Monthly Archives: March 2016

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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 activity is exempt from Section 404 regulation.

Premise of the Section 404 Program

The Environmental Protection Agency (“EPA”) has said, “The basic premise of the program is that no discharge of dredged or fill material may be permitted if: (1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded.”  This means that when a permit is applied for, the applicant “must first show that steps have been taken to avoid impact to wetlands, streams and other aquatic resources; that potential impacts have been minimized; and that compensation will be provided for all remaining unavoidable impacts,” the EPA has said.

Any proposed activities are regulated through a permit review process.  The EPA sets forth that “[a]n individual permit is required for significant impacts,” and that “[i]ndividual permits are reviewed by the U.S. Army Corps of Engineers [“USACE”], which evaluates applications under a public interest review, as well as the environmental criteria set forth in the CWA Section 404(b)(1) Guidelines.”

General Permit Process

The EPA has iterated that for most discharges of dredged or fill material that will only have “minimal adverse effects,” a “general permit” may suffice.  Those general permits are “issued on a nationwide, regional, or state basis for particular categories of activities.”  By way of the general permit process, individual review is limited while at the same time certain activities are allowed to proceed with little to no delay, so long as “the general or specific conditions for the general permit are met.”  For example, minor road activities, utility line backfill, and bedding are activities that can be considered for a general permit. States also have a role in Section 404 decisions, through State program general permitswater quality certification, or program assumption.”

Favero Farms, LC v. Baugh

A recent case from the Utah Court of Appeals underscores the importance of the Section 404 permit process and what can happen to a seller or land that fails to obtain such a permit and/or fails to disclose a Section 404 violation to a buyer.  In Favero Farms, LC v. Baugh, the Utah Court of Appeals affirmed the lower district’s determination that the sellers had breached their contract with the buyer, as well as breached the covenant against encumbrances and the implied covenant of good faith and fair dealing.

The property at issue in Favero was approximately 20 acres of land in Weber County, Utah.  The sellers met with a wetlands consultant in 2004 who told the sellers that their property contained wetlands, and, as a result, the sellers needed to obtain a permit from the USACE before they could use fill dirt on their property.  However, even though the sellers had already placed some fill dirt on the property prior to that time, and placed additional fill dirt on the property after they met with the wetlands consultant, they never obtained a Section 404 permit for any of the fill dirt.

In 2005, a representative from the USACE inspected the sellers’ property and advised them that the fill dirt on their property constituted a Section 404 violation.  The USACE representative instructed the sellers to remove the fill dirt from their property and to install a silt fence up against the wetlands.  Again, the sellers failed to comply.

In August 2009, the sellers sold the property.  The real estate purchase contract (“REPC”) between the parties required the sellers to disclose “conditions known to [the sellers] relating to environmental problems and building or zoning code violations.”  Pursuant to the REPC, the buyer had a right to object to the disclosures or cancel the contract if it did not acquiesce to what was revealed by the disclosures.  Even still, the sellers never delivered any disclosures to the buyer and never informed the buyer of the existence of the wetlands or the wetlands violation.

After the sale of the property closed, the buyer became aware of the Section 404 violation and learned that it could not use the property for agricultural purposes “without extensive work and repairs” and that it would need to restore or relocate the wetlands in order to comply with federal requirements.  Accordingly, the buyer sued the sellers alleging  breach of contract, breach of the covenants in the warranty deed, breach of the covenant of good faith and fair dealing, negligence, and fraudulent misrepresentation.  Following a bench trial, the trial court dismissed the buyer’s negligence and fraudulent misrepresentation claims but granted judgment in favor of the buyer on its other three claims.  The lower district court awarded the buyer  awarded damages in the amount of $200,000 based on testimony that it would “cost between $197,850 and $287,850 to restore or mitigate the damages to the wetland property.”  The court also ordered that the sellers pay the buyer’s attorney fees in the amount of $32,853.63, based on the provisions of the REPC.  The sellers subsequently appealed.

Warranties Made by Sellers in REPC Survived Closing

On appeal, the sellers made several arguments, which the Utah Court of Appeals roundly rejected.  First, the sellers argued that the buyer’s representation in the Escrow Instructions that it accepted the property “in its present condition” amounted to an as-is acceptance that the property would be delivered in “generally accepted agricultural condition.”  The Court of Appeals disagreed.

There, the Court of Appeals concluded:

Because the Escrow Instructions indicated that warrants made in the REPC would survive closing if not specifically deleted, the “generally accepted agricultural condition” promised by the [the sellers] was part of the “present condition” in which [the buyer] believed it was accepting the property.  Thus, the trial court did not err in concluding that the [sellers] breached the REPC and the Escrow Instructions by failing to deliver the property in generally accepted agricultural condition.

Sellers Violated Covenant Against Encumbrances by Failing to Disclose Section 404 Violation

Second, the sellers argued that the trial court erred in determining that their failure to disclose the wetlands violation constituted a breach of the warranty deed’s covenant against encumbrances.  Again, the Court of Appeals rejected the sellers’ arguments, concluding:

The [sellers] were aware of the wetlands violation and, in fact, committed it themselves. Furthermore, the Army Corps of Engineers had informed the [sellers] that their improvements violated the wetlands restrictions and had ordered them to remove the fill dirt and construct a silt fence.  Because the [sellers] were aware of the wetlands violation and the Army Corps of Engineers had taken action to compel compliance with the wetlands regulations prior to the time the warranty deed was conveyed, the violation is an “interest in a third person” that “constitutes a burden or limitation upon the rights of the fee title holder.”  Accordingly, the trial court did not err in concluding that the [sellers] had breached the covenant against encumbrances by conveying the property without disclosing the existence of the wetlands violation.

