Have you ever tried to find out who the president of an irrigation or canal company is? Or have you ever tried to find out who the other officers and directors of an irrigation or canal company are? Here are a few places you can try:
The Utah Division of Water Rights maintains a list of water companies. The companies are listed alphabetically by county. As a caveat, the list is not always up to date and some companies have more listed information than others. Click here to access the list.
Most irrigation companies and canal companies are nonprofit corporations, so they are registered with the Utah Division of Corporations. The Division has a Business Entity Search, which allows you to search for a company. The basic search is free, but the results only list the company's registered agent. To see the officers and directors, you can click on the "Access Principal Information" bottom at the bottom of the page, but there is a $1.00 fee. Click here to access the Business Entity Search.
Also, if you are a shareholder in an irrigation company or canal company, then you have the right to request a list of the names and addresses of the current officers and directors of the company. Click here for more information.
Some water providers are not private companies, but are districts. For a list of service districts, click here.
Wednesday, July 15, 2009
Friday, June 26, 2009
What is a Nonuse Application?
A nonuse application is an application made to the Utah State Engineer under which a water right owner may cease using the water right for up to seven years without the water right becoming subject to forfeiture.
Under the Utah Code, the State Engineer should not approve a nonuse application unless the applicant shows “reasonable cause” for the nonuse. Reasonable cause includes:
(i) a demonstrable financial hardship or economic depression;
(ii) the initiation of water conservation or efficiency practices, or the operation of a groundwater recharge recovery program approved by the state engineer;
(iii) operation of legal proceedings;
(iv) the holding of a water right or stock in a mutual water company without use by any water supply entity to meet the reasonable future requirements of the public;
(v) situations where, in the opinion of the state engineer, the nonuse would assist in implementing an existing, approved water management plan; or
(vi) the loss of capacity caused by deterioration of the water supply or delivery equipment if the applicant submits, with the application, a specific plan to resume full use of the water right by replacing, restoring, or improving the equipment.
Nonuse applications are advertised, and any interested person can file a protest to the application with the State Engineer. Following a review of the application and any protest (and perhaps an administrative hearing), the State Engineer will either approve or reject the application.
To read the Utah statute regarding nonuse applications, click here.
To access the Utah Division of Water Rights' nonuse application form, click here.
Under the Utah Code, the State Engineer should not approve a nonuse application unless the applicant shows “reasonable cause” for the nonuse. Reasonable cause includes:
(i) a demonstrable financial hardship or economic depression;
(ii) the initiation of water conservation or efficiency practices, or the operation of a groundwater recharge recovery program approved by the state engineer;
(iii) operation of legal proceedings;
(iv) the holding of a water right or stock in a mutual water company without use by any water supply entity to meet the reasonable future requirements of the public;
(v) situations where, in the opinion of the state engineer, the nonuse would assist in implementing an existing, approved water management plan; or
(vi) the loss of capacity caused by deterioration of the water supply or delivery equipment if the applicant submits, with the application, a specific plan to resume full use of the water right by replacing, restoring, or improving the equipment.
Nonuse applications are advertised, and any interested person can file a protest to the application with the State Engineer. Following a review of the application and any protest (and perhaps an administrative hearing), the State Engineer will either approve or reject the application.
To read the Utah statute regarding nonuse applications, click here.
To access the Utah Division of Water Rights' nonuse application form, click here.
Thursday, June 25, 2009
What is a Change Application?
In Utah, water rights have certain components or elements. These components include:
(1) Point of diversion: This is the exact location where the water is diverted. For example, it may be a point on a river or stream where the water is diverted into a ditch, or it may be the location of a well where water is diverted from the underground aquifer.
(2) Place of use: This is the location where the water is used. The location is usually given in terms of quarter-quarter sections (40 acres).
(3) Type of use: This is what the water is used for. The most common uses are irrigation, domestic, stockwatering, industrial, and municipal.
(4) Period of use: This is the period during the year during which the water may be used. For example, an irrigation right may have a period of use from April 1st to October 31st. Other types of rights, such as stockwatering or domestic, may have a period of use for the entire year.
