Senator Margaret Dayton has introduced a bill to make some changes to Utah Code section 73-3-17. The bill has been numbered Senate Bill 26 (S.B. 26) and is entitled "Water Law Modifications."
Most of the proposed changes in the bill are small, technical changes. The most significant change relates to certificates of beneficial use (aka certificates of appropriation) that are issued by the State Engineer. Currently, the law requires the water right owner to record the certificate with the appropriate county recorder's office within 30 days after the certificate has been issued. This bill removes the recording requirement, but provides that a water right owner may record the certificate if he/she wants to.
To read the full text of the bill, click here.
(For an update on this bill, click here.)
Tuesday, December 21, 2010
Friday, December 17, 2010
What Is the Process for Approval of a Change Application or Application to Appropriate?
After a Change Application or Application to Appropriate has been filed with the Utah Division of Water Rights, there is a process that the application must go through before it is approved or denied.
The application must first be advertised once a week for two successive weeks in a newspaper of general circulation in the county. Advertising may not be required on a temporary change application or on an application on a small amount of water (defined as the amount of water necessary for one residence, 0.25 acres of irrigation, and stockwater for ten ELUs).
Interested parties may file a protest with the State Engineer. The protest period is for twenty days following the advertisement. A hearing may held if a protestant requests a hearing or if the Division of Water Rights has other reasons or concerns for holding a hearing.
Following the hearing (or following the protest period, if no hearing is required), the Division will review all of the information before it, including the application, the protests, the information obtained at the hearing, and other data on file with the Division. The Division may also conduct a field investigation or request additional information from the applicant.
The State Engineer will then issue an order either approving or rejecting the application. The order will also generally contain limitations and conditions of approval. There is no real timeline for when the order will be issued. Generally, it takes six to eight weeks from the date of the hearing, but on more complex applications, it may take several months or even years for an order to be issued.
If a party disagrees with the State Engineer's order, he/she can file a request reconsideration within twenty days from the date the order is issued. The State Engineer may grant the request for reconsideration and issue an amended order. The State Engineer may also deny the request for reconsideration, either by expressly denying the request or by not taking any action on the request for twenty days after the request is filed (at which point the request is deemed denied). The aggrieved party then has thirty days to appeal to the district court.
For a flow chart of the application process, click here.
To read the statutes about the application process, click here.
The application must first be advertised once a week for two successive weeks in a newspaper of general circulation in the county. Advertising may not be required on a temporary change application or on an application on a small amount of water (defined as the amount of water necessary for one residence, 0.25 acres of irrigation, and stockwater for ten ELUs).
Interested parties may file a protest with the State Engineer. The protest period is for twenty days following the advertisement. A hearing may held if a protestant requests a hearing or if the Division of Water Rights has other reasons or concerns for holding a hearing.
Following the hearing (or following the protest period, if no hearing is required), the Division will review all of the information before it, including the application, the protests, the information obtained at the hearing, and other data on file with the Division. The Division may also conduct a field investigation or request additional information from the applicant.
The State Engineer will then issue an order either approving or rejecting the application. The order will also generally contain limitations and conditions of approval. There is no real timeline for when the order will be issued. Generally, it takes six to eight weeks from the date of the hearing, but on more complex applications, it may take several months or even years for an order to be issued.
If a party disagrees with the State Engineer's order, he/she can file a request reconsideration within twenty days from the date the order is issued. The State Engineer may grant the request for reconsideration and issue an amended order. The State Engineer may also deny the request for reconsideration, either by expressly denying the request or by not taking any action on the request for twenty days after the request is filed (at which point the request is deemed denied). The aggrieved party then has thirty days to appeal to the district court.
For a flow chart of the application process, click here.
To read the statutes about the application process, click here.
Wednesday, December 8, 2010
Introduction to Wetland Laws and Regulations
The following article was written for the Water & The Law newsletter that our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.
Even though Utah is the second-driest state in the nation, wetlands issues frequently arise in many different situations, including land development, mining and mineral extraction, agriculture, and stream alteration. The Clean Water Act (CWA) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," i.e. to make the nation's waters fishable and swimmable. The CWA seeks to do this by preventing future contamination and pollution of waters. The central feature of the CWA is section 301, which prohibits the discharge of any pollutant into a navigable water, including wetlands, unless otherwise authorized by a permit. One of the most common permits issued under the CWA is a section 404 wetlands permit issued by the Army Corps of Engineers (Corps) for certain discharges of "dredged or fill material" into wetlands.