Sellers Violated Implied Covenant of Good Faith and Fair Dealing by Failing to Disclose Section 404 Violation

Finally, the sellers challenged the trial court’s determination that they breached the implied covenant of good faith and fair dealing by failing to disclose the wetlands violation.  The Court of Appeals determined:

The trial court’s findings support its determination that the [sellers] breached the covenant of good faith and fair dealing.  By failing to make the disclosures, the [sellers] misled [the buyer] concerning the existence of environmental problems on the property and thereby deprived it of the opportunity to object or cancel the contract in accordance with its rights under the REPC.  Thus, the trial court did not clearly err in concluding that the [sellers] breached the covenant of good faith and fair dealing by failing to disclose the existence of the wetlands violation.

Buyers Entitled to Attorney Fees Under REPC

Having determined the substantive issues on appeal, the Court of Appeals turned to the issue of attorney fees.  There, the Court of Appeals upheld the district court’s attorney fee award, which was made pursuant to the explicit language of the REPC that provided that  “[i]n the event of litigation . . . to enforce [the REPC], the prevailing party shall be entitled to costs and reasonable attorney fees.”

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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 water of the water source.”

Upon receipt of a petition to investigate, the State Engineer is required to “investigate whether the facts and circumstances of the water source and its claimants justify a general determination of water rights,” and if the State Engineer finds that a general determination of water rights is justified, then the State Engineer may “file an action in the district court for a general adjudication of water rights.”

State Engineer Must Give Notice of Filing of General Adjudication

Once an action for a General Adjudication is filed by the State Engineer, or other qualified persons as explained in Utah Code section 73-4-3, “[t]he state engineer then shall … give notice of commencement of action to the claimants by publishing notice” for “two consecutive weeks” in a newspaper designated by the court and in accordance with Utah Code section 45-1-101 “for two weeks.”  The notice shall state that “an action has been filed,” “the name of the action,” “the name and location of the court in which the action is pending,” and “the name or description of the water source involved.”

After serving notice of commencement of an action, the State Engineer is required to investigate and locate all possible claimants and serve each claimant with a summons in accordance with Utah Code section 73-4-4.  The State Engineer is then required to begin a “survey of the water source and the ditches, canals, wells, tunnels, or other works diverting water from the water source,” and “hold a public meeting in the survey area to inform a water right claimant of the survey.”

Water Right Claimant Must File Notice of Claim

Once completed, the State Engineer shall serve notice of the completion of the survey, including that any claimant to a water right must in accordance with Utah Code section 73-4-5 “submit a written statement of claim within 90 days after the day on which the notice is issued.”  The statement of claim shall include:

(1) the name and address of the claimant; (2) the nature of use on which the claim of appropriation is based; (3) the flow of the water used in cubic feet per second, or the quantity of water stored in acre-feet, and the time during which the flow or stored water has been used each year; (4) the name of the stream or other source from which the water is diverted, the point on the stream or source where the water is diverted, and a description of the nature of the diverting works; (5) the date when the first work for diverting the water began, and a description of the nature of the work; (6) the date when the water was first used, the flow in cubic feet per second, or the quantity of water stored in acre-feet, and the time the water was used during the first year; (7) the place and manner of current use; and (8) other facts that clearly define the extent and nature of the appropriation claimed, or that are required by the written form provided by the state engineer with the notice of completion of survey.

State Engineer Then Issues Proposed Determination

The written statements of claims are compiled by the State Engineer, and then are submitted to the clerk of the district court in which the action is pending.  Next, the State Engineer prepares a Proposed Determination under Utah Code section 73-4-11.  The Proposed Determination is the State Engineer’s recommendation to the court of the status and quantification of water rights in the area.  A copy of the Proposed Determination is sent to each claimant.  If a claimant is dissatisfied with the Proposed Determination, the claimant has ninety days to file an objection with the court.  After all objections have been resolved and, if necessary, modifications made to the Proposed Determination, the court enters a Decree that establishes all of the water rights for the area.

Current Pending General Adjudication Actions

In Utah, there are currently 13 pending General Adjudication actions.  Most of the General Adjudication actions have been pending for decades now, including the Utah Lake/Jordan River drainage basin General Adjudication action, which has been pending since 1936.  Of the 13 pending General Adjudication actions, there has been recent activity in: 1) Area 05 near Moab in the Southeastern Colorado River basin; 2) Area 29 in the Bear River basin; and 3) several areas in the Utah Lake/Jordan River basin, including Area 51 near Birdseye and Hobble Creek, Area 53 near Goshen, and Area 57 in the Harmony Park area and the Emigration Creek area.

There are also two different matters that are being addressed in the Utah Lake/Jordan River General Adjudication, including proposed legislation during the 2016 Utah legislative session, which the State Engineer proposed in order to streamline all General Adjudications.  Senate Bill 75, “modifies the procedure for adjudicating water rights.”  Specifically, S.B. 75 “requires the state engineer to identify all possible claimants in a particular area during an adjudications, if the state engineer’s records are incomplete,” as well as modifying “the procedure following the commencement of an action by the state engineer.”  Under those modified procedures, “the failure or a potential party to file a timely statment of claim constitutes a default against that party.”  additionally, S.B. 75 requires the state engineer “to authorize one extension to those seeking to file a statement of claim,” and after full considerations of claims and an examination of the river system or water source involved, to: complete a hydrographic survey map; prepare a proposed determination of all rights to the use of the water and file it with the district court; serve notice by publication and by mail; and hold a public meeting[.]”

