Public Meeting Concerning the General Adjudication in Midway Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Midway area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 10). The Midway area generally includes the natural hydrologic drainage of the Heber Valley west of the Provo River, with a northern boundary line at Burgi Lane, but inclusive of Pine Creek, Snake Creek, and other Wasatch Mountain tributaries on the west and Deer Creek Dam and Reservoir on the south. The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Midway area

When: January 14, 2020, 6:00 to 7:00 pm

Where: Wasatch County Senior Center, 465 East 1200 South, Heber City

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729849), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Midway Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Wasatch County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Midway area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Midway area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

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

For more information regarding this meeting, click here.

Interim State Engineer

Kent L. Jones recently retired as State Engineer for the State of Utah. Until a new State Engineer is appointed, Boyd Clayton will serve as Interim State Engineer. Mr. Clayton has served as Deputy State Engineer for several years, and has announced that he will be retiring in 2020.

Allen Family Trust v. Holt

The Utah Court of Appeals recently issued its opinion in the case of Allen Family Trust v. Holt. This case focuses on an easement for a water pipeline, as well as forfeiture of water rights.

In the late 1800s, Ammon Allen settled in the Ogden Valley and constructed ditches to carry water from a creek and springs to his property. He later deeded the property to his son, Abner Allen. In the 1948 Ogden River Decree, Abner was awarded water rights in the Creek and springs. A ditch carried the water from the sources, across State-owned land, and to Abner's property. In the 1960s, Abner's sons formed a ranching company, which acquired the land and water rights. The ranching company also entered into a lease with the State for the abutting property that the ditch crossed. In the 1970s, the sons dissolved the ranching company. The deeds led to confusion, but it was ultimately determined that one son acquired 70% of the water rights (which was later conveyed to his son, David Allen) and another son acquired 30% of the water rights (which was later conveyed to his children Jarl, Jenna, and Lesly). A few years later, David constructed a system of pipes to convey his water from the sources to the property. The pipe system generally followed the location of the original ditch system.

In the 1990s, the State sold its property to a third party, who later sold the land to Millennia Partners North LLC ("MPN) in 2008. Shortly thereafter, disputes arose between David and MPN regarding David's access to MPN's property to maintain the pipe system. MPN sent threatening letters to David, erected fences around the property, and even dug up and cut the pipes. This led to a first lawsuit, which was resolved in David's favor. In 2011, Jarl, Jenna, and Lesly conveyed their land and 30% interest in the water rights to MPN.

In 2012, David initiated a second lawsuit, asserting (1) that David had an easement across MPN's property to convey water through the pipe system; (2) that MPN had unlawfully interfered with David's water rights; and (3) that MPN had forfeited its water rights due to nonuse. Following a trial, the district court concluded that David did have an easement across MPN's property and that MPN had unlawfully interfered with the easement. But the district court also ruled that MPN had not forfeited its water rights because nonuse had not been proven by clear and convincing evidence. The district court ordered MPN to pay David's attorney fees. MPN appealed the ruling, and David cross-appealed.

The Court of Appeals first examined if David did have an easement for the pipe system. The district court had determined that an easement existed under the 1866 Mining Act, which required a finding that Ammon Allen had constructed the ditch system before 1896, which is the year that Utah became a state. The Court of Appeals determined that sufficient evidence had been presented to the district court to support the conclusion that the ditch system had been constructed prior to 1896. Thus, the Court of Appeals upheld the determination that David had an easement.

The Court of Appeals also upheld the determination that MPN had interfered with the easement. As noted by the Court, "it is hard to imagine a more clear-cut case of interference with a water right than a party threatening to shut off access to the water, fencing off the right of way, and sawing through a pipe conveying the water to its rightful recipients."

The Court of Appeals then examined whether MPN had forfeited its water rights due to nonuse. The Court began its analysis by noting that it is unsettled law in Utah whether the "clear and convincing" or the "preponderance" standard of proof apply in a water forfeiture action. The Court, unfortunately, did not answer this question, as it determined that the evidence in this case was sufficient to meet both burdens of proof. The Court noted that there was plenty of evidence that MPN's water rights had not been placed to beneficial use between 1994 and 2011. MPN did not dispute this evidence, but rather asserted that David had used MPN's water rights pursuant to a 1977 agreement between Abner Allen's two sons. The Court rejected this argument on several grounds, including the fact that the district court had never determined that such an agreement existed. Thus, the Court reversed the district court and ruled that MPN's water rights have been forfeited due to nonuse.

Finally, the Court of Appeals upheld the district court's order that MPN pay attorney fees. The Court of Appeals also awarded MPN to pay attorney fees for the appeal.

To read the full opinion, click here.

Metropolitan Water District of Salt Lake & Sandy v. SHCH Alaska Trust

The Utah Supreme Court recently issued a decision in the case of Metropolitan Water District of Salt Lake & Sandy v. SHCH Alaska Trust. The case focused on the scope and size of an easement for a water pipeline, as well as a district's authority to regulate land use within the easement area.

