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Water In the News

Utah water-use data study underway

Two Utah engineering firms are partnering to improve the quality of water-use data in the state.  The firms will use a $300,000 contract with the state to analyze how the Division of Water Resources can improve its data collection. Water-use data is more important than ever Utah is one of the driest states in the nation; usually only second to Nevada.  With a population that is expected to nearly double by 2060, meeting Utah’s growing water needs is a major

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Federal court upholds state’s right to stop natural gas pipeline under the Clean Water Act

Last Friday the Second Circuit Court of Appeals sided with the New York State Department of Environmental Conservation (“NYSDEC”) and their denial of a § 401 certificate under the U.S. Clean Water Act to Constitution Pipeline (a partnership among Cabot Oil & Gas Corp.; Oklahoma-based energy company Williams Cos.; Piedmont Natural Gas; and WGL). Denying Constitution Pipeline’s application effectively vetoed a $750 million plan for a 124-mile pipeline stretching from the Marcellus shale deposits in Pennsylvania to the Iroquois pipeline in

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Long fought water pipeline dispute over Nevada-Utah state line will finally get a federal hearing

A years-long fight over a plan to build a water pipeline along the Nevada-Utah state line to bring groundwater to Las Vegas is about to get a first-ever hearing before a federal judge in Nevada.  The pipeline could cost billions of dollars to build, but the Southern Nevada Water Authority says it may become essential if drought keeps shrinking the Lake Mead reservoir on the Colorado River which supplies 90% of Las Vegas’ drinking water. State and federal go-aheads brought challenges

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Skyline mine expansion starts water fight in Emery County

Skyline mine expansion starts water fight in Emery County

In late March, the Huntington-Cleveland Irrigation Company filed a request for agency action to appeal a decision of the Utah Division of Oil, Gas, and Mining that approved an application by Canyon Fuel Company that sought a permit to initiate coal mining operations in the Flat Canyon Lease Addition for the Skyline Mine. Huntington-Cleveland Requests Agency Action on Skyline Mine Permit According to the request for agency action, “[t]he [a]ddition will allow Canyon Fuel to modify its mine plan to

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9th Cir. to decide tribal rights to groundwater

9th Cir. to decide tribal rights to groundwater

As the U.S. Supreme Court pointed out some forty years ago in its opinion in Colorado River Water Conservation Dist. v. United States, “It is probable that no problem of the Southwest section of the Nation is more critical than that of scarcity of water.”  The Supreme Court’s words still ring true today, as evidenced by the legal battle between the Agua Caliente Band of Cahuilla Indians and the Coachella Valley Water District over whether the tribe’s federally reserved water

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What amounts to an obstruction of water rights in Utah?

What amounts to an obstruction of water rights in Utah?

In a recent case before the Utah Court of Appeals, neighboring landowners went to battle over the purported obstruction and interference of an existing water right.  In Clearwater Farms, LLC v. Giles, The appellant (“Clearwater”) contended that the lower district court erred when it rejected the appellant’s claims for damages “on the basis that [the appellee (“Gileses”)] did not cause and interference or obstruction of [the appellant’s] water rights.”  However, the court of appeals disagreed, agreeing with the district court

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Level of Service Standard

Level of service standard class action denied appeal

A group of property owners who paid impact fees (“water availability charge”) recently sought to challenge a district court’s decision granting partial summary judgment in favor of the Washington County Water Conservancy District, which found that the level of service standard that allowed the impact fees to be assessed was legal and reasonable as a matter of law.  However, the Utah Supreme Court declined to grant interlocutory review to the class of property owners, holding that the case was not

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Utah Quality Growth Commission

Utah Quality Growth Commission enters watershed fray

In late August, the Utah Quality Growth Commission served as the latest forum for the seemingly never-ending debate between Salt Lake City water officials and private landowners over watershed management issues.  Private landowners have continually claimed that Salt Lake City’s “over-zealous” watershed protection has severely limited the landowners’ ability to develop their property in the Cottonwood canyons. Utah Quality Growth Act of 1999 In 1999, the Utah Legislature passed the Quality of Growth Act.  The Act was intended to address

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Water Use Authorization not an Enforceable Contract

Is a Water Use Authorization an enforceable contract?

