Personnel Changes at Utah Division of Water Rights

The Utah Division of Water Rights has recently made some personnel changes in key positions. These changes include:

• John Mann has retired from his position as the Assistant State Engineer for Applications and Records.
• Teresa Wilhelmsen, who was previously the Regional Engineer for the Utah Lake/Jordan River Region, has been appointed as the Assistant State Engineer for Applications and Records.
• Ross Hansen, who was previously the Regional Engineer for the Weber River/Western Region, has been appointed as the Regional Engineer for the Utah Lake/Jordan River Region.

The Division has not yet selected a new Regional Engineer for the Weber River/Western Region

Bresee v. Barton

The Utah Court of Appeals recently issued its opinion in the case of Bresee v. Barton. The case dealt with issues of joint use of a pipeline and condemnation of an easement for water use.

The Bresees owned a piece of land that was surrounded on three sides by the Bartons' farmland. The Bartons irrigated their farmland with a combination of water from an irrigation company and water from a well on their property. Both sources of water were conveyed in a mainline through the Bartons' property. The Bresees also owned shares in the irrigation company, but did not have a way to convey their irrigation water to their property other than by using the Bartons' mainline. The Bresees (like their predecessors) entered into agreements with the Bartons under which the Bresees could convey their irrigation water through the Bartons' mainline in exchange for the Bartons being allowed to farm part of the Bresees' property. After a few years, a dispute arose between the Bartons and the Bresees, and the agreement was terminated. Shortly thereafter, the Bresees entered onto the Bartons' property, dug down to the mainline, installed a T-connection, and ran a water line back to the Bresees' property. Upon discovering this action, the Bartons removed the T-connection and restored the mainline to its prior state.

The Bresees then filed an action in district court claiming an easement to convey their water through the mainline. The Bresees relied on various legal theories, including eminent domain (condemnation). The district court first granted summary judgment against the Bresees, determining that the Bresees did not have an easement to use the Bartons' mainline. Following a trial, the district court again determined that the Bresees had no easement to access the Bartons' mainline, and consequently ruled in favor of the Bartons. The district court awarded trespass damages, punitive damages, and attorney fees to the Bartons. The Bresees appealed the decision to the Court of Appeals.

In its decision, the Court of Appeals reviewed Utah Code section 73-1-6, which gives a private right of condemnation for reservoirs, dams, canals, ditches, pipelines, and other water conveyance facilities. The Court noted prior case law that condemnation is allowed only if the plaintiff "does not interfere with the rights and use of the defendant's water." In this case, the Bartons had asserted that if the Bresees used the mainline, it would interfere with the Bartons' use of their water shares and water rights. The Bartons' assertions were supported by affidavit testimony. Although the Bresees had attempted to counter the Bartons' assertions through affidavit testimony of their own, the Bresees' affidavits had been struck by the district court because the affidavits contained legal conclusions, lacked foundation, and included inadmissible hearsay. This effectively meant that the Bartons' claims of interference were undisputed. Accordingly, the Court of Appeals concluded that the district court had properly concluded that the Bresees could not condemn an easement in the mainline due to the considerable interference that would result to the Bartons. Accordingly, the Court of Appeals upheld the district court's ruling in favor of the Bartons.

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

Public Meeting Concerning the General Adjudication in Rose Park Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Rose Park area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 8). The Rose Park area is generally from Main Street on the east to the Jordan River on the west, and from South Temple on the south to the Salt Lake County / Davis County line on the north (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Rose Park area
When: November 30, 2016, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1050, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 360057298), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Rose Park Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Rose Park area to survey existing water rights and investigate water user's claims. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Rose Park area, please contact Blake Bingham at (801)538-7345.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

The meeting will also be available for remote viewing on YouTube at this link.

For more information about the public meeting, click here.

What Is a Notice to File Statement of Water User's Claim?

Across the State of Utah, there are numerous ongoing General Adjudications, which are court actions to determine all water rights in a given area. Some General Adjudications have been in the process for decades, while other General Adjudications have just begun. Recently, the Utah legislature passed a law that modifies how General Adjudications are administered by the courts and the Utah Division of Water Rights. These new General Adjudications are generally being done in small chunks; i.e., rather than trying to adjudicate a whole river basin at once, the large area is divided into much smaller "subdivisions." For example, the Division has recently initiated General Adjudications in the Rose Park Area, the Jordan Park Area, the West Mill Creek Area, and the Nibley Park Area in Salt Lake County.

If the Division thinks you might own a water right in an adjudication area, or if you are the owner of land in an adjudication area, the Division will include you in the adjudication process. The first notice you will generally receive is a letter letting you know that an adjudication has begun. The letter will generally provide information about a public meeting to discuss the adjudication process. Also included will be a Summons, which is necessary due to the fact that a General Adjudication is a court process.