The District owns an easement for a water pipeline across the Trust's property in Wasatch County. The Trust determined to build a commercial zipline course on its property, and received a conditional use permit from Wasatch County. The District purported to enact regulations restricting land use within the easement area on the Trust's property. Pursuant to these regulations, the District asserted that the Trust was required to obtain a license from the District before constructing the zipline course. The Trust moved ahead with the zipline course without obtaining the permit. The District then sued the Trust in district court and requested that the court order the Trust to comply with the District's regulations. The Trust counterclaimed and asked the court to determine the relative property interests of the parties, including the scope and size of the easement.

The district court ruled that Utah law granted regulatory authority to the District. Accordingly, the district court granted summary judgment to the District. The district court also determined that the easement was 200 feet in width. The Trust then appealed the decision to the Utah Supreme Court.

The Supreme Court first examined the District's assertion that it had regulatory authority. The District cited several provisions of the Utah Limited Purpose Local Districts Act to support its asserted authority. The Supreme Court reviewed each of these provisions and determined that none of them granted the District the authority to enact land use regulations that affect the property of others. The Supreme Court also noted that statutes governing land use regulations by cities and counties carefully define and limit the regulatory authority, and that it would be unreasonable to allow districts to exercise similar authority without the same limitations and public participation requirements.

The Supreme Court held that the District's rights with respect to the easement were no different than the rights that any other easement holder has. These rights include the right to prevent the landowner from unreasonably interfering with the easement. The case was remanded to the district court to gather the facts and determine if the Trust's zipline course unreasonably interfered with the District's pipeline easement.

The Supreme Court also reviewed the district court's determination that the pipeline easement was 200 feet in width. The original documents establishing the easement did not define the size or scope of the easement; rather, the documents created and undefined "floating easement." In 1961, an engineer for the US Bureau of Reclamation drafted a written description of the easement, which defined it as a 200-foot easement. The district court had determined that this description was determinative. The Supreme Court determined that the written description could be considered, but was not dispositive. The case was remanded to the district court to gather the facts and determine the extent and width of the easement.

To read the full opinion, click here.

Public Meeting Concerning a Distribution Plan for the Jordan River

The Utah Division of Water Rights has set a public meeting to discuss the initiation of a distribution plan for the Jordan River in Utah County and Salt Lake County. The following information is from the public meeting notice:

What: Public Meeting

Who: Jordan River and Utah Lake water users and other interested parties

When: December 3, 2019, 3:00 to 5:00 pm

Where: Room 1040 at Department of Natural Resources, 1594 West North Temple, Salt Lake City

Purpose: The purpose for the meeting is to discuss developing a management plan for the Jordan River. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.
Agenda:
1.  Welcome/Introduction
2.  Jordan River Hydrology and Water Rights Presentation
3.  Public Comments and Questions
Comments: If you would like to provide input, please send written comments to:
Utah Division of Water Rights
Attn: Jordan River Public Meeting
PO Box 146300
Salt Lake City, UT 84114-6300
waterrights@utah.gov

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

For more information about this meeting, click here.

Retirement Celebration for Kent L. Jones

The Utah Division of Water Rights will be hosting a retirement celebration for State Engineer Kent L. Jones on Monday, November 4, 2019 from 3:00-5:00 pm at the Department of Natural Resources building.

Kent L. Jones Announces Retirement as State Engineer

Kent L. Jones, who has served as Utah State Engineer for the past ten years, has announced that he will be retiring from public service on November 16, 2019. The following information comes from the official announcement from the Utah Department of Natural Resources.

Kent L. Jones, P.E., the current state engineer and director of the Utah Division of Water Rights, has announced that he will retire from public service Nov. 16. Jones has spent almost 39 years with the division.

The governor appoints and the Utah Legislature approves the position of state engineer. Efforts are underway to identify and consider potential candidates.

Jones began his career with the division in 1981. While with the division, he has served in various roles, including assistant regional engineer for Utah Lake/Jordan River, regional engineer for the Weber River and West Desert, directing engineer for appropriations and title, and many more.

Jones was initially appointed state engineer by Gov. Jon Huntsman in 2009, and then reappointed to two additional four-year terms by Gov. Gary R. Herbert.

“I appreciate Kent’s commitment and years of dedication and service to the state of Utah,” said Gov. Herbert. “His leadership has played a vital role in the state’s ability to solve complex water challenges, and our ability to administer the appropriation and distribution of Utah’s water.”

As state engineer, Jones has represented the state and division through 11 legislative sessions and has been involved in a significant number of water right bills and adopted legislation. He has served as a technical advisor to the Utah Water Task Force and on the governor’s water strategy team.

Changes to Report of Conveyance Form

The Utah Division of Water Rights has made some changes to its Report of Conveyance form for a partial conveyance of a water right. The primary change is that the portion form now includes a cover page where you list the new owners name and contact information, fill out information regarding the portion being conveyed to the new owner, and fill out information regarding the portion being retained by the old owner(s).

The Report of Conveyance portion form can be filled out online by clicking here.

Public Meeting Concerning the General Adjudication in Provo Canyon Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Provo Canyon area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 9). The Provo Canyon area generally includes the area in the Provo River drainage that is above the mouth of Provo Canyon and below Deer Creek Reservoir. The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Provo Canyon area

When: October 2, 2019, 6:00 to 7:00 pm

Where: Provo Recreation Center, 320 West 500 North, Provo

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729848), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Provo Canyon Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Utah County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Provo Canyon area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Provo Canyon area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

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

For more information about this meeting, click here.