In determining whether a wetlands permit is required for a particular project, it must first be determined whether the area that will be impacted by a proposed activity is within the Corps' regulatory jurisdiction under the CWA. Waters within the Corps' jurisdiction include navigable waters; tributaries to navigable waters; interstate wetlands; wetlands that could affect interstate or foreign commerce; and wetlands "adjacent" to any of the above. Wetlands are determined based on the presence of three elements: soils, hydrology, and vegetation. The physical boundaries of a wetland are determined by a "delineation" conducted by either the Corps or a licensed professional.
The U.S. Supreme Court recently muddied the waters regarding the extent of the Corps' jurisdiction over wetlands not immediately adjacent to traditionally navigable waters. See Rapanos v. United States, 547 U.S. 715 (2006). In a divided opinion, the Court established two different standards for determining jurisdiction, neither of which has gained traction as the official test.
Second, the proposed activity must also be within the Corps' regulatory jurisdiction under the CWA for a permit to be required. Section 404 prohibits the "discharge of dredged or fill material into the navigable waters" except upon issuance of a permit. Certain activities that otherwise constitute a "discharge of dredged or fill material" are exempted from regulation. Projects should be analyzed to see if they qualify for an exemption.
If both the area and the activity are within the Corps' section 404 regulatory jurisdiction, any activity that impacts the wetland must obtain a permit from the Corps. General Permits are issued for regulated discharges with minimal adverse effects, while individual permits are required for potentially significant impacts to wetlands. The individual permit process is more involved, requiring compliance with criteria established in the EPA's 404(b)(1) Guidelines. An individual permit may also be denied if it "would be contrary to the public interest."
Under either type of permit, if impacts to a wetland are unavoidable, the permittee must attempt to minimize the impacts in the design of the project. If impacts to the wetlands remain after minimization, the permittee must provide compensatory mitigation, which primarily involves restoration, enhancement, creation, and preservation of other wetlands. The Corps now approves of, and in fact prefers, mitigation banking and in-lieu-fee mitigation as alternatives to traditional compensatory mitigation. With proper planning many difficulties in dealing with wetlands issues can be prevented.
Click here for a more detailed article regarding wetlands regulations.
Even though Utah is the second-driest state in the nation, wetlands issues frequently arise in many different situations, including land development, mining and mineral extraction, agriculture, and stream alteration. The Clean Water Act (CWA) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," i.e. to make the nation's waters fishable and swimmable. The CWA seeks to do this by preventing future contamination and pollution of waters. The central feature of the CWA is section 301, which prohibits the discharge of any pollutant into a navigable water, including wetlands, unless otherwise authorized by a permit. One of the most common permits issued under the CWA is a section 404 wetlands permit issued by the Army Corps of Engineers (Corps) for certain discharges of "dredged or fill material" into wetlands.
In determining whether a wetlands permit is required for a particular project, it must first be determined whether the area that will be impacted by a proposed activity is within the Corps' regulatory jurisdiction under the CWA. Waters within the Corps' jurisdiction include navigable waters; tributaries to navigable waters; interstate wetlands; wetlands that could affect interstate or foreign commerce; and wetlands "adjacent" to any of the above. Wetlands are determined based on the presence of three elements: soils, hydrology, and vegetation. The physical boundaries of a wetland are determined by a "delineation" conducted by either the Corps or a licensed professional.
The U.S. Supreme Court recently muddied the waters regarding the extent of the Corps' jurisdiction over wetlands not immediately adjacent to traditionally navigable waters. See Rapanos v. United States, 547 U.S. 715 (2006). In a divided opinion, the Court established two different standards for determining jurisdiction, neither of which has gained traction as the official test.
Second, the proposed activity must also be within the Corps' regulatory jurisdiction under the CWA for a permit to be required. Section 404 prohibits the "discharge of dredged or fill material into the navigable waters" except upon issuance of a permit. Certain activities that otherwise constitute a "discharge of dredged or fill material" are exempted from regulation. Projects should be analyzed to see if they qualify for an exemption.
If both the area and the activity are within the Corps' section 404 regulatory jurisdiction, any activity that impacts the wetland must obtain a permit from the Corps. General Permits are issued for regulated discharges with minimal adverse effects, while individual permits are required for potentially significant impacts to wetlands. The individual permit process is more involved, requiring compliance with criteria established in the EPA's 404(b)(1) Guidelines. An individual permit may also be denied if it "would be contrary to the public interest."
