Friday, December 13, 2019
Interim State Engineer
Kent L. Jones recently retired as State Engineer for the State of Utah. Until a new State Engineer is appointed, Boyd Clayton will serve as Interim State Engineer. Mr. Clayton has served as Deputy State Engineer for several years, and has announced that he will be retiring in 2020.
Thursday, December 12, 2019
Allen Family Trust v. Holt
The Utah Court of Appeals recently issued its opinion in the case of Allen Family Trust v. Holt. This case focuses on an easement for a water pipeline, as well as forfeiture of water rights.
In the late 1800s, Ammon Allen settled in the Ogden Valley and constructed ditches to carry water from a creek and springs to his property. He later deeded the property to his son, Abner Allen. In the 1948 Ogden River Decree, Abner was awarded water rights in the Creek and springs. A ditch carried the water from the sources, across State-owned land, and to Abner's property. In the 1960s, Abner's sons formed a ranching company, which acquired the land and water rights. The ranching company also entered into a lease with the State for the abutting property that the ditch crossed. In the 1970s, the sons dissolved the ranching company. The deeds led to confusion, but it was ultimately determined that one son acquired 70% of the water rights (which was later conveyed to his son, David Allen) and another son acquired 30% of the water rights (which was later conveyed to his children Jarl, Jenna, and Lesly). A few years later, David constructed a system of pipes to convey his water from the sources to the property. The pipe system generally followed the location of the original ditch system.
In the 1990s, the State sold its property to a third party, who later sold the land to Millennia Partners North LLC ("MPN) in 2008. Shortly thereafter, disputes arose between David and MPN regarding David's access to MPN's property to maintain the pipe system. MPN sent threatening letters to David, erected fences around the property, and even dug up and cut the pipes. This led to a first lawsuit, which was resolved in David's favor. In 2011, Jarl, Jenna, and Lesly conveyed their land and 30% interest in the water rights to MPN.
In 2012, David initiated a second lawsuit, asserting (1) that David had an easement across MPN's property to convey water through the pipe system; (2) that MPN had unlawfully interfered with David's water rights; and (3) that MPN had forfeited its water rights due to nonuse. Following a trial, the district court concluded that David did have an easement across MPN's property and that MPN had unlawfully interfered with the easement. But the district court also ruled that MPN had not forfeited its water rights because nonuse had not been proven by clear and convincing evidence. The district court ordered MPN to pay David's attorney fees. MPN appealed the ruling, and David cross-appealed.
The Court of Appeals first examined if David did have an easement for the pipe system. The district court had determined that an easement existed under the 1866 Mining Act, which required a finding that Ammon Allen had constructed the ditch system before 1896, which is the year that Utah became a state. The Court of Appeals determined that sufficient evidence had been presented to the district court to support the conclusion that the ditch system had been constructed prior to 1896. Thus, the Court of Appeals upheld the determination that David had an easement.
The Court of Appeals also upheld the determination that MPN had interfered with the easement. As noted by the Court, "it is hard to imagine a more clear-cut case of interference with a water right than a party threatening to shut off access to the water, fencing off the right of way, and sawing through a pipe conveying the water to its rightful recipients."
The Court of Appeals then examined whether MPN had forfeited its water rights due to nonuse. The Court began its analysis by noting that it is unsettled law in Utah whether the "clear and convincing" or the "preponderance" standard of proof apply in a water forfeiture action. The Court, unfortunately, did not answer this question, as it determined that the evidence in this case was sufficient to meet both burdens of proof. The Court noted that there was plenty of evidence that MPN's water rights had not been placed to beneficial use between 1994 and 2011. MPN did not dispute this evidence, but rather asserted that David had used MPN's water rights pursuant to a 1977 agreement between Abner Allen's two sons. The Court rejected this argument on several grounds, including the fact that the district court had never determined that such an agreement existed. Thus, the Court reversed the district court and ruled that MPN's water rights have been forfeited due to nonuse.
Finally, the Court of Appeals upheld the district court's order that MPN pay attorney fees. The Court of Appeals also awarded MPN to pay attorney fees for the appeal.
To read the full opinion, click here.
