Monthly Archives: September 2016

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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 the myriad issues created by the “rapid growth of population and housing in Utah, particularly within the grater Wasatch area.”  As a result, the Act was aimed at “create[ing] new opportunities for local governments seeking to preserve open lands.”  According to the Legislature, “The Act supports critical land conservation, home ownership, housing availability, efficient development of infrastructure and efficient use of land. The act applies to cities and counties on a purely voluntary basis, and mandates nothing.”

Utah Quality Growth Commission Membership

As part of the Act, the Legislature created the Utah Quality Growth Commission, which consists of approximately 13 members that are appointed by Governor and approved by the Utah Senate.  Membership of the Commission consists of:

1) two persons at the state government level, one of whom must be from the Department of Natural Resources; 2) six elected officials at the local level, three of whom must be nominated by the Utah Association of Counties and three of whom must be nominated by the Utah League of Cities and Towns; 3) one person nominated by the Utah Home Builders Association; 4) one person nominated by the Utah Association of Realtors; 5) two persons from the agricultural community, nominated by Utah farm organizations; and 6) one person selected from the private profit or nonprofit sector.  Commission members are appointed to four-year terms, with a limit of two consecutive terms of service.

Utah Quality Growth Commission Authority

Pursuant to Utah Code Ann. § 11-38-202, the Utah Quality Growth Commission has the authority to:

1) make recommendations to the Legislature on how to define more specifically quality growth areas within the general guidelines provided to the commission by the Legislature; 2) advise the Legislature on growth management issues; 3) make recommendations to the Legislature on refinements to this chapter; 4) conduct a review in 2002 and each year thereafter to determine progress statewide on accomplishing the purposes of this chapter, and give a report of each review to the Political Subdivisions Interim Committee of the Legislature by November 30 of the year of review; 5) administer the program in this chapter; 6) assist as many local entities as possible, at their request, to identify principles of growth that the local entity may consider implementing to help achieve the highest possible quality of growth for that entity; and 7) fulfill other responsibilities and duties imposed by the Legislature or this chapter.

The Utah Quality Growth Commission is also responsible for administering the Utah’s LeRay McAllister Critical Land Conservation Fund, the funding of which “shall be used for preserving or restoring open land and agricultural land.”  The Commission’s board is overseen by Chairman David Mansell, a real estate agent, and Logan City Councilwoman Holly Daines.

Utah Quality Growth Commission Takes Up Watershed Issue

Pursuant to its authority under the Quality Growth Act, the Utah Quality Growth Commission has purportedly taken up the watershed issue in anticipation that the Utah Legislature may seek input from the Commission during its next session if the Legislature decides to revisit Salt Lake City’s authority over canyon lands outside the city’s boundaries.  As set forth by the Commission:

Water is the lifeblood for Utah’s economy and quality of life.  Without water, this growth is impossible. Because we are growing so fast, we must become better stewards of our limited water resources.  For this reason, The Commission recently undertook an effort to evaluate how the watersheds in Utah are managed and in particular, the granting and application of Extra Territorial Jurisdiction by the state to Cities of the First Class (A City whose population exceeds 100,000) and other issues.

Save Our Canyons Takes Issue With Commission’s Involvement

However, the Utah Quality Growth Commission’s voluntary involvement in the watershed management battle has not necessarily been well-received.  An email from Save Our Canyons to its members, titled “Attack on the Watershed,” asked the members to turn out against “a little known state organization struggling for funding and battling to remain relevant [that] is taking aim at Salt Lake City’s watershed protections.”

Others opposed to the Utah Quality Growth Commission’s involvement in the watershed management issues have accused Commission staffer John Bennett of being the pocket of developers.  In a memo to the other members of the Commission, Bennett said that even though he had “been accused of being in the pocket of developers,” he believed the commission was justified in speaking up because of its “responsibility to look at how to promote growth on a quality basis and how to conserve lands.”

