive weeks in a newspaper of general circulation in the county. Advertising may not be required on a temporary change application or on an application on a small amount of water (defined as the amount of water necessary for one residence, 0.25 acres of irrigation, and stockwater for ten ELUs).
Interested parties may file a protest with the State Engineer. The protest period is for twenty days following the advertisement. A hearing may held if a protestant requests a hearing or if the Division of Water Rights has other reasons or concerns for holding a hearing.
Following the hearing (or following the protest period, if no hearing is required), the Division will review all of the information before it, including the application, the protests, the information obtained at the hearing, and other data on file with the Division. The Division may also conduct a field investigation or request additional information from the applicant.
The State Engineer will then issue an order either approving or rejecting the application. The order will also generally contain limitations and conditions of approval. There is no real timeline for when the order will be issued. Generally, it takes six to eight weeks from the date of the hearing, but on more complex applications, it may take several months or even years for an order to be issued.
If a party disagrees with the State Engineer's order, he/she can file a request reconsideration within twenty days from the date the order is issued. The State Engineer may grant the request for reconsideration and issue an amended order. The State Engineer may also deny the request for reconsideration, either by expressly denying the request or by not taking any action on the request for twenty days after the request is filed (at which point the request is deemed denied). The aggrieved party then has thirty days to appeal to the district court.
For a flow chart of the application process, click here.
To read the statutes about the application process, click here.
Wednesday, December 8, 2010
Introduction to Wetland Laws and Regulations
The following article was written for the Water & The Law newsletter that our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.
Even though Utah is the second-driest state in the nation, wetlands issues frequently arise in many different situations, including land development, mining and mineral extraction, agriculture, and stream alteration. The Clean Water Act (CWA) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," i.e. to make the nation's waters fishable and swimmable. The CWA seeks to do this by preventing future contamination and pollution of waters. The central feature of the CWA is section 301, which prohibits the discharge of any pollutant into a navigable water, including wetlands, unless otherwise authorized by a permit. One of the most common permits issued under the CWA is a section 404 wetlands permit issued by the Army Corps of Engineers (Corps) for certain discharges of "dredged or fill material" into wetlands.
In determining whether a wetlands permit is required for a particular project, it must first be determined whether the area that will be impacted by a proposed activity is within the Corps' regulatory jurisdiction under the CWA. Waters within the Corps' jurisdiction include navigable waters; tributaries to navigable waters; interstate wetlands; wetlands that could affect interstate or foreign commerce; and wetlands "adjacent" to any of the above. Wetlands are determined based on the presence of three elements: soils, hydrology, and vegetation. The physical boundaries of a wetland are determined by a "delineation" conducted by either the Corps or a licensed professional.
The U.S. Supreme Court recently muddied the waters regarding the extent of the Corps' jurisdiction over wetlands not immediately adjacent to traditionally navigable waters. See Rapanos v. United States, 547 U.S. 715 (2006). In a divided opinion, the Court established two different standards for determining jurisdiction, neither of which has gained traction as the official test.
Second, the proposed activity must also be within the Corps' regulatory jurisdiction under the CWA for a permit to be required. Section 404 prohibits the "discharge of dredged or fill material into the navigable waters" except upon issuance of a permit. Certain activities that otherwise constitute a "discharge of dredged or fill material" are exempted from regulation. Projects should be analyzed to see if they qualify for an exemption.
If both the area and the activity are within the Corps' section 404 regulatory jurisdiction, any activity that impacts the wetland must obtain a permit from the Corps. General Permits are issued for regulated discharges with minimal adverse effects, while individual permits are required for potentially significant impacts to wetlands. The individual permit process is more involved, requiring compliance with criteria established in the EPA's 404(b)(1) Guidelines. An individual permit may also be denied if it "would be contrary to the public interest."
Under either type of permit, if impacts to a wetland are unavoidable, the permittee must attempt to minimize the impacts in the design of the project. If impacts to the wetlands remain after minimization, the permittee must provide compensatory mitigation, which primarily involves restoration, enhancement, creation, and preservation of other wetlands. The Corps now approves of, and in fact prefers, mitigation banking and in-lieu-fee mitigation as alternatives to traditional compensatory mitigation. With proper planning many difficulties in dealing with wetlands issues can be prevented.
Click here for a more detailed article regarding wetlands regulations.
Even though Utah is the second-driest state in the nation, wetlands issues frequently arise in many different situations, including land development, mining and mineral extraction, agriculture, and stream alteration. The Clean Water Act (CWA) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," i.e. to make the nation's waters fishable and swimmable. The CWA seeks to do this by preventing future contamination and pollution of waters. The central feature of the CWA is section 301, which prohibits the discharge of any pollutant into a navigable water, including wetlands, unless otherwise authorized by a permit. One of the most common permits issued under the CWA is a section 404 wetlands permit issued by the Army Corps of Engineers (Corps) for certain discharges of "dredged or fill material" into wetlands.
In determining whether a wetlands permit is required for a particular project, it must first be determined whether the area that will be impacted by a proposed activity is within the Corps' regulatory jurisdiction under the CWA. Waters within the Corps' jurisdiction include navigable waters; tributaries to navigable waters; interstate wetlands; wetlands that could affect interstate or foreign commerce; and wetlands "adjacent" to any of the above. Wetlands are determined based on the presence of three elements: soils, hydrology, and vegetation. The physical boundaries of a wetland are determined by a "delineation" conducted by either the Corps or a licensed professional.
The U.S. Supreme Court recently muddied the waters regarding the extent of the Corps' jurisdiction over wetlands not immediately adjacent to traditionally navigable waters. See Rapanos v. United States, 547 U.S. 715 (2006). In a divided opinion, the Court established two different standards for determining jurisdiction, neither of which has gained traction as the official test.
Second, the proposed activity must also be within the Corps' regulatory jurisdiction under the CWA for a permit to be required. Section 404 prohibits the "discharge of dredged or fill material into the navigable waters" except upon issuance of a permit. Certain activities that otherwise constitute a "discharge of dredged or fill material" are exempted from regulation. Projects should be analyzed to see if they qualify for an exemption.
If both the area and the activity are within the Corps' section 404 regulatory jurisdiction, any activity that impacts the wetland must obtain a permit from the Corps. General Permits are issued for regulated discharges with minimal adverse effects, while individual permits are required for potentially significant impacts to wetlands. The individual permit process is more involved, requiring compliance with criteria established in the EPA's 404(b)(1) Guidelines. An individual permit may also be denied if it "would be contrary to the public interest."
Under either type of permit, if impacts to a wetland are unavoidable, the permittee must attempt to minimize the impacts in the design of the project. If impacts to the wetlands remain after minimization, the permittee must provide compensatory mitigation, which primarily involves restoration, enhancement, creation, and preservation of other wetlands. The Corps now approves of, and in fact prefers, mitigation banking and in-lieu-fee mitigation as alternatives to traditional compensatory mitigation. With proper planning many difficulties in dealing with wetlands issues can be prevented.
Click here for a more detailed article regarding wetlands regulations.
How Does the Law Treat Lost Share Certificates in Water Companies?
The following article was published in the Water & The Law newsletter, which our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.
When the pioneers settled Utah in the 1800s, they often banded together to construct common water diversion, storage, and distribution facilities. Over time, these associations of water users were incorporated into nonprofit mutual water corporations. In these companies, the water rights are held in the name of the corporation for the benefit of its members. Shares of stock were issued to signify how much water each individual is entitled to receive. In most cases, to transfer the shares of stock, the shareholder would need to endorse the certificate to a new owner. Thus, the certificate was critical to establish and transfer ownership of the shares and the attendant right to water delivery.
This system works well in most cases, but it presents a challenge whenever a certificate is lost, destroyed, or stolen. Under the Uniform Commercial Code, a portion of which is applicable to transfers of shares of stock in a water corporation, the corporation cannot simply re-issue the share with impunity. If the lost or stolen certificate is later discovered, the corporation would usually need to honor both the replacement certificate and the original. Because shares of a water corporation represent a right to delivery of a proportionate share of the corporation's water rights, dilution of the shares in this manner is especially unpalatable to the other shareholders. To account for these risks, many water corporations have a series of requirements before they will issue a replacement certificate. For example, many corporations require the person requesting a new certificate to post or obtain a perpetual bond to protect the corporation in the event the original certificate surfaced. Recently, however, it has become more and more difficult to secure such a bond.
To address this difficulty, the Utah Executive Water Task Force has recently approved a draft bill in an attempt to streamline this process. The bill is expected to be presented to the 2011 Utah State Legislature for consideration. The present draft of the bill continues to give the corporation the ability to establish its own requirements for issuing a new certificate in its Articles of Incorporation or Bylaws. Without such requirements, however, the new law would provide some options for the water corporation to both protect itself and allow a new share to be issued. For example, the proposed bill would give the water corporation the option to, at the expense of the person requesting the new certificate, publish and mail notice of the request to issue a replacement certificate. The bill then outlines a process that the corporation can use to resolve share ownership disputes. There will undoubtedly be further revisions of the bill before it is passed, but it is a step toward solving this challenge that often faces water corporations and shareholders.