In the late 1800s, Ammon Allen settled in the Ogden Valley and constructed ditches to carry water from a creek and springs to his property. He later deeded the property to his son, Abner Allen. In the 1948 Ogden River Decree, Abner was awarded water rights in the Creek and springs. A ditch carried the water from the sources, across State-owned land, and to Abner's property. In the 1960s, Abner's sons formed a ranching company, which acquired the land and water rights. The ranching company also entered into a lease with the State for the abutting property that the ditch crossed. In the 1970s, the sons dissolved the ranching company. The deeds led to confusion, but it was ultimately determined that one son acquired 70% of the water rights (which was later conveyed to his son, David Allen) and another son acquired 30% of the water rights (which was later conveyed to his children Jarl, Jenna, and Lesly). A few years later, David constructed a system of pipes to convey his water from the sources to the property. The pipe system generally followed the location of the original ditch system.
In the 1990s, the State sold its property to a third party, who later sold the land to Millennia Partners North LLC ("MPN) in 2008. Shortly thereafter, disputes arose between David and MPN regarding David's access to MPN's property to maintain the pipe system. MPN sent threatening letters to David, erected fences around the property, and even dug up and cut the pipes. This led to a first lawsuit, which was resolved in David's favor. In 2011, Jarl, Jenna, and Lesly conveyed their land and 30% interest in the water rights to MPN.
In 2012, David initiated a second lawsuit, asserting (1) that David had an easement across MPN's property to convey water through the pipe system; (2) that MPN had unlawfully interfered with David's water rights; and (3) that MPN had forfeited its water rights due to nonuse. Following a trial, the district court concluded that David did have an easement across MPN's property and that MPN had unlawfully interfered with the easement. But the district court also ruled that MPN had not forfeited its water rights because nonuse had not been proven by clear and convincing evidence. The district court ordered MPN to pay David's attorney fees. MPN appealed the ruling, and David cross-appealed.
The Court of Appeals first examined if David did have an easement for the pipe system. The district court had determined that an easement existed under the 1866 Mining Act, which required a finding that Ammon Allen had constructed the ditch system before 1896, which is the year that Utah became a state. The Court of Appeals determined that sufficient evidence had been presented to the district court to support the conclusion that the ditch system had been constructed prior to 1896. Thus, the Court of Appeals upheld the determination that David had an easement.
The Court of Appeals also upheld the determination that MPN had interfered with the easement. As noted by the Court, "it is hard to imagine a more clear-cut case of interference with a water right than a party threatening to shut off access to the water, fencing off the right of way, and sawing through a pipe conveying the water to its rightful recipients."
The Court of Appeals then examined whether MPN had forfeited its water rights due to nonuse. The Court began its analysis by noting that it is unsettled law in Utah whether the "clear and convincing" or the "preponderance" standard of proof apply in a water forfeiture action. The Court, unfortunately, did not answer this question, as it determined that the evidence in this case was sufficient to meet both burdens of proof. The Court noted that there was plenty of evidence that MPN's water rights had not been placed to beneficial use between 1994 and 2011. MPN did not dispute this evidence, but rather asserted that David had used MPN's water rights pursuant to a 1977 agreement between Abner Allen's two sons. The Court rejected this argument on several grounds, including the fact that the district court had never determined that such an agreement existed. Thus, the Court reversed the district court and ruled that MPN's water rights have been forfeited due to nonuse.
Finally, the Court of Appeals upheld the district court's order that MPN pay attorney fees. The Court of Appeals also awarded MPN to pay attorney fees for the appeal.
To read the full opinion, click here.
Wednesday, November 6, 2019
Metropolitan Water District of Salt Lake & Sandy v. SHCH Alaska Trust
The Utah Supreme Court recently issued a decision in the case of Metropolitan Water District of Salt Lake & Sandy v. SHCH Alaska Trust. The case focused on the scope and size of an easement for a water pipeline, as well as a district's authority to regulate land use within the easement area.
The District owns an easement for a water pipeline across the Trust's property in Wasatch County. The Trust determined to build a commercial zipline course on its property, and received a conditional use permit from Wasatch County. The District purported to enact regulations restricting land use within the easement area on the Trust's property. Pursuant to these regulations, the District asserted that the Trust was required to obtain a license from the District before constructing the zipline course. The Trust moved ahead with the zipline course without obtaining the permit. The District then sued the Trust in district court and requested that the court order the Trust to comply with the District's regulations. The Trust counterclaimed and asked the court to determine the relative property interests of the parties, including the scope and size of the easement.
