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Utah Water Users Workshop
March 9-11, 2009
St. George, UT
For more information click
American Water Resources Association's Annual Conference
May 12, 2009
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The Ever
Changing Definition of Waters Subject
to the Clean Water Act : Rapanos Revisited
by Matthew E. Jensen
The United States Supreme Court issued a decision in Rapanos v. United States, 547 U.S 715 (2006),that arguably limits the Federal Government's authority to regulate certain wetlands and other watercourses under the Clean Water Act of 1972 (the "CWA"). The Rapanos decision contains multiple opinions, none of which command a majority of the court. Thus, it was essentially left to the regulators (i.e., The Army Corps of Engineers and Environmental Protection Agency), those regulated, and the lower courts to decode the Rapanos decision. Now, more than two-and-a-half years since the decision was issued, the EPA and Corps have essentially settled on a regulatory framework for determining whether a particular wetland or watercourse is "jurisdictional" for purposes of Clean Water Act regulation. This article discusses the Rapanos opinions and briefly explains the EPA and Corps' regulatory framework applying the Rapanos decision.
The CWA prohibits the discharge of dredged or fill material to "navigable waters." Navigable waters are defined as "the waters of the United States." In 1985, the Supreme Court specifically ruled that the EPA and Corps had jurisdiction under the CWA to regulate wetlands adjacent to traditional navigable waters. The EPA and Corps did not, however, limit its regulatory jurisdiction to traditional navigable waters and adjacent wetlands, but asserted jurisdiction over virtually any water course or wetland, no matter its permanence or its relation to traditionally navigable waters. In 2001, the United States Supreme Court ruled that the EPA and Corps did not have jurisdiction over "isolated wetlands" based on migratory birds' use of such a wetland.
The 2006 Rapanos decision further defined the limits of CWA jurisdiction. The facts of Rapanos involved four properties with varying proportions of wetlands and varying degrees of connection to traditionally navigable waters. The Rapanos decision includes three main opinions-Justice Scalia's plurality opinion, Justice Kennedy's concurring opinion, and Justice Steven's dissenting opinion. Justice Scalia's opinion, joined by three other Justices, concluded that CWA jurisdiction exists only for wetlands that both (1) are adjacent to "a relatively permanent body of water connected to traditional navigable waters," and (2) have "a continuous surface connection with that water." Justice Kennedy disagreed with Justice Scalia's test and created the "Significant Nexus Test." In essence, that test provides that CWA jurisdiction extends to wetlands if they, "in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'" Justice Stevens's Opinion, joined by three other Justices, concluded that CWA jurisdiction should not be further limited because, in his view, the Corps' interpretation of its jurisdiction was reasonable and Congress had not done anything to challenge that jurisdiction since 1977.
Because no opinion was joined by a majority of the Court, application of the decision has proven difficult. The Corps and EPA issued a joint memorandum in June 5, 2007, to explain how they intended to implement the Rapanos decision. In essence, they assert jurisdiction if either Scalia's or Kennedy's test is satisfied, but do not intend to assert CWA jurisdiction over erosional features or ditches. Because the Rapanos decision dealt with four properties in Michigan, there is some difficulty applying those facts to the arid west. Ultimately, there remains significant ambiguity as to what constitutes a wetland and when a landowner needs a section 404 dredge and fill permit to fill or dredge a wetland in the west. |
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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 spring 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 |
House Bill 187: Recreational Use of Public Waters
by Jeffry R. Gittins
In 2008, the Utah Supreme Court issued its opinion in Conatser v. Johnson, in which the Court ruled that members of the public who are using any stream or lake in Utah for recreational purposes have the right to touch the privately owned beds beneath the water. The effect of the ruling is that members of the public can 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 an attempt to limit the broad public access granted in the Conatser opinion, Representative Ben Ferry (R-Corinne) has introduced HB 187, entitled "Recreational Use of Public Waters." Under the bill, the public would be allowed to engage in recreational activities in rivers that cross privateproperty only if the rivers are designated "public waters." The bill contains an initial list of "public waters," which include sections of the Bear River, Little Bear River, Logan River, Price River, Jordan River, Duchesne River, Strawberry River, Sevier River, Weber River, Provo River, Ogden River, White River, and Blacksmith Fork River.