If the owner of a water right wishes to change any of these water rights components, he or she must file a Change Application (the official title is “Application for Permanent Change of Water”) with the Utah Division of Water Rights. For example, if a water right currently permits an individual to divert water from a stream, and the individual wants to get the water from a well instead of the stream, the individual would be required to file a Change Application to change the point of diversion from the stream to the well.
To read the Utah statute regarding Change Applications, click here.
To access the Utah Division of Water Rights' Change Application form, click here.
To learn more about the process that the State Engineer goes through in approving or denying a Change Application, click here.
(1) Point of diversion: This is the exact location where the water is diverted. For example, it may be a point on a river or stream where the water is diverted into a ditch, or it may be the location of a well where water is diverted from the underground aquifer.
(2) Place of use: This is the location where the water is used. The location is usually given in terms of quarter-quarter sections (40 acres).
(3) Type of use: This is what the water is used for. The most common uses are irrigation, domestic, stockwatering, industrial, and municipal.
(4) Period of use: This is the period during the year during which the water may be used. For example, an irrigation right may have a period of use from April 1st to October 31st. Other types of rights, such as stockwatering or domestic, may have a period of use for the entire year.
If the owner of a water right wishes to change any of these water rights components, he or she must file a Change Application (the official title is “Application for Permanent Change of Water”) with the Utah Division of Water Rights. For example, if a water right currently permits an individual to divert water from a stream, and the individual wants to get the water from a well instead of the stream, the individual would be required to file a Change Application to change the point of diversion from the stream to the well.
To read the Utah statute regarding Change Applications, click here.
To access the Utah Division of Water Rights' Change Application form, click here.
To learn more about the process that the State Engineer goes through in approving or denying a Change Application, click here.
Monday, June 22, 2009
How to Search for Utah Water Rights
The Utah Division of Water Rights maintains a very useful website that contains information about every water right in Utah. There are several different ways to search for information on a water right on the website.
The easiest way to search is by water right number. If you know the water right number, simply click here, enter the water right number, and hit “Submit Query.” This will bring up the database summary for the water right.
If you don’t know the water right number, but you do know the name of the water right owner, click here, enter the owner name, and click “Display Results.” If the owner is an individual, enter the last name first, then the first name (separate the last name and the first name with a comma). If the owner is a business entity, enter the entity’s name.
If you don’t know the water right number or the owner name, but you know the name of the river, stream, spring, or other source, you can search by the source name. Click here, select “Text Search on Source of Supply,” enter the source name, then click “Display Results.”
The easiest way to search is by water right number. If you know the water right number, simply click here, enter the water right number, and hit “Submit Query.” This will bring up the database summary for the water right.
If you don’t know the water right number, but you do know the name of the water right owner, click here, enter the owner name, and click “Display Results.” If the owner is an individual, enter the last name first, then the first name (separate the last name and the first name with a comma). If the owner is a business entity, enter the entity’s name.
If you don’t know the water right number or the owner name, but you know the name of the river, stream, spring, or other source, you can search by the source name. Click here, select “Text Search on Source of Supply,” enter the source name, then click “Display Results.”
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.
New Regional Engineer
On May 19, 2009, the Utah Division of Water Rights announced that Teresa Wilhelmsen will be the new Regional Engineer of the Utah Lake/Jordan River Area. She replaces John Mann, who was appointed the Assistant State Engineer - Applications and Records in April.
For a list of contact information for the regional offices, click here.
For a list of contact information for the regional offices, click here.
Monday, May 11, 2009
Can an Irrigation Company Charge a Shareholder for Copies of Company Records?
Most irrigation companies and water companies are nonprofit corporations, and are therefore subject to the Utah Revised Nonprofit Corporation Act. Under the Act, a nonprofit corporation may charge a reasonable fee to cover the costs of labor and material for copies of any documents provided to a shareholder. The fee may not exceed the estimated cost of production and reproduction of the records.
There is one caveat to the fee rule. If the corporation receives a shareholder’s written request to obtain information regarding the corporation’s assets and liabilities, the corporation must, within 15 days after receiving the request, mail the shareholder a copy the corporation’s most recent annual financial statements and the corporation’s most recently published financial statements. The corporation cannot charge the shareholder for the cost of copying or mailing the financial statements.