New Online Tool for Preparing Affidavits of Beneficial Use

The Utah Division of Water Rights has debuted a new online tool to help water right owners prepare Affidavits of Beneficial Use.

Under Utah law, a water right owner is required to file Proof on certain water right applications, including Applications to Appropriate, Exchange Applications, and Change Applications. A Proof must be prepared by a licensed engineer or surveyor. For small applications, however, a water right owner can prepare and file an Affidavit of Beneficial Use instead of having to file Proof. A small application is defined as an application for less than 1 home, 0.25 acres of irrigation, and 10 head of livestock.

The new online tool will make it even easier for water right owners to prepare and file Affidavits of Beneficial Use, as well as the maps required to accompany the Affidavits. The new tool is available here.

Groundwater Management Plan and Policy Update for Cedar City Valley

The Utah Division of Water Rights has set a meeting to discuss a groundwater management plan and policy update for Cedar City Valley in Iron County. The following information is from the public meeting notice:

What: Public Meeting
Who: Cedar City Valley water users
When: October 15, 2019, 6:30 pm to 8:30 pm
Where: Cedar High School Auditorium, 703 West 600 South, Cedar City
Purpose: The purpose of the meeting is to discuss a groundwater management plan and policy update for Cedar City Valley in Iron County.  Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.
If you are unable to attend the meeting, but would like to provide input, please send your written comments to:
Division of Water Rights
646 North Main St.
PO Box 506
Cedar City, UT 84721-0506

Agenda:
1. Welcome/Introduction
2. Groundwater Management Plan and Policy Update Discussion
3. Public Questions/Comments

For additional information regarding the meeting, click here.

Public Meeting Regarding Water Policy in Snake Valley

The Utah Division of Water Rights has set a public meeting to discuss the water right policy for Snake Valley, which includes parts of Iron County, Millard County, Juab County, and Tooele County. The following information is from the meeting notice:

Who:	Water Users in Snake Valley
When:	September 26, 2019, 5:00 p.m.
Where:	Eskdale High School 1000 Circle Drive Eskdale, Utah
Purpose:	The purpose of the meeting is to discuss water right policy in Snake Valley. Representatives from the Division of Water Rights will be available to answer questions and receive comments input from the public on prospective appropriation policy and management in the basin.
Agenda:	Presenting: Kent Jones, State Engineer, Michael Drake, Regional Engineer and Jim Reese 1. Introduction 2. Current Policy Overview 3. Current Conditions 4. Groundwater Management Plan Discussion 5. Public Questions and Input
Comments:	If you would like to provide input, please send written comments to:Utah Division of Water Rights Attn: Snake Valley Public Meeting P.O. Box 146300 Salt Lake City, UT 84114-6300 waterrights@utah.gov

Motion to Appoint Special Master in Virgin River General Adjudication

The Utah Division of Water Rights has filed a Motion with the Fifth District Court to appoint Rick L. Knuth as the Special Master for the General Adjudication of Water Rights in the Virgin River area. The following information is taken from the Division's notice regarding the Motion.

A motion to appoint R.L. Knuth as Special Master pursuant to Utah Rule of Civil Procedure 53 has been filed in the case entitled IN THE MATTER OF THE GENERAL DETERMINATION OF RIGHTS TO THE USE OF WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE DRAINAGE AREA OF THE VIRGIN RIVER IN WASHINGTON, IRON, AND KANE COUNTIES IN UTAH. This action is pending in the Fifth Judicial District in and for Washington County, State of Utah, Civil No. 800507596. The Division of Water Rights, also known as the Office of the State Engineer, has filed a motion to appoint R.L. Knuth as Special Master pursuant to Utah Rule of Civil Procedure 53. Parties may obtain a copy of the motion and associated documents at https://waterrights.utah.gov/adjdinfo/default.asp, or on file with the Fifth District Court. A party may object to the appointment of any person as a master on the same grounds as a party may challenge for cause any prospective trial juror in the trial of a civil action. Utah Rule of Civil Procedure 53(f). Such objections are due within 30 days of the final date of publication of this notice. Replies to opposing memoranda are due within 30 days of the final date for filing opposing memoranda. The Court has set a hearing on the motion on November 18, 2019 at 2:00 p.m. located at 206 West Tabernacle, St. George, Utah. For more information, please contact the Utah Division of Water Rights at (801) 538-7240 or the Attorney General’s Office at (801) 538-7227.

For more information and related documents, click here.

Public Meeting Concerning the General Adjudication in Provo City North Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Provo City North area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 7). The Provo City North area generally includes the area between 800 North (Provo) on the south, 800 North (Orem) on the north, the Provo River on the west, and the Rock Canyon drainage boundary on the east (see map below). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Provo City North area

When: August 20, 2019, 6:00 to 7:00 pm

Where: Provo Recreation Center, 320 West 500 North, Provo

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729847), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Provo City North Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Utah County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Provo City North area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Provo City North area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

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

For more information about this meeting, click here.

