{"id":25,"date":"2016-10-10T21:37:26","date_gmt":"2016-10-10T21:37:26","guid":{"rendered":"http:\/\/blog.mwjlaw.com\/?p=25"},"modified":"2016-10-10T21:37:26","modified_gmt":"2016-10-10T21:37:26","slug":"utah-water-right-takings","status":"publish","type":"post","link":"http:\/\/blog.mwjlaw.com\/?p=25","title":{"rendered":"Utah Water Right Takings"},"content":{"rendered":"

Article I, section 22 of the Utah Constitution states that \u201cprivate property shall not be taken or damaged for public use without just compensation.\u201d \u00a0A taking is \u201cany substantial interference with private property which destroys or materially lessens its value, or by which the owner\u2019s right to its use and enjoyment is in any substantial degree abridged or destroyed.\u201d \u00a0Governmental entities may regulate what a property owner can do with their property and may have a significant impact on the utility or value of the property, but compensation is only required when governmental action goes too far and is a taking. \u00a0As always, the issue is how far is too far. \u00a0A taking will not occur where a government imposes reasonable restraints and regulations necessary to \u201cprotect and promote public health, public safety, morals, and general welfare.\u201d \u00a0Regulation that inconveniences a property owner is not a taking.<\/span><\/p>\n

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The first inquiry in a takings analysis is whether the claimant possesses \u201ca protectable interest in property that is taken or damaged for a public use.\u201d \u00a0If the party does not have a protectable interest, there cannot be a taking. \u00a0Because water rights are largely determined by state law, courts will look to state law in determining whether a party has a protectable interest in water rights. \u00a0<\/span><\/p>\n

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In Utah, a water right is a real property interest. \u00a0Both the amount of the appropriation and the priority of the appropriation is a property interest. \u00a0The place of use, purpose of use and point of diversion are also essential characteristics of a water right. \u00a0Perfected water rights (certificated rights, judicially decreed rights, diligence claims, and adjudicated water users claims) are protectable property interests. \u00a0Protectable property interests can also include personal, intangible, incorporeal property rights such as contracts and all property rights protected under the Fifth Amendment of the United States Constitution. \u00a0This could include water shares or water supply contracts. \u00a0<\/span><\/p>\n

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However, a water right is not a property interest like real property; it is subject to hydraulic variability, reasonable and beneficial use requirements, and priority. \u00a0All the water of the state belongs to the public, and a water right holder has a right to <\/span>use<\/span> the water, as permitted and administered by the State Engineer. \u00a0A water right holder takes water rights subject to certain constraints and increasing federal and state regulation. \u00a0For example, all water rights are constrained by forfeiture and beneficial use requirements and municipalities\u2019 water rights are constrained in that they may not \u201clease, sell, alien or dispose of any waterworks, water rights, or sources of water supply . . .\u201d \u00a0\u00a0\u00a0<\/span><\/p>\n

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A party can establish a taking to all the water that no longer reaches its lands because of governmental action upstream; the taking will not the water that would never have reached the downstream users because of seepage and evaporation. \u00a0Government action depriving the water user of the <\/span>use<\/span> of water can be a taking. \u00a0<\/span><\/p>\n

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There are many water takings cases that illustrate situations that will not constitute a taking\u2014most cases are unsuccessful and only physical takings of water have been successful in Utah. \u00a0A water right holder does not have a right to illegally use water; the State Engineer may curtail or cease any illegal diversion without causing a taking. \u00a0The State Engineer may adjust the priority date of a water right that has not been certificated\u2014this right is considered inchoate\u2014and the applicant did not timely file proof. \u00a0A landowner does not have a protectable interest in prohibiting upstream water diversions to maintain high river flows to maintain a high water table on land abutting river and acting as a barrier to prevent subsoil drainage back into the river. \u00a0A taking will not occur where a city requires irrigation company shareholders to dedicate water shares to connect to the city\u2019s secondary water system, but allows non-shareholders to pay money to connect. \u00a0A party does not have a protectable interest in a particular level of soil saturation. \u00a0A property owner has no protectable property interest in using their property in a manner that is \u201cper se injurious or obnoxious or a menace to society.\u201d \u00a0<\/span><\/p>\n

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Development exactions, including water dedication requirements, must be roughly equivalent to the impact they cause, meaning the exaction must be related both in nature and extent to the impact of the development. \u00a0In Utah, for a taking to occur under a zoning ordinance, the property owner must be deprived of all reasonable use of the property. \u00a0\u201cMere diminution of in property value is insufficient to meet the burden of demonstrating a taking by regulation.\u201d \u00a0<\/span><\/p>\n

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As illustrated above, most of the water takings cases are decided in favor of the government\u2014against there being a taking. \u00a0The most likely situations where a taking of water rights could occur in the future would be if the State Engineer reduced the priority of a perfected right. \u00a0A taking could occur if the State Engineer or other state agency curtailed a perfected right to dedicate water to fish flows. \u00a0If a groundwater management plan reallocated water rights or reduced water rights in a manner other than on priority, this could also be a taking. \u00a0<\/span><\/p>\n

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If a taking does occur, damages will be in money, and property cannot be substituted in lieu of money unless the condemnee agrees. \u00a0The amount of compensation should be based on the \u201cinherent value of the property\u201d at issue and its highest and best use, not just the use to which the party put the use historically. \u00a0\u00a0\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Article I, section 22 of the Utah Constitution states that \u201cprivate property shall not be taken or damaged for public use without just compensation.\u201d \u00a0A taking is \u201cany substantial interference with private property which destroys or materially lessens its value, …<\/p>\n

Utah Water Right Takings<\/span> Read More »<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[],"_links":{"self":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/25"}],"collection":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=25"}],"version-history":[{"count":1,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/25\/revisions"}],"predecessor-version":[{"id":26,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/25\/revisions\/26"}],"wp:attachment":[{"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=25"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=25"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/blog.mwjlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=25"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}