“The reason I was willing to go down this path is that this commission is uniquely charged at looking at the tension between conservation and development,” Bennett added.

Salt Lake City’s “Extra-Territorial” Agreement With the Utah Legislature at Heart of Watershed Issue

At the heart of the watershed issue is an “extra-territorial” agreement between Salt Lake City and the Utah legislature, which Bennett said during the recent Commission meeting, effectively gives Salt Lake City veto power over land-use decisions in the Cottonwood canyons, even though those canyons are outside the city’s boundaries.  Bennett added that frustration has grown on the part of communities such as Sandy and Millcreek, who are currently looking for ways to annex parts of the canyons and ski resorts.

“The issue is: How do we resolve this tension between people who want to recreate and protecting the watershed?  Those two things are both critical, and we need to figure out a way to achieve that,” Bennett said.

Salt Lake City Criticizes Commission’s Statements Made During Commission Meeting

However, not everyone agreed with Bennett’s characterization of things during the meeting.  For example, Laura Briefer, director of Salt Lake City’s public utilities department, took issue with what she said were “many” inaccurate statements made by Bennett, as well as others, at the meeting.  Among those inaccurate statements, Briefer said, was the “implication that it’s a relationship of conflict” between Salt Lake City and other communities.  Briefer also said Bennett and others improperly implied that Salt Lake City does not invest in the Cottonwood canyons’ infrastructure.  Above all, Briefer said she was “frustrated” by what she heard from the Commission during the meeting.

Opponents of Salt Lake City’s Control Over the Watershed Accuse City of Having Monopoly on Water

Those opposed to Salt Lake City’s control over the canyons, said they felt like Salt Lake City was holding a monopoly on water, and that it was unfair to subject Salt Lake County residents to ordinances or other regulations put in place by an elected body the residents did not vote for.  For example, Kyle Buxton, a landowner and irrigation company supervisor in Big Cottonwood Canyon, said during the meeting that he and his family have been personally cited 38 times over watershed issues in just the past three years.

In addition to Buxton, canyon property owners Evan Johnson and Norm Henderson, irrigation company president Paul Southam and Dave Robinson, a negotiator for several property owners and Republican candidate for Salt Lake County mayor, laid out a litany of complaints about how city water officials unfairly stymied their ability to use their lands.

Evan Johnson, an owner of a ski-in/ski-out lot near Cecret Lake, told the Commission that Salt Lake city had cut-off his access to water and devalued his property.  “The watershed regulation is abused and we’re bullied,” Johnson said. “… My property is inside four water districts, and I can’t get a drop of water. I can’t get any water because Salt Lake City told them not to service me.”

Salt Lake City Fires Back at Landowners

In response to the landowners’ complaints, Salt Lake City Councilwoman Erin Mendenhall said, “It feels like some sour grapes over decisions you didn’t like in the Mountain Accord process and failed litigation efforts,” and the Utah Quality Growth Commission had provided the landowners “a place to have a pulpit.”

Commission Adjourns Hearing Without Deciding on Any Formal Recommendations

Following the contentious debate between canyon landowners and Salt Lake City officials, the Commission, which has no regulatory power, adjourned the meeting without deciding on any formal recommendations.  Even still, Briefer was not too excited about one of the recommendations the Commission said it might consider: eliminating Salt Lake City’s extra-territorial jurisdiction entirely and turn over water management authority to counties.

“This is the first time I’ve ever seen this recommendation,” said Briefer, who added that she has concerns about counties’ ability to manage critical water resources. Still, she added, Salt Lake City’s public utilities department is “happy to listen.”

“We have a lot of collaborative relationships in our watershed management,” Briefer said. “To me, that’s the bottom line.”

Commission Issues Draft Report

In a blog post, the Utah Quality Growth Commission states that it “has spent the last couple of months reviewing the management of [U]tah watersheds and related issues.  Most of our work has focused on the management of the Wasatch Canyon Watersheds.”  As part of those efforts, the Commission has produced a draft report to the Legislature.