After the public meeting is held, the next notice you will generally receive is a "Notice to File Statement of Water User's Claim." This Notice alerts you that if you wish to assert a water right within the adjudication area, you must file a Water User's Claim within 90 days. If you do not file a Water User's Claim within the 90-day time period, you will likely lose your water right and/or all right to assert a water right. With this Notice, the Division sends a Water User's Claim form. If the Division has information that you own a particular water right, the Water User's Claim will already be filled out with the water right information that the Division has on its records. If the Division does not have information that you own a water right, the Water User's Claim form will be blank.

Due to the nature of the General Adjudication, it is incumbent that anyone wishing to assert a water right file a Water User's Claim within the 90-day time period. If you need help determining if you can claim a water right or filling out a Water User's Claim, contact me to set up an initial consultation.

Public Meeting Regarding Groundwater Management Plan in Iron County

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

What: Public Meeting
Who: Cedar Valley Water Users
When: December 8, 2016, 6:00 pm
Where: Cedar High School Auditorium, 703 West 600 South, Cedar City
Purpose: The purpose of the meeting is to discuss the process for developing a groundwater management plan for Cedar Valley in Iron County. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.
If you are unable to attend the meeting, but would like to provide input, please send your written comments to:
Division of Water Rights
646 North Main St
P.O. Box 506
Cedar City, UT 84721-0506
Agenda:
1. Welcome/Introduction
2. Groundwater Management Plan Discussion
3. Public Questions/Comments

For more information on the meeting, click here.

What Is a Special Master's Notice and Order to Show Cause?

This blog articles provides an explanation of a "Special Master's Notice and Order to Show Cause Why Objection to State Engineer's Proposed Determination Should Not Be Dismissed," and what should be done in response to such a Notice.

A General Adjudication is a court action to determine all water rights in a specific area. The Division of Water Rights plays an important role in the General Adjudication, including the preparation of a Proposed Determination, which is a recommendation to the court of the status and quantification of all water rights in the area.

Several decades ago, a General Adjudication was initiated in the Utah Lake and Jordan River area, which area covers all or parts of Salt Lake County, Utah County, Wasatch County, Summit County, and Sanpete County. This large area was divided into smaller "subdivisions," and Proposed Determinations were issued for many of these subdivisions. As allowed by law, some water users filed objections to water rights in the Proposed Determinations. In some circumstances, water users filed objections on their own water rights. For example, a water user may have felt that the Proposed Determination quantified his/her water right for less water than should have been allowed. In other circumstances, water users filed objections on other people's water rights. For example, a water user may have felt that a neighboring user was granted more water than should have been allowed.

These objections, which were filed with the district court, were never fully resolved through the court process. Accordingly, these objections have remained unsettled for several decades. In order to help get these objections resolved, the district court has appointed a Special Master to handle the objections. To get the process started, the Special Master is sending out a "Special Master's Notice and Order to Show Cause Why Objection to State Engineer's Proposed Determination Should Not Be Dismissed" for each objection. The Notice is being sent to each objector and/or successor-in-interest to each objector. Because decades have passed since the objections were originally filed, in many cases the people receiving these notices may have no idea that their predecessor filed an objection.

If a person receives a Notice, they will need to determine whether they want to pursue the objection. If they elect to pursue the objection, they will need to file the "Notice of Intent to Proceed with Objection Proceeding" with the court within 35 days of the date of the Notice. The Special Master will then set a scheduling conference in order to set a schedule for the objection to proceed through the court process.

If you have received a Notice and need assistance understanding the objection and determining whether to proceed with the objection, contact me to set up an initial consultation.

Little Cottonwood Tanner Ditch Co. v. Sandy City

The Utah Supreme Court recently issued its opinion in the case of Little Cottonwood Tanner Ditch Co. v. Sandy City. The opinion addresses the important issue of when and under what circumstances a water decree can be modified by a court.

The facts of this case go back almost 140 years. In 1878, the several railroad companies entered into an agreement with five ditch companies to acquire water from Little Cottonwood Creek. Under the agreement, the railroads were given the right to use one-tenth of the water in the Creek in exchange for a payment of $25 per month. The railroads' interest in the agreement were later assigned to Salt Lake County Water Company (SLCWC). In 1902, a general adjudication of Little Cottonwood Creek was initiated in court. In 1910, the court issued its final decree adjudicating the water rights, which is commonly referred to as Little Cottonwood Morse Decree. As part of the Decree, the court terminated the 1878 agreement and replaced it with a provision that required SLCWC to pay $75 per month to the five ditch companies in exchange for the right to use one-tenth of the ditch companies' water from the Creek.

In later years, SLCWC's interest was conveyed to Sandy City and Sandy Irrigation Company (Sandy). Because the Decree did not include any provisions for the payment to increase based on inflation or increased water value, Sandy continued to pay $75 per month for the water for more than 100 years. In 2013, three of the ditch companies (Little Cottonwood Tanner Ditch Company, Richards Irrigation Company, and Walker Ditch Company) sought to increase the payment amount. These ditch companies filed a motion with the district court to modify the payment provision contained in the Decree. The district court concluded that it did not have the authority to re-open the Decree, and therefore denied the motion. The ditch companies then appealed the decision to the Utah Supreme Court.