The district court ruled that Utah law granted regulatory authority to the District. Accordingly, the district court granted summary judgment to the District. The district court also determined that the easement was 200 feet in width. The Trust then appealed the decision to the Utah Supreme Court.
The Supreme Court first examined the District's assertion that it had regulatory authority. The District cited several provisions of the Utah Limited Purpose Local Districts Act to support its asserted authority. The Supreme Court reviewed each of these provisions and determined that none of them granted the District the authority to enact land use regulations that affect the property of others. The Supreme Court also noted that statutes governing land use regulations by cities and counties carefully define and limit the regulatory authority, and that it would be unreasonable to allow districts to exercise similar authority without the same limitations and public participation requirements.
The Supreme Court held that the District's rights with respect to the easement were no different than the rights that any other easement holder has. These rights include the right to prevent the landowner from unreasonably interfering with the easement. The case was remanded to the district court to gather the facts and determine if the Trust's zipline course unreasonably interfered with the District's pipeline easement.
The Supreme Court also reviewed the district court's determination that the pipeline easement was 200 feet in width. The original documents establishing the easement did not define the size or scope of the easement; rather, the documents created and undefined "floating easement." In 1961, an engineer for the US Bureau of Reclamation drafted a written description of the easement, which defined it as a 200-foot easement. The district court had determined that this description was determinative. The Supreme Court determined that the written description could be considered, but was not dispositive. The case was remanded to the district court to gather the facts and determine the extent and width of the easement.
To read the full opinion, click here.
The District owns an easement for a water pipeline across the Trust's property in Wasatch County. The Trust determined to build a commercial zipline course on its property, and received a conditional use permit from Wasatch County. The District purported to enact regulations restricting land use within the easement area on the Trust's property. Pursuant to these regulations, the District asserted that the Trust was required to obtain a license from the District before constructing the zipline course. The Trust moved ahead with the zipline course without obtaining the permit. The District then sued the Trust in district court and requested that the court order the Trust to comply with the District's regulations. The Trust counterclaimed and asked the court to determine the relative property interests of the parties, including the scope and size of the easement.
The district court ruled that Utah law granted regulatory authority to the District. Accordingly, the district court granted summary judgment to the District. The district court also determined that the easement was 200 feet in width. The Trust then appealed the decision to the Utah Supreme Court.
The Supreme Court first examined the District's assertion that it had regulatory authority. The District cited several provisions of the Utah Limited Purpose Local Districts Act to support its asserted authority. The Supreme Court reviewed each of these provisions and determined that none of them granted the District the authority to enact land use regulations that affect the property of others. The Supreme Court also noted that statutes governing land use regulations by cities and counties carefully define and limit the regulatory authority, and that it would be unreasonable to allow districts to exercise similar authority without the same limitations and public participation requirements.
The Supreme Court held that the District's rights with respect to the easement were no different than the rights that any other easement holder has. These rights include the right to prevent the landowner from unreasonably interfering with the easement. The case was remanded to the district court to gather the facts and determine if the Trust's zipline course unreasonably interfered with the District's pipeline easement.
The Supreme Court also reviewed the district court's determination that the pipeline easement was 200 feet in width. The original documents establishing the easement did not define the size or scope of the easement; rather, the documents created and undefined "floating easement." In 1961, an engineer for the US Bureau of Reclamation drafted a written description of the easement, which defined it as a 200-foot easement. The district court had determined that this description was determinative. The Supreme Court determined that the written description could be considered, but was not dispositive. The case was remanded to the district court to gather the facts and determine the extent and width of the easement.
To read the full opinion, click here.
Public Meeting Concerning a Distribution Plan for the Jordan River
The Utah Division of Water Rights has set a public meeting to discuss the initiation of a distribution plan for the Jordan River in Utah County and Salt Lake County. The following information is from the public meeting notice:
What: Public Meeting
Agenda:
1. Welcome/Introduction
2. Jordan River Hydrology and Water Rights Presentation
3. Public Comments and Questions
Comments: If you would like to provide input, please send written comments to:
Utah Division of Water Rights
Attn: Jordan River Public Meeting
PO Box 146300
Salt Lake City, UT 84114-6300
waterrights@utah.gov
A live stream broadcast of the public meeting will also be available online at this link.
