New Stream Access Bill

A few days ago, I received the first draft of a bill regarding recreational access to streams that could be introduced in the 2010 legislative session. This bill is being sponsored by Representative Lorie Fowlke (R-Orem). The bill is a "starting point for discussion" and will likely see some changes prior to being introduced in the 2010 legislative session, but I wanted to provide a brief summary of the bill as it currently stands.

In July 2008, the Utah Supreme Court issued its decision in Conatser v. Johnson. The court held that members of the public may enter a stream at a public access point and follow the stream through private land to float, hunt, fish, swim, or do any other recreational activity that utilizes the water without committing trespass.

In the 2009 legislative session, Representative Ben Ferry (R-Corinne) introduced House Bill 187. Under the bill, the public would be allowed to engage in recreational activities in rivers that cross private property only if the rivers are designated “public waters." The bill contained an initial list of "public waters" that could be amended by a recreational access board. The bill faced some stiff opposition, and was ultimately defeated in the House.

Since the 2009 session, Representative Fowlke has been working with many of the interested parties to craft a new bill. Here are some "highlights" of the bill:

-Persons engaged in recreational activities are permitted to touch a private bed under public waters (natural streams, rivers, lakes, etc.). Unlike the 2009 bill, this bill does not limit access to only larger rivers and streams. There is a limitation, however, that the recreational activity must be "consistent with the amount of water actually present at the time the activity occurs."

-The "bed" of a stream is defined as the area that is beneath the ordinary high water mark and within five feet of the water body. Thus, under the bill, a fisherman does not have to have "wet feet" to avoid trespassing. Some landowners do not like this definition, and want to see the defintion of "bed" changed to be only the part of the bed that is actually covered by water.

-A person may enter private land to portage around manmade obstructions (e.g., fences), but may not enter private land to portage around natural obstacles (e.g., boulders).

-Hunting is specifically excluded as a recreational activity.

-Each person who purchases a fishing license must purchase a $5.00 public access stamp. The money obtained will be used to stock fish, enforce public access laws, educate the public about public access laws, and construct fence ladders and other improvements to fences across public waters. The public access stamp requirement is already raising some protest, and could be removed from the bill.

Overall, Representative Fowlke's bill is a vast improvement from the 2009 bill, but may still face opposition and may see many changes prior to and during the 2010 legislative session.

If you would like to view the draft bill, it is availabe here.

How Do You Update Your Address with the Utah Division of Water Rights?

In a previous post, I explained how to look up water rights on the Utah Division of Water Rights’ website. Each water right has an owner (or owners) listed at the top of the water right printout, with a corresponding mailing address. Many times, I find that the mailing address listed is incorrect or out-of-date. It is important that water right owners keep this address current. Any notices or other correspondence related to the water right will be mailed to the address on file with the Division. The Division will not actively ensure that the address is correct; rather, the Division relies on the water right owners to notify the Division of any changes.

The procedure to change an address is very simple and can be done online. Once you have pulled up the water right on the Division’s website (see instructions here), click on the drop-down menu in the top left corner and select "Modify an Owners Address." A list of owners will appear. Click the circle next to the owner whose address is to be modified. A new screen will appear where you can fill in the new address. It will also ask for a telephone number and email address to complete the submission.

It is important to note that the address modification procedure can be used only to update the address of a current owner. If the owner has changed (e.g., the water right has been sold, transferred to a trust, etc.) or if the owner’s name has changed (e.g., through marriage), this information must be updated by using a Report of Conveyance.

Division of Water Rights Public Information Meetings

The Southeastern Regional Office of the Utah Division of Water Rights will be holding a series of public information meetings in Price, Green River, and Moab. The purpose of the meetings is to discuss water policies, processes, recent legislative changes. The agenda includes discussions of the Endangered Fish policy, the Colorado River policy, the appropriation policy in Willow Basin and Upper Mill Creek, and federal reserved water rights for Arches National Park.

The meeting schedule is as follows:

Price--Tuesday, September 29th, 6:00 pm, CEU Alumni Room

Green River--Wednesday, September 30th, 10:00 am, Green River City Hall

Moab--Wednesday, September 30th, 2:30 pm, Grand Center

To view a flyer containing more information, click here.

To view the agendas for the meetings, click here.

Snake Valley Agreement

A proposed "Agreement for Management of the Snake Valley Groundwater System" was released a few weeks ago. This purpose of the proposed agreement is to establish "a cooperative relationship between the States of Utah and Nevada regarding the management of interstate groundwater resources." The proposed agreement has caused quite an uproar in Utah (click here for a sample news article from the Deseret News), as many residents in the Snake Valley area feel that Nevada is getting the better end of the deal.

To read the proposed agreement, click here.

2009 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 2009 report was recently released. It is available online here.

New Adjudication Team Leader

In July, it was announced that James Greer will be the new Adjudication Team Leader at the Utah Division of Water Rights. Mr. Greer replaces Teresa Wilhelmsen, who was recently named the new Regional Engineer for the Utah Lake/Jordan River Area.

For contact information for Mr. Greer and other employees of the Division of Water rights, click here.

For an explanation of what an Adjudication is, click here.

How Do I Find the Names of Officers and Directors of Irrigation and Canal Companies?

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.

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.

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.

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.”