In a recent case before the Utah Court of Appeals, the issue of whether a Water Use Authorization can constitute an enforceable contract came before the court.  In Brasher v. Christensen, the Utah Court of appeals was asked to overturn the trial court’s determination that a 2013 Water Use Authorization was not an enforceable contract.  Ultimately, the court of appeals upheld the lower court’s decision, finding that “the 2013 WUA was not, by itself, an enforceable contract.”  Furthermore, the court

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Cache County Water Conservancy District

Cache County Water Conservancy District on ballot

For more than a century now, Cache Valley communities have been able to keep water flowing from homeowners taps and farms properly irrigated without help from a formal water conservancy district.  However, as this November’s election arrives, Cache County voters will attempt (for a third time) to form the Cache County Water Conservancy District, which state politicians and local engineering firms say is needed to protect Cache Valley’s water resources. Proposed Purpose of the Cache County Water Conservancy District Cache

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UEP and TCWW in Fight over Short Creek Water Rights

TCWW in UEP crosshairs over Short Creek water rights

In January 2015, United Effort Plan trust (“UEP”) filed suit against Twin City Water Works (“TCWW”), alleging that for a number of years TCWW has unlawfully pumped water from UEP land without compensating UEP.  Additionally, UEP claimed that the utility was funneling revenues generated from Hildale and Colorado City residents to FLDS leaders and TCWW employees, while at the same time charging residents unreasonably high rates (i.e., $12,000 impact fee for a water meter) and providing little or no benefit

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CWR - WOTUS Decision Left to Sixth Circuit

11th Circuit: CWR decision belongs to 6th Circuit

The Eleventh Circuit Court of Appeals recently dealt a significant blow to opponents of the Obama administration’s controversial Clean Water Rule (CWR), which redefines the “waters of the United States” (WOTUS).  The three-judge panel sitting in Atlanta ordered that an appeal taken on behalf of a number of states, including Utah, would be put on hold pending a decision from the Sixth Circuit Court of Appeals in a case that made an identical challenge to the CWR. Sixth Circuit Issues

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HEAL Utah Abandons Appeal

HEAL Utah abandons Green River nuke appeal

Last week, utahwaterlaw.com reported on the Utah Court of Appeal’s recent decision in  HEAL Utah v. Kane County Water Conservancy District, which upheld the approval of two change applications that will provide much-needed water for the Green River nuclear power plant project. HEAL Utah Decides Not to Appeal to Utah Supreme Court Following the court of appeal’s decision, HEAL Utah said it would review the court’s ruling before deciding whether to appeal to the Utah Supreme Court.  However, on Wednesday,

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Change Application - HEAL UTAH v. Kane County Water Conservancy District

Change applications and existing water rights

A district court’s decision to approve two change applications over the existing water rights of two Utah water conservancy districts was at issue in a recent case before the Utah Court of Appeals.  In HEAL Utah v. Kane County Water Conservancy District, the Utah Court of Appeals was asked to determine whether the district court “properly approved two change applications requesting to change the points of diversion and the nature of use of water already appropriated to Kane County Water

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Navajo Nation - San Juan River

Navajo Nation closes in on water rights settlement

It appears that the Navajo Nation, the federal Bureau of Reclamation, and the State of Utah are closing in on a settlement over the Utah Navajo’s water rights to the San Juan River.  While the settlement must still be approved by Congress, the aforementioned parties are all in agreement on a settlement they say is both fair and likely to calm uncertainty as it relates to the San Juan River, which is a major tributary of the Colorado River that

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PSC - Well Lease Agreement

PSC decision over well lease stands

In a recent case before the Utah Court of Appeals, a decision by the Utah Public Service Commission (“PSC”) involving a well lease agreement originating in 1977 was at issue.  In Dansie v. Public Service Commission, the court was asked to determine whether PSC had exceeded its jurisdiction when it concluded that the well lease was void and unenforceable. 1977 Well Lease Agreement and Subsequent Amendment In 1977, Jesse H. Dansie (the Dansie Trust’s predecessor) entered into a well lease

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USACE Jurisdictional Determination Immediately Reviewable

USACE jurisdictional determination reviewable

In an 8-0 decision, the U.S. Supreme Court has ruled that landowners can challenge U.S. Army Corps of Engineers’ (“USACE”) jurisdictional determinations under the Clean Water Act (“CWA”).  In United States Army Corps of Engineers v. Hawkes, the eight-Justice Supreme Court concluded that a jurisdictional determination issued by the USACE under the CWA constitute “final agency action” under the Administrative Procedure Act (“APA”), which means those decisions can be immediately reviewed in court. USACE Jurisdictional Determination Under the CWA Hawkes