(Update: Click here to read about the bill introduced in the 2011 Utah Legislature.)
When the pioneers settled Utah in the 1800s, they often banded together to construct common water diversion, storage, and distribution facilities. Over time, these associations of water users were incorporated into nonprofit mutual water corporations. In these companies, the water rights are held in the name of the corporation for the benefit of its members. Shares of stock were issued to signify how much water each individual is entitled to receive. In most cases, to transfer the shares of stock, the shareholder would need to endorse the certificate to a new owner. Thus, the certificate was critical to establish and transfer ownership of the shares and the attendant right to water delivery.
This system works well in most cases, but it presents a challenge whenever a certificate is lost, destroyed, or stolen. Under the Uniform Commercial Code, a portion of which is applicable to transfers of shares of stock in a water corporation, the corporation cannot simply re-issue the share with impunity. If the lost or stolen certificate is later discovered, the corporation would usually need to honor both the replacement certificate and the original. Because shares of a water corporation represent a right to delivery of a proportionate share of the corporation's water rights, dilution of the shares in this manner is especially unpalatable to the other shareholders. To account for these risks, many water corporations have a series of requirements before they will issue a replacement certificate. For example, many corporations require the person requesting a new certificate to post or obtain a perpetual bond to protect the corporation in the event the original certificate surfaced. Recently, however, it has become more and more difficult to secure such a bond.
To address this difficulty, the Utah Executive Water Task Force has recently approved a draft bill in an attempt to streamline this process. The bill is expected to be presented to the 2011 Utah State Legislature for consideration. The present draft of the bill continues to give the corporation the ability to establish its own requirements for issuing a new certificate in its Articles of Incorporation or Bylaws. Without such requirements, however, the new law would provide some options for the water corporation to both protect itself and allow a new share to be issued. For example, the proposed bill would give the water corporation the option to, at the expense of the person requesting the new certificate, publish and mail notice of the request to issue a replacement certificate. The bill then outlines a process that the corporation can use to resolve share ownership disputes. There will undoubtedly be further revisions of the bill before it is passed, but it is a step toward solving this challenge that often faces water corporations and shareholders.
(Update: Click here to read about the bill introduced in the 2011 Utah Legislature.)
Sunday, November 28, 2010
2010 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 2010 report is available online and can be accessed by clicking here.
The 2010 report is available online and can be accessed by clicking here.
Saturday, November 27, 2010
What is an ELU?
Records of the Utah Division of Water Rights often utilize the term “ELU.” This abbreviation stands for Equivalent Livestock Unit, which is a standardized measure related to the watering of various sized livestock. For example, 1 ELU could represent 1 large animal, such as a cow or horse; 5 medium-sized animals, such as sheep or goats; or 33.33 small animals, such as chickens or turkeys. Accordingly, if you have a water right that allows for stockwatering of 50 ELUs, you would have enough water for 50 cows, or 250 sheep, or 1,666 chickens (or a combination of animals, such as 40 cows and 50 sheep).
Tuesday, November 23, 2010
What Are Supplemental Groups and Sole Supply?
Generally, each water right in Utah is limited to a defined quantity for a defined use. Sometimes, however, multiple water rights are used together for one particular use. For example, three water rights may be jointly used to irrigate ten acres of land, or ten water rights may be jointly used to provide water for 200 head of cattle. In such cases, the water rights are said to be "supplemental" to each and are listed together in a “supplemental group.”
The water rights in the supplemental group are usually not assigned an individual limit, which is not an issue if the same person owns all of the water rights in the supplemental group and continues to use the group for the specified use. However, when some of the water rights in the supplemental group are sold to different people and/or an owner wants to file a change application on some of the water rights in the supplemental group, a determination has to be made regarding how much of the group total is to be apportioned to each water right in the group. This is what is referred to as “sole supply.” For example, if ten water rights are in a supplemental group that provides water for 200 head of cattle, each of the ten water rights could be apportioned a sole supply of 20 head of cattle. Alternatively, five of the water rights could be apportioned a sole supply of 40 head of cattle each, and the other five water rights could be apportioned a sole supply of 0 head of cattle each. The Division of Water Rights essentially allow the water right owner(s) to apportion the sole supply in any way they want, as long as the sum of the water rights does not exceed the group total and the allocation is consistent with the governing water right documents.
The Utah Division of Water Rights has recently issued Utah Administrative Rule R655-16 regarding supplemental groups and sole supply. The Rule provides that in order to allocate sole supply among the water rights in a supplemental group, all of the water right owners in the group must sign a Declaration of Beneficial Use (formerly called a Group Contribution Statement). If a water right owner has exhausted all reasonable efforts and has been unable to locate or get signatures from all of the other water right owners, the owner may ask the Division of Water Rights to initiate an informal proceeding to allocate the sole supply. To read more about Rule R655-16, click here.
The water rights in the supplemental group are usually not assigned an individual limit, which is not an issue if the same person owns all of the water rights in the supplemental group and continues to use the group for the specified use. However, when some of the water rights in the supplemental group are sold to different people and/or an owner wants to file a change application on some of the water rights in the supplemental group, a determination has to be made regarding how much of the group total is to be apportioned to each water right in the group. This is what is referred to as “sole supply.” For example, if ten water rights are in a supplemental group that provides water for 200 head of cattle, each of the ten water rights could be apportioned a sole supply of 20 head of cattle. Alternatively, five of the water rights could be apportioned a sole supply of 40 head of cattle each, and the other five water rights could be apportioned a sole supply of 0 head of cattle each. The Division of Water Rights essentially allow the water right owner(s) to apportion the sole supply in any way they want, as long as the sum of the water rights does not exceed the group total and the allocation is consistent with the governing water right documents.
The Utah Division of Water Rights has recently issued Utah Administrative Rule R655-16 regarding supplemental groups and sole supply. The Rule provides that in order to allocate sole supply among the water rights in a supplemental group, all of the water right owners in the group must sign a Declaration of Beneficial Use (formerly called a Group Contribution Statement). If a water right owner has exhausted all reasonable efforts and has been unable to locate or get signatures from all of the other water right owners, the owner may ask the Division of Water Rights to initiate an informal proceeding to allocate the sole supply. To read more about Rule R655-16, click here.
Saturday, November 20, 2010
Utah Stream Access Coalition v. Victory Ranch
On November 12, 2010, a lawsuit was filed in the 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). The lawsuit was filed by Utah Stream Access Coalition, and names Victory Ranch L.C., Silver Creek - Robert Larsen Investors LLC, Utah Division of Wildlife Resources, and Wasatch County Sheriff Todd Bonner as defendants.
The complaint alleges that the Act violates Article I, section 25; Article XVII, and Article XX of the Utah Constitution and the Public Trust doctrine "to the extent it purports to abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public water and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in [Conatser v. Johnson] and other Utah Supreme Court decisions."
The complaint also alleges that the Act violates Article I, section 23; Article V; Article VI; and Article VIII of the Utah Constitution and the separation of powers doctrine "to the extent that it purports to (a) adjudicate the constitutional rights of the Coalition's members and defendants, (b) declare that Conatser's recognition of public rights constitutes a taking of private property, and (c) abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public waters and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in Conatser and other Utah Supreme Court decisions."
The Coalition is asking the court for a judgment (1) declaring that the Act violates the Utah Constitution, the public trust doctrine, and the separation of powers doctrine; (2) declaring that the public has an easement for recreational access across private beds, including those on the Victory Ranch and Larsen properties; (3) enjoining Victory Ranch and Larsen from prohibiting, impeding, or restricting public access across private beds on their properties; and (4) enjoining the Division of Wildlife Resources and the Wasatch County Sheriff from citing members of the public for criminal trespass for accessing private beds on the Victory Ranch and Larsen properties.
I have a copy of the Coalition's complaint that was filed with the court. I would be happy to email a copy to anyone who is interested. Click here for my email address.
Update: The Coalition has filed an Amended Complaint. Click here to read more.
The complaint alleges that the Act violates Article I, section 25; Article XVII, and Article XX of the Utah Constitution and the Public Trust doctrine "to the extent it purports to abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public water and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in [Conatser v. Johnson] and other Utah Supreme Court decisions."
The complaint also alleges that the Act violates Article I, section 23; Article V; Article VI; and Article VIII of the Utah Constitution and the separation of powers doctrine "to the extent that it purports to (a) adjudicate the constitutional rights of the Coalition's members and defendants, (b) declare that Conatser's recognition of public rights constitutes a taking of private property, and (c) abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public waters and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in Conatser and other Utah Supreme Court decisions."
The Coalition is asking the court for a judgment (1) declaring that the Act violates the Utah Constitution, the public trust doctrine, and the separation of powers doctrine; (2) declaring that the public has an easement for recreational access across private beds, including those on the Victory Ranch and Larsen properties; (3) enjoining Victory Ranch and Larsen from prohibiting, impeding, or restricting public access across private beds on their properties; and (4) enjoining the Division of Wildlife Resources and the Wasatch County Sheriff from citing members of the public for criminal trespass for accessing private beds on the Victory Ranch and Larsen properties.