Who Will Ultimately Control the Watershed?

While it remains to be seen what, if anything, the Utah Quality Growth Commission will recommend to the Legislature regarding the battle between Salt Lake City and canyon landowners over watershed management, the Commission has placed itself firmly in the middle of the fray between the parties.  It will be interesting to see what role the Commission plays in the upcoming legislative session if the Legislature takes of the watershed issue.  Without any formal regulatory authority, the Commission will likely serve as a consultant for the Legislature, who will ultimately decide if control of the watershed will remain in the hands of Salt Lake City, or if it will be left to the individual counties or other municipalities.

Photo Cred.: sltrib.com

Copyright 2016

 


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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 of appeals determined that the trial court did not err when it determined that there was no meeting of the minds to establish an oral contract between the parties.

Brasher’s Need for More Water

Appellee/Defendant Vikki Christensen owns a 260-acre farm in Emery County, Utah, which ownership includes the rights to use irrigation water on the farm.  Christensen’s water rights “are represented by 780 shares of stock in the Huntington-Cleveland Irrigation Company (HCIC).”  Appellant/Plaintiff Reed Brasher owns or leases some 100 acres of land in Emery County.  Brasher raises cattle and grows alfalfa to feed his cattle on those 100 or so acres.

During the summer and fall months, Brasher allows his cattle to graze on 60 acres of irrigated pasture.  During the winter and spring months, Brasher feeds his cattle alfalfa that is farmed from his approximately 30 acre alfalfa farm.  Brasher, like Christensen, owns water stock in HCIC.  However, his shares in HCIC are sufficient to irrigate only 45 acres of his 100 acre farm.  As a result, Brasher must lease enough water to irrigate the remaining 55 acres of his farm to feed his cattle.

Brasher Enters into Water Use Authorization Agreement with Ms. Christensen

In order to irrigate the remaining acreage of his farm, Brasher entered into an agreement with Christensen, whereby Brasher leased 215 class A water shares.  As part of their negotiations, Brasher asked Christensen to lease him the water “until further notice,” but Christensen declined.  Brasher and Christensen both signed a Water Use Authorization form provided by HCIC, which set forth the 2012 start of Brasher’s water lease.

Brasher’s Water Rights Cutoff

On the Water Use Authorization form, Brasher checked the box next to “until further notice,” despite the fact that Christensen told Brasher she was unwilling to agree to such an open-ended lease term.  In light of Brasher’s actions, HCIC contacted Christensen to determine whether she actually intended to lease Brasher the water “until further notice.”  Christensen informed HCIC that she did not, and that Brasher’s lease was just for the 2012 season, ending on October 31st.

Brasher Approaches Christensen With Offer to Buy Farm and Lease Water Shares

In February 2013, Brasher became aware that he could qualify for a subsidized federal program to install sprinkler irrigation on his farm through the National Resources Conservation Service (“NRCS”), so long as he could establish access to sufficient water shares.  Brasher contacted Christensen to inquire whether she would be interested in leasing him water during the 2013 season.  Christensen declined Brasher’s offer, explaining that she was not sure that the water Brasher was interested in leasing would be available.  After several more failed attempts by Brasher to lease the water from Christensen, Brasher told Christensen that he had $5,000 in earnest money and asked Christensen if she would meet with him to discuss the details of his offer.

In March 2013, Brasher, Christensen, and Christensen’s friend, Nedra Swasey, met to discuss Brasher’s offer at Christensen’s home.  Before the meeting, Christensen purportedly told her friend that she would not lease the water to Brasher unless he offered to buy the farm.  Brasher brought two forms with him to the meeting: a blank Water Use Authorization form and a blank Offer to Purchase Real Estate form.  After Brasher and Christensen negotiated the terms of their real estate deal, Ms. Swasey filled in the forms supplied by Brasher, and both parties signed it.