State Engineer Motions for Appointment of Special Master in Utah Lake/Jordan River General Adjudication

The State Engineer has also motioned the district court in the Utah Lake/Jordan River General Adjudication to appoint a Special Master to assist with resolving objections and other specific issues in this long-pending case.  The Special Master will be compensated from appropriations by the Legislature to help speed up resolution of these adjudications.  However, the State Engineer’s motion is still pending.

Settlement and Stipulation Entered in Utah Lake/Jordan River General Adjudication

Prior to the State Engineer’s motion to appoint a Special Master, a settlement was reached and a stipulation was entered in the Utah Lake/Jordan River General Adjudication in 2014 over public input and objections in relation to the instant general adjudication.

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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 water law related bills or resolutions during the 2016 legislative session.  Of those 19, the Utah Legislature passed 10 water law bills or resolutions into law.

Utah Water Law Bills/Resolutions That Passed:

  1. H.B. 222 – Nonuse Application Amendments

House Bill 222 “states that approval of one or more nonuse applications, or successive overlapping nonuse applications, does not protect a water right that is already subject to forfeiture, nor does the approval of one or more nonuse applications constitute beneficial use of the water for purposes of calculating the 15-year period in Subsection (2)(c)(i).”  Thus, under the newly passed amendments, neither an approved nonuse application, nor successive overlapping nonuse applications, protect a water right that is already subject to a forfeiture.  Furthermore, the approval of one or more nonuse applications does not constitute beneficial use.

The bill was introduced by Representative Timothy D. Hawkes, and was sponsored by Senator Margaret Dayton.  The bill passed the House by a vote of 73-1, and passed the Senate by a vote of 26-0.

  1. H.B. 305 – Water Rights and Resources Amendments (2nd Substitute)

House Bill 305 was introduced in order toe “deal[ ] with the accuracy of water use data.  HB 305 “instructs the Drinking Water Board to require certified water operator of a public water supplier, or professional engineer performing the duties of an operator, to verify the accuracy of water use and supply data submitted to the Utah Division of Drinking Water.”  HB 305 further “authorizes the Utah Division of Water Rights to collect and validate water use data,” and to “make[ ] [other] technical changes.”

House Bill 305 was introduced by Representative Joel Briscoe and was sponsored by Senator Margaret Dayton.  The bill passed the House by a 67-0 vote, and passed the Senate by a 22-0 vote.

  1. H.B. 464 – Wildfire on Public Lands and Watersheds (3rd Substitute)

House Bill 464 “requires the Conservation Commission within the Department of Agriculture and Food to work with Utah State University and certain conservation districts to: complete a study and economic analysis of certain issues regarding wildfires on public lands within Utah, including the impact of wildfires on the state’s watershed and air quality; and report to the Legislature’s Commission for the Stewardship of Public Lands; and allows the Conservation Commission to contract with another state agency or private entity to complete the required study and economic the environmental and economic impacts of wildfires on Utah public lands.”  In order to accomplish the requirements set forth by the HB 464, the Legislature “appropirate[d] in fiscal year 2016: to the Department of Argiculture and Food as a one-time appropriation, from the General Fund, one-time $200,000.”

The bill was introduced by Representative Ken Ivory, and was sponsored by Senator Evan J. Vickers.  The bill passed the House by a vote of 73-0, and passed the Senate by a 22-0 vote.

  1. H.C.R. 1 – Concurrent Resolution on Water of the U.S.

Utah Governor Gary Herbert signed House Concurrent Resolution 1 on March 1, 2016.  HCR 1 expresses the Governor’s and Legislature’s “support to Attorney General Sean Reyes in seeking to vacate a federal defining ‘waters of the United States.”  Specifically, HCR 1 “expresses disapproval of the expansion of the term ‘waters of the United States’ to include ephemeral drainages, dry washes, gullies, coulees, and arroyos, which only move after rain; and expresses support for Attorney General Sean Reyes in seeking to vacate this expansive rule.”

The resolution was introduced by Representative Mike Noel and was sponsored by Senator David P. Hinkins.  The resolution passed the House by a 64-9 vote, and passed the Senate through a vote of 22-4.

  1. H.J.R. 4 – Water Infrastructure (1st Substitute)

House Joint Resolution 4 “urges Utah’s congressional delegation to support the efforts of Utah water users organizations to secure title transfer of project works and project water rights free from terms and conditions that were not contemplated at the time of the repayment contracts.”  HJR 4 “calls upon Utah’s congressional delegation to support Utah water users organizations that have repaid, or wish to repay, reclamation projects to secure title transfer of project works and project water rights free from terms and conditions that were not contemplated at the time of the repayment contracts.”

The resolution was introduced by Representative Mike K. McKell, and was sponsored by Senator Deidre M. Henderson.  The resolution passed the House by a 69-0 vote, and passed the Senate on a 23-0 vote.

  1. S.B. 23 – Protected Purchaser Amendments (2nd Substitute)

Senate Bill 23 “modifies the definition of a ‘protected purchaser.'”  The modified definition of protected purchaser “means a purchaser of a certified or uncertified security, or of an interest in the security, who: gives value; does not have notice of an adverse claim to the security; obtains control of the security; and for a share a share of stock issued by a land company or a water company: pays, or whose predecessors in interest paid, an assessment levied against the share of stock for at least four of the immediate past seven years by the land company or the water company; or has used, or whose predecessors in interest have used, either directly or indirectly the water available under the share of stock issued by a water company for at least four of the immediate past seven years.”  Beyond “acquiring the rights of a purchaser, a protected purchaser acquires the purchaser’s interest in the certificated or uncertificated security, share of stock in a land company, or share of stock in a water company free of any adverse claim.”

