2010 Legislative Preview: Artesian Wells

Representative James Gowans has registered a bill that would repeal the State Engineer's duty to plug certain artesian wells. The bill is numbered House Bill 69 (HB 69), and was requested by the State Engineer. The bill repeals Utah Code section 73-2-21, an archaic statute that required the State Engineer to plug certain artesian wells that were no longer in use and were wasting water. The motive behind the repeal is so that the owner of the well--and not the State Engineer--bears the burden of plugging it when it is no longer in use.

Click here to read the statute that will be repealed.

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

2010 Legislative Preview: Canal Safety

Representative Fred Hunsaker has registered a bill aimed at canal safety. The bill, numbered House Bill 60 (HB 60), is in response to last summer's catastrophic canal failure in Logan that resulted in the death of three people.

Under the bill, owners of canals and ditches are to prepare a written management plan for each segment of the canal or ditch that constitutes a hazard because of location, elevation, soil conditions, structural instability, water volume, or other reasons. The management plans are to be submitted to the Utah Division of Water Resources, who reports to a legislative committee.

There is no real penalty if a management plan is not submitted. The only thing a canal or ditch company loses is the right to receive state funds or state loans for water development, including funds or loans to repair or improve the canal or ditch.

The bill also provides that the management plans cannot be obtained through a government records request, nor can they be introduced into evidence in any civil litigation.

Click here to read the full text of the bill.

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

2010 Legislative Preview: Rainwater Harvesting

Senator Scott Jenkins has registered a rainwater harvesting bill for the upcoming session of the Utah legislature. The bill has been numbered Senate Bill 32 (SB 32), and is similar to the Senate Bill 128 that Senator Jenkins ran last year.

Under this bill, a person could capture and store rainwater in an underground storage tank (with a maximum capacity of 2500 gallons) or in covered storage containers above ground (with a maximum capacity of 55 gallons per container).

Click here to read the full text of the bill.

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

2010 Legislative Preview: Stream Access

Representative Fowlke has registered a stream access bill for the upcoming session of the Utah legislature. There are quite a few differences between the registered bill and the original draft that I blogged about a few months ago. Here are some differences that I noticed:

• The definition of "bed" is now "the area within the ordinary high water mark."
• The definition of "recreational activity" now includes waterfowl hunting.
• A person must obtain a public access certificate to engage in recreational activities on private streambeds. This requirement replaced the earlier idea of making those who purchase a fishing license also purchase a public access stamp.
• An owner of a private streambed can place a fence across the stream, as long as the fence is for a legitimate purpose and not just to block recreational access.
• The Division of Wildlife Resources will create a free public education program to teach the public about recreational access to private streambeds. The program will be available by Internet, and once a person has completed the program, they can obtain a public access certificate.

This bill (House Bill 80) may see some changes during the legislative session, but it appears that this is the bill that will be introduced to the legislature.
To read the complete text of HB 80, click here.
(For an update on this bill, click here.)

How Are Utah Water Rights Transferred?

Under Utah law, water rights can be transferred in two ways.

First, water rights can be transferred by deeding the water right and recording the deed in the county (or counties) where the water is diverted and used. Utah Code section 73-1-10.

Second, water rights can pass by appurtenance, which occurs when land is conveyed and an appurtenant (i.e., “attached”) water right automatically passes with the land. Utah Code section 73-1-11.

Thus, true ownership of a water right can be determined only by researching the deeds at the county recorder’s office.

The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Conveyance to notify the Division when ownership transfers.

Sometimes, individuals are conveyed a water right through a properly recorded deed or through appurtenance, but do not notify the Division of the conveyance. Thus, there can be a discrepancy between the true ownership (based on recorded deeds) and the Division’s database of ownership.

Taylor-West Weber Water Improvement District v. Olds

Yesterday, the Utah Supreme Court released its opinion in the case of Taylor-West Weber Water Improvement District v. Olds. The opinion examined whether a late protestant could intervene in an applicant's appeal of a State Engineer decision.

