Update on Utah Caselaw Relating to Water Rights
| Publication year | 1991 |
| Pages | 12 |
| Citation | Vol. 4 No. 1 Pg. 12 |
Michael M. Quealy Utah Assistant Attorney General
Following what has been a relatively quiet period for water law controversies, the Utah Supreme Court and the Court of Appeals have, in the past 18 months, issued several important decisions affecting Utah water law. The following is a brief summary of those decisions.
1. Perhaps the most important change in Utah water law occurred in the case of Bonham v. Morgan, et al., 788 P.2d 497 (Utah 1989). This case dramatically expanded the criteria to be considered by the State Engineer (and courts on review) in approving or rejecting applications for changes in point of diversion, place or nature of use.
In 1984, Draper Irrigation Company and the Salt Lake County Water Conservancy District filed a joint change application to move part of Draper's water rights to the new SLCWCD treatment plant. The plan also required some modifications in the water collection system near Bell Canyon. Such diversions had already taken place prior to 1984 under annual temporary change applications. In 1983, during unusually heavy runoff, and while the new collection system was still under construction, flood waters damaged properties owned by Plaintiff Bonham which lay below the new system. Plaintiff claimed the construction of the new collection facilities was the direct cause of the flooding. When the permanent change application was filed, Bonham filed a protest with the State Engineer, claiming the construction of the new collection facilities created an increased threat of flooding to his property and was contrary to the public welfare, citing the various criteria set forth in Section 73-3-8, Utah Code Annotated 1953, as amended. The State Engineer rejected Bonham's protest on the grounds that under the change statute (Section 73-3-3) and the historical caselaw, the only criterion for rejecting a change application was whether the change would impair other vested water rights. The State Engineer therefore reasoned that issues such as flooding and "public welfare" were beyond his jurisdiction in considering a change application.
On appeal to the District Court, the is-sue was basically one of standing, but that was dependent on the criteria to be used in considering change applications. As the Utah Supreme Court concisely stated: "... the parties conceded that the question of whether plaintiffs are aggrieved persons within the meaning of section 73-3-14 turns on whether the scope of the considerations appropriate for the State Engineer under a section 73-3-3 proceeding for a permanent change application is the same as that listed in Section 73-3-8. If it is, ., , plaintiffs are aggrieved persons; if it is not, plaintiffs ... are not aggrieved persons and . . . summary judgment was proper. The District Court held that the only criterion applicable to change applications was impairment; that the broader criteria of Section 73-3-8 applied only to appropriations; and granted summary judgment in favor of the State Engineer."
On appeal, the Utah Supreme Court (in a 4-1 per curium decision) reversed. The Court found there was no ambiguity in Section 73-3-3 and that the legislature had intended the broader criteria of Section 73-3-8 to apply to change applications as well as applications to appropiate. The Court focused on a provision of Section 73-3-3 which states:
"The procedure in the State Engineer's office and the rights and duties of the applicant with respect to application for permanent changes in point of diversion, place or purpose of use shall be the same as provided in this title for applications to appropriate water." (Emphasis the Court's.) The State Engineer and amid water users argued that this provision only applied to the procedural process before the State Engineer and did not intend to incorporate broader substantive criteria. This argument was buttressed by legislative history, and long-standing interpretation by the State Engineer and the water b ar. Further, although this specific issue was one of first impression, numerous prior Supreme Court cases had clearly implied that impairment was the only criterion.
With very...
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