H.B. 363 Water Easement Amendments: transcript

Thank you. I do have a handout. I'm wondering if it's okay for my intern to

Yeah. So throughout the state, we have numerous canals that convey, uh, water throughout cities and municipalities. And, um, many of these have been in existence for decades or some even over a hundred years. Occasionally. What we're finding is some of these canals go out of business, they just stop doing business. And so there's an existing procedure in code where they can file an abandonment with the county recorder. And there, uh, prescriptive easements that they've acquired over the years are reverted back to the property owners. The complication that we sometimes have is that there are other entities that have easements on those same canals. For example, a city may have used it for storm water. Um, uh, a special district may have used it to convey water, et cetera. And so it gets a little bit confusing. The abandonment doesn't necessarily affect those, but some property owners may think it does. And so this puts in place a procedure where when a canal company files an abandonment of an easement, a um, political subdivision can file a notice with the county recorder's office and send notice to the underlying owners and basically saying, we intend to take control of whatever prescriptive easement was held by that canal company. It puts in place a procedure where the landowners can object and, uh, then they can work it out if there's an objection. But if there's no objection, then the municipality or the, uh, special district, um, takes control and continues to use those easements in the future. And so that's what the bill does. I'm happy to answer any questions.

Thank you, Mr. Chair. I was looking at sub subsection three A where it says, a landowner waives any objection to a converted use of a prescriptive easement. That part, um, it sounds like the people who have objections to this would need to know the info and, um, would have 120 days to provide notice of, of the objections. Is there any way that the residents could be notified of this converted use of prescriptive easements? Um, and I'm, so

I'm speaking to sub two. Thank you.

So, but basically the procedure is when the municipality or other political subdivision wants to take control of the easement, they have to provide notice to the adjoining land or the affected landowners, and then they get 120 days to file the objection. So there is a procedure in place.

So the, uh, political subdivision, and this is mostly going to probably be cities, but in theory it could be a county, it could be others, right? But, uh, they don't need to file a notice to preserve an existing easement that's that they already possess, right? But in order to acquire this easement that the canal company possesses and is abandoning, that's when they're triggered. They, they need to file some that document with a recorder and notice the affected landowners. If they don't do that, the abandonment is complete and it reverts back to the property owners.

I think Mr. Chair, um, I'm trying to understand why this, what would prohibit this from doing, being done through some kind of contractual arrangement. So when they decide they're gonna abandon the, when the canal company decides they're gonna abandon the easement, the canal company says we need to work out something with municipality. There's been storm drain use here. Um, I'm Juab I'm just trying to figure that out, that out partly because I'm thinking of, frankly, my own family's property. We have a, we have a piece of land that was for a hundred years irrigated by a canal. And, uh, the city, um, sorry, the canal company put the canal into a pipeline in a different location. And so, um, there's not really any, uh, you know, there frankly isn't a, uh, in, in this particular case, I would argue there's no storm, storm drain drain use. But I've also had negotiations with my local city over abandoning easements, and they've basically told me we will never abandon any easements ever for any purpose. Mm-hmm. We'll keep those easements for as long as we can retain them. So when the Cal Canal company was willing to abandon the easement, that wasn't a problem. But now that, but the, but the municipality wasn't willing to abandon similar. So what I'm trying to figure out is, um, if they, if this during this abandonment process, they automatically, they, where there's a, there's a process that they, that it could go to the municipality, how, how, how does this actually work?

So I think, yeah, you're right. They, they could approach the municipality and try and negotiate some sort of purchase or sale. I don't think that happens that often when these canal companies abandon. Because typically, um, if you think of these canal companies, they're kind of a mutual organization, is my understanding. And so there's a ton of maybe shareholders. That's right. Although usually by the time they're abandoning, there's not a lot left. But it Also, right. So it kind of makes you wonder who do they negotiate with, who has the authority, et cetera, et cetera. So it gets a little complicated, but it's not impossible. And this doesn't prevent that from happening, but it, it provides another mechanism for the city if that doesn't pan out.

But, so may I ask another follow up question, Mr. Chair? Go ahead. So, um, you answered my first question about the, you addressed the first part about the contract, the contractual provisions.

And, and yes, I mean, they do have a functioning board usually, and they can negotiate with the municipality, for example.

Um, for the storm drain, I guess what I'm worried about is essentially giving the municipality a right of first refusal, right? Right. That where the, where the municipality by default essentially is going to convert this canal easement, which is all of the collective members having access to maintain the canal. I mean, when I was a kid, they, I, you, some of you probably remember this, but we would go burn the canals mm-hmm. Because that's how you got rid of the, um, uh, that's how you got rid of all the plant material that would soak up all the water and slow down. So, but it was all of the members individually doing that. Well, now the city has an easement. Mm-hmm. City has forever, in my view, forever the right to essentially traverse that property, which now is like, it's not for a purpose of maintaining the canal, at least based on a historic use. They don't have a, they don't have an obligation to main actually maintain it at all. Right. So I'm just trying to figure out, like in my own, in my own little world here, in this very, very small place that there, where the canal runs right through our property, I'm trying to think like, how does this actually work? Does that mean the, does that mean that my local municipality has the right to traverse our property forever after the canal company essentially doesn't need that property anymore? It's like that would, that causes me concern just because of my other issues around easements. Yes. Right.

