Bingham v. Roosevelt City

The Utah Supreme Court recently issued its opinion in Bingham v. Roosevelt City. The case centered around five City wells, known as the Hayden Well Field, through which the City pumped water out of an unconfined, shallow aquifer underlying the Hayden area. The water level in the area dropped significantly due to the City's pumping. For example, the static water level at one well dropped from 14.3 feet to 94.6 feet.

A group of people who owned land near the Hayden Well Field were affected by the decreased water levels. The landowners found that when they applied water to their fields, the water was quickly drawn down deep into the soil. Thus, the landowners found it more costly and, in some instances, practically impossible to raise crops and livestock. The landowners filed suit against the City, claiming three causes of action: interference with water rights, takings, and negligence.

In the district court, the City moved for summary judgment on all three of the landowners' causes of action. The district court granted summary judgment, so the landowners filed an appeal with the Utah Supreme Court. The Utah Supreme Court affirmed in part and reversed in part.

First, the Court held that there was no taking because the City was using its lawfully appropriated water rights. The Court determined that the landowners' interest in the water table underlying their property was not a protectable interest under the Utah Constitution or the United States Constitution.

Second, the Court held that the landowners' interference claimed failed as a matter of law. Although the Court acknowledged that the City's pumping from the Hayden Well Field affected the soil saturation and the water table, the City was not interfering with the landowners' rights and ability to divert their water rights (which were diverted from surface sources).

Third, the Court held that the district court erred when it granted summary judgment in favor of the City on the landowners' negligence claim. The Court held that the negligence claim was not barred by the statute of limitations because the City's pumping--which caused the alleged damage--was a continuing tort. The Court also held that the City did owe a duty to the landowners to exercise reasonable care in obtaining its water. The Court recognized that the landowners would be able to prevail on their negligence claim if the facts support the landowners' assertion that there were alternative means for the City to obtain its water without adversely affecting the landowners. The case was remanded to the district court for additional proceedings on the negligence claim.

To read the full opinion, click here.

Utah Waterways Task Force

The Utah Waterways Task Force has set its first meeting for June 24, 2010 at 10:00 am at the Department of Natural Resources building (1594 West North Temple, Salt Lake City). The meeting notice can be viewed here.

Senator Dennis Stowell, the sponsor of the bill that established the Task Force, explained the purpose of the Task Force as follows:

"This task force will be made up of 12 legislators that will study . . . areas of the state which have conflicts between fishermen and landowners. The task force will hold public hearings to allow the landowners and fishermen testify about the conflicts in these areas. This process will help the legislature better understand how the problem may be solved. The task force will also address funding issues in regards to expanding the DWR Walk-in Access program, funding to permanently purchase access rights from landowners, and establishment of cooperative fishing management units (CFMU’S)."
(Click here for source of quote.)

The Task Force is made up of the following six representatives and six senators:
Rep. Melvin R. Brown (Co-Chair)
Sen. Dennis E. Stowell (Co-Chair)
Sen. Curtis S. Bramble
Sen. Margaret Dayton
Rep. Jack R. Draxler
Rep. Ben C. Ferry
Rep. James R. Gowans
Rep. Lynn N. Hemingway
Sen. Peter C. Knudson
Sen. Benjamin M. McAdams
Rep. Kay L. McIff
Sen. Karen W. Morgan

What Is the Difference Between a Water Right and a Water Share?

In the many conversations I have had with others regarding water-related issues, the most common mistake I hear is the confusion between "water right" and "water share." Hopefully the following discussion will clarify the distinction.

In Utah, all water is owned by the public. The Utah Code provides that "All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof. " The Utah Division of Water Rights administers the water on behalf of the public. In order to legally use water, a person must have a water right; in other words, the person must have permission from the Utah Division of Water Rights to use some of the public's water.

Many water rights are owned or held by mutual water companies (e.g., canal companies, ditch companies, or irrigation companies). The company issues stock to shareholders. By owning stock, a shareholder is entitled to use a portion of the company's water right. For example, if a ditch company owns a water right for 1,000 acre-feet of water and the company has 1,000 shareholders, each share represents the right to use 1 acre-foot of water from the company's water right.

The two terms are not interchangeable. Water shares ARE NOT water rights. The distinction between water rights and water shares is important for many reasons. For example, the manner of transferring water rights and water shares differs drastically. To transfer water rights (which are generally considered real property), a seller must convey the water right by deed, the deed must be recorded in the proper county recorder's office, and a Report of Conveyance must be filed with the Division of Water Rights. (Click here for more information.) Water shares are transferred according to the Utah Uniform Commercial Code and the water company's rules and regulations--generally by the seller endorsing the back of the share certificate and then having the company secretary issue a new share certificate to the buyer.

For additional information on this topic, click here.

