2015 Legislative Preview: Change Application Modifications

Two identical bills have been introduced that seek to change the definition of a person entitled to file a change application.  Senator Margaret Dayton has introduced Senate Bill 35 (SB 35), entitled "Water Rights Amendments," and Representative Keith Grover has introduced House Bill 58 (HB 58), entitled "Change Application Modifications."  Other than the names, these two bills are exactly the same.

These bills are in response to the 2011 Utah Supreme Court ruling in the Salt Lake City v. Big Ditch case that concluded that Big Ditch, while not the owner of certain water rights, could file a change application on those water rights because it was a “person entitled to the use of water” as that phrase is used in the “Change Application” statute, pursuant to a contract it has with Salt Lake City.  Attempts to pass a bill that addressed both this issue and the issue raised in the Jensen v. Jones case (see HB 25) have failed in the last three sessions.  These bills clarify and redefine who is entitled to file a change application, i.e., (1) a holder on an approved but unperfected application to appropriate water; (2) the record owner of a perfected water right; (3) a person who has written authorization from a person described in (1) or (2) above to file the application of that person’s behalf; and (4) a shareholder in a water company who files in accordance with the existing “Shareholder Change Application” statute.

To read the full text of SB 35 as introduced, click here.
To read the full text of HB 58 as introduced, click here.

2015 Legislative Preview: Shareholder Change Applications

Representative Kay L. McIff has introduced House Bill 43 (HB 43), entitled "Water Rights - Change Application Amendments."  This bill seeks to change the procedures for shareholders of a mutual water company requesting the filing of a change application. It requires mediation if the company refuses to file the change application or if the shareholder and mutual water company cannot agree to conditions of the change application. It also allows the shareholder to advance the change application to the State Engineer for administrative review regardless of the mutual water company decision. If the mutual water company declines the change application request, the company is required to state the reasons why.

To read the full text of the bill as introduced, click here.

2015 Legislative Preview: Change Applications

Representative V. Lowry Snow has introduced House Bill 25 (HB 25), entitled "Water Law - Application Revisions." This bill is in response to the 2011 Utah Supreme Court ruling in the Jensen v. Jones case that concluded that the State Engineer did not have statutory authority to use the prior non-use of water as a reason to reject a change application or reduce the amount of water approved under a change application.  This bill seeks to give the State Engineer express statutory authority to do so, subject to certain procedures and limitations.  This bill is the product of a small group of stakeholders that got together after attempts to pass such legislation failed in 2012, 2013, and 2014 for a variety of different reasons.  The members of that group were the General Managers of Central Utah, Jordan Valley, Washington, and Weber Basin Water Conservancy Districts, along with representatives from the Farm Bureau and the League of Cities and Towns. 

The bill allows a person filing a change application to have a private, non-binding discussion with the State Engineer on any potential issue, including non-use, before filing the change application.  The bill then provides the State Engineer a 90-day window after a change application is filed to give the applicant notice of any concerns he may have regarding non-use and the resulting impact (defined in terms of “quantity impairment”) that the proposed change may have on one or more specifically identified water rights.  If the State Engineer gives such notice, or if a timely protest is filed alleging quantity impairment because of the unexcused non-use of water, then the applicant has the burden of proving that quantity impairment will not occur and the State Engineer may reject the change application or reduce the amount approved to the extent that such quantity impairment is likely to occur.  The bill also reorganizes the application to appropriate and change application statutes and makes some minor technical changes to the wording.

To read the full text of the bill as introduced, click here.

2015 Legislative Preview: Stream Access

Representative Dixon M. Pitcher has introduced House Bill 108 (HB 108), entitled "Public Waters Access Act."  This bill seeks to make significant changes to the Utah Public Water Access Act, which governs stream access issues in the State.  The bill would modify the definition of “public access water” to include a requirement that the stream or waterway must, in its natural state during ordinary high water, be capable of floating a commercial commodity or being navigated by watercraft.  The bill then provides that a public access water, at or below the ordinary high water mark, is open to year-round public use for any lawful activity that utilizes the water, including boating, fishing, swimming, or wading.  Members of the public may not, however, use private land to access public access water, but may use private land for reasonable portage around manmade or natural obstructions.  The bill also allows landowners the right to place a fence across a public access water, provided that the fence comply with all laws and is constructed in a manner that does not create an unreasonable danger to the public using the public access water, and provided that the landowner allows the public to use a ladder, gate, or other mechanism to portage around the fence.

To read the full text of the bill as introduced, click here.