The bill was introduced by Senator Margaret Dayton, and was sponsored by Representative Keith Grover.  The bill passed the Senate by a 29-0 vote, and passed the House on a final vote of 67-0.

  1. S.B. 28 – Water System Conservation Pricing

Senate Bill 28 “requires retail water providers to establish an increasing rate structure for culinary water,” and to “provide certain information to customers.”  According to SB 25, “A retail water provider … shall: establish a culinary water structure that; incorporates increasing block units of water used; and provides for an increase in the rate change for additional block units of water used as usage increases from one block to the next[.]”  Additionally, SB 28 requires that a retail water provider “provide in the customer billing notices, or in a notice that is distributed to customers at least annually, block unit rates and the customer’s billing cycle; and include individual customer water usage in customer billing notices.”

The bill was introduced by Senator Scott K. Jenkins, and was sponsored by Representative Lee B. Perry.  The bill passed the Senate by a vote of 26-2, and passed the House by a 64-9 vote.

  1. S.B. 75 – Adjudication Amendments

Senate Bill 75 “modifies the procedure for adjudicating water rights.”  Specifically, SB 75: “requires the state engineer to identify all possible claimants in a particular area during an adjudication, if the state engineer’s records are incomplete; modifies the procedure following the commencement of an action by the state engineer; states that the failure of a potential party to file a timely statement of claim constitutes a default against that party; requires the state engineer to authorize one extension to those seeking to file a statement of claim; requires the state engineer, after a full consideration of claims and an examination of the river system or water source involved, to: complete a hydrographic survey map; prepare a proposed determination of all rights to the use of the water and file it with the district court; serve notice by publication and by mail; and hold a public meeting; and makes technical changes.”

The bill was introduced by Senator Margaret Dayton, and was sponsored by Representative Scott D. Sandall.  The bill passed through the Senate by a 27-0 vote, and passed the House by a vote of 66-0.

  1. S.B. 80 / S.B. 251 – Infrastructure Funding Amendments (2nd Substitute / 3rd Substitute)

Senate Bill 80 “modifies provisions relating to infrastructure funding” to appropriate revenue from the Transportation Investment Fund to the Water Infrastructure Restricted Fund through 2012.  for FY 2017-18, the revenue will be split 80-20 between the Transportation Investment Fund and the Water Infrastructure Restricted Fund.  However, by 2012, the revenue will be entirely appropriated to the Water Infrastructure Restricted Fund.

The bill was introduced by Senator Stuart Adams, and was sponsored by Representative Lee B. Perry.  The bill passed the Senate by a 19-10 vote, and passed the House by a vote of 48-26, with the House adding an amendment to the Senate bill.  The senate passed the House amendments by a vote of 18-8.

  1. S.C.R. 1 – Concurrent Resolution Encouraging Universal Metering of Water Systems

Senate Concurrent Resolution 1 “encourages public water suppliers to implement universal metering.” The resolution: “notes that, as the second most arid state in the country, Utah needs to conserve water; states when citizens know how much water they are using, they tend to voluntarily conserve that water; and encourages public water suppliers to implement metering on all retail public and private water systems.”

The resolution was introduced by Senator Scott K. Jenkins, and was sponsored by Representative Lee B. Perry.  The resolution passed through the Senate by a 28-0 vote, and passed the House by a vote of 59-3.

Utah Water Law Bills/Resolutions That Failed:

  1. H.B. 82 – Property Taxing Authority for Public Water
  2. H.B. 257 – Water Funding Revisions
  3. H.B. 283 – Public Utility Easement Amendments
  4. H.B. 309 – Sales and Use Tax Earmark Amendments
  5. H.B. 326 – Special and Local District Transparency Amendments
  6. H.B. 432 – Governmental Nonprofit Entity Compliance Amendments
  7. H.B. 457 – Water Quality Revisions
  8. H.B. 218 – Utah Revised Nonprofit Corporation Act
  9. S.B. 116 – Water Law – Nonprofit Corporation Amendments

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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.”

DWQ Issues Memo Regarding Water Quality Health Advisory Panel

The DWQ memo said that the initial primary focus of the Water Quality Health Advisory Panel would be “coordination around E. coli, mercury, and harmful Algal Blooms (HABs).”  However, the DWQ said it expected that other issues would come up in the future, which would be appropriate for the panel to address.  The formation of the Water Quality Health Advisory Panel necessarily required dissolution and consolidation of the existing E. coli workgroup, Mercury workgroup, and ad hoc HABs workgroup. “Combining these groups into a single advisory panel will be more efficient by eliminating overlap among members of the workgroup,” the memo said.  “Also, it will help ensure that solutions to these interrelated problems are more consistent.”