2010 Legislature: Governor Signs Stream Access Bill

Today, Utah Governor Gary Herbert signed second substitute House Bill 141 into law. HB 141 was sponsored by Representative Kay McIff.

To read more about second substitute House Bill 141, click here.

Brown v. Utah Division of Water Rights

Last week, the Utah Supreme Court issued its opinion in Brown v. Division of Water Rights. This case began in 2006 when the Browns' neighbor applied to the Division for a stream alteration permit so that he could build a bridge across Little Cottonwood Creek. The Browns protested the permit, asserting that the bridge would diminish the Creek's ability to handle high water flow and would adversely impact the natural stream environment. Despite the Browns' protest, the Division issued the permit. The Browns filed a request for reconsideration, which the Division denied. The Browns then filed a petition for administrative review with the district court.

The neighbor filed a motion to dismiss the Browns' petition, arguing that the Browns lacked standing because they failed to allege a distinct and palpable injury. The district court agreed, and dismissed the Browns' petition for lack of standing. The Browns appealed to the Utah Court of Appeals, who affirmed the district court's decision. The Browns then appealed to the Utah Supreme Court. The Supreme Court reversed the Court of Appeals and district court, holding that the Browns did have standing because their allegations established a reasonable probability of future injury. The case has now been remanded for additional proceedings consistent with the Utah Supreme Court's decision.

To read the full opinion, click here.

2010 Legislature: Water Bills

Here are two more water bills that passed the Utah legislature this session:

HB 60 - Water Conveyance Facilities Safety Act (click here to read the substituted bill)
SB 281 - Public Access to Stream Beds - Utah Waterways Task Force

There were several bills that were considered, but were not passed:

HB 84 - Water Banking
HB 171 - Water Rights Revisions
HB 290 - Recreational Use of Privately Owned Stream Beds
HB 343 - Great Salt Lake Advisory Council
HJR 1 - Joint Resolution Amending Provision on Municipal Water Rights
SB 185 - Adoption of Canal Safety Act

2010 Legislature: New Stream Access Bill

Senator Dennis Stowell has introduced Senate Bill 281 (SB 281), entitled "Public Access to Stream Beds - Utah Waterways Task Force."

The bill creates the Utah Waterways Task Force, made up of six state senators and six state representatives, to "study issues concerning private property rights and public recreational access on public waters." These issues include restrictions of access to private beds of public waters, state purchases of access rights, and development of cooperative fish management units. The Task Force is to create a final report, including any proposed legislation, by November 30, 2010.

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

(For an update on this bill, click here.)

2010 Legislature: Substituted Stream Access Bill Passes

Representative McIff's stream access bill (HB 141) was substituted yesterday. The substituted bill is quite different from Representative McIff's original bill or first substitute.

The second substituted bill recognizes a "limited recreational floating right." The bill affirms the right to float that was granted by the Utah Supreme Court in JJNP Co. v. State, but limits the broader recreational access granted by the Utah Supreme Court in Conatser v. Johnson. Essentially, a person has the right to float down a stream (if the stream is capable of being floated on) across private property and can fish while floating, but may not stop on the private property. Incidental touching and portaging are allowed. If a person wants the broader recreational access (i.e., being able to stand on the private streambed to fish), public recreational access will have to be established by showing open, notorious, and adverse recreational use for at least 10 years.

To read the full text of the second substitute bill, click here.

Yesterday, the second substitute bill passed the Senate by a vote of 19 in favor and 10 against. Click here to see how each senator voted.

Today, the second substitute bill passed the House by a vote of 43 in favor, 28 against, and 4 absent or not voting. Click here to see how each representative voted.

The second substitute bill will now be enrolled and sent to Governor Herbert for his signature.

(For an update on this bill, click here.)

2010 Legislature: More Water Bills Passed

Here is an update on more water bills that have passed both the House and the Senate:

HB 231 - Water Rights Priorities in Times of Shortage (click here to read amended bill)
HB 314 - Water Rights Addendums to Deeds (click here to read substituted bill)
HB 298 - Land Use Authority Notification of Canal Development (click here to read substituted bill)
HJR 26 - Joint Resolution Approving Water Rights Addendum Form (click here to read the substituted resolution)
SB 32 - Rainwater Harvesting (click here to read the substituted bill)

As a note, SB 99 (Water Companies and Water Right Change Requests) failed in the Senate.

To see other bills that have passed this session in the Utah legislature, click here and here.

2010 Legislature: More Water Bills Passed

Here is an update on more water bills that have passed both the House and the Senate.

HB 54 - Property Tax Exemption for Water Facilities
HJR 2 - Joint Resolution on Property Tax Exemption for Water Facilities
SB 20 - Local District Amendments

To see other water bills that have passed this session, click here.