I have a copy of the Coalition's complaint that was filed with the court. I would be happy to email a copy to anyone who is interested. Click here for my email address.
Update: The Coalition has filed an Amended Complaint. Click here to read more.
Thursday, November 4, 2010
Utah Waterways Task Force Meeting in Salt Lake City
The Utah Waterways Task Force has scheduled its fourth meeting for Thursday, November 18, 2010 at 11:00 am. The meeting will be held in Room 250 of the State Capitol.
To view the meeting notice and other information about the Task Force, click here.
To view the meeting notice and other information about the Task Force, click here.
Saturday, October 23, 2010
Livestock Water Use Certificates
In 2008, the Utah Legislature passed House Bill 208 (HB 208) entitled "Livestock Watering Rights." The bill enacted Utah Code section 73-3-31, which attempted to limit the right of the Bureau of Land Managment (BLM) and other public land agencies from acquiring livestock water rights. To read the 2008 bill, click here.
In 2009, the Utah Legislature passed House Bill 256 (HB 256) to amend Utah Code section 73-3-31. The bill provided that after May 12, 2009, a public land agency can only acquire a livestock watering right if it does so jointly with the beneficial user (i.e., the holder of the grazing permit). The bill also clarified that the State Engineer cannot approve a change application on a livestock water right unless the beneficial user consents to the change. The public land agency and/or the beneficial user can request a livestock water use certificate. To read the 2009 bill, click here.
To read the current version of Utah Code section 73-3-31, click here.
To access the Utah Division of Water Right's online livestock water certificate application form, click here.
For an interesting article about the history and legal analysis of the livestock watering law, click here.
In 2009, the Utah Legislature passed House Bill 256 (HB 256) to amend Utah Code section 73-3-31. The bill provided that after May 12, 2009, a public land agency can only acquire a livestock watering right if it does so jointly with the beneficial user (i.e., the holder of the grazing permit). The bill also clarified that the State Engineer cannot approve a change application on a livestock water right unless the beneficial user consents to the change. The public land agency and/or the beneficial user can request a livestock water use certificate. To read the 2009 bill, click here.
To read the current version of Utah Code section 73-3-31, click here.
To access the Utah Division of Water Right's online livestock water certificate application form, click here.
For an interesting article about the history and legal analysis of the livestock watering law, click here.
Thursday, September 30, 2010
What Is Duty of Water?
"Duty of water" (usually referred to as simply "duty") refers to the quantity of water, as determined by the Utah Division of Water Rights, that is required to satisfy the irrigation water requirements in a given area. The underlying concept is that only so much water may be beneficially used. The duty in an area is based on the irrigation requirements of alfalfa, and duties vary across the state. For example, Summit County has a duty of 3 acre-feet per acre (per annum), whereas portions of Washington County have a duty of 6 acre-feet per acre (per annum). The Division of Water Rights' determinations of duty are based mainly on the report entitled Consumptive Use of Irrigated Crops in Utah by Robert W. Hill (Utah State University), which is available here.
To determine the duty in your area, you can refer to the Division's PDF map or interactive map.
To determine the duty in your area, you can refer to the Division's PDF map or interactive map.
Tuesday, September 28, 2010
What Are the Policies for the Water Right Areas in Utah?
For administrative purposes, the Utah Division of Water Rights divides the state into a number of areas. In a water right number, the digits preceding the hyphen identify the area in which the water right is located. For example, a water right starting with “25-” is located in Area 25, which covers Cache County.
Each area has a page that contain information and policies that are specific to that area. You can view the area information and policies by accessing the area map located here, then clicking on the area that you wish to read more about.
Area pages contain the following information:
Description: explains the boundaries of the area and important characteristics of the area.
Management: describes decrees, proposed determinations, distribution systems, groundwater management plans, compacts, and other documents that relate to the management and distribution of water in the area.
Sources: describes the appropriation policies for the area (i.e., whether the area is open to appropriation of surface water or groundwater), as well as policies related to change applications.
General: describes which newspaper(s) notices are published in, the irrigation duty for the area, and other information.
References: contains links to groundwater studies, hydrologic data, and other studies and publications relating to the area.
Map: shows the boundaries of the area and the cities/towns located in the area.
Each area has a page that contain information and policies that are specific to that area. You can view the area information and policies by accessing the area map located here, then clicking on the area that you wish to read more about.
Area pages contain the following information:
Description: explains the boundaries of the area and important characteristics of the area.
Management: describes decrees, proposed determinations, distribution systems, groundwater management plans, compacts, and other documents that relate to the management and distribution of water in the area.
Sources: describes the appropriation policies for the area (i.e., whether the area is open to appropriation of surface water or groundwater), as well as policies related to change applications.
General: describes which newspaper(s) notices are published in, the irrigation duty for the area, and other information.
References: contains links to groundwater studies, hydrologic data, and other studies and publications relating to the area.
Map: shows the boundaries of the area and the cities/towns located in the area.
Wednesday, September 15, 2010
Utah Waterways Task Force Meeting in Duchesne
The Utah Waterways Task Force has scheduled its third meeting for Thursday, September 30, 2010 at 11:00 am. The meeting will be held at the Duchesne County Administrative Offices, 734 North Center, Duchesne.
To view the meeting notice and other information about the Task Force, click here.
To view the meeting notice and other information about the Task Force, click here.
Tuesday, August 31, 2010
The State Engineer's New Supplemental Water Rights Rule
The following article is a combination of two articles published in the Water & The Law newsletter, whch our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.
A foundational principle of Utah water law is that beneficial use is the basis, measure, and limit of a water right. The concept of duty is implicit in this principle in that there can be only a certain amount of beneficial water use for any particular use. For example, in the Tooele Valley, the irrigation duty is four acre-feet of water per acre of land. In other words, the application of water for irrigation in Tooele Valley in excess of four acre-feet per acre would be wasteful, and irrigation of one acre can support only four acre-feet of water right.
Often, however, multiple water rights combine to supply a particular beneficial use. When this occurs, the rights are said to be supplemental to each other. In 2006, the State Engineer implemented the supplemental group system to facilitate clarification of supplemental water rights. In essence, the State Engineer gave a unique supplemental group number to each particular beneficial use and linked that number to any water right that may provide water for that use. Typically, the amount of water actually contributed from each water right to the supplemental group was shown as unevaluated. To promote evaluation, the State Engineer began requiring Sole Supply Statements or Group Contribution Forms for most change applications. These forms required an applicant to determine how much beneficial use each water right contributes to particular supplemental group and to get signatures from all water rights holders in favor of that allocation. But the process of evaluating supplemental groups is often complicated and expensive, and water rights holders are often hesitant to sign the form regardless of how logical or fair the allocation is. Accordingly, the process resulted in an unexpected expense and delay for a number of change applicants.
Perhaps in response to the objections of many change applicants to completing the Sole Supply Statements, the State Engineer published a proposed administrative rule in the summer of 2008. In response to the many comments submitted in opposition to the rule as originally proposed, the State Engineer published a revised rule in the Utah State Bulletin on November 1, 2009. Although there were again a number of comments to the rule, the tenor of those comments was generally more positive than before. The version of Rule R655-16 that is now in effect was published in the Utah State Bulletin on March 1, 2010 with a few additional changes from the November 2009 version. As a result of those changes, it is significantly less onerous than the original policy of the State Engineer.
First, the rule does not require a Declaration of Beneficial Use Amounts (the new name for the Statement of Sole Supply or Statement of Group Contribution forms) for every change application, but only for change applications that fall within a narrowly defined set of circumstances where a change application is seeking to separate a water right from its historical supplemental group. Second, there are significant exemptions for many types of change applications. For example, public water suppliers, such as municipalities and districts, need not file a Declaration for supplemental groups created for water use within their service areas. Furthermore, the State Engineer may waive the Declaration requirement for temporary change applications and may remove water rights from a group if it would be unduly burdensome (e.g., for large water rights that cover an expansive area and are therefore part of many supplemental groups). Third, the rule now requires only that the beneficial use amount for the water right being changed be declared as opposed to every water right in the group. And finally, in instances where the other water right holders refuse to sign a Declaration, the rule provides for an administrative process to establish the beneficial use amounts and allow the change application to proceed. The new rule R655-16 contains many nuances and should be studied thoroughly before a change application is filed. The full text of the rule is available on the State’s website or through the following link: Utah Administrative Code Rule R655-16.
A foundational principle of Utah water law is that beneficial use is the basis, measure, and limit of a water right. The concept of duty is implicit in this principle in that there can be only a certain amount of beneficial water use for any particular use. For example, in the Tooele Valley, the irrigation duty is four acre-feet of water per acre of land. In other words, the application of water for irrigation in Tooele Valley in excess of four acre-feet per acre would be wasteful, and irrigation of one acre can support only four acre-feet of water right.