Under either type of permit, if impacts to a wetland are unavoidable, the permittee must attempt to minimize the impacts in the design of the project. If impacts to the wetlands remain after minimization, the permittee must provide compensatory mitigation, which primarily involves restoration, enhancement, creation, and preservation of other wetlands. The Corps now approves of, and in fact prefers, mitigation banking and in-lieu-fee mitigation as alternatives to traditional compensatory mitigation. With proper planning many difficulties in dealing with wetlands issues can be prevented.
Click here for a more detailed article regarding wetlands regulations.
How Does the Law Treat Lost Share Certificates in Water Companies?
The following article was published in the Water & The Law newsletter, which our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.
When the pioneers settled Utah in the 1800s, they often banded together to construct common water diversion, storage, and distribution facilities. Over time, these associations of water users were incorporated into nonprofit mutual water corporations. In these companies, the water rights are held in the name of the corporation for the benefit of its members. Shares of stock were issued to signify how much water each individual is entitled to receive. In most cases, to transfer the shares of stock, the shareholder would need to endorse the certificate to a new owner. Thus, the certificate was critical to establish and transfer ownership of the shares and the attendant right to water delivery.
This system works well in most cases, but it presents a challenge whenever a certificate is lost, destroyed, or stolen. Under the Uniform Commercial Code, a portion of which is applicable to transfers of shares of stock in a water corporation, the corporation cannot simply re-issue the share with impunity. If the lost or stolen certificate is later discovered, the corporation would usually need to honor both the replacement certificate and the original. Because shares of a water corporation represent a right to delivery of a proportionate share of the corporation's water rights, dilution of the shares in this manner is especially unpalatable to the other shareholders. To account for these risks, many water corporations have a series of requirements before they will issue a replacement certificate. For example, many corporations require the person requesting a new certificate to post or obtain a perpetual bond to protect the corporation in the event the original certificate surfaced. Recently, however, it has become more and more difficult to secure such a bond.
To address this difficulty, the Utah Executive Water Task Force has recently approved a draft bill in an attempt to streamline this process. The bill is expected to be presented to the 2011 Utah State Legislature for consideration. The present draft of the bill continues to give the corporation the ability to establish its own requirements for issuing a new certificate in its Articles of Incorporation or Bylaws. Without such requirements, however, the new law would provide some options for the water corporation to both protect itself and allow a new share to be issued. For example, the proposed bill would give the water corporation the option to, at the expense of the person requesting the new certificate, publish and mail notice of the request to issue a replacement certificate. The bill then outlines a process that the corporation can use to resolve share ownership disputes. There will undoubtedly be further revisions of the bill before it is passed, but it is a step toward solving this challenge that often faces water corporations and shareholders.
(Update: Click here to read about the bill introduced in the 2011 Utah Legislature.)
When the pioneers settled Utah in the 1800s, they often banded together to construct common water diversion, storage, and distribution facilities. Over time, these associations of water users were incorporated into nonprofit mutual water corporations. In these companies, the water rights are held in the name of the corporation for the benefit of its members. Shares of stock were issued to signify how much water each individual is entitled to receive. In most cases, to transfer the shares of stock, the shareholder would need to endorse the certificate to a new owner. Thus, the certificate was critical to establish and transfer ownership of the shares and the attendant right to water delivery.
This system works well in most cases, but it presents a challenge whenever a certificate is lost, destroyed, or stolen. Under the Uniform Commercial Code, a portion of which is applicable to transfers of shares of stock in a water corporation, the corporation cannot simply re-issue the share with impunity. If the lost or stolen certificate is later discovered, the corporation would usually need to honor both the replacement certificate and the original. Because shares of a water corporation represent a right to delivery of a proportionate share of the corporation's water rights, dilution of the shares in this manner is especially unpalatable to the other shareholders. To account for these risks, many water corporations have a series of requirements before they will issue a replacement certificate. For example, many corporations require the person requesting a new certificate to post or obtain a perpetual bond to protect the corporation in the event the original certificate surfaced. Recently, however, it has become more and more difficult to secure such a bond.
To address this difficulty, the Utah Executive Water Task Force has recently approved a draft bill in an attempt to streamline this process. The bill is expected to be presented to the 2011 Utah State Legislature for consideration. The present draft of the bill continues to give the corporation the ability to establish its own requirements for issuing a new certificate in its Articles of Incorporation or Bylaws. Without such requirements, however, the new law would provide some options for the water corporation to both protect itself and allow a new share to be issued. For example, the proposed bill would give the water corporation the option to, at the expense of the person requesting the new certificate, publish and mail notice of the request to issue a replacement certificate. The bill then outlines a process that the corporation can use to resolve share ownership disputes. There will undoubtedly be further revisions of the bill before it is passed, but it is a step toward solving this challenge that often faces water corporations and shareholders.