2015 Legislative Preview: Withdrawal of Applications

Senator Margaret Dayton has introduced Senate Bill 40 (SB 40), entitled "Water Law - Application Withdrawal." This bill seeks to amend Utah Code section 73-3-6 to allow for the withdrawal of water right applications, including applications to appropriate and change applications.  Although the Division of Water Rights has historically allowed for applications to be withdrawn, this bill would provide specific statutory authorization and explanation for withdrawals.  The bill provides that an applicant or an applicant’s successor-in-interest may withdraw an unperfected application (even if already approved) by filing a written withdrawal request with the Division.  Upon receipt of the withdrawal request, the Division must promptly update its records to show that the application has been withdrawn and is of no further force or effect.  An applicant who withdraws an application is not entitled to a refund of the application filing fees.

To read the full text of the bill as introduced, click here.

2015 Legislative Preview: Forfeiture Exemptions

Senator Margaret Dayton has introduced Senate Bill 15 (SB 15), entitled "Water Law - Forfeiture Exemptions." This bill seeks to amend Utah Code section 73-1-4 regarding nonuse and forfeiture.  The bill adds some clarifying language that the section does not apply to “a period of nonuse of a water right during the time the water right is subject to an approved change application where the applicant is diligently pursuing certification”

To read the full text of the bill as introduced, click here.

2015 Legislative Preview: Public Trust

Representative Kay McIff has introduced House Bill 47 (HB 47), entitled "Protection of Water Rights."  This bill seeks to define the scope and limits of the public trust doctrine in Utah, including a provision that to the extent a State public trust obligation exists relative to public ownership of water, the State fulfills its public trust obligation through legislative enactments of laws regulating the use of water. The bill also clarifies that a water right is a property right that is protected by the Utah Constitution, and cannot be taken for public use without just compensation.  This bill is nearly identical to House Bill 233 that Representative McIff ran in 2014 and House Bill 68 that Representative McIff ran in 2013.

To read the full text of the bill as introduced, click here.

Public Meeting Concerning the Proposed Determination in Red Butte Creek Area

The Utah Division of Water Rights has set a public meeting to discuss the proposed determination of water rights within the Red Butte Creek Subdivision, Salt Lake County East Division of Utah Lake/Jordan River Drainage Area (Area No. 57, Book 3). The following information is from the public meeting notice:

What: Public Meeting

Who: Water Users within the Red Butte Creek Area

When: February 4, 2015, 4:00 pm to 5:00 pm

Where: Department of Natural Resources Building, 1594 W. North Temple, Room 1060, Salt Lake City, UT 84116

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 Red Butte Creek Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River Drainage Area 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 Red Butte Creek area to survey existing water use, contact water users, and review the water rights of record.  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 Red Butte Creek 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.

Public Meeting Concerning the Groundwater Appropriation Policies in Goshen Valley

The Utah Division of Water Rights has set a public meeting to discuss the appropriation policies and a proposed study in Goshen Valley, Utah County. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users in Goshen Valley, Utah County
When: December 2, 2014, 4:00 pm
Where: Goshen Elementary School, 60 North Center, Goshen, UT 84633
Purpose: The purpose of the meeting is to discuss groundwater appropriation policies in Goshen Valley located in southwestern Utah County (part of Water Right Area 53) and to present a proposal for a hydrogeologic study of the area. 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, 1594 West North Temple, Suite 220, P.O. Box 146300, Salt Lake City, UT 84114-6300
Agenda:
1. Introduction - Kent Jones, State Engineer
2. Groundwater appropriation policies - Teresa Wilhelmsen, Utah Lake/Jordan River Regional Engineer
3. Proposed hydrologic study - Stephan Kirby and Lucy Jordan, Utah Geological Survey
4. Public questions/comments

For more information on the meeting, click here.

Public Meeting Concerning the Proposed Determination in Moab Area

The Utah Division of Water Rights has set a public meeting to discuss the proposed determination of water rights within the Taylor Flat Subdivision, Moab Division of Southeastern Colorado River Drainage Area (Area No. 05, Book 3). The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Taylor Flat Area
When: November 18, 2014, 3:30 pm to 4:30 pm
Where: Moab City Center, 217 East Center Street, Moab, UT 84532, (435)259-5121
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Seventh Judicial District Court (Civil No. 4477), the State Engineer has conducted and distributed a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Taylor Flat Subdivision, Moab Division of the Southeastern Colorado River Drainage Area in Grand County.
Per statute, the Division of Water Rights will hold a Public Meeting in order to inform water users and distribute copies of the proposed determination to claimants.  Representatives from the Division of Water Rights will be available during this time to discuss the adjudication process, review water rights within the proposed determination and answer questions.
If individuals cannot attend, but have questions regarding the adjudication process or water rights within the Taylor Flat 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.