Often, however, multiple water rights combine to supply a particular beneficial use. When this occurs, the rights are said to be supplemental to each other. In 2006, the State Engineer implemented the supplemental group system to facilitate clarification of supplemental water rights. In essence, the State Engineer gave a unique supplemental group number to each particular beneficial use and linked that number to any water right that may provide water for that use. Typically, the amount of water actually contributed from each water right to the supplemental group was shown as unevaluated. To promote evaluation, the State Engineer began requiring Sole Supply Statements or Group Contribution Forms for most change applications. These forms required an applicant to determine how much beneficial use each water right contributes to particular supplemental group and to get signatures from all water rights holders in favor of that allocation. But the process of evaluating supplemental groups is often complicated and expensive, and water rights holders are often hesitant to sign the form regardless of how logical or fair the allocation is. Accordingly, the process resulted in an unexpected expense and delay for a number of change applicants.
Perhaps in response to the objections of many change applicants to completing the Sole Supply Statements, the State Engineer published a proposed administrative rule in the summer of 2008. In response to the many comments submitted in opposition to the rule as originally proposed, the State Engineer published a revised rule in the Utah State Bulletin on November 1, 2009. Although there were again a number of comments to the rule, the tenor of those comments was generally more positive than before. The version of Rule R655-16 that is now in effect was published in the Utah State Bulletin on March 1, 2010 with a few additional changes from the November 2009 version. As a result of those changes, it is significantly less onerous than the original policy of the State Engineer.
First, the rule does not require a Declaration of Beneficial Use Amounts (the new name for the Statement of Sole Supply or Statement of Group Contribution forms) for every change application, but only for change applications that fall within a narrowly defined set of circumstances where a change application is seeking to separate a water right from its historical supplemental group. Second, there are significant exemptions for many types of change applications. For example, public water suppliers, such as municipalities and districts, need not file a Declaration for supplemental groups created for water use within their service areas. Furthermore, the State Engineer may waive the Declaration requirement for temporary change applications and may remove water rights from a group if it would be unduly burdensome (e.g., for large water rights that cover an expansive area and are therefore part of many supplemental groups). Third, the rule now requires only that the beneficial use amount for the water right being changed be declared as opposed to every water right in the group. And finally, in instances where the other water right holders refuse to sign a Declaration, the rule provides for an administrative process to establish the beneficial use amounts and allow the change application to proceed. The new rule R655-16 contains many nuances and should be studied thoroughly before a change application is filed. The full text of the rule is available on the State’s website or through the following link: Utah Administrative Code Rule R655-16.
Tuesday, August 17, 2010
Where Can I Get Copies of Water Decrees?
Utah water law provides for a general adjudication process under which all water rights in an area are adjudicated. The final step in this process is for the court to enter a decree that establishes the water rights. In many areas of the state, these decrees become the most important document with respect to water rights. Copies of decrees are available on the Utah Division of Water Rights' website. Click here to access the complete list of decrees, which have been organized by county.
Below, I have provided the links to some of the most common decrees:
Provo River Decree (1921) - available here or here
Weber River Decree (1937) - click here
Ogden River Decree (1948) - click here
Sevier River Decree [aka “Cox Decree”] (1936) - click here
Big Cottonwood Creek Decree [aka “Morse Decree”] (1914) - click here
Little Cottonwood Creek Decree [aka “Morse Decree”] (1910) - click here
Below, I have provided the links to some of the most common decrees:
Provo River Decree (1921) - available here or here
Weber River Decree (1937) - click here
Ogden River Decree (1948) - click here
Sevier River Decree [aka “Cox Decree”] (1936) - click here
Big Cottonwood Creek Decree [aka “Morse Decree”] (1914) - click here
Little Cottonwood Creek Decree [aka “Morse Decree”] (1910) - click here
Tuesday, August 10, 2010
How Do I Receive Email Notification of Action Taken on My Water Right?
The Utah Division of Water Rights has a service that sends you an email notification when new documents are placed your water right file. The notification service is free, and is easy to use. To use the service, click here and follow the directions below.
If you are a new user, click on the “Register Here” button. You will then be asked to provide your email address and a password. You can then enter the water right or change application number, and hit the “Add Application” button. This will add the water right to your notification list.
You can add as many water rights to your notification list as you want. You are also not limited to tracking your own water rights, so if there are water rights owned by others that you want to track, you can add those water rights to your notification list as well.
Although the notification service is very useful, it is not a complete substituting for receiving notices by mail. Accordingly, water right owners should ensure that their address is current on the Division of Water Rights’ database.
If you are a new user, click on the “Register Here” button. You will then be asked to provide your email address and a password. You can then enter the water right or change application number, and hit the “Add Application” button. This will add the water right to your notification list.
You can add as many water rights to your notification list as you want. You are also not limited to tracking your own water rights, so if there are water rights owned by others that you want to track, you can add those water rights to your notification list as well.
Although the notification service is very useful, it is not a complete substituting for receiving notices by mail. Accordingly, water right owners should ensure that their address is current on the Division of Water Rights’ database.
Sunday, August 8, 2010
How Do I Check the Status of a Report of Conveyance?
If you have submitted a Report of Conveyance ("ROC") to the Utah Division of Water Rights, you can check its status by clicking here. If the ROC has not yet been processed, it will be in the “Pending” tab. If the ROC has been processed and approved, it will be in the “Completed” tab. If the ROC has been processed but has been rejected, it will be in the “Returned” tab.
Wednesday, July 21, 2010
Utah Waterways Task Force Meeting in Richfield
The Utah Waterways Task Force has scheduled its second meeting for Wednesday, August 25th, at 9:00 a.m. The meeting will be held in Rooms 147 A & D of the Administration Building at the Snow College Richfield Campus (800 West 200 South, Richfield).
To view the meeting notice and other information about the Task Force, click here.
To view the meeting notice and other information about the Task Force, click here.
Tuesday, July 20, 2010
What Is a Surplus Water Agreement?
Under Article XI, § 6 of the Utah Constitution, a municipality cannot “directly or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply” owned or controlled by the municipality. However, under Section 10-8-14 of the Utah Code, a municipality is authorized to “sell and deliver the surplus product or service capacity of [its water system] not required by the city or the city’s inhabitants, to others beyond the limits of the city.” Accordingly, municipalities can enter into surplus water agreements under which the municipality allows a person to use the municipality’s surplus water until the water is required to meet the municipality’s demands.
Thursday, July 1, 2010
What Is a Report of Conveyance?
As discussed in a previous blog post, water rights in Utah are generally transferred either by deed or through appurtenance. Thus, true ownership of a water right is determined by researching the deeds at the county recorder’s office. The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Water Right Conveyance (more commonly referred to as a Report of Conveyance or a "ROC") to notify the Division when ownership transfers. Thus, the purpose of a Report of Conveyance is to notify the Division of Water Rights of the true ownership of a water right.
It is important that a water right owner update title with the Division of Water Rights. Any notices or correspondence that affect a water right will be sent to the owner of record on the Division of Water Rights' database. There have been many unfortunate occasions where, because title was not updated with the Division, a water right owner has not received communications regarding important deadlines that affect their water rights. Furthermore, until title is updated with the Division, a water right owner cannot file proof, file a change application, etc.
There are two different Report of Conveyance forms: a 100% conveyance form and a portion conveyance form. The 100% conveyance form is used if the grantor (seller) is conveying all of his/her interest in the water right. The portion conveyance form is used if the grantor (seller) is conveying only a portion of his/her interest in the water right.
In certain situations (e.g., when a water right has passed by appurtenance), the Report of Conveyance must include a certification by a licensed attorney, professional engineer, title insurance agent, or professional land surveyor. Copies of all relevant deeds must be included with the Report of Conveyance, as well as maps if the water passed by appurtenancy. For a helpful guide for determining if your Report of Conveyance will meet the Division's standards for processing, you should refer to the Report of Water Right Conveyance Review Checklist. This is the same checklist the Division's title department will use when reviewing the Report of Conveyance to see if it is complete.
To review the Utah Administrative Code rules regarding Reports of Conveyance, click here.
It is important that a water right owner update title with the Division of Water Rights. Any notices or correspondence that affect a water right will be sent to the owner of record on the Division of Water Rights' database. There have been many unfortunate occasions where, because title was not updated with the Division, a water right owner has not received communications regarding important deadlines that affect their water rights. Furthermore, until title is updated with the Division, a water right owner cannot file proof, file a change application, etc.
There are two different Report of Conveyance forms: a 100% conveyance form and a portion conveyance form. The 100% conveyance form is used if the grantor (seller) is conveying all of his/her interest in the water right. The portion conveyance form is used if the grantor (seller) is conveying only a portion of his/her interest in the water right.
In certain situations (e.g., when a water right has passed by appurtenance), the Report of Conveyance must include a certification by a licensed attorney, professional engineer, title insurance agent, or professional land surveyor. Copies of all relevant deeds must be included with the Report of Conveyance, as well as maps if the water passed by appurtenancy. For a helpful guide for determining if your Report of Conveyance will meet the Division's standards for processing, you should refer to the Report of Water Right Conveyance Review Checklist. This is the same checklist the Division's title department will use when reviewing the Report of Conveyance to see if it is complete.
To review the Utah Administrative Code rules regarding Reports of Conveyance, click here.
