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.
Showing posts with label 2009 Legislation. Show all posts
Showing posts with label 2009 Legislation. Show all posts
Saturday, October 23, 2010
Saturday, May 30, 2009
Is It Illegal to Harvest Rainwater in Utah?
Collecting and using rainwater has become a hot topic in Utah during the past few months. The issue first made news headlines in August 2008 when a car dealership came under scrutiny of the Utah Division of Water Rights for collecting rainwater from the roof of the dealership’s building, storing the water in a cistern, and then using the water in a car wash. The Division informed the dealership that it needed a water right in order to divert, store, and use the rainwater. This story stirred up lots of curiosity and controversy, with many people (including state legislators) questioning why individuals should not be allowed collect and use rainwater.
During the 2009 legislative session, two bills were introduced that addressed the issue of rainwater harvesting. The first bill was Senate Bill 58, sponsored by Senator Scott McCoy. Under this bill, public water suppliers could allow individuals to capture and beneficially use precipitation under the public water supplier’s approved exchange application. The second bill was Senate Bill 128, sponsored by Senator Scott Jenkins. Under this bill, a person would be permitted to capture and store precipitation in an underground storage container with a maximum capacity of 2,500 gallons. This captured precipitation could be beneficially used without having to obtain a water right or go through the appropriation process.
Both bills passed the Senate, but were not voted on by the House. It is likely that one or both bills will be presented during the 2010 legislative session.
The Division of Water Rights has also prepared a response to the question of whether harvesting rainwater is illegal in Utah. In sum, the Division’s position is that if rainwater is merely controlled or directed (such as with rain gutters and drain piping), then a water right is not needed. However, if rainwater is stored and then later used for some other purpose rather than being released back into the drainage system, then a water right is needed.
To read the text of Utah Bill 58, click here.
To read the text of Utah Bill 128, click here.
During the 2009 legislative session, two bills were introduced that addressed the issue of rainwater harvesting. The first bill was Senate Bill 58, sponsored by Senator Scott McCoy. Under this bill, public water suppliers could allow individuals to capture and beneficially use precipitation under the public water supplier’s approved exchange application. The second bill was Senate Bill 128, sponsored by Senator Scott Jenkins. Under this bill, a person would be permitted to capture and store precipitation in an underground storage container with a maximum capacity of 2,500 gallons. This captured precipitation could be beneficially used without having to obtain a water right or go through the appropriation process.
Both bills passed the Senate, but were not voted on by the House. It is likely that one or both bills will be presented during the 2010 legislative session.
The Division of Water Rights has also prepared a response to the question of whether harvesting rainwater is illegal in Utah. In sum, the Division’s position is that if rainwater is merely controlled or directed (such as with rain gutters and drain piping), then a water right is not needed. However, if rainwater is stored and then later used for some other purpose rather than being released back into the drainage system, then a water right is needed.
To read the text of Utah Bill 58, click here.
To read the text of Utah Bill 128, click here.
Thursday, April 30, 2009
2009 Amendments to Utah Water Rights Laws
(I recently wrote this article for the Utah Water Users Association newsletter.)
The majority of the bills passed during the 2009 session of the Utah Legislature will take effect on May 12, 2009. Included in this list are several important bills relating to water rights. This article examines three water rights bills that were passed during the 2009 legislative session: House Bill 18, House Bill 85, and House Bill 389. All three of these bills were sponsored by Representative Patrick Painter, a friend and ally to the water community who continues to work to improve water rights law and administration.
House Bill 18
HB 18 is entitled “Water Rights Applications and Records.” The bill revises the law on the proof process for applications to appropriate and change applications. Importantly, the bill provides that if a public water supplier is holding an approved application to meet the reasonable future water requirements of the public, it is deemed to be reasonable and due diligence in completing the appropriation or change. This essentially entitles the public water supplier to an extension of time to complete the appropriation or change.
HB 18 also amends the law on requests for segregation. Currently, the law gives the State Engineer discretion to approve or deny a segregation request. Under HB 18, if a water rights owner requests that a water right be segregated into two or more parts, the State Engineer is required to segregate. The bill also provides that applications to appropriate and change applications may be segregated, and that after the State Engineer segregates an application, each segregated part becomes a separate application on the State Engineer’s records. These changes will allow an applicant who has not completed the entire appropriation or change to segregate off the portion that has been completed and prove up that portion. The uncompleted portion becomes a separate application, and the applicant can file for an extension on that portion and prove it up in the future.
Finally, HB 18 permits a water right owner to consolidate water rights. Currently, the law allows water rights to be segregated, but there is nothing in the law that allows the water rights to be rejoined into a single water right. This provision of HB 18 permits the State Engineer to consolidate two or more water rights if the water rights are from the same source, have the same priority, and are sufficiently similar in definition.