The agreement allowed Brasher to take possession of Christensen’s farm on March 25, 2013, but allowed Christensen to remain in the farmhouse until April 2, 2014.  The agreement further required Brasher to pay Ms. Christensen $5,000 earnest money, but Brasher never paid that money to Christensen.

Brasher and Christensen Also Discuss Water Use Authorization Form

As part of their meeting, Brasher and Christensen also discussed the terms of the potential waters shares lease.  Brasher filled out the Water Use Authorization form, and both parties signed the form.  The Water Use Authorization form read in pertinent part, ““In accordance with a lease and/or other agreement, I Vikki Christensen am authorizing Reed Brasher to call for: 215 shares of Class A Water from my [HCIC] water account starting at the beginning of 2013 irrigation season.”  At the close of their meeting, Brasher left a check for approximately $1,300 with Christensen as payment for the water shares lease.  However, Christensen never cashed that check.

Brasher Falsifies Water Use Authorization Form

Christensen kept with her the signed Real Estate Purchase Offer, and Brasher took the signed Water Use Authorization form to make copies for the parties, but never returned a copy to Christensen.  Instead, Brasher delivered the signed Water Use Authorization form to HCIC.  The Water Use Authorization form delivered to HCIC set forth that the water shares lease would continue until “the end of 2018 irrigation season,” and that it was payable 3/15 each year.”

During trial, it was revealed that Brasher had added the aforementioned terms after meeting with Christensen.  It was also revealed during trial that Christensen told Brasher that she needed to discuss the terms of both the Real Estate Purchase Offer and the Water Use Authorization before proceeding with the deal and that the water shares lease was contingent upon Brasher buying the farm.  Brasher told the trial court that the water shares lease was independent of the offer to purchase the farm and that Christensen only told him that she needed to discuss the offer to purchase the farm with her attorney, and not the Water Use Authorization, before proceeding.

Christensen Nixes Deal

Between March 13th and 24th, Brasher attempted to call Christensen a number of times to determine if she in fact wanted to accept his offer.  Christensen never returned any of Brasher’s calls.  Finally, the day before Brasher was to take possession of the farm, Brasher and Christensen spoke over the phone.  Brasher told the trial court that, after the phone call ended, he was under the belief that his offer would not be accepted.

Brasher Begins Drawing Water Even Though Deal was Rejected

Even though his offer to purchase the farm was not accepted, Brasher began drawing water at the beginning of April, on the belief that the water lease was independent of the offer to purchase the farm.  After Brasher began drawing water, HCIC contacted Christensen to confirm that she wanted to lease Brasher water through the 2018 water season.  Christensen told HCIC the she did not want to lease the water to Brasher, instructing HCIC to stop providing water to Brasher.  As a result, HCIC cutoff Brasher’s water.  Upon finding out that HCIC had terminated his water shares, Brasher allocated his own HCIC water shares to his alfalfa fields and sold all but a few of his cows.

Trial Court Dismisses Brasher’s Claims for Damages

Subsequently, Brasher sued Christensen for damages arising out of the loss of his alfalfa crop for the 2013 year and for losses related to his cattle operation, which amounted to approximately $150,000.  Following a bench trial, the trial court dismissed Brasher’s complaint, “determining that the WUA was not an enforceable contract but rather an instruction from one shareholder to HCIC to deliver water to another person, and that there was no meeting of the minds as to the terms of an oral contract between the parties to lease water.”  Brasher appealed.

On appeal, the Utah Court of Appeals was faced with two issues: 1) whether the trial court erred when it determined that the 2013 Water Use Authorization was not an enforceable contract; and 2) whether the trial court erred when it determined that there was no meeting of the minds to establish an oral contract.