Several years ago, the District filed an Application to Appropriate water through seven wells. Roy City filed a late protest, which the State Engineer considered. The State Engineer approved the District's Application, but placed a ten-year limitation on the right. The District filed an appeal in court, asserting that the State Engineer's conditional approval was incorrect. Roy City sought to intervene in the court case, but their request to intervene was denied by the court.

Roy City appealed the denial to the Utah Supreme Court, asserting that it should have been allowed to intervene under the Utah Rules of Civil Procedure. The District and the State Engineer argued that Roy City was prohibited from intervening under the Utah Administrative Procedures Act.

Ultimately, the Court found in favor of Roy City. The Court ruled that the Procedures Act did not prevent intervention and that the lower court should have looked to the Rules of Civil Procedure to determine if intervention was proper. Accordingly, the Court reversed and remanded the case to the lower court for reconsideration of Roy City's motion to intervene under the Rules of Civil Procedure.

To read the full opinion, click here.

What Are the Regional Offices of the Utah Division of Water Rights?

To assist the State Engineer in administering the water rights in Utah, the Division of Water Rights has divided the state into seven regions. Each region has an office with a Regional Engineer and staff.

Northern Regional Office (Logan)
Regional Engineer: Will Atkin

Weber River/Western Regional Office (Salt Lake City)
Regional Engineer: Ross Hansen

Utah Lake/Jordan River Regional Office (Salt Lake City)
Regional Engineer: Teresa Wilhelmsen

Eastern Regional Office (Vernal)
Regional Engineer: Bob Leake

Southeastern Regional Office (Price)
Regional Engineer: Marc Stilson

Sevier River/Southern Regional Office (Richfield)
Regional Engineer: Kirk Forbush

Southwestern Regional Office (Cedar City)
Regional Engineer: Nathan Moses

To find out which region you are in, you can reference this map.

For contact information for each regional office, click here.

New Sole Supply Rule

The Utah Division of Water Rights is in the process of adopting a new administrative rule regarding sole supply (now called "beneficial use limitations"). The proposed rule will be Utah Administrative Code rule R655-16, entitled "Administrative Procedures for Declaring Beneficial Use for Supplemental Water Rights." The following purpose and summary are taken from the Utah State Bulletin, where the proposed rule is published.

PURPOSE: "The purpose of this rule is to define procedures for resolving supplemental water right beneficial use quantification issues by agreement among the water right owners. The rule also defines state engineer assistance in apportioning beneficial use among water rights in a water use group."

SUMMARY: "This rule provides for a 'Declaration of Individual Beneficial Use Amounts' form to enable water right holders to declare beneficial use information and document agreement with that declaration by those with supplemental water rights. The rule provides conditions under which a water user may petition the state engineer for assistance in apportioning beneficial use among water rights in a water use group. The rule formalizes the procedure the state engineer will follow in the apportioning beneficial use among water rights in a water use group."

To view the entire proposed rule, click here. (The rule begins on page 62 of the document.)

(For an update on the new sole supply rule, click here.)

Is Title Insurance Available for Water Rights?

Title insurance policies can be purchased for water rights in Utah. There are two title companies in Utah that currently provide water right title insurance:

• First American Title Insurance Company. Contact Brad Dobson at 801-578-8820.
• Titan Tile Insurance Agency. Contact Rodney Dean at 801-300-0755.

Where Can I Find Utah Water Laws?

Utah water law can be found in several different sources, some of which are listed below:

The main source of Utah water law is the Utah Water Code, which contains Utah's statutes regarding water and water rights. The Utah Water Code which can be found in Title 73 of the Utah Code.

Utah administrative rules regarding water rights can be found in Title R655 of the Utah Administrative Code.

Utah administrative rules regarding water resources can be found in Title R653 of the Utah Administrative Code.

Utah administrative rules regarding drinking water can be found in Title R309 of the Utah Administrative Code.

Utah administrative rules regarding water quality can be found in Title R317 of the Utah Administrative Code.