Rocky Ford Irrigation Company v. Kents Lake Reservoir Company

**NOTE - This decision was withdrawn by the Utah Supreme Court and replaced with an amended decision.

The Utah Supreme Court recently issued its decision in the case of Rocky Ford Irrigation Company v. Kents Lake Reservoir Company. The case focuses on the issues of water efficiency savings, impairment of others' water rights, and obligations to measure water diversions.

Rocky Ford and Kents Lake are two irrigation companies on the Beaver River system. Both irrigation companies have various direct flow water rights and storage water rights with varying priority dates. In 1931, the Fifth District Court issued the Beaver River Decree, which divided the Beaver River system into an upper portion and a lower portion. Upper water users were allowed to divert water prior to lower water users, despite a later priority date, in part because the lower water users benefitted from return flows from the upper water users' flood irrigation. The Decree also required that all points of diversion be equipped with measuring devices.

In the 1930s and 1940s, Kents Lake filed applications with the State Engineer to construct Three Miles Reservoir in the upper portion of the Beaver River system. Rocky Ford protested the applications, but the State Engineer ultimately approved the applications. In 1953, Rocky Ford and Kents Lake entered into an agreement in which Rocky Ford agreed not to protest future change applications associated with Three Mile Reservoir, and Kents Lake agreed not to oppose Rocky Ford's expansion of its reservoir located in the lower portion of the Beaver River system. Kents Lake later filed a change application, and Rocky Ford did not protest it. Kents Lake later certificated this change application with the State Engineer.

Beginning in the 1970s, Beaver River water users began converting from flood irrigation to sprinkler irrigation. Rocky Ford alleged that it was being harmed due to the reduced return flows from upper water users and due to Kents Lake storing the "saved" water from the efficiency gains in its reservoir. In 2010, Rocky Ford filed a lawsuit against Kents Lake alleging water right interference, conversion of water rights, and negligence. Rocky Ford asserted that its water rights had been impaired by the actions of Kents Lake, including the storage change application and the failure to measure water diversions. Following a trial, the district court ruled in favor of Kents Lake. Rocky Ford then appealed the case to the Utah Supreme Court.

The Court first reviewed Rocky Ford's claims of impairment. The Court determined that even though Kents Lake had filed change applications in the 1950s, the water rights retained their (much earlier) original priority dates. And the Court rejected the "hybrid priority approach" that the priority date of the change applications is relevant to impairment, but the original priority is relevant to distribution. The Court then determined that parties cannot "claim impairment in perpetuity" and that "an impairment claim must be raised during the protest period before the State Engineer." Interestingly, the Court also implied that impairment protests can and should be raised at the proof stage, despite the fact that there is no public notice or protest period when proofs are filed or certificates are issued. Based on these determinations, the Court concluded that Rocky Ford had "failed to participate in any administrative proceedings" and therefore cannot claim impairment now.

The Court next examined whether Kents Lake is allowed to store the water it saves through increased irrigation efficiency. The Court determined that the lower water users "have no claim on runoff before it reenters the stream" and therefore "have no claim against upper water users requiring them to create a return flow." Based on these determinations, the Court concluded that "Rocky Ford has no claim to Kents Lake's efficiency gains."

The Court next examined Kents Lake's obligations to measure its water diversions. Kents Lake asserted--and the district court had agreed--that even though Kents Lake did not measure all of its diversions, it was compliant because it did all measuring required by the State Engineer. But the Court noted that both Utah law (Utah Code section 73-5-4) and the Beaver River Decree require Kents Lake to measure all of its diversions. Thus, the Court reversed the district court on this point.

The Court finished its opinion by determining that the district court had properly concluded that the 1953 Agreement between Rocky Ford and Kents Lake should not be rescinded, and determining that the district court had erred in granting an award of attorney fees to Kents Lake.

Public Meeting Concerning the General Adjudication in Provo City South Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Provo City South area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 6). The Provo City South area generally includes the area between 800 North on the north, 2000 South on the south, Utah Lake on the west, and Corral Mountain on the east (see map below). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Provo City South area

When: July 16, 2019, 6:00 to 7:00 pm

Where: Provo Recreation Center, 320 West 500 North, Provo

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729846), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Provo City South Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Utah County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Provo City South area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Provo City South area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

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

For more information about this meeting, click here.

Metropolitan Water District v. Sorf

The Utah Supreme Court recently issued its decision in the case of Metropolitan Water District of Salt Lake and Sandy v. Sorf. The primary issue in the case was enforcement of easement rights associated with a water pipeline.

Metropolitan Water District owns and operates the Salt Lake Aqueduct, a large pipeline that transports water from Deer Creek Reservoir to the Salt Lake City area. The District owns some of the land along the course of the Aqueduct and has easements along other parts of the course of the Aqueduct. Zdenek Sorf is the owner of a parcel of land that the Aqueduct crosses, and in 1946, the then-owner of his land deeded a 125-foot wide easement for the Aqueduct. The District passed regulations controlling use of the Aqueduct easements by the landowners, including a prohibition on the construction of structures or the planting of trees within the easement areas.