This initial list of public waters would be amenable to change. For this reason, the bill also establishes the Recreational Access Board within the Department of Natural Resources. The Board would consist of seven individuals representing differing interests, including agriculture, real property, and sport fishing. The Board would provide recommendations to the Legislature regarding segments of rivers that should be added to the list of "public waters." The Board would also provide recommendations to the Legislature regarding segments of rivers that should be removed from the list. Ultimately, however, the Legislature would have the final say on the list of public waters that would be open to recreation.
The bill received a favorable recommendation from the House Natural Resources, Agriculture, and Environment Committee.
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Legislative Update (as of March 1, 2009)
by David B. Hartvigsen
The 2009 Legislative Session was supposed to have been a quiet one in the area of water rights and water issues. However, it has turned out to be an unusually active one with at least 24 pieces of legislation sponsored by 12 different legislators. Because of the number of bills, only a short synopsis is included below. Please call if you have any specific questions.
With only 9 work days left (the Session ends on March 12th), the status of the pending legislation is as follows:
HB 18 - Water Right Applications and Records (Rep. Painter)
Revises the proof and extension process generally, with specific changes to benefit "public water suppliers."
Passed House and Senate and is awaiting the Governor's signature
HB 19 - Water Rights - Informal Adjudications (Rep. McIff)
Revises the two-year deadline applicable to appeals of water right decisions by making the dismissal of the appeal discretionary rather than mandatory. The judge can look at all of the circumstances in deciding whether to dismiss the case after two years if the appealing parting is not diligently pursuing the appeal.
Passed House and Senate and is awaiting the Governor's signature
HB 62 (1st Substitute) - State Water Development Commission (Rep. Gibson)
Revises the Commission membership requirements which were set up to keep political balance on the Commission (which may become the defacto Water Policy Board for the State). Given the current makeup of the legislature, there are not democratic senators available to serve from each major river basin in the state. This bill relaxes the eligibility requirements to solve this problem.
Passed House and Senate and is awaiting the Governor's signature
HB 68 (1st Substitute) - Development Exactions (Rep. Painter)
Makes good on a commitment by Rep. Painter last year in passing HB 51 (the forfeiture protection bill) and clarifies that a city or county cannot require developers to dedicate water when they have more water than is needed to meet their 40-year planning requirements.
Passed House and Senate and is awaiting the Governor's signature
HB 85 - Mutual Benefit Corporation - Judicial Liens (Rep. Painter)
Protects water companies in lawsuits when cash damages are assessed against them. It places a 180 day hold on collection efforts so that the company can make arrangements to pay the damages before the other party can sell the company's water rights and other assets.
Passed House and Senate and is awaiting the Governor's signature
HB120 (2nd Substitute) - Snake Valley Aquifer Research Team & Advisory Council (Rep. Winn)
Establishes a research team and advisory council to study the Snake Valley Aquifer that is the focus of development efforts by Nevada
Passed the House and is awaiting action on 3/3 by the Senate's Natural Resources Committee before being sent to the Senate Floor for two more votes.
HB187 (1st Substitute) Recreational Use of Public Waters on Private Property (Rep. Ferry)
[See the above article for a description of this bill.]
It is 7th in line for the 3rd and final House Floor Debate; still needs to go through the Senate side
HB205 Water Source Protection Amendments (Rep. Noel)
Removes an inadvertent requirement for less populated counties from last year's legislation mandating adoption of water source protection ordinances. Hopefully, this is a change from mandatory to optional, rather than to prohibited, but that is unclear at this time.
Passed the House and is at the bottom on the Senate's 2nd Floor Debate Calendar
HB 235 - Dam Safety Amendments (Rep. Sandstrom)
Clarifies the State Engineer's authority to inspect certain dams.
Passed House and Senate and is awaiting the Governor's signature
HB 241 - Priority of Water Rights (Rep. Gibson)
Repeals Section 73-3-21, which establishes a preference first for culinary water use and second for agricultural use in times of water shortage, despite the priority dates of the various water rights. This is one of the more controversial water bills this session.