A Water Use Authorization is Not an Enforceable Contract

As to the first issue, the court of appeals upheld the lower court’s determination that the 2013 Water Use Authorization agreement did not, in and of itself, constitute an enforceable contract.  There, the court of appeals concluded:

[T]he trial court correctly determined that the 2013 WUA was not an enforceable contract.  In particular, it seems clear that the terms of the form did not require offer and acceptance or consideration.  The “WUA instructs HCIC to deliver water to one of the parties for a period of time,” nothing more.  And as the trial court held, the WUA “by its very terms” expressly conditions its enforceability upon “a lease and/or agreement,” contemplating that the parties have reached a separate agreement as to the lease of HCIC stock.  The terms of the form detail no offer by one party, no acceptance by another, and no consideration.  The form is devoid of language establishing a contractual relationship between Brasher and Christensen.  Consequently, the trial court correctly concluded that the 2013 WUA was not, by itself, an enforceable contract between Brasher and Christensen.

No “Meeting of the Minds,” No Oral Contract

Turning to the second issue, whether there was a meeting of the minds sufficient to establish an oral contract, the court of appeals held:

We therefore conclude that the trial court’s finding was supported by evidence and that the court did not clearly err when it found that Christensen told Brasher she needed to discuss the terms of the WUA and the Offer with her family and attorney “before anything was final.”  We further conclude that because Brasher testified that he believed the two agreements were independent of each other and Christensen testified to the contrary—that she intended them to be contingent upon each other—the trial court did not err when it concluded there was no meeting of the minds sufficient to create an oral contract.

Two Key Takeaways

The main takeaway from the court of appeals’ ruling is that a Water Use Authorization, while able to authorize a party to use water from the shares of another, does not, standing alone, create an enforceable contract among the parties.  As a result, even if a party is authorized to use water from another party’s shares, there is no ability to enforce that agreement, absent more.  Additionally, even where a Water Use Authorization does not constitute an enforceable contract, the parties may still enter a binding oral agreement over the water shares, but only if there is a meeting of the minds.

Photo Cred.: yorkmix.com

Copyright 2016


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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 County has said of the proposed water conservancy district:

The purpose of a District in Cache County is to protect and conserve our long-term agricultural, environmental and municipal water interests with an emphasis on securing our allocation entitlements pursuant to the Bear River Development Act.  The County has experienced increased demands related to water issues and reduced resources to meet the demand.  A district would promote water conservation and safeguard adequate amounts of water for the inhabitants of the areas included within the District at a reasonable cost and in a reasonable manner of delivery.

Nearly Unanimous Support for Putting Cache County Water Conservancy District on the Ballot

Cache County Water Manager Bob Fotheringham has said that the time for Cache Valley to have its own water conservancy district has finally come, and that such an entity will even the playing field for Cache Valley residents.  “I believe that the benefit of having the district is so we can manage water better than we’ve managed it in the past and meet the needs of Cache Valley,” Fotheringham has explained.

Fotheringham’s excitement for the establishment of the Cache County Water Conservancy District has seemed to attract the support of a number of other government officials across Cache Valley.  In fact, 18 of 19 municipal governments voted unanimously to allow the Cache County Water Conservancy District ballot measure to be voted on this November.  The lone dissenting vote was cast by River Heights.

Opponents See Cache County Water Conservancy District as a Way to Levy More Taxes and Access Untapped Bear River

While the water conservancy district measure has made the ballot in November, not everyone is in favor of creating the Cache County Water Conservancy District.  Zack Frankel, executive director of the Utah Rivers Council, has said that the formation of a water conservancy district will be nothing more than another level of government bureaucracy separating Cache Valley residents from their water.  Frankel has also said that the creation of a water conservancy district is just an excuse for Cache County to assess property taxes, which will amass millions of dollars for the county to spend on water projects, including projects on the largely undeveloped Bear River, which Cache County is entitled to 60,000 acre-feet of the approximately 220,000 acre-feet of water that could be developed pursuant to the Bear River Development Act.