Wednesday, June 2, 2010
Rainwater Harvesting Registration
This year, the Utah Legislature passed Senate Bill 32, which permits the capture and storage of precipitation (i.e., rainwater harvesting). The bill has now been codified as section 73-3-1.5 of the Utah Code. One of the requirements of the new law is that a person who wants to harvest rainwater must first register with the Utah Division of Water Rights. The Division now has an online registration form (click here to access), which asks for the person's name, phone number, address, email address and storage size. Once the information is submitted, the person will receive a rainwater harvesting registration certificate.
Saturday, May 29, 2010
Bingham v. Roosevelt City
The Utah Supreme Court recently issued its opinion in Bingham v. Roosevelt City. The case centered around five City wells, known as the Hayden Well Field, through which the City pumped water out of an unconfined, shallow aquifer underlying the Hayden area. The water level in the area dropped significantly due to the City's pumping. For example, the static water level at one well dropped from 14.3 feet to 94.6 feet.
A group of people who owned land near the Hayden Well Field were affected by the decreased water levels. The landowners found that when they applied water to their fields, the water was quickly drawn down deep into the soil. Thus, the landowners found it more costly and, in some instances, practically impossible to raise crops and livestock. The landowners filed suit against the City, claiming three causes of action: interference with water rights, takings, and negligence.
In the district court, the City moved for summary judgment on all three of the landowners' causes of action. The district court granted summary judgment, so the landowners filed an appeal with the Utah Supreme Court. The Utah Supreme Court affirmed in part and reversed in part.
First, the Court held that there was no taking because the City was using its lawfully appropriated water rights. The Court determined that the landowners' interest in the water table underlying their property was not a protectable interest under the Utah Constitution or the United States Constitution.
Second, the Court held that the landowners' interference claimed failed as a matter of law. Although the Court acknowledged that the City's pumping from the Hayden Well Field affected the soil saturation and the water table, the City was not interfering with the landowners' rights and ability to divert their water rights (which were diverted from surface sources).
Third, the Court held that the district court erred when it granted summary judgment in favor of the City on the landowners' negligence claim. The Court held that the negligence claim was not barred by the statute of limitations because the City's pumping--which caused the alleged damage--was a continuing tort. The Court also held that the City did owe a duty to the landowners to exercise reasonable care in obtaining its water. The Court recognized that the landowners would be able to prevail on their negligence claim if the facts support the landowners' assertion that there were alternative means for the City to obtain its water without adversely affecting the landowners. The case was remanded to the district court for additional proceedings on the negligence claim.
To read the full opinion, click here.
A group of people who owned land near the Hayden Well Field were affected by the decreased water levels. The landowners found that when they applied water to their fields, the water was quickly drawn down deep into the soil. Thus, the landowners found it more costly and, in some instances, practically impossible to raise crops and livestock. The landowners filed suit against the City, claiming three causes of action: interference with water rights, takings, and negligence.
In the district court, the City moved for summary judgment on all three of the landowners' causes of action. The district court granted summary judgment, so the landowners filed an appeal with the Utah Supreme Court. The Utah Supreme Court affirmed in part and reversed in part.
First, the Court held that there was no taking because the City was using its lawfully appropriated water rights. The Court determined that the landowners' interest in the water table underlying their property was not a protectable interest under the Utah Constitution or the United States Constitution.
Second, the Court held that the landowners' interference claimed failed as a matter of law. Although the Court acknowledged that the City's pumping from the Hayden Well Field affected the soil saturation and the water table, the City was not interfering with the landowners' rights and ability to divert their water rights (which were diverted from surface sources).
Third, the Court held that the district court erred when it granted summary judgment in favor of the City on the landowners' negligence claim. The Court held that the negligence claim was not barred by the statute of limitations because the City's pumping--which caused the alleged damage--was a continuing tort. The Court also held that the City did owe a duty to the landowners to exercise reasonable care in obtaining its water. The Court recognized that the landowners would be able to prevail on their negligence claim if the facts support the landowners' assertion that there were alternative means for the City to obtain its water without adversely affecting the landowners. The case was remanded to the district court for additional proceedings on the negligence claim.
To read the full opinion, click here.
Thursday, May 20, 2010
Utah Waterways Task Force
The Utah Waterways Task Force has set its first meeting for June 24, 2010 at 10:00 am at the Department of Natural Resources building (1594 West North Temple, Salt Lake City). The meeting notice can be viewed here.
Senator Dennis Stowell, the sponsor of the bill that established the Task Force, explained the purpose of the Task Force as follows:
"This task force will be made up of 12 legislators that will study . . . areas of the state which have conflicts between fishermen and landowners. The task force will hold public hearings to allow the landowners and fishermen testify about the conflicts in these areas. This process will help the legislature better understand how the problem may be solved. The task force will also address funding issues in regards to expanding the DWR Walk-in Access program, funding to permanently purchase access rights from landowners, and establishment of cooperative fishing management units (CFMU’S)."
(Click here for source of quote.)
The Task Force is made up of the following six representatives and six senators:
Rep. Melvin R. Brown (Co-Chair)
Sen. Dennis E. Stowell (Co-Chair)
Sen. Curtis S. Bramble
Sen. Margaret Dayton
Rep. Jack R. Draxler
Rep. Ben C. Ferry
Rep. James R. Gowans
Rep. Lynn N. Hemingway
Sen. Peter C. Knudson
Sen. Benjamin M. McAdams
Rep. Kay L. McIff
Sen. Karen W. Morgan
Senator Dennis Stowell, the sponsor of the bill that established the Task Force, explained the purpose of the Task Force as follows:
"This task force will be made up of 12 legislators that will study . . . areas of the state which have conflicts between fishermen and landowners. The task force will hold public hearings to allow the landowners and fishermen testify about the conflicts in these areas. This process will help the legislature better understand how the problem may be solved. The task force will also address funding issues in regards to expanding the DWR Walk-in Access program, funding to permanently purchase access rights from landowners, and establishment of cooperative fishing management units (CFMU’S)."
(Click here for source of quote.)
The Task Force is made up of the following six representatives and six senators:
Rep. Melvin R. Brown (Co-Chair)
Sen. Dennis E. Stowell (Co-Chair)
Sen. Curtis S. Bramble
Sen. Margaret Dayton
Rep. Jack R. Draxler
Rep. Ben C. Ferry
Rep. James R. Gowans
Rep. Lynn N. Hemingway
Sen. Peter C. Knudson
Sen. Benjamin M. McAdams
Rep. Kay L. McIff
Sen. Karen W. Morgan
Monday, April 19, 2010
What Is the Difference Between a Water Right and a Water Share?
In the many conversations I have had with others regarding water-related issues, the most common mistake I hear is the confusion between "water right" and "water share." Hopefully the following discussion will clarify the distinction.
In Utah, all water is owned by the public. The Utah Code provides that "All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof. " The Utah Division of Water Rights administers the water on behalf of the public. In order to legally use water, a person must have a water right; in other words, the person must have permission from the Utah Division of Water Rights to use some of the public's water.
Many water rights are owned or held by mutual water companies (e.g., canal companies, ditch companies, or irrigation companies). The company issues stock to shareholders. By owning stock, a shareholder is entitled to use a portion of the company's water right. For example, if a ditch company owns a water right for 1,000 acre-feet of water and the company has 1,000 shareholders, each share represents the right to use 1 acre-foot of water from the company's water right.
The two terms are not interchangeable. Water shares ARE NOT water rights. The distinction between water rights and water shares is important for many reasons. For example, the manner of transferring water rights and water shares differs drastically. To transfer water rights (which are generally considered real property), a seller must convey the water right by deed, the deed must be recorded in the proper county recorder's office, and a Report of Conveyance must be filed with the Division of Water Rights. (Click here for more information.) Water shares are transferred according to the Utah Uniform Commercial Code and the water company's rules and regulations--generally by the seller endorsing the back of the share certificate and then having the company secretary issue a new share certificate to the buyer.
For additional information on this topic, click here.
In Utah, all water is owned by the public. The Utah Code provides that "All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof. " The Utah Division of Water Rights administers the water on behalf of the public. In order to legally use water, a person must have a water right; in other words, the person must have permission from the Utah Division of Water Rights to use some of the public's water.
Many water rights are owned or held by mutual water companies (e.g., canal companies, ditch companies, or irrigation companies). The company issues stock to shareholders. By owning stock, a shareholder is entitled to use a portion of the company's water right. For example, if a ditch company owns a water right for 1,000 acre-feet of water and the company has 1,000 shareholders, each share represents the right to use 1 acre-foot of water from the company's water right.
The two terms are not interchangeable. Water shares ARE NOT water rights. The distinction between water rights and water shares is important for many reasons. For example, the manner of transferring water rights and water shares differs drastically. To transfer water rights (which are generally considered real property), a seller must convey the water right by deed, the deed must be recorded in the proper county recorder's office, and a Report of Conveyance must be filed with the Division of Water Rights. (Click here for more information.) Water shares are transferred according to the Utah Uniform Commercial Code and the water company's rules and regulations--generally by the seller endorsing the back of the share certificate and then having the company secretary issue a new share certificate to the buyer.
For additional information on this topic, click here.
Wednesday, March 31, 2010
2010 Legislature: Governor Signs Stream Access Bill
Today, Utah Governor Gary Herbert signed second substitute House Bill 141 into law. HB 141 was sponsored by Representative Kay McIff.