Has passed both the House and the Senate, but because the Senate amended it, the House must now concur with the amendments; it is 7th on the House's Concurrence Calendar
HB256 (1st Substitute) - Livestock Watering Rights Amendments (Rep. Noel)
Amends Utah Code Section 73-3-31 regarding livestock water use certificates for stock on public lands and shifts authority over the process from the Department of Agriculture and Food to the State Engineer's Office.
It is on the House Natural Resource Committee's 3/2 agenda; still must pass one House Floor debate and the Senate side
HB366 - Water Rights Addendums to Deeds (Rep. Ferry)
Requires a water rights "addendum" or "rider" to be completed and attached to all land and water deeds before recording the deeds. Designed to clean up water right appurtenancy issues and problems with deadline notifications. The rider forms are contained in HJR24, discussed below.
This bill has been effectively put on hold for this Session. It went through the Rules Committee and was sent to the House Natural Resources Committee, but was then returned to the Rules Committee, which generally means that it will not proceed any further this Session.
HB383 - Water Rights Adjudication Amendments (Rep. Gowans)
Allows the State Engineer to keep the Court's address list current during lengthy General Adjudications and requires certain public meetings in connection with the General Adjudication process.
It is on the House Natural Resource Committee's 3/2 agenda; still must pass one House Floor debate and the Senate side
HB389 - Applications for a Small Amount of Water (Rep. Painter)
Provides a streamlined process for applying for, submitting proof on, and re-instating lapsed applications for small single family water rights.
It is on the House Natural Resource Committee's 3/2 agenda; still must pass one House Floor debate and the Senate side
HB441 - Water Loan Amendments (Rep. Gowans)
The content of this bill has not yet been released.
It is still at the very beginning of the process and may not have time to make it through the process
HCR6 - Concurrent Resolution Expressing Opposition to Congressional Efforts to Expand the Jurisdiction of the Clean Water Act (Rep. Brown)
Expresses the opposition of Utah's Legislature and Governor to any federal legislation that would expand the reach and scope of the Federal Clean Water Act.
Passed House and Senate and is awaiting the Governor's signature
HJR 6 - Joint Resolution Revising Property Tax Exemptions for Water Facilities (Rep. Painter)
Proposes a Constitutional Amendment to clarify that all water rights and water infrastructure are exempt from property tax assessments.
Upon introduction of this resolution, Rep. Painter asked that it be sent to Interim Study in order to get the issue on the table and in front all of the stakeholders. It should move forward during Interim and be ready for adoption next session and placement on the ballot in the 2010 elections.
HJR 16 - Joint Resolution Amending Provision on Municipal Water Rights (Rep. McIff)
Proposes a Constitutional Amendment to permit cities to lease water to others until the water is needed by the cities.
Sent from the House's 3rd Reading Calendar back to the House Rules Committee
HJR 24 - Joint Resolution on Water Rights Form (Rep. Ferry)
Sets forth the deed "rider" forms referenced in HB366.
This resolution has been effectively put on hold for this Session, the same as HB366
SB 29 - Safe Drinking Water Amendments (Sen. Stowell)
Gives control over the issue of adding or removing fluorine to the water of a privately owned public water system to the shareholders owning the system.
It is 8th in line on the Senate's 2nd Floor Debate Calendar; must still pass the 3rd Floor Debate and also the House side
SB58 - Collection and Use of Precipitation (Sen. McCoy)
Allows a person to use a public water supplier's water right, if approved by the public water supplier, as the water right under which the person collects and uses rain and other precipitation.
Has passed the Senate and is just starting through the House
SB128 - Rainwater Harvesting (Sen. Jenkins)
Allows collection of precipitation in a 2500 gallon underground storage tank and use of that water without a water right.
Has passed the Senate and is just starting through the House
HR1 - House Resolution Supporting the Narrows Water Project in Central Utah (Rep. Winn)
SR2 - Senate Resolution Supporting the Narrows Water Project in Central Utah (Sen. Okerlund)
These Resolutions urge Congress and the Bureau of Reclamation to support development of the Narrows Water Project in Central Utah.
Both Resolutions have passed the House and Senate and have been sent to the Lt. Governor for filing
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