Cache County Water Conservancy District Will Be Independent Entity

While the question of whether Cache County Ultimately needs a water conservancy district will be decided by voters in November, it is important to understand the proposed structure of the Cache County Water Conservancy District, including how much the conservancy district can tax residents.  Cache County has said, “The final organization and governance of the District would be created based on input from the citizens.  The District Board of Trustees can include up to eleven members and must include a majority of elected officials.  Input and communication about the formation of the Board are needed to ensure the District serves all water users in the District area and is a fit for Cache County’s needs.”  Furthermore, once created, the Cache County Water Conservancy District will function as an “independent entity to plan, safeguard, and manage water resources for the benefit of the public in the geographic area they represent.

Third Time is the Charm?

As noted, this will be the third time that voters will go to the polls over the fate of the Cache County Water Conservancy District.  The other two attempts to create a water conservancy district in Cache County have failed because voters have never felt comfortable forming a district made up of appointed individuals who have the ability to assess taxes.  The reality is Utah’s water conservancy districts use taxpayer money to build infrastructure like pipelines and dams, pay salaries and lobbyists and even build new buildings. But when a citizen has beef with how this money is spent, there’s no recourse at the ballot box.

Even still some have admitted that a water conservancy district is “the perfect example of taxation without representation.  According to Dan McCool, director of the University of Utah’s Environment and Sustainability and Studies program, “They can tax, they can borrow, but they are in most cases unelected by the public at large.”

10 of 11 Board Members to be Elected

So, what is different this time around?  First, water conservancy district board members may now be elected pursuant to a change in the Utah Code in 2010, which allows water conservancy district board members to be elected or appointed.  Additionally, Utah Code § 17B-2a-1005 requires that a majority of a water conservancy’s board members be elected as opposed to appointed.  Cache County has said that 10 of the water conservancy district’s board will be elected, while the 11th board member will be appointed to represent the interests of the agricultural community.

“There will be no other district in the state that will be operated like this district because it is a new way to manage,” Fotheringham says.  “I think we’ve resolved those issues for people and I believe it’s going to be transparent; it’s going to be accountable and it’s going to do what the people in the area of Cache Valley want it to do, and that’s what we need.”

Conservation Focus

Second, Cache County has said that water conservancy districts have become more and more focused on water conservation following the pronouncement by Utah’s governor in 2000 to reduce per capita water use 25% by 2050.  Cache County says that since that time, Utah as a whole has conserved 18%, but that Cache County has only been able to conserve 6%.  Accordingly, Cache County says, by way of the Cache County Water Conservancy District, its citizens can become more involved in the conservation process.

Tapping Into the Bear River

Third, Cache County has maintained that plans to development the Bear River has progressed since the last time the issue was on the ballot.  Property to build a pipeline from Box Elder County to Salt Lake County, and that reservoir sites in Box Elder County and Cache County are currently being evaluated for construction by water conservancy districts up and down the Wasatch Front.  While any pipeline will not be completed until at least 2035, Cache County has said that the formation of the Cache County Water Conservancy District will provide “the needed structure and authority to form regional contracts that must be in place to utilize Cache County’s Bear River water allocation.”

Cache County Population Growth

Fourth, Cache County population has grown by some 30% in recent years.  According to Cache County, “The population for the County given in the 2000 census was 91,391.  The 2010 census population for the County was 112,656 with a projected population for 2013 of 120,046.”  As a result, Cache County says the growing population will only increase the demand for water and will reduce any current excess water supplies.

Groundwater Management Plan

Finally, the groundwater management plan enacted in September 1999 limited the amount of water that can be drawn from underground aquifers in Cache County.  As it stands now, Cache County says that existing water rights (usually agricultural water rights) have to be used as replacement water.  Cache County says, if formed, the Cache County Water Conservancy District, will allow “for more efficient conversion of water from agricultural to municipal use with the ability to bank water rights.  A conservancy district is needed to have the resources and focus to develop the Bear River allocation.  The developed allocation can help preserve agricultural land by giving an alternative source for water rights in areas that currently have no water rights, such as bench areas, as these areas are developed.”