Objectives of the Water Quality Health Advisory Panel

The memo then went on to address the specific objectives of the Water Quality Health Advisory Panel, including:

  • Develop or refine, as necessary, water quality indicators, monitoring strategies, and assessment methods related to water quality issues that have human health implications. Work with DWQ’s Water Quality Standards workgroup on numeric standards, as appropriate.
  • Develop consistent statewide policies outlining actions to be taken if/when indicators suggest threats to recreation and drinking water uses as well as threats to wildlife, livestock, and pets.
  • Further develop the fish consumption advisory methodology, specifically how to manage annual variability of mercury concentrations at a waterbody and when to remove an advisory if the data indicate there is no longer a public health risk.
  • Communicate a unified message regarding public health risks associated with specific events based on a comprehensive review of the data and relevant literature.
  • Develop and refine field and laboratory Standard Operating Procedures (SOPs), Sample Analysis Plans (SAPs) and related data management and analytical methods.
    • Review and communicate technical information about E. coli, mercury and Harmful Algal Blooms monitoring results.
    • Develop prioritization criteria for future sampling of water bodies across the state for health related concerns including E. coli, mercury, and harmful algae.
    • Disperse training information to local partners and provide regional training (e.g. IDEXX).
  • Review public information materials, including fact sheets, pamphlets, advisory notices, and website content to inform the public about health advisories and closures of recreational waters.
  • Identify and prioritize research to better understand risks to human health, livestock, and wildlife, or to solve water quality problems that are currently known.

Water Quality Health Advisory Panel to Meet in Spring and Winter

The memo then concludes with a logistics section regarding how the Water Quality Health Advisory Panel would operate and who would be members in the advisory panel.  The panel will convene twice a year, once in the spring and once in the winter, according to the memo.  The purpose of the spring meeting is to recommend monitoring locations and review coordination processes in the event of a health related water quality event, whereas the purpose of the winter meeting is to review the data collected during the summer monitoring season and any public advisories that were subsequently identified. Any process improvements related to health related advisories will also be identified for work over the winter season.

First Meeting Held in July 2015

The first meeting of the new Water Quality Health Advisory Panel was held on July 29, 2015.  The goals for the first meeting were to:

  1. Formalize and clarify the role of the Water Quality Health Advisory Panel and how we will do business.
  2. Ensure that all panel members are familiar with agency roles and responsibilities for ongoing water quality and human health related issues.
  3. Discuss new guidance and sampling protocols for Harmful Algal Blooms.
  4. Develop a draft agency coordination plan to execute during Harmful Algal Bloom events.

The following materials were attached to the agenda for the first meeting: Utah Guidance for Local Health Departments and SOP for HAB Phytoplankton Sample Collection.

Scientists Warn of Risks of Poisonous Algal Blooms

According to an article from the Salt Lake Tribune, at the July meeting of the Water Quality Health Advisory Panel, scientists warned that 44 percent of Utah’s waterways — including several drinking-water sources — are at risk of developing poisonous algal blooms.  The most common of the harmful algae, said Craig Dietrich, an environmental epidemiologist for the state department of health, produce toxins that damage the liver.

Less common algae produce neurotoxins, including a toxin known as Anatoxin-a.  Before it was fully understood, Dietrich said, scientists called Anatoxin-a “very sudden death factor,” because the toxin, which is capable of causing respiratory failure in as little as 20 minutes, breaks down extremely quickly in the environment and is difficult to detect.

Most people understand that it’s unwise to drink stagnant water, Dietrich said, so the toxins don’t pose a huge risk to humans. But livestock and pets — especially dogs — are another matter.  “Dogs love to get into things that are strange and smelly,” he said. “And they consistently will drink surface waters that you let them get into.”  Two dogs died after being exposed to Utah Lake water on Oct. 4 and 5 of last year. At the time, toxins in some samples taken from the lake’s Lindon Marina were 70 times World Health Organization advisory levels.

Second Meeting Held in March 2016

In March 2016, the Water Quality Health Advisory Panel held its second meeting.  The goals for the March meeting were:

  1. Provide updates to attendees on water quality health advisories from 2015
  2. Discuss 2016 sampling and communications plans
  3. Establish a work group to address assessment method revisions for E. coli, HABs and mercury

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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.

EPA Final Rule Requires that Every State Adopt WQS

Under the CWA, every state must adopt WQS in order to protect, maintain and improve the quality of the nation’s surface waters.  WQS set forth the parameters for any body of water deemed to be “Waters of the United States” by designating the body of water’s uses, setting water quality criteria to protect those uses, and establishing antidegradation policies to protect high quality waters from degrading pollutants.  Additionally, WQS utilize a process of back calculation procedures known as total maximum daily loads, or wasteload allocations, to form the basis of water quality-based permit limitations that regulate the discharge of pollutants into US waters under the National Pollutant Discharge Elimination System (“NPDES”) permit program.

Prior to the new final rule, the previous WQS regulation had been in place since 1983.  The EPA added tribal provisions to the WQS regulation in 1991, the “Alaska rule” provisions in 2000, and the BEACH Act rule provisions in 2004.

EPA Final Rules Addresses Six Areas Regarding WQS

As initially proposed in 2013, the final rule addresses the following key program areas:

  • the EPA Administrator’s determinations that new or revised water quality standards are necessary
  • designated use for water bodies
  • triennial reviews of state and tribal WQS
  • antidegradation requirements
  • WQS variances
  • Provisions authorizing the use of schedules of compliance for water quality-based effluent limits (“WQBELS”) in NPDES permits

EPA Administrator’s Determinations

As it relates to the first program area, the EPA’s final rule amends the former regulation to add a requirement that an Administrator’s Determination must be signed by the Administrator (or duly authorized delegate) and include a statement that the document is an Administrator’s determination for purposes of section 303(c)(4)(B) of the CWA.  The EPA’s goal in addressing an Administrator’s determination is to allow the EPA and states/tribes to communicate directly and specifically on areas where WQS improvements should be considered and establish a more transparent process for the Administrator to announce determinations under section 303(c)(4)(B) of the CWA.