Mr. Sorf made improvements to his property within the boundaries of the District's easement. These improvements included a hot tub, a gazebo, garden boxes, a water feature, and a shed. The District filed a lawsuit seeking to enjoin Mr. Sorf from making any more improvements within the easement area and to allow the District to remove the existing improvements. Mr. Sorf asserted that the case was not yet "ripe" because the District had no current plans to repair, replace, or reconstruct the Aqueduct across Mr. Sorf's property, and that his improvements were not interfering with the District's current operation of the Aqueduct. The district court agreed and dismissed the District's claims. The District appealed the case to the Utah Supreme Court.

The Court began its decision by noting that a dispute is ripe "when a conflict over the application of a legal provision has sharpened into an actual or imminent clash of legal rights and obligations of the parties thereto." The Court concluded that the easement dispute between the District and Mr. Sorf met this standard because the District had valid, deeded easement interests "to construct, reconstruct, operate and maintain" the Aqueduct. The Court noted that the district court had incorrectly focused on whether Mr. Sorf's improvements were interfering with the Aqueduct, and that the focus should have been on whether Mr. Sorf's improvements were interfering with the easement. Thus, the Court concluded that there was a "live dispute" that was ripe for judicial resolution.

In the end, the Court reversed the district court's dismissal and sent the case back to the district court because "the parties are both entitled to a determination of whether [Mr. Sorf's improvements] are permissible, and if not, a determination of the proper remedy."

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

Amendment to the Southern Utah County Groundwater Management Plan

The Utah Division of Water Rights has published notice that the Utah / Goshen Valley Ground-Water Management Plan has been amended. The amendments are effective as of June 11, 2019.

To view the amended Plan, click here.

To view more information about the amendments and the amendment process for the Plan, click here.

Public Meeting Concerning the General Adjudication in American Fork South Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the American Fork South area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 5). The American Fork South area generally includes the area between 700 North (American Fork) on the north, Utah Lake on the south, 900 East (American Fork) on the east, and 1200 East (Lehi) on the west (see map below). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the American Fork South area

When: June 11, 2019, 6:00 to 7:00 pm

Where: Timpanogos High School Auditorium, 1450 North 200 East, Orem

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729845), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the American Fork South Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Utah County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the American Fork South area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the American Fork South area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

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

For more information about this meeting, click here.

Public Meeting Regarding Modification of Groundwater Management Plan

The Utah Division of Water Rights has set a meeting to discuss modifying the groundwater management plan for the Snyderville / Park City basin. The following information is from the public meeting notice:

What: Public Meeting
Who: Snyderville / Park City basin water users
When: May 21, 2019, 4:00 pm
Where: Summit County Library - Kimball Junction Branch, 1885 W. Ute Blvd., Park City, UT
Purpose: The purpose of the meeting is to present a modification to the groundwater management plan for Snyderville/Park City Basin.  Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.
If you are unable to attend the meeting, but would like to provide input, please send your written comments to:
Division of Water Rights
1594 West North Temple Suite 220
PO Box 146300
Salt Lake City, UT 84114-6300

Agenda:
1. Welcome/Introduction
2. Discussion on groundwater management plan modification
3. Public Questions/Comments

For additional information regarding the meeting, click here.

Public Meeting Concerning the General Adjudication of South Moab Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Moab South area in the Moab Division of the Southeastern Colorado River General Adjudication (Area 05, Book 5). The boundaries of the Moab South area are shown in the map below. The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Moab South area

When: April 25, 2019, 6:00 to 7:00 pm

Where: Grand Center, 182 North 500 West, Moab

Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Seventh Judicial District Court (Civil No. 810704477), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Moab South Subdivision, Moab Division of the Southeastern Colorado River General Adjudication. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Moab South area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Moab South area, please contact the Division of Water Rights at 801-538-5282.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

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

For more information about this meeting, click here.

Water Rights Certification Course

The Rural Water Association of Utah, in conjunction with the Utah Division of Water Rights, offers a two-day water rights training course. The course covers a variety of water right topics, including priority, change applications, water rights vs. water shares, water right title, well regulations, and much more. At the end of the training course, there is a certification exam that you can take.

This course is very informative, and I highly recommend it to anyone wanting to learn about Utah water rights.

The course is being offered on April 18-19, 2019. It will be held in Salt Lake City, but will also be broadcast to Cedar City. For more information about the course, click here.

Retirement of Regional Engineer Bob Leake

After more than 33 years working that the Utah Division of Water Rights, Regional Engineer Robert (Bob) Leake with be retiring on April 1, 2019. Bob has been working as the Regional Engineer for the Eastern Regional Office in Vernal. The Division will be hosting a retirement celebration on March 25, 2019 from 1:30 pm to 3:30 pm at the Vernal office (318 North Vernal Avenue).

Thank you, Bob, for your many years of service!

Proposed Amendment to Southern Utah Valley Groundwater Plan

The Utah Division of Water Rights has issued notice of a proposed amendment to the Utah/Goshen Valley Ground-Water Management Plan. The amendment involves the Ensign-Bickford water contamination plume near Mapleton. Pursuant to the notice, the amendment will not be adopted for at least 60 days to allow for comments.

To read the proposed amendment, and for other related information, click here.

2019 Legislative Update - part 2

Since the beginning of the 2019 legislative session, more water-related bills have been introduced. This post supplements my original post about 2019 legislation.