To read more about second substitute House Bill 141, click here.
To read more about second substitute House Bill 141, click here.
Tuesday, March 16, 2010
Brown v. Utah Division of Water Rights
Last week, the Utah Supreme Court issued its opinion in Brown v. Division of Water Rights. This case began in 2006 when the Browns' neighbor applied to the Division for a stream alteration permit so that he could build a bridge across Little Cottonwood Creek. The Browns protested the permit, asserting that the bridge would diminish the Creek's ability to handle high water flow and would adversely impact the natural stream environment. Despite the Browns' protest, the Division issued the permit. The Browns filed a request for reconsideration, which the Division denied. The Browns then filed a petition for administrative review with the district court.
The neighbor filed a motion to dismiss the Browns' petition, arguing that the Browns lacked standing because they failed to allege a distinct and palpable injury. The district court agreed, and dismissed the Browns' petition for lack of standing. The Browns appealed to the Utah Court of Appeals, who affirmed the district court's decision. The Browns then appealed to the Utah Supreme Court. The Supreme Court reversed the Court of Appeals and district court, holding that the Browns did have standing because their allegations established a reasonable probability of future injury. The case has now been remanded for additional proceedings consistent with the Utah Supreme Court's decision.
To read the full opinion, click here.
The neighbor filed a motion to dismiss the Browns' petition, arguing that the Browns lacked standing because they failed to allege a distinct and palpable injury. The district court agreed, and dismissed the Browns' petition for lack of standing. The Browns appealed to the Utah Court of Appeals, who affirmed the district court's decision. The Browns then appealed to the Utah Supreme Court. The Supreme Court reversed the Court of Appeals and district court, holding that the Browns did have standing because their allegations established a reasonable probability of future injury. The case has now been remanded for additional proceedings consistent with the Utah Supreme Court's decision.
To read the full opinion, click here.
Friday, March 12, 2010
2010 Legislature: Water Bills
Here are two more water bills that passed the Utah legislature this session:
HB 60 - Water Conveyance Facilities Safety Act (click here to read the substituted bill)
SB 281 - Public Access to Stream Beds - Utah Waterways Task Force
HB 60 - Water Conveyance Facilities Safety Act (click here to read the substituted bill)
SB 281 - Public Access to Stream Beds - Utah Waterways Task Force
There were several bills that were considered, but were not passed:
HB 84 - Water Banking
HB 171 - Water Rights Revisions
HB 290 - Recreational Use of Privately Owned Stream Beds
HB 343 - Great Salt Lake Advisory Council
HJR 1 - Joint Resolution Amending Provision on Municipal Water Rights
SB 185 - Adoption of Canal Safety Act
Wednesday, March 10, 2010
2010 Legislature: New Stream Access Bill
Senator Dennis Stowell has introduced Senate Bill 281 (SB 281), entitled "Public Access to Stream Beds - Utah Waterways Task Force."
The bill creates the Utah Waterways Task Force, made up of six state senators and six state representatives, to "study issues concerning private property rights and public recreational access on public waters." These issues include restrictions of access to private beds of public waters, state purchases of access rights, and development of cooperative fish management units. The Task Force is to create a final report, including any proposed legislation, by November 30, 2010.
To read the full text of the bill, click here.
(For an update on this bill, click here.)
The bill creates the Utah Waterways Task Force, made up of six state senators and six state representatives, to "study issues concerning private property rights and public recreational access on public waters." These issues include restrictions of access to private beds of public waters, state purchases of access rights, and development of cooperative fish management units. The Task Force is to create a final report, including any proposed legislation, by November 30, 2010.
To read the full text of the bill, click here.
(For an update on this bill, click here.)
2010 Legislature: Substituted Stream Access Bill Passes
Representative McIff's stream access bill (HB 141) was substituted yesterday. The substituted bill is quite different from Representative McIff's original bill or first substitute.
The second substituted bill recognizes a "limited recreational floating right." The bill affirms the right to float that was granted by the Utah Supreme Court in JJNP Co. v. State, but limits the broader recreational access granted by the Utah Supreme Court in Conatser v. Johnson. Essentially, a person has the right to float down a stream (if the stream is capable of being floated on) across private property and can fish while floating, but may not stop on the private property. Incidental touching and portaging are allowed. If a person wants the broader recreational access (i.e., being able to stand on the private streambed to fish), public recreational access will have to be established by showing open, notorious, and adverse recreational use for at least 10 years.
To read the full text of the second substitute bill, click here.
Yesterday, the second substitute bill passed the Senate by a vote of 19 in favor and 10 against. Click here to see how each senator voted.
Today, the second substitute bill passed the House by a vote of 43 in favor, 28 against, and 4 absent or not voting. Click here to see how each representative voted.
The second substitute bill will now be enrolled and sent to Governor Herbert for his signature.
(For an update on this bill, click here.)
The second substituted bill recognizes a "limited recreational floating right." The bill affirms the right to float that was granted by the Utah Supreme Court in JJNP Co. v. State, but limits the broader recreational access granted by the Utah Supreme Court in Conatser v. Johnson. Essentially, a person has the right to float down a stream (if the stream is capable of being floated on) across private property and can fish while floating, but may not stop on the private property. Incidental touching and portaging are allowed. If a person wants the broader recreational access (i.e., being able to stand on the private streambed to fish), public recreational access will have to be established by showing open, notorious, and adverse recreational use for at least 10 years.
To read the full text of the second substitute bill, click here.
Yesterday, the second substitute bill passed the Senate by a vote of 19 in favor and 10 against. Click here to see how each senator voted.
Today, the second substitute bill passed the House by a vote of 43 in favor, 28 against, and 4 absent or not voting. Click here to see how each representative voted.
The second substitute bill will now be enrolled and sent to Governor Herbert for his signature.
(For an update on this bill, click here.)
2010 Legislature: More Water Bills Passed
Here is an update on more water bills that have passed both the House and the Senate:
HB 231 - Water Rights Priorities in Times of Shortage (click here to read amended bill)
HB 314 - Water Rights Addendums to Deeds (click here to read substituted bill)
HB 298 - Land Use Authority Notification of Canal Development (click here to read substituted bill)
HJR 26 - Joint Resolution Approving Water Rights Addendum Form (click here to read the substituted resolution)
SB 32 - Rainwater Harvesting (click here to read the substituted bill)
As a note, SB 99 (Water Companies and Water Right Change Requests) failed in the Senate.
To see other bills that have passed this session in the Utah legislature, click here and here.
HB 231 - Water Rights Priorities in Times of Shortage (click here to read amended bill)
HB 314 - Water Rights Addendums to Deeds (click here to read substituted bill)
HB 298 - Land Use Authority Notification of Canal Development (click here to read substituted bill)
HJR 26 - Joint Resolution Approving Water Rights Addendum Form (click here to read the substituted resolution)
SB 32 - Rainwater Harvesting (click here to read the substituted bill)
As a note, SB 99 (Water Companies and Water Right Change Requests) failed in the Senate.
To see other bills that have passed this session in the Utah legislature, click here and here.
Friday, March 5, 2010
2010 Legislature: More Water Bills Passed
Here is an update on more water bills that have passed both the House and the Senate.
HB 54 - Property Tax Exemption for Water Facilities
HJR 2 - Joint Resolution on Property Tax Exemption for Water Facilities
SB 20 - Local District Amendments
To see other water bills that have passed this session, click here.
HB 54 - Property Tax Exemption for Water Facilities
HJR 2 - Joint Resolution on Property Tax Exemption for Water Facilities
SB 20 - Local District Amendments
To see other water bills that have passed this session, click here.
2010 Legislature: Change Applications
Representative Kerry Gibson has introduced House Bill 171 (HB 171), entitled "Water Rights Revisions." The purpose of the bill is to allow the State Engineer, in change application proceedings, to review the historical use of the water right and to limit approval of the proposed change to the quantity of water that has been "reasonably applied to beneficial use."
The bill has been amended so that the State Engineer must presume the water right has been used to its full extent--thereby placing the burden on a protestant to show nonuse--and to clarify that any unapproved portion of the water right is not considered forfeited or abandoned.
The amended bill has passed the House and is now being considered in the Senate.
Click here to read the full text of the amended bill.
(For an update on this bill, click here.)
The bill has been amended so that the State Engineer must presume the water right has been used to its full extent--thereby placing the burden on a protestant to show nonuse--and to clarify that any unapproved portion of the water right is not considered forfeited or abandoned.
The amended bill has passed the House and is now being considered in the Senate.
Click here to read the full text of the amended bill.
(For an update on this bill, click here.)
Tuesday, February 23, 2010
2010 Legislature: McIff's Stream Access Bill Passes in the House
Representative Kay McIff's stream access bill (HB 141), as substituted, has passed the Utah House of Representatives. The vote was 50 in favor and 25 against. The bill will now move to the Utah Senate.
For a complete list of how each representative voted, click here.
(For an update on this bill, click here.)
For a complete list of how each representative voted, click here.
(For an update on this bill, click here.)