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Chesapeake Bay Total Maximum Daily Load

Total Maximum Daily Load upheld

In December 2010, the Environmental Protection Agency (“EPA”) established the Chesapeake Bay Total Maximum Daily Load.  The Chesapeake Bay Total Maximum Daily Load was established as a “pollution diet” of sorts, which imposed “rigorous accountability measures to initiate sweeping actions to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers,” according to the EPA. The Chesapeake Bay Total Maximum Daily Load The EPA has said that “[d]espite extensive restoration efforts and significant pollution reductions during

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"Pay-for-play" Peer Review Legislation

Peer review legislation at issue in EPA petition

In a previous posting, utahwaterlaw.com reported on concerns voiced by the Environmental Protection Agency (“EPA”) to the Utah Legislature over now-passed SB 110, titled “Water Quality Amendments,” which the EPA warned that SB 110’s peer review proposal violated the Clean Water Act (“CWA”).  In a letter to the Utah Legislature, the EPA noted that SB 110’s plan to subject Utah Division of Water Quality actions to an independent peer review did not comply with the CWA.  The letter further stated

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Lake Powell Pipeline Route

Lake Powell Pipeline Project applies for federal approval

Utah State officials have filed a licensing application with the Federal Energy Regulatory Commission (“FERC”) over the proposed Lake Powell Pipeline Project.  A copy of the licensing application materials (docket number P-12966) is or will be published shortly on FERC’s website. Licensing Application Comes After Public Comment Period The licensing application comes on the heels of a recent public comment period and review of the project proposal, which public comments were included in the licensing application documents.  The licensing application

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Resurrection Bay, Seward, Alaska

SCOTUS won’t hear 9th Cir. NPDES permit case

In June, 2015, the United States Supreme Court declined to review the Ninth Circuit Court of Appeals holding in Alaska Comm. Action on Toxics, et al. v. Aurora Energy Services.  The Supreme Court’s denial came after Aurora and the Alaska Railroad Corp. petitioned the Court for review, asking the Court to reverse the Ninth Circuit’s holding that they said improperly narrowed the Clean Water Act’s (“CWA”) permit shield to allow citizen suits over discharges of pollutants not specified in a

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U.S. Sixth Circuit Court of Appeals

Clean Water Rule Challenges to be heard by Sixth Circuit

Recently we reported on the stay issued by the Sixth Circuit Court of Appeals to the Clean Water Rule.  The Clean Water Rule was challenged by a number of plaintiffs in various federal district courts and circuit courts around the country.  The plaintiffs filed petitions in both the district and circuit courts based upon what they allege is uncertainty about whether the adoption of the Clean Water Rule is within those actions that must be challenged in a U.S. Circuit

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USACE Section 404 Permit

Section 404 violation undisclosed in Favero

Section 404 of the Clean Water Act (“CWA”) sets forth a program to regulate the discharge of dredged or fill material into the waters of the United States (“WOTUS”), including wetlands.  Section 404 regulates a number of activities in the WOTUS, including fill development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) and mining projects.  Before dredged or fill material may be discharged into the WOTUS a permit must be obtained, unless the

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Utah Lake/Jordan River drainage basin General Adjudication

General Adjudication of water rights in Utah

What is a General Adjudication? General Adjudication is a legal process to determine who has a valid water right, how much water can be used, and who has priority during shortages. Upon a Petition, the State Engineer May Investigate Water Rights and File an Action for General Adjudication Pursuant to Utah Code section 73-4-1, “five or more, or a majority of, water users of a water source” may petition the State Engineer to investigate “the rights of all claimants to the

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Utah Water Law 2016 Final Update

The 2016 General Session of the 61st Utah State Legislature concluded on March 10, 2016.  This year’s legislative session produced a number of Utah water law bills, some of which passed and others that did not.  The following represents a list of those Utah water law bills that were passed into law during the legislative session, as well as a shorter list of those Utah water law bills that did not pass.  In all, the Utah State Legislature considered 19

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Algal Blooms

New Utah Water Quality Health Advisory Panel

In April 2015, Erica Gaddis, Assistant Director of the Utah Division of Water Quality (“DWQ”), sent a memo to its agency and stakeholder water quality partners announcing that “DWQ is organizing a Water Quality Health Advisory Panel whose objectives are to coordinate and communicate on water quality issues associated with specific public health concerns.”