HB 355 - Water General Adjudication Amendments
Rep. Joel Ferry
House Bill 355 amends statutes regarding small applications of water and general adjudications. The bill modifies Utah Code section 73-3-5.6, which allows for the filing of an Affidavit of Beneficial Use to reinstate a lapsed application for a small amount of water. The bill also provides that an Affidavit of Beneficial Use cannot be used to reinstate a water right if the water right lapsed before the State Engineer issued a Notice to File Statement of Water User's Claim and the water right owner did not file a Water User's Claim on the water right. The bill also clarifies that there is a right of appeal to the Utah Supreme Court for any district court order that resolves an objection in a general adjudication. The bill also provides a form summons for the State Engineer to use in giving published notice to potential water claimants in a general adjudication.

HB 360 - School Water Testing Requirements
Rep. Stephen G. Handy
House Bill 360 requires the Drinking Water Board to make administrative rules regarding water testing in schools and child care centers. The rules are to (1) establish a reduction of lead in drinking water in schools and child care centers; (2) require schools to create written plans regarding lead concentration in their water supply; (3) establish the lead level requiring mitigation; and (4) determine whether a school is required to undertake mitigation. The bill also establishes the Lead Sampling Fund, with an initial outlay of $5 million, to pay schools for costs incurred in complying with the requirements.

HB 377 - Capitol Hill Water Usage Amendments
Rep. Joel K. Briscoe
House Bill 377 requires the State Capitol Preservation Board to develop a water management plan and conduct an analysis of water use at the Capitol Hill complex. The bill also provides that the Board may implement water conservation measures at the Capitol Hill complex, consult with the Division of Water Resources, and appoint a water conservation specialist.

HB 452 - Water Facilities Amendments
Rep. Logan Wilde
House Bill 452 amends Utah Code section 73-1-14 regarding penalties for interfering with water facilities and Utah Code section 73-1-15 regarding penalties for obstructing water facilities. The bill maintains the purpose of the sections to prohibit those without rights from obstructing and interfering with ditches, pipelines, canals, reservoirs, storage tanks, and other water facilities, but expands and provides additional detail regarding these sections.

HB 456 - Water Amendments for Institutions of Higher Education
Rep. Stephen G. Handy
House Bill 456 amended Utah Code section 73-1-4 regarding abandonment and forfeiture of water rights. Specifically, this bill provides that institutions of higher education qualify as public water suppliers that are protected from claims of nonuse and forfeiture.

HCR 10 - Concurrent Resolution to Address Declining Water Levels of the Great Salt Lake
Rep. Timothy D. Hawkes
House Concurrent Resolution 10 points out the importance of the Great Salt Lake and the potential impacts currently facing the lake due to declining water levels. The Resolution provides that there should be an overall policy that supports effective administration of water flow to the Great Salt Lake to maintain or increase lake levels, while balancing economic, social, and environmental needs. The Department of Natural Resources is encouraged to collaboratively engage with a wide range of stakeholders to develop policy recommendations and other solutions, and to present them to the legislature.

HCR 18 - Concurrent Resolution Concerning Bear Lake
Rep. Logan Wilde
House Concurrent Resolution 18 recognizes the characteristics, benefits, and challenges to Bear Lake and urges solutions to address challenges to Bear Lake, including water quality, invasive species, lakebed management, and enhancement of irrigation water storage and supply functions. The Resolution also encourages the State's continued cooperation with Idaho to develop joint expectations regarding the lake. The Resolution also encourages the participation of stakeholders to develop recommendations to protect and enhance the lake.

SB 189 - Temporary Land Use Regulation Amendments
Sen. Ralph Okerlund
Senate Bill 189 provides that a county of the fifth or sixth class can enact an ordinance establishing a temporary land use regulation prohibiting construction, subdivision approval, and other development activities within an area that is the subject of a study of water availability, capacity, or quality that is overseen by the Division of Water Rights.

SB 214 - Property Tax Relief Modifications
Sen. Lincoln Fillmore
Senate Bill 214 places limitations on the amount of property tax that can be collected by water conservancy districts. Specifically, property taxes cannot exceed 15% of a district's total annual revenues. The bill excludes large districts that comprises more than five counties. A district can only exceed the limitation if approved in an election by at least 75% of district voters. The bill also prohibits districts from issuing bonds secured by property tax revenue.

SCR 9 - Concurrent Resolution Regarding Navajo Water Rights Settlement Agreement
Sen. David P. Hinkins
Senate Concurrent Resolution 9 declares support for the negotiated settlement of federal reserved water right claims, particularly the Settlement Agreement of Reserved Water Rights between the State of Utah and the Navajo Nation.

Utah Stream Access Coalition v. VR Acquisitions LLC

The Utah Supreme Court has (finally!) issued its decision in the case of Utah Stream Access Coalition v. VR Acquisitions LLC. This case is another progression in the stream access issue that has been bouncing between the courts and the Utah legislature for more than 10 years.

In the 2008 decision in Conatser v. Johnson, the Utah Supreme Court established a broad public easement to utilize the beds of Utah's waterways for recreational purposes. In response to this decision, the Utah legislature adopted the Public Water Access Act in 2010. The Act placed restrictions on the broad easement recognized under Conatser. Specifically, the Act restricted recreational access to water on public property and to waterways that are navigable. Another court case, Utah Stream Access Coalition v. Orange Street Development, litigated the navigability component of the Act, which resulted in a stretch of the Weber River being declared navigable and therefore open to public access.