The canal companies asserted that prior Utah Supreme Court decisions had created a common-law rule that permitted the Decree to be re-opened and the payment provision to be modified. The Court reviewed these prior decisions, beginning with Orderville Irrigation Co. v. Glendale Irrigation Co. This case acknowledged that a water decree is not "the usual type of judgment" and that a court "has continuing jurisdiction, when properly invoked, to see its provisions are being complied with" and when "there are uncertainties in the decree which give genuine dispute as to the rights of the parties concerning the use of such waters." The Court determined that these principles enunciated in Orderville are limited to asking a court to enforce a water decree, and do not include or permit a party to ask a court to modify or change any term of a water decree.

The Court also looked at the Salt Lake City v. Salt Lake City Water & Electric Power Co. case. In this case, the parties sought court action to resolve disputes that had arisen regarding how the parties paid of operation of pumps pursuant to a prior water decree. The decision noted that if "conditions requiring it have arisen that can be established by proper evidence, the lower court has ample power to modify the decree so as to reflect equity and justice under all circumstances to all the water users." The Court again distinguished this language and determined that it only applied to water infrastructure and not to water rights and water use.

After distinguishing these two cases, the Court then reviewed the language of the Decree and determined that the Decree language did not specifically provide for the district court's continuing jurisdiction over the Decree, such that the court could re-open the Decree and modify the payment provision. Accordingly, the Court concluded that the district court had properly dismissed the ditch companies' motion to amend the Decree. The Court did note, however, that there may be other procedural paths that the ditch companies could pursue to invoke the district court's jurisdiction, such as initiating a separate legal action for contract reformation.

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

Recording of Jordan Park Area Adjudication Meeting

If you were unable to attend the October 18, 2016 public meeting concerning the Proposed Determination in the Jordan Park Area, but would like to get more information about the proceedings, you can view a recording of the meeting by clicking here.

Washington Townhomes LLC v. Washington County Water Conservancy District

The Utah Supreme Court recently issued its decision in the case of Washington Townhomes LLC v. Washington County Water Conservancy District. The case started as a class action lawsuit by property owners and developers who paid impact fees to Washington County Water Conservancy District. These plaintiffs asserted that the impact fees violated the Utah Impact Fees Act and constituted a taking under the state and federal constitutions. The District defended its impact fees by asserting that the fees were based on a "level of service" standard imposed by the Utah Division of Drinking Water, and by asserting that its adoption of the level of service standard was a legislative judgment that should survive judicial scrutiny.

The district court agreed with the District, and concluded that the level of service that was adopted by the District and that was based on DDW standards was "legal and reasonable as a matter of law." Accordingly, the court granted partial summary judgment in favor of the District. Additionally, pursuant to a stipulation of the plaintiffs and the District, the court certified that the case could be immediately appealed under Rule 54(b) of the Utah Rules of Civil Procedure. The case was then appealed to the Utah Supreme Court.

The Supreme Court did not get to the substantive question of whether the impact fees were properly based on the DDW standards. Rather, the Supreme Court dismissed the appeal on jurisdictional grounds. The Supreme Court determined that although the district court's ruling made an important determination in the case context, the ruling did not qualify for appeal certification under Rule 54(b) because the ruling did not finally dispose of any claim and did not finally adjudicate the interests of a party to the case.

The Supreme Court further considered whether to exercise its discretion to treat the appeal as a petition for interlocutory appeal under Rule 5 of the Utah Rules of Appellate Procedure. The Supreme Court noted the precedent that an interlocutory appeal is appropriate "to adjudicate principles of law or procedure in advance as a necessary foundation upon which the trial may proceed." Although the Supreme Court noted that the level of service question was an important issue in the case, the Supreme Court declined to accept the appeal because it determined that the district court's ruling was unclear and had unanswered factual and legal questions. For example, the Supreme Court felt that there was an unanswered question as to whether the District was legally required to build infrastructure and facilities in accordance with the DDW level of service standards. Accordingly, the Supreme Court declined to accept the appeal, dismissed the appeal, and sent the case back to the district court for further proceedings.

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

Public Meeting Concerning the Proposed Determination in the Jordan Park Area

The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Jordan Park area in Salt Lake County East Division of the Utah Lake / Jordan River Drainage (Area 57, Book 7). The Jordan Park area is generally from 300 West on the east to the Jordan River on the west, and from 2700 South on the south to South Temple on the north (see map below). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Jordan Park area
When: October 18, 2016, 6:00 to 7:00 pm
Where: Department of Natural Resources, Room 1040, 1594 W. North Temple, Salt Lake City
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 360057298), the State Engineer is authorized and ordered to conduct a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Jordan Park Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Jordan Park area to survey existing water rights and investigate water user's claims. Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the area, and answer questions. If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Jordan Park area, please contact Blake Bingham at (801)538-7345.
Agenda:
1.  Introduction (Blake Bingham, P.E. - Adjudication Program Manager)
2.  Adjudication Process Presentation
3.  Public Comments and Questions

For more information on the meeting, click here.
Update: To view a recording of the meeting, click here.