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National WQS updated under EPA final rule

In august 2015, the administrator of the Environmental Protection Agency (“EPA”) signed a final rule updating six significant areas of the federal water quality standards, or WQS for short, regulation, which assists the EPA in implementing the Clean Water Act (“CWA”).  According to the EPA: The final revisions provide a better-defined pathway for state and authorized tribes to improve water quality, protect high quality waters, increase transparency and enhance opportunities for meaningful public engagement at the state, tribal and local levels.

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Lake Powell Pipeline project flooded by newly passed legislation

The Lake Powell Pipeline may have just received some of the financial backing it has been looking for. In a recent Utah water law posting, we recapped the significant water law legislation that had been introduced during the 2016 General Session.

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Nonuse application cannot protect long-dormant water right from challenge, Fourth District Court Judge says in Christensen & Jensen case

In a recent Christensen & Jensen (“C&J”) state court water law case, C&J’s client, a large water conservancy district, and other water entities successfully fended off an attempt by Defendant South Utah Valley Municipal Water Users Association (“SUVMWA”) to resurrect a substantial but long-dormant water right. The water right at issue in the case was last used by Defendant’s predecessors more than 70 years prior to Defendant’s nonuse application.  At stake was approximately 4,000 acre feet of water that SUVMWA

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Standing to seek judicial review of an order of the state engineer; Utah Court of Appeals holds that appellants were not “aggrieved parties” for purposes of the UAPA in Utah Alunite Corp. v. Jones

Under the Utah Code, “[a] person aggrieved by an order of the state engineer may obtain judicial review in accordance with [the Utah Administrative Procedures Act]” and section 73-3-14.  However, whether an aggrieved person has standing to seek judicial review of an order of the state engineer requires reference to not only Utah Code section 73-3-14, but the Utah Administrative Procedures Act (“UAPA”) as well. In, Utah Alunite Corp. v. Jones, the Utah Court of Appeals was faced with determining

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Peer review legislation does not comply with Clean Water Act, EPA says

The Environmental Protection Agency (“EPA”) recently sent a letter to Utah’s Division of Water Quality, which noted that the proposed legislation to make the division’s actions subject to an independent peer review did not comply with the Clean Water Act (“CWA”).  The letter warned that, if the bill was passed without changes, then the federal government might step in to manage water in the state of Utah. The bill at issue, SB 110, entitled Water Quality Amendments, seeks to establish

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Water law legislative update 2016

The 2016 General Session of the 61st Utah State Legislature is nearing its conclusion.  The legislative session concludes on March 10, 2016.  During this year’s session, numerous water law related bills have been introduced, three of which are of particular interest. Water Law – Protected Purchaser Amendments The first of these water law bills, SB 23, entitled Water Law – Protected Purchaser Amendments, was introduced by Senator Margaret Dayton in the Utah Senate and was sponsored by Representative Keith Grover.  SB

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Utah Public Waters Access Act

Utah Public Waters Access Act “violates” Utah Constitution 4th District judge says; Utah Supreme Court stays ruling pending appeal

The issue of public access to waters in the state of Utah has become a hot-button issue in the Utah courts recently.  As reported in the Salt Lake Tribune, the issue stems from a ruling from 4th District Judge Derek Pullan that held that “the ‘unfittingly named’ 2010 Utah Public Waters Access Act violates the Utah Constitution by denying the recreating public from a resource that the state must manage in the favor of all Utahns.” Utah Public Waters Access

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Clean Water Act section 404(f) “interpretive rule” withdrawn after NMPF objects

In response to objections raised by the National Milk Producers Federation, the Environmental Protection Agency (“EPA”) has withdrawn an interpretive rule regarding when farmers must seek Clean Water Act permits for a laundry list of farming activities taking place near wetlands.  The rule specifically stated that farmers were only exempt from needing to obtain Clean Water Act permits for certain farming practices if they complied with the National Resources Conservation Service (“NRCS”) technical conservation standards. The EPA’s withdrawal of the

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2016 EPA Water Law

EPA issues final Clean Water Rule, but Sixth Circuit stays rule pending further determination

In the spring of 2015, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) released the final Clean Water Rule in order “to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation’s water resources.”  According to the EPA’s news release: The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and

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