In the VR Acquisitions case, USAC took a different approach and challenged the constitutionality of the Act under several different arguments. The VR Acquisitions case focused on a stretch of the Provo River that passes through private property and that has been shut off to public access by the property owner. The district court originally ruled against USAC on the majority of its claims challenging the Act. The district court did, however, ultimately rule that that Act violated the public trust doctrine found in Article XX, Section 1 of the Utah Constitution because the Act substantially impaired the right of Utah fishers to recreate in public waters. This decision was appealed to the Utah Supreme Court.

A significant portion of the Utah Supreme Court's decision focused on the procedural question of whether it was necessary for the parties to litigate the navigability of the stretch of the Provo River at issue before the parties could litigate the constitutional challenges to the Act. A dissenting opinion by Justice Himonas argues that until the parties litigate the navigability issue, it is uncertain whether the landowner or the State is the legal owner of the streambed of the Provo River; and without that determination, the parties should not be allowed to force a decision on the constitutional issues. The majority opinion, however, concludes that USAC was free to be the "master of its claim" and to waive certain claims and pursue other claims. Thus, the Court held that answering the navigability question was not a prerequisite to the Supreme Court reviewing and addressing the constitutional issues.

The Supreme Court then looked at the merits of the case and determined that some key, preliminary determinations had not been made by the district court with respect to the applicability of Article XX, Section 1 of the Utah Constitution. In particular, the Supreme Court noted that the district court had not determined whether the State had actually "acquired" or "accepted" the access easement (as described in the Conatser decision) at the time of the framing of the Utah Constitution. The Supreme Court noted that the Conatser easement was rooted in common law easement principles, and that the legislature is allowed to modify --and even reverse--common law decisions through legislation. Thus, the Supreme Court reversed the district court's decision and remanded the case to the district court to allow USAC an opportunity to "establish a historical, 19th-century basis for the easement that it seeks to root in Article XX, Section 1 of the Utah Constitution." If USAC is unable to carry this burden, then the district court will most likely rule that the Act was a proper exercise of the legislative power.

The Supreme Court also raised other issues that the district court should consider on remand (assuming USAC is able to successfully navigate the preliminary issue discussed above). First, the Supreme Court noted that although the Conatser easement is certainly an interest in the land, such an interest in land may not qualify as a "land of the State" that is protected under the Utah Constitution. Second, the Supreme Court raised the issue of whether the Act "disposed" of public land or simply managed/regulated the public land. Third, the Supreme Court questioned the district court's interpretation and application of the public trust standards set out in the U.S. Supreme Court case of Illinois Central Railroad Co. v. State of Illinois.

In sum, the Supreme Court's decision means that the Act is no longer considered unconstitutional, as the district court had previously concluded. The case will return to the district court, where the parties will have to litigate the issues raised by the Supreme Court -- most importantly the question of whether the Conatser easement is based on modern common law or whether it can be based on accepted law at the time of Utah's statehood in the 19th century.

To read the full opinion, click here.

2019 Legislative Preview

Today is the opening day of the Utah Legislature. Below is a summary of water-related legislation that will be considered during the 2019 legislative session.

HB 12 – Instream Flow Water Right Amendments

Rep. Timothy D. Hawkes
House Bill 12 would remove the current “sunset provision” the Legislature enacted when it created Utah Code section 73-3-30(3), which authorized fishing groups to file fixed time change applications to provide instream flows for the Bonneville cutthroat, the Colorado River cutthroat, and the Yellowstone cutthroat. The program is currently set to expire on December 31, 2019.

HB 31 – Water Supply and Surplus Water Amendments

Rep. Kim F. Coleman
House Bill 31 addresses the how municipalities are to provide water service within and beyond its municipal boundaries. The municipality must define, by ordinance, the municipality’s designated water service area, which may be an area that extends beyond the municipality’s boundaries. The municipality must adopt, by ordinance, reasonable water rates for retail customers within the area, and must provide water service to its retail customers within the designated water service area in a manner consistent with the principles of equal protection. A municipality can establish different rates for different classifications of retail customers, if the rates and classifications have a reasonable basis. If a municipality provides water to a retail customer outside of the municipality’s boundary, the municipality must create and maintain a map showing the areas outside of the municipality’s designated water service area where the municipality provides water service to a retail customer. The municipality must provide the map to the State Engineer and, if the municipality has more than 500 retail customers, post the map on the municipality’s website. If more than 10% of a large municipality’s retail customers are outside the municipal boundaries, the municipality must establish an advisory board to make recommendations regarding water rights, water projects, and water service standards. If the municipality supplies water outside of its designated water service area, it must do so only by contract that includes terms for termination, and the municipality must notify the Division of Drinking Water of the names and contact information for each person in these contracts. The bill would take effect in January 2021, provided that the constitutional amendments under HJR 1 are approved by the Legislature and by voters.