2010 Legislature: Water Bills Passed
Here is an update on the water bills that have passed both the House and the Senate:
HB 33 - Groundwater Recharge and Recovery Act Amendments
HB 34 - Water Storage Projects
HB 69 - State Engineer's Plugging of Wells Repealer
HB 98 - State Engineer Bonding Requirements
HB 226 - Well Driller's License - Pump Installation
HB 229 - Water Rights General Adjudication Amendments
HB 33 - Groundwater Recharge and Recovery Act Amendments
HB 34 - Water Storage Projects
HB 69 - State Engineer's Plugging of Wells Repealer
HB 98 - State Engineer Bonding Requirements
HB 226 - Well Driller's License - Pump Installation
HB 229 - Water Rights General Adjudication Amendments
Monday, February 22, 2010
2010 Legislature: Representative Fowlke's Stream Access Bill Defeated
Representative Lorie Fowlke's stream access bill (HB 80) was voted down in the House today. The vote was 23 in favor, 50 against, and 2 absent or not voting.
For a complete list of how each representative voted, click here.
For a complete list of how each representative voted, click here.
2010 Legislature: Substituted Stream Access Bill
Representative Kay McIff's stream access bill (HB 141) has been amended and substituted. Although the general thrust of the bill remains the same, there are some additional definitions and some modified provisions in the substituted bill.
Click here to read the full text of the substituted bill.
(For an update on this bill, click here.)
Click here to read the full text of the substituted bill.
(For an update on this bill, click here.)
Thursday, February 18, 2010
2010 Legislature: New Canal Safety Bill
The text of Senate Bill 185, which was previously numbered without substance, has now been released. The bill would make administration of canal safey more similar to the administration of dam safety. The Utah Division of Water Rights would be required to assess the level of risk of every canal in the state by January 1, 2012, and at least once every five years thereafter. The Division would assess whether a canal is high risk, medium risk, or low risk. If a canal is high risk or requires repairs or maintenance, the canal would be placed on a "canal action list." The canal company would then be responsible to develop a remediation plan to make the necessary repairs or maintenance. A canal company is not eligible for funding from the Division or from the Board of Water Resources unless the an approved remediation plan is in place.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Click here to read the full text of the bill.
(For an update on this bill, click here.)
2010 Legislature: Substituted Rainwater Harvesting Bill
Senate Bill 32, regarding rainwater harvesting, has been amended and substituted. The changes are:
- Harvested water can be stored and used on a "parcel," which is now a defined term (the bill previously used the word "property").
- There is a limit of one underground storage container per parcel.
- There is a limit of two covered storage containers per parcel.
- The maximum size of covered storage containers was increased to 100 gallons (previously, it was 55 gallons).
Click here to read the full text of the substitute bill.
(For an update on this bill, click here.)
2010 Legislature: Development Near Canals
Representative Ben Ferry has introduced a new bill regarding development near canals. The bill is number House Bill 298 (HB 298) and is entitled "Land Use Authority Notification of Canal Development."
The bill seeks to amend the municipal and county land use, development, and management acts (commonly referred to as "LUDMA") by requiring municipalities and counties to notify canal companies of proposed development within 100 feet of the center line of a canal. In order to facilitate this notice requirement, canal companies will be obligated to provide the municipalities and counties with the company's contact information and a general description of the location of their canal(s).
Click here to read the full text of the bill.
(For an update on this bill, click here.)
The bill seeks to amend the municipal and county land use, development, and management acts (commonly referred to as "LUDMA") by requiring municipalities and counties to notify canal companies of proposed development within 100 feet of the center line of a canal. In order to facilitate this notice requirement, canal companies will be obligated to provide the municipalities and counties with the company's contact information and a general description of the location of their canal(s).
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Wednesday, February 10, 2010
2010 Legislature: Water Rights Deed Addendum
Representative Ben Ferry has introduced House Bill 314 (HB 314) entitled "Water Rights Addendums to Deeds." The bill would require a water rights addendum (i.e., a "deed rider") to be included with every deed that conveys land or water rights. The purpose of the bill is to ensure that it is clear to both buyer and seller whether water rights are included with the purchase of the property. The deed rider would help reduce the problems associated with appurtenance and unclear ownership of water rights.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Tuesday, February 9, 2010
2010 Legislature: Representative McIff's Stream Access Bill
The substance of Representative Kay McIff's stream access bill has been released. The bill has been numbered House Bill 141 (HB 141) and is entitled "Recreational Use of Public Water on Private Property."
This bill much more restrictive than other stream access bills that have been previously proposed at the Utah legislature. This bill declares that the Utah Constitution's private property protections do not permit the government to grant a public recreation easement to access public water on private property. The bill is very critical of the Utah Supreme Court's decision in Conatser v. Johnson, and essentially overturns the Conatser decision.
The bill allows very limited public recreational access. Recreational access can be established only if the private streambed has been used by the public for recreational access for at least 10 consecutive years that begin after September 22, 1972. The public use must be continuous, open, notorious, adverse, and without interruption. A person or the Division of Wildlife Resources may bring a quiet title action in court to obtain a judicial declaration of the existence of a right to public recreational access.
This bill is sure to receive strong protest from the fly fishing community.
Click here to read the full text of Representative McIff's bill.
Click here to read about other stream access bills.
(For an update on this bill, click here.)
This bill much more restrictive than other stream access bills that have been previously proposed at the Utah legislature. This bill declares that the Utah Constitution's private property protections do not permit the government to grant a public recreation easement to access public water on private property. The bill is very critical of the Utah Supreme Court's decision in Conatser v. Johnson, and essentially overturns the Conatser decision.
The bill allows very limited public recreational access. Recreational access can be established only if the private streambed has been used by the public for recreational access for at least 10 consecutive years that begin after September 22, 1972. The public use must be continuous, open, notorious, adverse, and without interruption. A person or the Division of Wildlife Resources may bring a quiet title action in court to obtain a judicial declaration of the existence of a right to public recreational access.
This bill is sure to receive strong protest from the fly fishing community.
Click here to read the full text of Representative McIff's bill.
Click here to read about other stream access bills.
(For an update on this bill, click here.)
Monday, February 8, 2010
2010 Legislature: More Stream Access Bills
Two more bill files have been opened at the Utah legislature regarding stream access.
Senator Curtis Bramble has opened a bill file that has been numbered Senate Bill 267 (SB 267) and is entitled "Public Access to Stream Beds."
Representative Kay McIff has opened a bill file that has been numbered House Bill 141 (HB 141) and is entitled "Recreational Use of Public Water on Private Property."
Both bills were numbered without substance, so it is still unknown exactly what is in the bills. It has been rumored that Representative McIff's bill will essentially overturn the Utah Supreme Court decision in Conatser v. Johnson.
Two steam access bills have already been proposed: House Bill 80 by Representative Lorie Fowlke and House Bill 290 by Representative Curt Webb.
Senator Curtis Bramble has opened a bill file that has been numbered Senate Bill 267 (SB 267) and is entitled "Public Access to Stream Beds."
Representative Kay McIff has opened a bill file that has been numbered House Bill 141 (HB 141) and is entitled "Recreational Use of Public Water on Private Property."
Both bills were numbered without substance, so it is still unknown exactly what is in the bills. It has been rumored that Representative McIff's bill will essentially overturn the Utah Supreme Court decision in Conatser v. Johnson.
Two steam access bills have already been proposed: House Bill 80 by Representative Lorie Fowlke and House Bill 290 by Representative Curt Webb.
2010 Legislature: New Canal Safety Bill
Senator Gene Davis has opened a new bill file for a canal safety bill. The bill has been numbered Senate Bill 185 (SB 185) and is entitled "Canal and Irrigation Safety and Inspections." However, the bill was filed without any substance, so the contents of the bill are still unknown. It appears that this bill will go up against House Bill 60, the other canal safety bill sponsored by Representative Fred Hunsaker.
(For an update on this bill, click here.)
(For an update on this bill, click here.)
Friday, February 5, 2010
2010 Legislature: New Stream Access Bill
Representative Curt Webb has introduced a new stream access bill. The bill has been numbered House Bill 290 (HB 290), and is very similar to the House Bill 80, sponsored by Representative Lorie Fowlke.
The major difference between the two bills is the definition of stream bed. Under Representative Fowlke's bill, the bed is defined as the area within the "ordinary high water mark." Under Representative Webb's bill, the bed is defined as the area "below a public water in the area actually wetted by the public water." Thus, it appears that Representative Webb's bill is a "wet foot" bill; i.e., a person fishing in a stream that crosses private property must actually be in the water to avoid trespassing.
A second difference between the two bills is that Representative Webb's bill does not require a person to get a public access certificate from the Division of Wildlife Services before accessing public streams that cross private property.
Click here to read the full text of Representative Webb's bill.
(For an update on this bill, click here.)
The major difference between the two bills is the definition of stream bed. Under Representative Fowlke's bill, the bed is defined as the area within the "ordinary high water mark." Under Representative Webb's bill, the bed is defined as the area "below a public water in the area actually wetted by the public water." Thus, it appears that Representative Webb's bill is a "wet foot" bill; i.e., a person fishing in a stream that crosses private property must actually be in the water to avoid trespassing.
