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| Rural Water Conference
March 3-6, 2009
St. George, UT
For more information click
Utah Water Users Workshop
March 9-11, 2009
St. George, UT
For more information click
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SMITH | HARTVIGSEN NEWS
Jeffry R. Gittins Joins
Smith | Hartvigsen
Water Practice |
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Jeff Gittins practices primarily in the areas of water law and land use. Jeff graduated from BYU Law School, where he served as Editor-in-Chief of the BYU Law Review. Prior to joining Smith|Hartvigsen, Mr. Gittins served as a clerk to the Honorable Justice Jill N. Parrish of the Utah Supreme Court.
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Case Law Update
by Jeffry R. Gittins
Conatser v. Johnson, 2008 UT 48
In Conatser v. Johnson, the Utah Supreme Court was asked to determine whether members of the public who are using a stream for recreational purposes, such as fishing or floating, have the right to touch the privately owned beds beneath the water. The Court noted that because the waters of the state belong to the public, the public has an easement to utilize the waters for recreational purposes. The Court then determined that touching the bed is "reasonably necessary" in order for the public to effectively enjoy the easement and that such touching does not cause unnecessary injury to the owner of the bed. The Court placed limitations on the public's right, including (1) the public may engage only in lawful recreational activities, (2) the recreational activities must utilize the water, (3) the public must act reasonably in touching the bed, and (4) the public may not cause unnecessary injury to the owner of the bed. The effect of the ruling is 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.
The Court's opinion left several questions unanswered. First, it is unknown whether the members of the public must actually be in the water in order to not be trespassing or whether the members of the public can use the bed up to the ordinary high-water mark (or some other point). Second, it is yet to be determined how the Court's ruling can be reconciled with rules regarding fencing. For example, how does a rancher fence across a small stream in order to keep his cattle on his land without "fencing out" members of the public wishing to use the stream for recreational purposes? These questions, along with others, will have to be determined in future cases or by legislation.
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Contact Us
If you have any questions or if you would like to see something discussed in the future, please let us know by sending an e-mail to info@smithlawonline.com
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| Greetings!
Welcome to the 2009 autumn edition of Water and the Law we hope you will find this newsletter to be helpful and informative. As always, we welcome your feedback. If you have questions or comments, please reply to this e-mail or call us at 801-413-1600.
Craig Smith
David Hartvigsen
Matt Jensen
Bryan Bryner
Jeff Gittins |
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Do Cities Need Districts to Manage Water?
by Kyle C. Fielding
One of the interesting quirks of Utah water law is that Article XI, Section 6 of the Utah Constitution prohibits municipalities from leasing, selling, alienating or disposing of any waterworks, water rights, or sources of water supply. Simply put, the constitutional restriction can make it difficult for municipalities to flexibly manage their water systems. No other public water supplier has this restriction. Fortunately, Utah statutory law provides some relief to that constitutional restriction. Utah statutory law permits municipalities to more flexibly manage their water through the creation of various governmental sub-entities such as Special Service Districts or Metropolitan Water Districts.
For example, a municipality may acquire additional water rights, but may wish to retain some flexibility in managing its water rights, including leaving open the option of leasing or selling. Because of the constitutional restriction, the municipality would be unable to lease or sell those water rights it had acquired. However, a simple solution to that problem is found in the formation of a Water District. The municipality may form a district that includes the boundaries of the municipality, and the district rather than the municipality will hold water rights that are acquired either by purchase or dedication. The district is subject to municipal oversight and control and serves the customers of the municipality, but is not restricted in selling water rights.
Not only do districts provide flexibility they also have advantages over privately owned water companies. As governmental entities, districts are able to take advantage of federal tax-exempt status to obtain financing at better rates than a privately owned water company would be able to find. Typically, a governmental entity will obtain financing at an interest rate that is approximately 2% lower than the rate of a private water company. That is because the interest payments on bonds issued by governmental entites qualify for exemption from federal income tax. Additionally, local government entities often qualify for grants to pay for part of the water project. For maximum flexibility with governmental entity advantages, municipalities would be well advised to consider formation of a water district to hold water rights it acrues.
Kyle practices in the areas of Public Finance and Municipal Bonds. |
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Elements of a Successful Water Dedication Program
by Bradley S. Simpson
Many municipalities and districts require dedication of water as a prerequisite to development. However, a dedication requirement is only the first step. A municipality must ensure that dedicated water rights or shares are of quality and quantity to be put to beneficial use by the entity requiring the dedication.
As most municipalities and districts require completion of the dedication process prior to the approval of a final plat, an early start is essential. The dedication process must begin well in advance of the time for final project approval.
Also having a procedure to manage the dedication process is essential. This can be achieved by (1) the use of a standard application for water dedication; (2) a notice to the dedicator of what it will be expected to do and (3) a checklist in the hands of the municipality and/or the attorneys that the municipality or district has chosen to assist it with water dedication.
An adequate application should contain the following essential elements: (1) the water right number for water offered for dedication (Or certificate number if shares in a company are being dedicated.); (2) the owner and evidence of ownership of the water right; (3) the amount of water owned; (4) any applicable Change Application information and status; (5) current and historic uses of the water; and (6) the place of use of the water.
In addition, the following documentation should be submitted by the dedicator in support of the Application:
(1) Copy of recorded deed(s) showing ownership of water right or documentation of the right to acquire the rights;
(2) Copies of completed Division of Water Rights Report of Conveyance forms for any recent conveyance;
(3) Division of Water Rights data printout for the water right;
(4) Copy of the water share certificate (if applicable);
(5) Calculation of quantity of both diversion and depletion of water per city ordinances or district rule;
(6) Number of lots or units;
(7) Acreage of open space (irrigated - non-irrigated);
(8) A water title policy preliminary report (commonly called a PR);
(9) A draft of a completed Change Application to allow the water to be beneficially used by the entity requiring dedication.
After review and approval of the application and supporting documents, the city or district executes the Change Application and files the Change Application with Utah Division of Water Rights (also known as the State Engineer's Office).
The Deed is held in escrow for delivery to the city or district upon approval of a Change Application transferring the water right into the city's or district's system, which approval is acceptable to the city or district.
The city or district approves the Applicant's Water Dedication as acceptable, subject to the acceptability of the State Engineer's approval of the Change Application.
Upon the State Engineer's approval of the Change Application becoming final and non-appealable, the city or district reviews the approval to assure that it is acceptable to the city or district.
Conclusion
Although this article is not intended to be all-inclusive it should be helpful to acquaint the reader with key elements of the dedication process. |
Brad is a paralegal who manages water dedication programs for clients of Smith | Hartvigsen. | |
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