House Bill 85
HB 85 is entitled “Mutual Benefit Corporation – Judicial Liens.” The bill protects mutual water companies in lawsuits when cash damages are assessed against them in the form of a judicial lien. Under the bill, if a judicial lien is recorded against a mutual water company’s water rights, water conveyance facilities, or other assets that are necessary to distribute water to the company’s members, a court must wait 180 days before executing the lien or forcing the sale of the assets. This 180-day period allows the mutual water company to make other arrangements to pay the judgment, such as by doing a special assessment or getting financing by using the assets as collateral. Allowing the mutual water company to pay the judgment without losing its water rights and other assets protects the company’s members, whose livelihoods may depend on receiving water from the company.
House Bill 389
HB 389 is entitled “Applications for a Small Amount of Water.” The bill changes the proof requirements for applications to appropriate and change applications for a small amount of water. A “small amount of water” is defined as the amount of water necessary to meet the requirements of one residence, ¼ acre of irrigable land, and ten stock units. Rather than submitting a traditional proof prepared by an engineer, an applicant is permitted to submit an affidavit as proof. The affidavit must declare that a residence has been constructed and is occupied and must specify the amount of land being irrigated and the number of livestock being watered. If the affidavit is filed before the date on which proof is due, the State Engineer will issue a certificate.
If proof or an affidavit is not filed within the time limit set by the State Engineer, the application lapses. However, an applicant may request reinstatement of the application by demonstrating that a residence was constructed and occupied within the original time limit and that the water has been beneficially used. If the applicant meets this burden, the State Engineer will issue a certificate, although the priority date becomes the date the request for reinstatement was filed.
All three bills unanimously passed both the House and the Senate, were signed by Governor Huntsman, and will become effective on May 12, 2009.
A special thanks goes out to Representative Painter for sponsoring these bills and for his continuing efforts to work with the water community to develop and improve Utah water law.
The majority of the bills passed during the 2009 session of the Utah Legislature will take effect on May 12, 2009. Included in this list are several important bills relating to water rights. This article examines three water rights bills that were passed during the 2009 legislative session: House Bill 18, House Bill 85, and House Bill 389. All three of these bills were sponsored by Representative Patrick Painter, a friend and ally to the water community who continues to work to improve water rights law and administration.
House Bill 18
HB 18 is entitled “Water Rights Applications and Records.” The bill revises the law on the proof process for applications to appropriate and change applications. Importantly, the bill provides that if a public water supplier is holding an approved application to meet the reasonable future water requirements of the public, it is deemed to be reasonable and due diligence in completing the appropriation or change. This essentially entitles the public water supplier to an extension of time to complete the appropriation or change.
HB 18 also amends the law on requests for segregation. Currently, the law gives the State Engineer discretion to approve or deny a segregation request. Under HB 18, if a water rights owner requests that a water right be segregated into two or more parts, the State Engineer is required to segregate. The bill also provides that applications to appropriate and change applications may be segregated, and that after the State Engineer segregates an application, each segregated part becomes a separate application on the State Engineer’s records. These changes will allow an applicant who has not completed the entire appropriation or change to segregate off the portion that has been completed and prove up that portion. The uncompleted portion becomes a separate application, and the applicant can file for an extension on that portion and prove it up in the future.
Finally, HB 18 permits a water right owner to consolidate water rights. Currently, the law allows water rights to be segregated, but there is nothing in the law that allows the water rights to be rejoined into a single water right. This provision of HB 18 permits the State Engineer to consolidate two or more water rights if the water rights are from the same source, have the same priority, and are sufficiently similar in definition.
House Bill 85
HB 85 is entitled “Mutual Benefit Corporation – Judicial Liens.” The bill protects mutual water companies in lawsuits when cash damages are assessed against them in the form of a judicial lien. Under the bill, if a judicial lien is recorded against a mutual water company’s water rights, water conveyance facilities, or other assets that are necessary to distribute water to the company’s members, a court must wait 180 days before executing the lien or forcing the sale of the assets. This 180-day period allows the mutual water company to make other arrangements to pay the judgment, such as by doing a special assessment or getting financing by using the assets as collateral. Allowing the mutual water company to pay the judgment without losing its water rights and other assets protects the company’s members, whose livelihoods may depend on receiving water from the company.
House Bill 389
HB 389 is entitled “Applications for a Small Amount of Water.” The bill changes the proof requirements for applications to appropriate and change applications for a small amount of water. A “small amount of water” is defined as the amount of water necessary to meet the requirements of one residence, ¼ acre of irrigable land, and ten stock units. Rather than submitting a traditional proof prepared by an engineer, an applicant is permitted to submit an affidavit as proof. The affidavit must declare that a residence has been constructed and is occupied and must specify the amount of land being irrigated and the number of livestock being watered. If the affidavit is filed before the date on which proof is due, the State Engineer will issue a certificate.
If proof or an affidavit is not filed within the time limit set by the State Engineer, the application lapses. However, an applicant may request reinstatement of the application by demonstrating that a residence was constructed and occupied within the original time limit and that the water has been beneficially used. If the applicant meets this burden, the State Engineer will issue a certificate, although the priority date becomes the date the request for reinstatement was filed.