A second difference between the two bills is that Representative Webb's bill does not require a person to get a public access certificate from the Division of Wildlife Services before accessing public streams that cross private property.
Click here to read the full text of Representative Webb's bill.
(For an update on this bill, click here.)
Thursday, January 28, 2010
2010 Legislature: Preference for Drinking Water
Last year, the Utah legislature passed House Bill 241, which repealed the law giving priority to domestic use in times of water shortage. (Click here to read my blog post from last year.) The legislature postponed the effective date of the repeal until May 11, 2010, in order to allow this year's legislature to consider the repeal again.
Representative Kerry W. Gibson, who sponsored last year's bill, is sponsoring a new bill this year that will keep the priority statute in place, with some amendments. The bill is numbered House Bill 231 (HB 231). The bill clarifies the priority of water uses during times of water shortage. Generally speaking, the use of water for drinking, sanitation, and fire suppression has a preferential right over all other uses. Next in priority is the use of water for irrigation and stockwatering. The bill also provides that an appropriator whose water use is interrupted due to the prefernce must be compensated for crop loss and other consequential damages.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Representative Kerry W. Gibson, who sponsored last year's bill, is sponsoring a new bill this year that will keep the priority statute in place, with some amendments. The bill is numbered House Bill 231 (HB 231). The bill clarifies the priority of water uses during times of water shortage. Generally speaking, the use of water for drinking, sanitation, and fire suppression has a preferential right over all other uses. Next in priority is the use of water for irrigation and stockwatering. The bill also provides that an appropriator whose water use is interrupted due to the prefernce must be compensated for crop loss and other consequential damages.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
2010 Legislature: Shareholder Change Applications
Senator John Valentine has introduced a bill that modifies Utah Code section 73-3-3.5 regarding shareholder change applications. The bill is numbered Senate Bill 99 (SB 99). The bill clarifies that a water company (i.e., irrigation company, canal company, or ditch company) cannot deny a shareholder's request for a change application merely because the change would result in water being used outside of the water company's historic service area. The bill also clarifies that the water company may charge the shareholder for the costs of the change application, including the costs for the water company's engineers and/or attorneys and the costs associated with submitting proof. The water company must, however, provide the shareholder of an accounting of the fees and costs and copies of invoices for the fees and costs.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Click here to read the full text of the bill.
(For an update on this bill, click here.)
2010 Legislature: Pump Installer Licensing
Representative Patrick Painter has introduced a bill that would require well pump installers to be licensed and regulated in the same way that well drillers are. The bill is numbered House Bill 226 (HB 226). The purpose of the bill is to prevent health risks that can occur when non-professionals install pumps onto wells without properly sanitizing the pumps, pipes, and well. A person who is installing a pump on their own well is not required to have a license, but is required to register with the State Engineer's office.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Click here to read the full text of the bill.
(For an update on this bill, click here.)
2010 Legislature: Water Banking
Representative Jack Draxler has introduced a bill that would allow the banking of water rights. The bill is numbered House Bill 84 (HB 84). The bill would allow local districts to bank water. Counties or portions of counties that are not within the boundary of a water conservancy district may also bank water. Representative Draxler has been working on this bill with Cache County, who is worried about losing forfeited water rights in the Bear River to Idaho water users.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Thursday, January 21, 2010
2010 Legislative Preview: Leasing of Municipal Water Rights
Representative Kay McIff has proposed a constitutional amendment that would allow a city or town to lease water rights that it owns, if the city or town does not currently need the water. The term of the lease agreements may not exceed seven years. The Utah Constitution currently prohibits municipalities from leasing or selling any of their water rights. If two-thirds of the Senate and House approve the Joint Resolution, the constitutional amendment would then have to be adopted by a majority of Utah voters in the next general election.
Click here to read the full text of the Joint Resolution.
(For an update on this bill, click here.)
Click here to read the full text of the Joint Resolution.
(For an update on this bill, click here.)
2010 Legislative Preview: Artesian Wells
Representative James Gowans has registered a bill that would repeal the State Engineer's duty to plug certain artesian wells. The bill is numbered House Bill 69 (HB 69), and was requested by the State Engineer. The bill repeals Utah Code section 73-2-21, an archaic statute that required the State Engineer to plug certain artesian wells that were no longer in use and were wasting water. The motive behind the repeal is so that the owner of the well--and not the State Engineer--bears the burden of plugging it when it is no longer in use.
Click here to read the statute that will be repealed.
(For an update on this bill, click here.)
Click here to read the statute that will be repealed.
(For an update on this bill, click here.)
Saturday, January 16, 2010
2010 Legislative Preview: Canal Safety
Representative Fred Hunsaker has registered a bill aimed at canal safety. The bill, numbered House Bill 60 (HB 60), is in response to last summer's catastrophic canal failure in Logan that resulted in the death of three people.
Under the bill, owners of canals and ditches are to prepare a written management plan for each segment of the canal or ditch that constitutes a hazard because of location, elevation, soil conditions, structural instability, water volume, or other reasons. The management plans are to be submitted to the Utah Division of Water Resources, who reports to a legislative committee.
There is no real penalty if a management plan is not submitted. The only thing a canal or ditch company loses is the right to receive state funds or state loans for water development, including funds or loans to repair or improve the canal or ditch.
The bill also provides that the management plans cannot be obtained through a government records request, nor can they be introduced into evidence in any civil litigation.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Under the bill, owners of canals and ditches are to prepare a written management plan for each segment of the canal or ditch that constitutes a hazard because of location, elevation, soil conditions, structural instability, water volume, or other reasons. The management plans are to be submitted to the Utah Division of Water Resources, who reports to a legislative committee.
There is no real penalty if a management plan is not submitted. The only thing a canal or ditch company loses is the right to receive state funds or state loans for water development, including funds or loans to repair or improve the canal or ditch.
The bill also provides that the management plans cannot be obtained through a government records request, nor can they be introduced into evidence in any civil litigation.
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Thursday, January 14, 2010
2010 Legislative Preview: Rainwater Harvesting
Senator Scott Jenkins has registered a rainwater harvesting bill for the upcoming session of the Utah legislature. The bill has been numbered Senate Bill 32 (SB 32), and is similar to the Senate Bill 128 that Senator Jenkins ran last year.
Under this bill, a person could capture and store rainwater in an underground storage tank (with a maximum capacity of 2500 gallons) or in covered storage containers above ground (with a maximum capacity of 55 gallons per container).
Click here to read the full text of the bill.
(For an update on this bill, click here.)
Under this bill, a person could capture and store rainwater in an underground storage tank (with a maximum capacity of 2500 gallons) or in covered storage containers above ground (with a maximum capacity of 55 gallons per container).
Click here to read the full text of the bill.
(For an update on this bill, click here.)
2010 Legislative Preview: Stream Access
Representative Fowlke has registered a stream access bill for the upcoming session of the Utah legislature. There are quite a few differences between the registered bill and the original draft that I blogged about a few months ago. Here are some differences that I noticed:
To read the complete text of HB 80, click here.
(For an update on this bill, click here.)
- The definition of "bed" is now "the area within the ordinary high water mark."
- The definition of "recreational activity" now includes waterfowl hunting.
- A person must obtain a public access certificate to engage in recreational activities on private streambeds. This requirement replaced the earlier idea of making those who purchase a fishing license also purchase a public access stamp.
- An owner of a private streambed can place a fence across the stream, as long as the fence is for a legitimate purpose and not just to block recreational access.
- The Division of Wildlife Resources will create a free public education program to teach the public about recreational access to private streambeds. The program will be available by Internet, and once a person has completed the program, they can obtain a public access certificate.
To read the complete text of HB 80, click here.
(For an update on this bill, click here.)
Monday, January 4, 2010
How Are Utah Water Rights Transferred?
Under Utah law, water rights can be transferred in two ways.
First, water rights can be transferred by deeding the water right and recording the deed in the county (or counties) where the water is diverted and used. Utah Code section 73-1-10.
Second, water rights can pass by appurtenance, which occurs when land is conveyed and an appurtenant (i.e., “attached”) water right automatically passes with the land. Utah Code section 73-1-11.
Thus, true ownership of a water right can be determined only by researching the deeds at the county recorder’s office.
The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Conveyance to notify the Division when ownership transfers.
Sometimes, individuals are conveyed a water right through a properly recorded deed or through appurtenance, but do not notify the Division of the conveyance. Thus, there can be a discrepancy between the true ownership (based on recorded deeds) and the Division’s database of ownership.
First, water rights can be transferred by deeding the water right and recording the deed in the county (or counties) where the water is diverted and used. Utah Code section 73-1-10.
Second, water rights can pass by appurtenance, which occurs when land is conveyed and an appurtenant (i.e., “attached”) water right automatically passes with the land. Utah Code section 73-1-11.
Thus, true ownership of a water right can be determined only by researching the deeds at the county recorder’s office.
The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Conveyance to notify the Division when ownership transfers.
Sometimes, individuals are conveyed a water right through a properly recorded deed or through appurtenance, but do not notify the Division of the conveyance. Thus, there can be a discrepancy between the true ownership (based on recorded deeds) and the Division’s database of ownership.
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