2011 Issue

60 because the duty to serve has never been absolute, and the public utility doctrines did not contemplate chronic water shortages . In Utah, planning and zoning decisions are made at the local levels of government, and the State Engineer has no role in that process. Similarly, local governments have no role in water allocation. They typically have asked only if the developer has water for the project. The inquiry ends when the developer produces her ap- proved water right or a will serve type letter from a water distribution entity agreeing to provide service. Seldom, if ever, has a local planning authority required the verifiable demonstration that a developer and/or a water service entity actually has the water rights and the physical water resource available to meet the demands of the project. As a result, some developments have found themselves without adequate water at full build out forcing local government to bail them out. Annexations and Developer Exactions Local governments have become more sophisticated, especially where devel- opment parcels are requesting. Cities and local districts have required the developer to acquire the water rights, construct the water system infrastruc- ture, and to develop a water source capacity with the quality and quantity required for their project. These re- sources are then dedicated to the city or local district as a developer exaction and often as a condition of annexation or development plat approvals. Inadequecies in the Review Process The annexation and forced dedication or exaction approach has worked rea- sonably well, but it still involves only a one-time look by the annexing entity or agency to see if water rights and water resources exist at the time of annexation and plat approval. Unfortunately, wells do not always maintain their producing capacities or water quality, and until recently, there were few legal require- ments in place that forced subsequent reviews by regulators. Requirement of Concurrency Summit County, Utah enacted an ordi- nance designed to force this periodic review. Development approvals could be withheld as could individual build- ing permits if the water service entity providing culinary water service to the development or building lot cannot demonstrate at the time the plat ap- proval or a building permit is sought, that it has sufficient rights, system and source capacity necessary to meet this additional service obligation. Further, the ordinance required each of the water supply entities operating within this area to annually demonstrate through a water supply Concurrency Study, the availabil- ity of water rights and water sources to meet the long-term needs of its service area. The ordinance was the first of its kind in Utah. Municipal and Public Agency Deference in the Proof Process Generally, a water right, once perfected by beneficial use, must remain in use to avoid statutory forfeiture. To avoid forfeiture of perfected rights, a water user could file a non-use application under Utah Code Ann. §73-1-4, which if approved protects a water right for up to five years of non-use. Prior law allowed the approval of a non-use application if the water right is needed to meet the reasonable future requirements of the public. The statute was silent on what evidence is required to meet this test. The law prior to 2008 worked reasonably well. The liberal extensions of time to perfect an appropriation and the protec- tion from forfeiture have allowed public water suppliers, including the Bureau of Reclamation, the time needed to devel- op these critical public water supplies. However, in today’s legal and financial environment, many public agencies felt that 7 years protection was too short and wanted further relief. In 2008 the Legislature amended the for- feiture law as it applied public water sup- ply entities. The amendment provides a qualified exemption from forfeiture for any perfected water right held by a public water supply entity to meet the reasonable future needs of the public. The term public water supplier is broadly defined to include the United States and its agencies, the State of Utah and its agencies and political subdivisions, municipalities, regulated public utilities, water corporations providing municipal and industrial water, among others. The amended expanded the non-use period from 5 years to 7 years, and provides that forfeiture may now only occur within a ju- dicial context. This requires a quiet title action be initiated within 15 years of the end of the latest period of non-use of the water. Failure to bring an action within that time insulates a water right from claims of past non-use. However, it will not protect it against forfeiture if there is a new period of 7 years of non-use. The amendment defined what the rea- sonable future needs are as the amount of water needed in the next 40 years by the persons within the public water supplier’s projected service area based on projec ted population growth or other water use demand. This 40 year period is a rolling average, so that public water suppliers may periodically revise their estimated water needs based on changes in demand and population projections over time. This would avoid a one-time look at estimated water needs over a 40 year period, thereby subject- ing water rights held by a public water supplier in excess of the projected 40 year needs vulnerable to forfeiture for non-use. Water planning has institutionally been separated from land use planning every- where in the West. The consequence has been unchecked growth without regard to the actual availability of water to meet the needs of a growing community. Pro- tecting public agencies’ ability to meet this future demand by immunizing their water rights from forfeiture may be the right step now for Utah. Steven E. Clyde is vice president, shareholder and director of Clyde Snow & Sessions, P.C., a Salt Lake City law firm. He isalsochairofthefirm’sNaturalResources and Water Practice Group. Throughout his thirty-four years of practice, Mr. Clyde has specialized in natural resources law, including oil and gas, public land law, and mining law, with a primary emphasis on water law. Hehasrepresentedmanyclients in the buying and selling of water rights in the conversion of water rights from agricultural irrigation use to domestic, municipal, and industrial use for development or real property b efore the State Engineer and Utah’s courts, particularly intheresortareasofSummitCounty,Utah.Hehas represented parties in the negotiations of a Lease of Power PrivilegeonBureauofReclamationFacilitiesfortheCentralUtah Project and in the negotiation or power sales contracts from the hydroelectric facilities constructed under the lease. He is generalcounseltotheCentralUtahWaterConservancyDistrict, the sponsor of the Central Utah Project, and is knowledgeable regardingfederalreclamation law.Mr.Clydehasservedonthe UtahLegislature’sWaterTaskForceandtheExecutive’sWater Task Force from 2007 to 2009 to revise Utah’s water laws. Mr. Clyde can be reached at the offices of Clyde Snow, 801.322.2516. This article was presented at the 26th Annual Water Law Conference in San Diego, CA, February 21-22, 2008 by Steven E. Clyde. The information within this article should not be taken as legal advice. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Clyde Salt Lake City Office T: 801.322.2516 F: 801.521.6280 sec@clydesnow.com Web Profiles Martindale-Hubbell Best Lawyers Super Lawyers Practice Areas Administrative Law Environmental Litigation Re l Estate Litigation Water Litigation Estate Planning, Administr tion, and Probate Local Government Law Real Estate and Real Property Energy Water Rights and Resources Water Rights Litigation Water Quality Ba Admissions Utah (1975) Steven E. Clyde Vice President, Shareholder and Directo Resources and Water Law Practice Grou M nagement Committe Member Throughout his thirty-four years of practice, Mr. Clyd natural resources law, including oil and gas, public l law, with a primary emphasis in water law. Currently, of Clyde Snow’s Natural Resources and Water Law Education • Juris Doctor, University of Utah College of Law (1 • Bachelor of Science: Political Science, University Experience Mr. Clyde has represented many clients in the buyin rights and in the conversion of water rights from agri use to domestic, municipal, and industrial use for de property, particularly in the resort areas of Summit C represented parties in the negotiations of a Lease of Bureau of Reclamation Facilities for the Central Uta negotiati n of power sales contracts from the hydro c structed under the lea . H is general counsel t Water Conservancy District, the sponsor of the Cent and is knowledgeable regarding federal reclamation development projects for which he handled the wate and conversion include the Jeremy Ranch, Park Me and Development, Glenwild Golf Resort, Ranch Pla Mountain Regional Water Special Service District, S Service District, Park City Mountain Resort, Snowba Head Ski Resort, and many others. He has represented many individuals and entities b Engineer of the State of Utah, both as applicants an to water rights applications, and has litigated water r the district courts, the Supreme Court of the State of federal courts. He also has experience in local gove represented many clients in planning a d zoning act and county planning and zoning authorities; drafted ordinance for Summit County, Utah; and created loc to provide water and sewer service within and witho municipalities. Additionally, he has served on the Utah Legislature’ and the Executive’s Water Task Force from 2007 to water laws.