Increased Property Taxes

As it relates to taxation, the proposed Cache County Water Conservancy District will have the authority to assess taxes.  Cache County has said the water conservancy district may impose a maximum property tax of “0.0001 per dollar before certain activities are commenced, 0.0002 per dollar after certain activities are commenced, and 0.0003 per dollar if an additional levy is necessary to pay maturing bonds or debts.”  In practice, Cache County has said that the tax will play out as follows: “the tax on a $188,000 residence would be $10.34 using a tax rate of 0.0001, $20.68 using a tax rate of 0.0002, and $31.01 using a tax rate of 0.0003.”

Cache County has said the creation of the Cache County Water Conservancy District and a corresponding tax will allow Cache County to protect its shrinking interest in water from the Bear River, provide Cache County residents with a board that is focused on water issues and has the authority to make water decisions and agreements that will protect Cache Valley’s water, and will help the county to carry out the Cache Valley Water Master Plan.

Will Voters Go for it This Time?

While Cache County has offered a host of reasons for adopting the Cache County, will it achieve its objectives, or is its creation just another way to tax Cache Valley residents and provide special water projects to a select group of residents or businesses as opposed to the public at large?  Time will tell, but at least Cache Valley residents will control the issue via the ballot box.  All eyes will be keenly fixed on election night in November.

* Photo Cred.: news.hjnews.com

Copyright 2016


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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 to residents in return.

UEP Taken Over by State Amid Concerns About FLDS Trying to Bankrupt UEP

The UEP was formed decades ago by FLDS church leaders seeking to manage residents’ “consecrated” properties under a communal system, but Utah’s court system took over the management of the UEP a decade ago amid concerns that FLDS leaders were defaulting on their responsibility to defend trust members’ holdings and driving the trust toward insolvency.  The state’s management of the UEP trust created a situation where FLDS members have been pitted against the trust they had established in an ongoing adversarial relationship.

UEP’s Lawsuit Seeks Control of Water Distributed From UEP Land

UEP’s lawsuit seeks control of the water distributed from UEP owned land, as well as back payment for water taken from the land without compensation to UEP.  It has been alleged that TCWW earned and disbursed more than $4.3 million between 2002 and 2009, none of which was paid to UEP, and that $1.7 million of that was diverted for purposes wholly unrelated to TCWW.  UEP also seeks to have the court put in place a new system of water distribution management to ensure that TCWW is not allowed to take water from UEP land without providing compensation in the future.

Judge Westfall Takes Question of Who Should Control Short Creek Water Rights Under Advisement

The question of who will control the water rights in the Short Creek area is now in the hands of Fifth District Judge G. Michael Westfall.  Late last month, after accepting an agreement between TCWW and UEP, which resolved a number of the issues regarding water rights in the border towns of Hildale and Colorado City, Judge Westfall took under advisement arguments over who has the right to control the water in the neighboring municipalities.

Over the objection of TCWW, Judge Westfall agreed with UEP, ruling that the Fifth District had jurisdictional authority to decide who has control over the water on the Arizona side of the border.  TCWW had argued to Judge Westfall that a Mohave County (Arizona) court should decide the issue, but Judge Westfall disagreed.  As a result, for now, the fate of the water on the Arizona side of the border lies in the hands of a Utah judge.

UEP Argues Its Ownership of the Land Gives it Right to Control Water

In support of its argument that it is entitled to control the water between Hildale and Colorado City, UEP attorney, William Walker, argued that, on account of the fact that UEP owns the land, the law gives UEP sole control over collecting underground water through a “right of fiduciary” and to control surface water via existing property rights.