For more information about this meeting, click here.
What: Public Meeting
Who: Jordan River and Utah Lake water users and other interested parties
When: December 3, 2019, 3:00 to 5:00 pm
Where: Room 1040 at Department of Natural Resources, 1594 West North Temple, Salt Lake City
Purpose: The purpose for the meeting is to discuss developing a management plan for the Jordan River. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.Agenda:
1. Welcome/Introduction
2. Jordan River Hydrology and Water Rights Presentation
3. Public Comments and Questions
Comments: If you would like to provide input, please send written comments to:
Utah Division of Water Rights
Attn: Jordan River Public Meeting
PO Box 146300
Salt Lake City, UT 84114-6300
waterrights@utah.gov
A live stream broadcast of the public meeting will also be available online at this link.
For more information about this meeting, click here.
Tuesday, October 22, 2019
Retirement Celebration for Kent L. Jones
The Utah Division of Water Rights will be hosting a retirement celebration for State Engineer Kent L. Jones on Monday, November 4, 2019 from 3:00-5:00 pm at the Department of Natural Resources building.
Saturday, October 5, 2019
Kent L. Jones Announces Retirement as State Engineer
Kent L. Jones, who has served as Utah State Engineer for the past ten years, has announced that he will be retiring from public service on November 16, 2019. The following information comes from the official announcement from the Utah Department of Natural Resources.
Kent L. Jones, P.E., the current state engineer and director of the Utah Division of Water Rights, has announced that he will retire from public service Nov. 16. Jones has spent almost 39 years with the division.
The governor appoints and the Utah Legislature approves the position of state engineer. Efforts are underway to identify and consider potential candidates.
Jones began his career with the division in 1981. While with the division, he has served in various roles, including assistant regional engineer for Utah Lake/Jordan River, regional engineer for the Weber River and West Desert, directing engineer for appropriations and title, and many more.
Jones was initially appointed state engineer by Gov. Jon Huntsman in 2009, and then reappointed to two additional four-year terms by Gov. Gary R. Herbert.
“I appreciate Kent’s commitment and years of dedication and service to the state of Utah,” said Gov. Herbert. “His leadership has played a vital role in the state’s ability to solve complex water challenges, and our ability to administer the appropriation and distribution of Utah’s water.”
As state engineer, Jones has represented the state and division through 11 legislative sessions and has been involved in a significant number of water right bills and adopted legislation. He has served as a technical advisor to the Utah Water Task Force and on the governor’s water strategy team.
Kent L. Jones, P.E., the current state engineer and director of the Utah Division of Water Rights, has announced that he will retire from public service Nov. 16. Jones has spent almost 39 years with the division.
The governor appoints and the Utah Legislature approves the position of state engineer. Efforts are underway to identify and consider potential candidates.
Jones began his career with the division in 1981. While with the division, he has served in various roles, including assistant regional engineer for Utah Lake/Jordan River, regional engineer for the Weber River and West Desert, directing engineer for appropriations and title, and many more.
Jones was initially appointed state engineer by Gov. Jon Huntsman in 2009, and then reappointed to two additional four-year terms by Gov. Gary R. Herbert.
“I appreciate Kent’s commitment and years of dedication and service to the state of Utah,” said Gov. Herbert. “His leadership has played a vital role in the state’s ability to solve complex water challenges, and our ability to administer the appropriation and distribution of Utah’s water.”
As state engineer, Jones has represented the state and division through 11 legislative sessions and has been involved in a significant number of water right bills and adopted legislation. He has served as a technical advisor to the Utah Water Task Force and on the governor’s water strategy team.
Wednesday, September 25, 2019
Changes to Report of Conveyance Form
The Utah Division of Water Rights has made some changes to its Report of Conveyance form for a partial conveyance of a water right. The primary change is that the portion form now includes a cover page where you list the new owners name and contact information, fill out information regarding the portion being conveyed to the new owner, and fill out information regarding the portion being retained by the old owner(s).
The Report of Conveyance portion form can be filled out online by clicking here.