All three bills unanimously passed both the House and the Senate, were signed by Governor Huntsman, and will become effective on May 12, 2009.
A special thanks goes out to Representative Painter for sponsoring these bills and for his continuing efforts to work with the water community to develop and improve Utah water law.
Loss of Preference for Drinking Water
In 1880, the Utah Territorial Legislature enacted a law that established a preference for drinking water and other domestic uses over any other type of use in the event of a serious water shortage. This preference has been an exception to the priority date rule--which provides that earlier water rights have priority over later rights--for almost 130 years. The preference is currently codified in section 73-3-21 of the Utah Code. Most prior appropriation states have a similar statute that grants a preference for domestic use in times of scarcity. Indeed, of the 17 western water law states, only Oklahoma does not have a preference statute.
During the 2009 legislative session, the Utah Legislature, at the prompting of the State Engineer’s office and with the support of the Farm Bureau, repealed this preference through House Bill 241. However, as a result of the heated debate over the issue, the Legislature delayed the effective date of the repeal until May 11, 2010, in order to allow the Legislature to again consider the matter in its session next January.
Most of the oldest water rights in Utah, and therefore those with the highest priority, are irrigation rights. Accordingly, without the drinking water preference exception, in times of scarcity, those high priority irrigation rights will have to be fully satisfied before junior priority drinking water rights receive any water. This is obviously a concern to cities, towns, and other public water suppliers because it places plants over people when there is a critical shortage.
During the next few months, the water law attorneys at Smith Hartvigsen, PLLC will be involved in the discussions regarding the drinking water preference statute. If you have any input on the matter, we would love to hear from you.
To read House Bill 241, click here.
During the 2009 legislative session, the Utah Legislature, at the prompting of the State Engineer’s office and with the support of the Farm Bureau, repealed this preference through House Bill 241. However, as a result of the heated debate over the issue, the Legislature delayed the effective date of the repeal until May 11, 2010, in order to allow the Legislature to again consider the matter in its session next January.
Most of the oldest water rights in Utah, and therefore those with the highest priority, are irrigation rights. Accordingly, without the drinking water preference exception, in times of scarcity, those high priority irrigation rights will have to be fully satisfied before junior priority drinking water rights receive any water. This is obviously a concern to cities, towns, and other public water suppliers because it places plants over people when there is a critical shortage.
During the next few months, the water law attorneys at Smith Hartvigsen, PLLC will be involved in the discussions regarding the drinking water preference statute. If you have any input on the matter, we would love to hear from you.
To read House Bill 241, click here.
Monday, April 20, 2009
HB 187: The Aftermath of Conatser v. Johnson
In an attempt to limit the broad public access granted in the Conatser v. Johnson opinion, Representative Ben Ferry (R-Corinne) introduced HB 187, entitled “Recreational Use of Public Waters,” during the 2009 legislative session. Under the bill, the public would be allowed to engage in recreational activities in rivers that cross private property only if the rivers are designated “public waters.” The bill contained an initial list of “public waters,” which included sections of the Bear River, Little Bear River, Logan River, Price River, Jordan River, Duchesne River, Strawberry River, Sevier River, Weber River, Provo River, Ogden River, White River, and Blacksmith Fork River. This initial list of public waters would be amenable to change. For this reason, the bill sought to establish the Recreational Access Board (“the Board”) within the Department of Natural Resources. The Board would provide recommendations to the Legislature regarding segments of rivers that should be added to the list of “public waters.” The Board would also provide recommendations to the Legislature regarding segments of rivers that should be removed from the list. Ultimately, however, the Legislature would have the final say on the list of public waters that would be open to recreation.
The bill received a favorable recommendation from the House Natural Resources, Agriculture, and Environment Committee. The House amended the bill several times, resulting in several substitute bills. Ultimately, the bill was defeated in the House by a vote of 34-41. The bill was reconsidered, but was again defeated by a vote of 31-43.
Although HB 187 was defeated, there is already discussion regarding a bill to be introduced in the 2010 legislative session that will seek to strike a balance between the broad public access granted in Conatser and the private property rights of landowners whose property abuts rivers and streams. At this time, the details of the bill are unknown, and it is unclear if the bill will be a modified version of HB 187 or if the bill will present an entirely different scheme.
To read the full text of the bill, as originally introduced, click here.
The bill received a favorable recommendation from the House Natural Resources, Agriculture, and Environment Committee. The House amended the bill several times, resulting in several substitute bills. Ultimately, the bill was defeated in the House by a vote of 34-41. The bill was reconsidered, but was again defeated by a vote of 31-43.
Although HB 187 was defeated, there is already discussion regarding a bill to be introduced in the 2010 legislative session that will seek to strike a balance between the broad public access granted in Conatser and the private property rights of landowners whose property abuts rivers and streams. At this time, the details of the bill are unknown, and it is unclear if the bill will be a modified version of HB 187 or if the bill will present an entirely different scheme.
To read the full text of the bill, as originally introduced, click here.
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