HB 125 – Quantity Impairment Modifications

Rep. Carl R. Albrecht
House Bill 125 makes one modification to Utah Code section73-3-8 regarding quantity impairment determinations in change application proceedings. Currently, the statute provides that there is a rebuttable presumption of quantity impairment if, for a period of seven consecutive years, a water right has not been diverted from its approved point of diversion and beneficially used at its approved place of use. The bill would change the “and” to “or.”

HB 143 – Water Conservation Plan Amendment

Rep. Suzanne Harrison
House Bill 143 proposes to make several amendments to UtahCode section 73-10-32 regarding water conservation plans. The proposal would require that water conservation plans prepared by water districts and retail water providers must include an evaluation of the specific measures that would have to be enacted to reduce water use to 175 gallons per capita per day or less, and how much it would cost to do so. The plans would also have to an analysis of how much it would cost in operation costs, maintenance costs, treatments costs, delivery costs, etc. to not reduce water use to 175 gallons per capita per day.

HJR 1 – Proposal to Amend Utah Constitution – Municipal Water Resources

Rep. Keven J. Stratton
House Joint Resolution 1 proposes an amendment to Article XI, Section 6 of the Utah Constitution. The proposal would maintain the prohibition that a municipality cannot lease, sell, alienate, or dispose of any of its water rights or water supply sources. A municipality would be allowed to designate, by ordinance, the geographic limits of its designated water service area, which could be an area that extends beyond its municipal boundaries. A municipality will be allowed to supply water to retail customers outside of its municipal boundaries but within its designated water service area, as well as outside of its designated water service area through surplus water agreements. Municipalities are also allowed to exchange water rights or water supply sources for other water rights or water supply sources. If HJR 1 is passed by the Legislature, the proposed amendment will be submitted to Utah voters at the next general election.

HJR 5 – Joint Resolution Approving Notes to Water Rights Addenda

Rep. Derrin R. Owens
House Joint Resolution 5 proposes edits to the water rightsdeed addenda. The proposed edits add clarification that a properly recorded water rights addendum can be processed as though it were a Report of Conveyance. If, however, the water rights addendum cannot be processed as a Report of Conveyance (e.g., if signatures are missing from the addendum, if the addendum is incorrectly filled out, or if the grantor listed on the addendum is not the recognized water right owner on the Division of Water Rights’ database), then the water right owner will need to file a Report of Conveyance in order to update title with the Division.
 
SB 17 – Extraterritorial Jurisdiction Amendments
Sen. Ralph Okerlund
Senate Bill 17 amends Utah Code section 10-8-15 regarding a municipality’s extraterritorial jurisdiction over waterworks and water sources. The bill maintains a municipality’s right to construct waterworks inside and outside of the municipality’s boundaries, and also maintains a municipality’s jurisdiction over its waterworks as well as streams and other water sources for a distance of 15 miles about the water source and 300 feet on each side of a stream. First class cities (which are cities with a population exceeding 100,000 residents) continue to have jurisdiction over the entire watershed, but the jurisdiction is limited to the county in which the city is located, unless there is an agreement between the first class city and the municipalities and counties that have jurisdiction over the area. The bill also requires additional notice and hearing requirements if municipalities seek to adopt ordinances under their extraterritorial jurisdiction power. Such ordinances cannot conflict with existing federal or state statutes and rules.

SB 52 – Secondary Water Metering Requirements

Sen. Jacob L. Anderegg
Senate Bill 52 enacts deadlines for metering secondary water use, which is defined as pressurized non-culinary and non-agricultural water use for the irrigation of landscaping and gardens. It would require secondary water suppliers to have all new service beginning after July 1, 2019 be metered. All existing connections will need to be metered by 2030. It would also require secondary water suppliers to report water use and other information to the Division of Water Rights before March 31 of each year and to provide monthly readings and educational material to its customers, among other things. To help offset the costs associated with installing meters, the bill would direct the Board of Water Resources to make $10 million available each year (as funded by the Legislature) in the form of loans and grants for up to 50% of the total cost (grants are limited to 16.5% of the total cost). Finally, a water user would not be able to use culinary water if secondary water is available to irrigate landscaping and gardens even though the culinary water rates may be lower.

SB 66 – Dam Safety Amendments

Sen. Scott D. Sandall
Senate Bill 66 makes minor wording changes to Utah dam safety statutes regarding the State Engineer’s regulation of dam safety. The purpose of the bill is to clarify to that the State Engineer’s responsibility is to ensure that dams are safe so they do not fail and cause damage, but that it is not the State Engineer’s responsibility to govern use and safety of the impounded reservoirs for boating, fishing, and other recreational use.

SJR 1 – Joint Resolution Supporting the Study of Water Banking in Utah

Sen. Jani Iwamoto
Senate Joint Resolution 1 expresses support for a multi-stakeholder group that has been working for over a year to develop a water banking program for Utah in accordance with related recommendations from the Governor’s 2017 Recommended Water Strategy. The resolution requests draft water banking legislation for the Legislature to consider during the 2020 general session that would: (1) recognize that the majority of water rights in Utah are agricultural in nature; (2) incentivize agricultural water users to participate in water banking; (3) protect against abandonment and forfeiture for water rights placed within a water bank; (4) minimize the potential for water right impairment; and (5) ensure that water placed within a water bank may be leased or otherwise used for any lawful purpose.