Desginated Use

The second program area addressed by the final rule relates to designated use for water bodies.  There, the EPA amended the former regulation to provide that where a state/tribe removes or revises a use specified in CWA section 102(a)(2) or a subcategory of such a use that is not attainable, the highest attainable use (“HAU”) shall be adopted in its place.  The final rule also amended the former regulation to clarify when a use attainability analysis (“UAA”) is and is not needed.  The final rules defines the term “non-101(a)(2) use” and amends the former regulation to clarify that for such uses while a UAA is not required, the state/tribe must submit documentation justifying how its consideration of the use and value of water for those uses listed appropriately supports the state/tribal action.  The EPA’s goal in including this amended language in the final rule is to provide clear requirements and ensure appropriate WQS are in place to help restore and maintain robust aquatic ecosystems and promote resilience to emerging water quality stressors.

Triennial Reviews

The third program area addressed by the final rule relates to triennial reviews.  Under that portion of the rule, the EPA amended the former regulation to clarify the “applicable water quality standards” that must be reviewed triennially.  The final rule also requires that if a state/tribe chooses not to adopt new or revised criteria for any parameters for which EPA has published new or updated criteria recommendations under the CWA, then they must explain their decision when reporting the results of their triennial review to the EPA.  The EPA’s goal in requiring states/tribes to explain their decision not to adopt new or revised criteria is to ensure public transparency and clarify existing requirements, so that states/tribes update WQS when necessary and consider the latest science as reflected in the CWA recommendations.


The fourth program area addressed in the EPA’s final rule relates to antidegradation.  The amended regulation now states that states/tribes:

  • may identify high quality waters on either a parameter-by-parameter approach, or on a waterbody-by-waterbody approach that does not exclude water bodies from Tier 2 protection solely because water quality does not exceed levels necessary to support all of the CWA section 101(a)(2) uses. When using the water body approach, states/tribes must involve the public in any decision pertaining to when to provide Tier 2 protection, and the factors considered in such decisions.
  • must evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. When the analysis of alternative identifies one or more practicable alternatives, the state/tribe must only find that the lowering is necessary if one of those alternatives is selected for implementation.
  • must provide an opportunity for public involvement during the development and any subsequent revisions of antidegradation implementation methods (whether or not those methods are adopted into rule), and to make the methods available to the public.

The EPA’s goal as it relates to the antidegradation amendments is to promote public transparency and enhance antidegradation implementation through clearer requirements and expectations.

WQS Variances

The second to last amendment made to the WQS regulations centers around WQS variances.  The EPA amended the former regulation to add a section that provides a comprehensive regulatory structure for and explicitly authorize the use of WQS variances.  The final rule clarifies:

  • that a WQS variance is a water quality standard subject to EPA review and approval or disapproval.
  • how WQS variances relate to other CWA programs and specifies the information that the state/tribe must adopt in any WQS variance, and/or the water body or waterbody segments to which the WQS variance applies, and a quantifiable expression of the highest attainable condition.
  • that states/tribes must submit to EPA supporting documentation that demonstrates why the WQS variance is needed and justifies the term and interim requirements.
  • that states/tribes must reevaluate WQS variances longer than five years on an established schedule with public involvement.

The goal of the WQS variance amendments is to promote the appropriate use of WQS variances when applicable WQS are not attainable in the near-term but may be attainable in the future, and provide regulatory certainty to states, tribes, the regulated community, stakeholders, and the public in making progress toward attaining designated uses and criteria that protect such uses.

Schedules of Compliance

Finally, the new rule includes provisions authorizing the use of permit-based compliance schedules.  There, the EPA’s final rule adds a section to the former regulation to clarify that a permitting authority may only issue compliance schedules for water quality-based effluent limitations in NPDES permits if the state/tribe has authorized the use of such compliance schedules in their WQS or implementing regulations.  The EPA’s goal in adding this language is to clearly articulate in regulation what must be done for states/tribes to be able to utilize permit compliance schedules, and ensure public transparency on state/tribal decisions to allow permit compliance schedules.

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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 of the 61st Utah State Legislature.  Of those water bills introduced during the 2016 session, SB 80 seemed to garner the most attention, and its passage could jump start the Lake Powell Pipeline project.

Lake Powell Pipeline Development Act

In 2006, the Utah State Legislature passed what is known as the Lake Powell Pipeline Development Act (“LPPDA”).  The LPPDA authorized the building of a pipeline from Lake Powell to southwestern Utah in order to meet growing water demands.  The Lake Powell Pipeline, when completed, would pump 86,000 acre feet of water some 140 miles through a 69-inch diameter pipe and then up 2,000 feet up an over the mountains into the Sand Hollow Reservoir, thirteen miles west of St. George, Utah.

Pipeline Project has Been Contentious From Start

The Lake Powell Pipeline project has been contentious since the passage of the LPPDA in 2006.  On one side of the argument you have the proponents of the project who believe the pipeline is essential to addressing the growing water need of southwestern Utah.  Proponents include people like Todd Adams, the deputy director of the Washington County Water Conservancy District, who say that St. George has already exhausted other alternatives for securing the necessary water, including water conservation.  Mr. Adams says the Lake Powell pipeline project is part of a “multi-faceted” approach to solving the water problem.  “We’ve got to conserve, we’ve got to improve efficiency, and we’ve got to develop new water,” Mr. Adams says.

