Utah Stream Access Coalition v. Park

The Utah Stream Access Coalition has filed a second lawsuit seeking access to rivers and streams for recreation. The first lawsuit centered on the Provo River, and was a constitutional challenge to the 2010 stream access law passed by the Utah Legislature. This second lawsuit centers on the Weber River, and was filed in Summit County.

The complaint alleges that the Weber River was navigable when Utah became a state and, therefore, that the bed of the Weber River belongs to the State and not to the landowners adjoining the river. The complaint further alleges that the defendants, who are adjoining landowners, have wrongfully posted 'No Trespassing' signs, erected barbed wire fences across the river, and otherwise attempted to prevent members of the public from accessing the bed of the river. The Coalition is asking the court for a judgment declaring that the bed of the Weber River belongs to the State and for an injunction prohibiting the defendants from denying the public access to the river bed.

Haik v. Sandy City

The Utah Supreme Court recently issued its opinion in the case of Haik v. Sandy City. The case centered on a title dispute to a water right. As the court noted in the first line of the opinion, the case illustrates the importance of promptly recording a deed for a water right.

In 1977, Saunders-Sweeney Inc. and Sandy City entered into an "Agreement of Sale," under which Saunders-Sweeney agreed to sell a water right to the City. The City recorded the Agreement of Sale with the Salt Lake County Recorder. Shortly thereafter, the City received a quitclaim deed for the water right from Saunders-Sweeney, but the City did not record the deed.

In 1978, Saunders-Sweeney conveyed the property to which the water right was appurtenant to Judith Saunders. Several years later, the property was conveyed to Lynn Biddulph. In 1999, Saunders-Sweeney also quitclaimed the water right to Ms. Biddulph. Shortly thereafter, Ms. Biddulph filed a change application on the water right. The City protested the change application, but did not claim ownership of the water right. In 2003, Ms. Biddulph conveyed the water right to LWC LLC. Later that same year, LWC LLC conveyed the water right to Kevin Tolton, who then conveyed the water right to the Haik parties. All of the deeds in this chain of title were properly recorded with the Salt Lake County Recorder.

In 2004, the Haik parties filed a change application. In preparing a protest of the change application, the City conducted research and discovered the unrecorded deed from 1977. The deed was finally recorded in April 2004. The City then sought to update title with the Division of Water Rights, but the City's request was denied.

The Haik parties filed an action to quiet title to the water right. The district court ruled that the Haik parties were the legal owners of the water right. The City filed an appeal with the Utah Supreme Court.

The Supreme Court began its analysis by noting that Utah is a race-notice jurisdiction, meaning that a subsequent purchaser for value prevails over a previous purchaser if the subsequent purchaser (1) takes title in good faith and (2) records before the previous purchaser. There was no question that the Haik parties recorded their deed before the City, so Court's analysis focused on whether the Haik parties took title in good faith, i.e., whether the Haik parties had actual or constructive notice of the City's prior, unrecorded interest.

The City contended that the 1977 Agreement of Sale imparted constructive record notice of a conveyance of the water right to the City. The Haik parties, on the other hand, argued that the Agreement of Sale did not provide record notice because it was impossible to know whether the sale was actually finalized and whether a deed was delivered to the City.

In the end, the Court sided with the Haik parties. The Court concluded that the Agreement of Sale did not subvert the Haik parties' claim of having purchased the water right in good faith because (1) the Haik parties reasonably believed they had a clear chain of title to the water right; (2) the City failed to record its deed for nearly 27 years after receiving the deed; (3) the Haik parties' predecessors-in-interest had maintained the water right and filed a change application on the water right in 1999; and (4) the City failed to contest ownership when it protested the 1999 change application. Thus, the Supreme Court upheld the district court's judgment that the Haik parties are the legal owners of the water right.

To read the full text of the opinion, click here.

If I Install a More Efficient Irrigation System, Can I Irrigate More Acreage?

The question is often asked: If I put in a more efficient irrigation system, can I increase my irrigated acreage (or sell the "saved" water)? Unfortunately, the answer is generally no. The reason why is somewhat complex, but I've summarized in the following explanation and example.

In Utah, beneficial use is the basis, measure, and limit of a water right. The water right has several characteristics, including diversion and depletion limits.

For this example, assume that your water right permits you to irrigate 10 acres and that the the irrigation duty in your area is 4 acre-feet per acre. The water right, in terms of acre-feet, would be 40 acre-feet. The duty, however, is based on flood irrigation, which is not very efficient. The general rule for flood irrigation is that 50% of the water is depleted (i.e., used) and the other 50% returns to the natural system (as runoff, tailwater, or seepage into the underground aquifer). Assuming you flood irrigate, you would likely divert all 40 acre-feet in order to irrigate the 10 acres, but you would only be depleting 20 acre-feet (with the other 20 acre-feet being returned to the natural system). These are the limits of use for your water right: a diversion limit of 40 acre-feet and a depletion limit of 20 acre-feet.

Now assume you install a very efficient sprinkler system. Because the system is so much more efficient than flood irrigating, you only have to divert 22 acre-feet to irrigate the same 10 acres. It would appear that you "saved" 18 acre-feet, which you could use to irrigate 8 more acres. However, doing so would increase the depletion. When you were flood irrigating, you depleted 20 acre-feet; however, with the new system and expanded acreage, you would be depleting 36 acre-feet.

It is for this reason the Utah State Engineer will not allow “spreading” of water based on more efficient systems. The State Engineer believes that the increased depletion would be an enlargement of your water right and would adversely affect other water users. (Additionally, because your water right is limited to the irrigation of 10 acres, expanding the irrigated acreage to 18 acres would enlarge your water right.)

The current State Engineer, Kent Jones, has talked about this topic several times recently. It seems to be one of his primary concerns. If you go to this web address and click on "Presentation - Kent Jones," you can see a PowerPoint slideshow from one of his recent presentations. Slides 13-20 specifically address this issue.

What Are Hydrographic Survey Maps?

As part of the General Adjudication process, the Utah Division of Water Rights prepares hydrographic survey maps. These maps show all of the water use in a particular area, including the location and acreage of all irrigated land and the location of all streams, wells, springs, and other water sources.

Hydrographic survey maps can be very useful when researching how water was used in the past and when trying to determine appurtenancy and title issues for Reports of Water Right Conveyance.

Most of the hydrographic survey maps are available online by clicking here.