TCWW Compares Easement to Hunting Permits

In response, James Spendlove, the attorney for the TCWW utility, compared access to underground water to a hunting permit, arguing that, so long as an individual has a permit to hunt animals and is allowed to be on the land, then that person has the right to kill and take the animal and benefit from the meat without having to give the meat back.  Spendlove told the court that UEP granted TCWW an easement some forty years ago to allow TCWW to place its well equipment on UEP’s land and draw water from the ground under the land.  Spendlove also noted that TCWW has an Arizona permit for it well operations.

UEP Says Easement Granted Access Only

UEP replied that the easement granted to TCWW gave the utility access to the water, but it did not vest any control over the water rights in TCWW.  According to UEP, such rights would have to be conveyed in a separate document, and that TCWW rejected the idea of easement rights to the water, alleging that TCWW had the right to take the water by way of “unrecorded leases.”  TCWW has been unable to produce these alleged “unrecorded leases,” UEP told the court.

UEP’s Suit One of Many Legal Woes for TCWW

Judge Westfall has not given a timetable for his decision.  Even still, the battle over the water rights in Hildale and Colorado City is not the only legal trouble the TCWW has had to face over the last year or so.

Utah AG’s Office Sues TCWW Over Illicit Funding of FLDS Church

In March 2015, the Utah Attorney General’s Office filed a lawsuit against TCWW, which asked Washington County, Utah’s Fifth District Court to close down the utility.  The lawsuit was filed as part of the efforts to disrupt the allegedly illicit funding of the FLDS church.  According to the complaint: “The officers of (Twin City Water Works) are not properly discharging their duties, have no knowledge of the operations of the nonprofit corporation, and appear incapable of ensuring that the nonprofit properly uses its revenue to improve, maintain, and expand the TCWW water system.”

“The TCWW water system is in very poor condition, and it appears that little revenue, if any, has been used for the maintenance, expansion, or development of the TCWW water delivery system,” the attorney general’s complaint summarizes.

Willie Jessop Sues TCWW Seeking to Tie Utility to FLDS Church

Just one month later, Hildale businessman and former security representative for the FLDS church, Willie Jessop, filed his own suit against TCWW, seeking to tie the utility to the FLDS church, which owes Jessop approximately $30 million dollars by way of a default judgment entered against the church in 2012.

TCWW Pleads Guilty to Tax Evasion

The TCWW utility also pleaded guilty to tax evasion last year, acknowledging it had failed to pay corporate tax on income of $112,634 per year between 1996 and 2013.  The plea agreement stated the company owed $147,624.61 in back taxes, plus another $223,000 in interest and penalties.

No Water Without Compensation

While it remains to be seen what Judge Westfall will decide as it relates to water rights in the Short Creek Area, it is clear that the UEP wants a new system put in place to ensure TCWW cannot remove water from UEP land without compensating UEP.  Like others suing the utility, UEP appears increasingly concerned that revenues generated by TCWW are neither being paid to UEP nor are being used to maintain the TCWW water system.  Instead, those funds appear to be lining the pockets of FLDS leaders and TCWW employees.

Hildale/Colorado City Residents Real Losers in Water Rights Dispute

Beyond UEP, the big losers in the battle over water rights in the Short Creek area are the residents in Hildale and Colorado City that are being victimized via unreasonably high rates charged by TCWW.  Hildale instituted a steep hike in impact fees for water services in March 2015.  UEP employees said the hike in impact fees frustrated efforts to sell some vacant lots without water and sewer at an auction earlier in the month.

Another issue affecting the auction was the cost of constructing an 8-inch water main to some of the properties.  “The city is telling them these lots will not be served until we get an 8-inch main to serve the entire area because we can’t just take 1-inch, 2-inch lines off of a 1-inch, 2-inch line,” UEP employee Jethro Barlow said.  UEP attorney Jeff Barlow said a problem with the requirement is Hildale is asking each resident to pay for the entire stretch of pipe to their property, so at $25,000 per block, a resident four blocks from the access point would pay $100,000. So would any other residents within the 4-block area, he said.

* Photo Cred.: sltrib.com

Copyright 2016