On the other side of the argument, opponents of the pipeline say the project is outdated and unnecessary.  In October of last year, sent a letter to Utah lawmakers, which questioned the economic viability of the project.  The economists argued that southwest Utah’s communities are too small to be able to repay any debts associated with their portions of the projected $2 billion price tag.

There is also the problem of climate change opponents of the pipeline say.  Studies predict that by 2050, the Colorado River’s flow will decrease from between 10 to 30 percent.  This means that even current diversions from the Colorado River, let alone the massive diversion planned by the pipeline project, will not be sustainable if the projections are correct.

SB 80 Passes Into Law

However, it appears that the proponents of the Lake Powell Pipeline may have just scored a victory in their fight to see their “pipeline” dream become a reality.  SB 80, entitled Infrastructure Funding Amendments, sought to divert approximately $35 million from a transportation investment fund to water development.  While not aimed specifically at the Lake Powell Pipeline project, proponents and opponents of the project alike believe the diverted funds will be wholly dumped into the project in hopes of catalyzing the slow-moving and contentious project along.

SB 80 passed both the Senate (19-0 vote) and the House, and is now set to be enrolled into law.  Sen. Stuart Adams, R-Layton, who sponsored the bill, said there are three areas of infrastructure that are vital to Utah: education, roads and water.  The Infrastructure Funding Amendments set aside money primarily for water projects, something that should have been done long ago, he said.

“For whatever reason, in the northern part of Utah, people have ignored water. In Southern Utah … because of your water needs down there you’ve been more focused on it,” Senator Adams said.  “If we get stuck on the freeway, everybody gets frustrated if they’re stuck in traffic, but when you can’t get a drink of water, I think the frustration’s going to be pretty high.”

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

nonuse applicationIn 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 was trying to supplant from C&J’s client and others.

Court Grants Summary Judgment for Plaintiff

After hearing oral argument on the parties cross-motions for summary judgment, Fourth District Court Judge Lynn W. Davis granted plaintiff Central Utah Water Conservancy District’s motion for summary judgment.  In his opinion, Judge Davis agreed with plaintiff’s and intervenors’ argument that defendant’s approved nonuse application only preserved defendant’s nonuse of its water rights for a certain period of time, but did not protect those rights from “any claims of nonuse which arose prior to the nonuse application.”

An Exercise in Statutory Interpretation

The main issue focused on in the court’s opinion was the statutory interpretation of a previous version of Utah Code section 73-1-4, which governs how water rights could be reverted to the public by abandonment or forfeiture for nonuse.  Specifically, the portion of the former statute at issue between the parties, section 73-1-4(3)(b)(ii), read in pertinent part, “Approval of a nonuse application protects a water right from forfeiture for nonuse from the applicant’s filing date until the approved application’s expiration date.”  Thus, the issue to be resolved by the court was whether SUVMWA’s argument that “its approved nonuse application protects it from any claim of forfeiture for the duration of time approved by its successful nonuse application,” was in line with Utah’s history of water law, or if the Plaintiff and Intervenors offered a more consistent interpretation of the statute.

In its summary judgment briefing, C&J’s client argued that all that was required for Defendant to forfeit its water right was nonuse “for the statutory period of seven years.”  C&J’s client claimed that the State has a vital interest “in seeing that none of the waters are allowed to run to waste or go without being applied to beneficial use for any great number of years,” and that “[w]hile courts have not specified a particular number, no party in this case can seriously argue that the (at least) seventy-year gap between the closure of the sugar beet factory and the present action is not a ‘great number of years.’”

Nonuse Application Cannot Protect Long-Dormant Water Right

As it related to Defendant’s nonuse application, C&J’s client asserted that “[t]he purpose of the nonuse application is to inform the State Engineer of the owner’s inability to beneficially use the water and permit the appropriator to show ‘reasonable cause’ for the nonuse.”  “The nonuse application essentially acts as a tolling mechanism to extend the existing seven-year period.”  However, as C&J’s client pointed, and as the court had already held, Defendant’s “novel contention that this statute creates a retroactive, absolute protection against the adverse effects of decades of nonuse would create a result that is ‘without reason and devoid of purpose.’”

Returning to the issue forfeiture, C&J’s client alleged that the water right Defendant was trying to resurrect had been subject to forfeiture for quite some time before the nonuse application was filed.  C&J’s client said:

It is … undisputed that Defendant’s predecessors in interest did not beneficially use the water at issue for more than seventy years.  If is further uncontroverted that Defendant’s predecessor in interest did not file a nonuse application during that time.  Rather, it was not until 2010 when Defendant filed its nonuse application that any entity attempted to revive the corpse of this long-forfeited Factory Water Right.

C&J’s Client Argues that Defendant Never Had a Good Water Right to Begin With

While not addressed in the court’s decision portion of its opinion, C&J’s client asserted that Defendant actually never even acquired any water rights from its land purchase by appurtenance because the option to purchase the water rights was collateral to the purchase agreement, and therefore did not merge with the deed.  Defendant could not offer any legitimate exception to the doctrine of merger, which states that delivery and acceptance of a deed extinguishes or superseded the underlying contract for conveyance, C&J’s client said.

Public Policy Favors Beneficial Use

C&J’s client concluded its argument SUVMWA’s claim to the long-dormant water right by asserting that SUVMWA’s claim was void as against public policy.  There, C&J’s client said:

The water purportedly allocated under the Factory Water Right is already in use by junior appropriators, serving thousands of Utahns for decades.  Disturbing the delicate balance of appropriated rights in this arid state due to the machinations of water speculators is detrimental to our limited water supply, inapposite to legislative intent, and contrary to established public policy.