(Update: Click here to read about the bill introduced in the 2011 Utah Legislature.)
Sunday, November 28, 2010
2010 Utah Groundwater Report
Each year, the United States Geological Survey (USGS) publishes a report on groundwater conditions in Utah. The report is prepared and published in cooperation with the Utah Division of Water Resources, the Utah Division of Water Rights, and the Utah Division of Water Quality. The report is a valuable resource containing information on well construction, groundwater withdrawal, groundwater level changes, groundwater quality, and much more.
The 2010 report is available online and can be accessed by clicking here.
The 2010 report is available online and can be accessed by clicking here.
Saturday, November 27, 2010
What is an ELU?
Records of the Utah Division of Water Rights often utilize the term “ELU.” This abbreviation stands for Equivalent Livestock Unit, which is a standardized measure related to the watering of various sized livestock. For example, 1 ELU could represent 1 large animal, such as a cow or horse; 5 medium-sized animals, such as sheep or goats; or 33.33 small animals, such as chickens or turkeys. Accordingly, if you have a water right that allows for stockwatering of 50 ELUs, you would have enough water for 50 cows, or 250 sheep, or 1,666 chickens (or a combination of animals, such as 40 cows and 50 sheep).
Tuesday, November 23, 2010
What Are Supplemental Groups and Sole Supply?
Generally, each water right in Utah is limited to a defined quantity for a defined use. Sometimes, however, multiple water rights are used together for one particular use. For example, three water rights may be jointly used to irrigate ten acres of land, or ten water rights may be jointly used to provide water for 200 head of cattle. In such cases, the water rights are said to be "supplemental" to each and are listed together in a “supplemental group.”
The water rights in the supplemental group are usually not assigned an individual limit, which is not an issue if the same person owns all of the water rights in the supplemental group and continues to use the group for the specified use. However, when some of the water rights in the supplemental group are sold to different people and/or an owner wants to file a change application on some of the water rights in the supplemental group, a determination has to be made regarding how much of the group total is to be apportioned to each water right in the group. This is what is referred to as “sole supply.” For example, if ten water rights are in a supplemental group that provides water for 200 head of cattle, each of the ten water rights could be apportioned a sole supply of 20 head of cattle. Alternatively, five of the water rights could be apportioned a sole supply of 40 head of cattle each, and the other five water rights could be apportioned a sole supply of 0 head of cattle each. The Division of Water Rights essentially allow the water right owner(s) to apportion the sole supply in any way they want, as long as the sum of the water rights does not exceed the group total and the allocation is consistent with the governing water right documents.
The Utah Division of Water Rights has recently issued Utah Administrative Rule R655-16 regarding supplemental groups and sole supply. The Rule provides that in order to allocate sole supply among the water rights in a supplemental group, all of the water right owners in the group must sign a Declaration of Beneficial Use (formerly called a Group Contribution Statement). If a water right owner has exhausted all reasonable efforts and has been unable to locate or get signatures from all of the other water right owners, the owner may ask the Division of Water Rights to initiate an informal proceeding to allocate the sole supply. To read more about Rule R655-16, click here.
The water rights in the supplemental group are usually not assigned an individual limit, which is not an issue if the same person owns all of the water rights in the supplemental group and continues to use the group for the specified use. However, when some of the water rights in the supplemental group are sold to different people and/or an owner wants to file a change application on some of the water rights in the supplemental group, a determination has to be made regarding how much of the group total is to be apportioned to each water right in the group. This is what is referred to as “sole supply.” For example, if ten water rights are in a supplemental group that provides water for 200 head of cattle, each of the ten water rights could be apportioned a sole supply of 20 head of cattle. Alternatively, five of the water rights could be apportioned a sole supply of 40 head of cattle each, and the other five water rights could be apportioned a sole supply of 0 head of cattle each. The Division of Water Rights essentially allow the water right owner(s) to apportion the sole supply in any way they want, as long as the sum of the water rights does not exceed the group total and the allocation is consistent with the governing water right documents.