The Report of Conveyance portion form can be filled out online by clicking here.
Tuesday, September 24, 2019
Public Meeting Concerning the General Adjudication in Provo Canyon Area
The Utah Division of Water Rights has set a public meeting to discuss the general adjudication of water rights in the Provo Canyon area in the Provo River Division of the Utah Lake/Jordan River Drainage (Area 55, Book 9). The Provo Canyon area generally includes the area in the Provo River drainage that is above the mouth of Provo Canyon and below Deer Creek Reservoir. The following information is from the public meeting notice:
What: Public Meeting
Agenda:
1. Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2. Adjudication Process Presentation
3. Public Comments and Questions
A live stream broadcast of the public meeting will also be available online at this link.
For more information about this meeting, click here.
What: Public Meeting
Who: Water Users within the Provo Canyon area
When: October 2, 2019, 6:00 to 7:00 pm
Where: Provo Recreation Center, 320 West 500 North, Provo
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729848), 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 Provo Canyon Subdivision, Provo River Division, of the Utah Lake and Jordan River drainage in Utah County. Efforts are currently underway and over the next few months, representatives of the Division of Water Rights will be working in the Provo Canyon area to survey existing water rights and investigate water user's claims. In light of this work, the public is invited to a public meeting. 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 Provo Canyon area, please contact the Division of Water Rights at 801-538-5282.Agenda:
1. Introduction (Blake Bingham, P.E. - Assistant State Engineer)
2. Adjudication Process Presentation
3. Public Comments and Questions
A live stream broadcast of the public meeting will also be available online at this link.
For more information about this meeting, click here.
Friday, September 20, 2019
New Online Tool for Preparing Affidavits of Beneficial Use
The Utah Division of Water Rights has debuted a new online tool to help water right owners prepare Affidavits of Beneficial Use.
Under Utah law, a water right owner is required to file Proof on certain water right applications, including Applications to Appropriate, Exchange Applications, and Change Applications. A Proof must be prepared by a licensed engineer or surveyor. For small applications, however, a water right owner can prepare and file an Affidavit of Beneficial Use instead of having to file Proof. A small application is defined as an application for less than 1 home, 0.25 acres of irrigation, and 10 head of livestock.
The new online tool will make it even easier for water right owners to prepare and file Affidavits of Beneficial Use, as well as the maps required to accompany the Affidavits. The new tool is available here.
Under Utah law, a water right owner is required to file Proof on certain water right applications, including Applications to Appropriate, Exchange Applications, and Change Applications. A Proof must be prepared by a licensed engineer or surveyor. For small applications, however, a water right owner can prepare and file an Affidavit of Beneficial Use instead of having to file Proof. A small application is defined as an application for less than 1 home, 0.25 acres of irrigation, and 10 head of livestock.
The new online tool will make it even easier for water right owners to prepare and file Affidavits of Beneficial Use, as well as the maps required to accompany the Affidavits. The new tool is available here.
Thursday, September 5, 2019
Groundwater Management Plan and Policy Update for Cedar City Valley
The Utah Division of Water Rights has set a meeting to discuss a groundwater management plan and policy update for Cedar City Valley in Iron County. The following information is from the public meeting notice:
What: Public Meeting
Who: Cedar City Valley water users
When: October 15, 2019, 6:30 pm to 8:30 pm
Where: Cedar High School Auditorium, 703 West 600 South, Cedar City
Purpose: The purpose of the meeting is to discuss a groundwater management plan and policy update for Cedar City 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.
PO Box 506
Cedar City, UT 84721-0506
Agenda:
1. Welcome/Introduction
2. Groundwater Management Plan and Policy Update Discussion
3. Public Questions/Comments
For additional information regarding the meeting, click here.
What: Public Meeting
Who: Cedar City Valley water users
When: October 15, 2019, 6:30 pm to 8:30 pm
Where: Cedar High School Auditorium, 703 West 600 South, Cedar City
Purpose: The purpose of the meeting is to discuss a groundwater management plan and policy update for Cedar City 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.
PO Box 506
Cedar City, UT 84721-0506
Agenda:
1. Welcome/Introduction
2. Groundwater Management Plan and Policy Update Discussion
3. Public Questions/Comments
For additional information regarding the meeting, click here.
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