To view the Utah Nonprofit Corporation Act, click here.
There is one caveat to the fee rule. If the corporation receives a shareholder’s written request to obtain information regarding the corporation’s assets and liabilities, the corporation must, within 15 days after receiving the request, mail the shareholder a copy the corporation’s most recent annual financial statements and the corporation’s most recently published financial statements. The corporation cannot charge the shareholder for the cost of copying or mailing the financial statements.
To view the Utah Nonprofit Corporation Act, click here.
Thursday, May 7, 2009
Does a Shareholder in an Irrigation Company Have Rights to View Company Records?
Most irrigation companies and water companies are nonprofit corporations, and are therefore subject to the Utah Revised Nonprofit Corporation Act.
Under the Act, there are certain records that a nonprofit corporation is required to keep copies of at the nonprofit corporation’s principal office. A member has an absolute right of access to these records during regular business hours at the nonprofit corporation’s principal office, if the member gives the nonprofit corporation written demand at least five business days in advance. These records include:
(a) the articles of incorporation;
(b) the bylaws;
(c) resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;
(d) the minutes of all members' meetings for a period of three years;
(e) records of all action taken by members without a meeting, for a period of three years;
(f) all written communications to members generally as members for a period of three years;
(g) a list of the names and business or home addresses of the current directors and officers;
(h) a copy of the most recent annual report delivered to the Division of Corporations; and
(i) all financial statements prepared for periods ending during the last three years.
In addition to a member’s right to inspect and copy the records mentioned above, a member is entitled to inspect and copy any of the other records of the nonprofit corporation if certain conditions are met. These conditions are (1) the inspection and copying must occur during regular business hours; (2) the inspection and copying must take place at a reasonable location specified by the nonprofit corporation; (3) the member must give the nonprofit corporation written demand at least five days before the date on which the member wishes to inspect and copy the records; (4) the demand must be made in good faith; (5) the demand must be made for a proper purpose; (6) the demand must describe with reasonable particularity the member’s purpose; (7) the demand must describe with reasonable particularity the records the member desires to inspect; and (8) the records requested must be directly connected with the described purpose. A “proper purpose” is defined as “a purpose reasonably related to the demanding member’s . . . interest as a member.”
To see the full text of the records section of the Utah Revised Nonprofit Corporation Act, click here.
Under the Act, there are certain records that a nonprofit corporation is required to keep copies of at the nonprofit corporation’s principal office. A member has an absolute right of access to these records during regular business hours at the nonprofit corporation’s principal office, if the member gives the nonprofit corporation written demand at least five business days in advance. These records include:
(a) the articles of incorporation;
(b) the bylaws;
(c) resolutions adopted by its board of directors relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;
(d) the minutes of all members' meetings for a period of three years;
(e) records of all action taken by members without a meeting, for a period of three years;
(f) all written communications to members generally as members for a period of three years;
(g) a list of the names and business or home addresses of the current directors and officers;
(h) a copy of the most recent annual report delivered to the Division of Corporations; and
(i) all financial statements prepared for periods ending during the last three years.
In addition to a member’s right to inspect and copy the records mentioned above, a member is entitled to inspect and copy any of the other records of the nonprofit corporation if certain conditions are met. These conditions are (1) the inspection and copying must occur during regular business hours; (2) the inspection and copying must take place at a reasonable location specified by the nonprofit corporation; (3) the member must give the nonprofit corporation written demand at least five days before the date on which the member wishes to inspect and copy the records; (4) the demand must be made in good faith; (5) the demand must be made for a proper purpose; (6) the demand must describe with reasonable particularity the member’s purpose; (7) the demand must describe with reasonable particularity the records the member desires to inspect; and (8) the records requested must be directly connected with the described purpose. A “proper purpose” is defined as “a purpose reasonably related to the demanding member’s . . . interest as a member.”
To see the full text of the records section of the Utah Revised Nonprofit Corporation Act, click here.
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.
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