C&J’s client also pointed out that the court itself had already ruled that Defendant’s reading of the statute “would only serve to extend already long periods of time of nonuse which is counter to the State’s vital interest in seeing that the water it holds in trust for the public is put to beneficial use.”  The court quoted the preceding passage directly as part of its summary judgment ruling, stating that it “is the law of the case.”

C&J attorneys David C. Richards and Tanner Strickland Lenart represented intervenor Jordan Valley Water Conservancy District in the matter.  The case is Central Utah Water Conservancy v. South Utah Valley Municipal Water Association, Fourth Judicial District Court for Utah County, Civil No. 120400610.

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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

standingUnder 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 whether the Utah Alunite Corporation (“UAC”) and the Utah School and Institutional Trust Lands Administration (“SITLA”) had standing to seek judicial review of a decision of the Utah state engineer, which approved the application of the Central Iron Water Conservancy District … to appropriate water in the remote Wah Wah Valley in west-central Utah.  The appellate court held that “[b]ecause SITLA and UAC, although aggrieved persons, did not become aggrieved parties under [UAPA] in this proceeding, they lack standing, and we dismiss their appeal.”

Competing Applications

In October 2006, the Central Iron County Water Conservancy District filed an application to appropriate water in the Wah Wah Valley.  In the following weeks, the Utah state engineer published notice of the conservancy district’s application as required by law.  In response, approximately 300 protestants filed petitions objecting to the conservancy district’s application.  However, SITLA, a substantial landowner in the valley from which the water was to be appropriated, failed to file an objection.

Then, almost six years after the objections were filed, in August 2012, while the state engineer was still considering the conservancy district’s application, SITLA and UAC, jointly filed a competing application to appropriate water in the Wah Wah Valley.  Soon thereafter, the conservancy district filed a protest to the joint application.

State Engineer Rules Appellant’s Water Rights are Subject to District’s Senior Rights

After almost two more years passed, in May 2014, the state engineer finally issued a decision regarding the competing applications.  The state engineer granted both the conservancy district and SITLA and UAC the water rights they had applied for.  However, the grant to SITLA and UAC was made “subject to the [Water] District’s senior right.”  SITLA and UAC saw the state engineer’s decision as essentially denying their application, given the fact that the state engineer had given higher priority to the conservancy district’s grant.  As a result, SITLA and UAC sought judicial review of both of the state engineer’s order.

District Court Lacks Subject-Matter Jurisdiction

As it relates to the state engineer’s decision addressing the water rights of the conservancy district, the lower district court determined that it lacked subject-matter jurisdiction because SITLA and UAC were not parties to the informal adjudication of the conservancy district’s application.  The district court also determined that it lacked jurisdiction because SITLA and UAC had not exhausted their administrative remedies by either timely protesting or seeking to intervene.  According, the district court dismissed SITLA and UAC’s petition.  SITLA and UAC appealed.

On appeal, SITLA and UAC argued that Utah Code section 73-3-14 was the “alpha and omega of standing to seek judicial review of an adverse decision of the State Engineer.”  The appellate court disagreed, finding that a determination of standing for purposes of seeking judicial review of an order of the state engineer required reference not only to section 73-3-14, but also to the UAPA, as section 73-3-14 explicitly sets forth.  Therefore, the Court of Appeals determined that “there are two essential requirements for achieving standing to obtain judicial review of a decision made by the State Engineer.”

Two-Part Analysis for Determining Standing

First, a party wishing to seek judicial review of an order of the state engineer must be an “aggrieved person” for purposes of section 73-3-14.  Under the statute, an aggrieved person is an interested person with an “actual or potential injury” resulting from the state engineer’s decision.  Second, even if a person is an “aggrieved person,” that person must also be a party.  Thus, in the words of the court:

[A]lthough a person may be negatively impacted by a decision from the State Engineer that is adverse to his or her interests—and thus be “aggrieved” in a general sense—that person does not have standing to seek judicial review unless he or she becomes a party, pursuant to UAPA, in the proceeding sought to be reviewed.

The court pointed out that the terms “aggrieved person” and “aggrieved party” are not co-extensive terms under the UAPA.  Under the UAPA, a “person” is “an individual, group of individuals, partnership, corporation, association, political subdivision or its units, governmental subdivision or its units, public or private organization or entity of any character, or another agency,” while a “party” is “the agency or other person commencing an adjudicative proceeding, all respondents, all persons permitted by the presiding officer to intervene in the proceeding, and all persons authorized by statute or agency rule to participate as parties in an adjudicative proceeding,”  Therefore, only those members of the broader group of “aggrieved persons” who become “aggrieved parties”, i.e., those who commence an adjudicative proceeding, or are respondents in that proceeding, or are permitted by the state engineer to intervene or are otherwise authorized by statute or agency rule to participate as parties to participate in adjudicative proceeding have standing to seek judicial review.

As it related to SITLA and UAC, the Utah Court of Appeals determined that “[t]here is no question that [SITLA and UAC], although parties in their own parallel administrative proceeding, were not parties to the adjudicative proceeding commenced by the Water District’s application under UAPA.”  “Therefore, although [SITLA and UAC] are aggrieved persons, they lack standing because only persons that are both aggrieved and qualify as parties—aggrieved parties—have standing under section 73-3-14 and UAPA to contest a decision of the State Engineer.”

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