The Utah Division of Water Rights has recently issued Utah Administrative Rule R655-16 regarding supplemental groups and sole supply. The Rule provides that in order to allocate sole supply among the water rights in a supplemental group, all of the water right owners in the group must sign a Declaration of Beneficial Use (formerly called a Group Contribution Statement). If a water right owner has exhausted all reasonable efforts and has been unable to locate or get signatures from all of the other water right owners, the owner may ask the Division of Water Rights to initiate an informal proceeding to allocate the sole supply. To read more about Rule R655-16, click here.
Saturday, November 20, 2010
Utah Stream Access Coalition v. Victory Ranch
On November 12, 2010, a lawsuit was filed in the Wasatch County district court challenging the 2010 stream access law passed by the Utah Legislature (aka, the "Recreational Use of Public Water on Private Property Act," House Bill 141, or H.B. 141). The lawsuit was filed by Utah Stream Access Coalition, and names Victory Ranch L.C., Silver Creek - Robert Larsen Investors LLC, Utah Division of Wildlife Resources, and Wasatch County Sheriff Todd Bonner as defendants.
The complaint alleges that the Act violates Article I, section 25; Article XVII, and Article XX of the Utah Constitution and the Public Trust doctrine "to the extent it purports to abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public water and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in [Conatser v. Johnson] and other Utah Supreme Court decisions."
The complaint also alleges that the Act violates Article I, section 23; Article V; Article VI; and Article VIII of the Utah Constitution and the separation of powers doctrine "to the extent that it purports to (a) adjudicate the constitutional rights of the Coalition's members and defendants, (b) declare that Conatser's recognition of public rights constitutes a taking of private property, and (c) abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public waters and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in Conatser and other Utah Supreme Court decisions."
The Coalition is asking the court for a judgment (1) declaring that the Act violates the Utah Constitution, the public trust doctrine, and the separation of powers doctrine; (2) declaring that the public has an easement for recreational access across private beds, including those on the Victory Ranch and Larsen properties; (3) enjoining Victory Ranch and Larsen from prohibiting, impeding, or restricting public access across private beds on their properties; and (4) enjoining the Division of Wildlife Resources and the Wasatch County Sheriff from citing members of the public for criminal trespass for accessing private beds on the Victory Ranch and Larsen properties.
I have a copy of the Coalition's complaint that was filed with the court. I would be happy to email a copy to anyone who is interested. Click here for my email address.
Update: The Coalition has filed an Amended Complaint. Click here to read more.
The complaint alleges that the Act violates Article I, section 25; Article XVII, and Article XX of the Utah Constitution and the Public Trust doctrine "to the extent it purports to abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public water and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in [Conatser v. Johnson] and other Utah Supreme Court decisions."
The complaint also alleges that the Act violates Article I, section 23; Article V; Article VI; and Article VIII of the Utah Constitution and the separation of powers doctrine "to the extent that it purports to (a) adjudicate the constitutional rights of the Coalition's members and defendants, (b) declare that Conatser's recognition of public rights constitutes a taking of private property, and (c) abrogate or relinquish, to the enrichment of private landowners, the public easement, right-of-way and servitude to lawfully access and use Utah's public waters and related public resources for recreational and other lawful purposes . . . and to reasonably touch and use the bed of such waters when doing so, as recognized in Conatser and other Utah Supreme Court decisions."
The Coalition is asking the court for a judgment (1) declaring that the Act violates the Utah Constitution, the public trust doctrine, and the separation of powers doctrine; (2) declaring that the public has an easement for recreational access across private beds, including those on the Victory Ranch and Larsen properties; (3) enjoining Victory Ranch and Larsen from prohibiting, impeding, or restricting public access across private beds on their properties; and (4) enjoining the Division of Wildlife Resources and the Wasatch County Sheriff from citing members of the public for criminal trespass for accessing private beds on the Victory Ranch and Larsen properties.
I have a copy of the Coalition's complaint that was filed with the court. I would be happy to email a copy to anyone who is interested. Click here for my email address.
Update: The Coalition has filed an Amended Complaint. Click here to read more.
Thursday, November 4, 2010
Utah Waterways Task Force Meeting in Salt Lake City
The Utah Waterways Task Force has scheduled its fourth meeting for Thursday, November 18, 2010 at 11:00 am. The meeting will be held in Room 250 of the State Capitol.
To view the meeting notice and other information about the Task Force, click here.
To view the meeting notice and other information about the Task Force, click here.
Saturday, October 23, 2010
Livestock Water Use Certificates
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.
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.
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