I haven't heard. Um, yeah, and I think that's legitimate concern. I think under this, I think the city could go out and probably accomplish that with some additional work and money to do that without this bill. But this provides a path for a municipality or, uh, say a special district, um, to acquire those rights. Right. I mean, so your, yours is maybe a unique situation. I think in a lot of these situations. They're dumping storm water into these same canals and then the, that storm water, the city would already have a preexisting use for that or easement to convey that storm water to wherever it's going to. And it gets really confusing as to how far does that easement go, et cetera, et cetera. But so this, I think, yeah, I, I can't necessarily say you, your concerns aren't valid, but I think this just provides a mechanism to help clean this up and, and get title. I don't know how often this would be, um, exercised. I think there's definitely some areas where cities are definitely going to want to try and exercise this. Um, in the cities I've spoken with, I think they're gonna be much more hesitant when it's residential owners compared to, say, commercial or Yeah, this Just a Farm, maybe unrecorded interests. There's no recorded owners on the plat or, you know, on the, at the counter recorder's office. So there's various scenarios. But,

Uh, thank you Mr. Chairman. I, my wife grew up in Orem. I know exactly the kinds of scenarios that you're talking about where they carrying large amounts of water. So I, I appreciate you working on this issue. I'm just trying to figure out how this works in some other context. So thank you. Thank you, Mr. Chair, Representative Kohler.

Thank you, Mr. Chair. And I'm not an attorney obviously, and Representative Abbott, you're the specialist. But my experience on this is that prescriptive easements happen by use and most of the old canals are not anything else. That's what they are. Mm-hmm. But we also as an irrigation company, don't have the ability to give somebody the right to traverse it for a trail. Mm-hmm. They can create their own. And most cities have. Mm-hmm. And certainly they've created, in most cases the ability to use storm water. 'cause that was all farmland. Now it's all houses. And to have nowhere to put the storm water except there makes a problem. Mm-hmm. And, uh, most of the time the cities take 'em over. If they haven't become an easement for trails by use mm-hmm. The city will take 'em over and maintain 'em because they have no better place to put the storm water. I appreciate what you've done here. You've put out a little bit of, there's still some gray areas, but at least you put together a process of proactively going through it. Uh, the irrigation companies basically disappear. They maintain as long as they can. When nobody wants to pay the bill anymore, they say to the city, it's yours 'cause we don't want it. Mm-hmm. And it's never, uh, probably a proactive thing. This might take care of that. Thank you.

Yeah, I think what this bill would do is a, the, the municipality where it's located or the, it's a little more complicated when it's say a special, uh, district, but I think they, they, it would be where they're geographically located. They would assert this, right? But I don't know, and maybe there's somebody in the room that can answer your first question better than me. And that is, you know, for example, okay, Orem, I'm from Orem. If they dump, uh, storm water in a canal and now it goes and flows into Linden, does their prescriptive easement flow through Linden? I suppose it probably does, right? But that's a pre-existing, right. That this doesn't really affect. Um, but yeah, so it's complicated stuff here.

Yeah, I think what would happen under this bill would be Orem would probably file on the canal in their city boundaries, and then Linden would, if they chose to, would file it on in their city boundaries. Right? But, but the easement that Orem has to run storm water through Linden, I don't think is affected by this. So it gets, for a homeowner, it's complicated because somebody's still gotta maintain that canal so the storm water can flow through it. And that probably falls to Orem since they're the one putting storm water in. Now, if Linden's also putting storm water in, somehow those cities have to come to an agreement as to how to maintain that. But it's, it's not easy stuff. And you'll see I have two subs and that's because attorneys kept coming to me and saying, you didn't quite get this right. You need to fix this, you need to fix that. And so I am an attorney, but I don't do this kind of law. So I'm kind of trying to do my best here, but I'm probably not the best expert on it.

Thank you, chair. Thank You. Go ahead. Members of the committee chair Tini with the League of Cities and Towns, and, um, we appreciate Representative Abbott to, uh, to, uh, bring this bill forward. And, um, it is, uh, an issue that we experience, uh, quite often, um, where a, uh, a water canal is no longer being used and the, like Representative Abbott said, a lot of these are created by, uh, a few neighbors that then disappear and go and live in other states. And no one ends up, uh, having that control. Um, and so, uh, this, this bill will allow us to be able to continue to, to use those in, in a, in a good manner. And, uh, appreciate all the work that's gone into the bill. Thank you.

Is There a, oh, sorry. I probably have it under Bill. There, we, we go. I put my stuff on top of it. Sorry. Uh, good afternoon chair. Members of the committee, we'd like to thank the representative for addressing our concerns in the second substitute. There are occasions such as Central Utah Water Conservancy District where there's a per prescriptive easement that a canal company is abandoning and the district is sending water that has not been treated down to Utah Lake through that prescriptive easement and would like the ability to continue to do so. Uh, so we appreciate the opportunity to work with the sponsor and we urge your support of this bill.

Oh, Heather Anderson, Utah Association with Special Districts.

Thank you. I'd like to move adoption of the second sub correct

No. Thank you. Discussion to the motion

Uh, no, I appreciate that. Thanks.

Uh, yes. Thank you Mr. Chair. I'd like to make a motion that we favorably recommend House Bill 360 3. Second substitute

This seems like a sensible backup process when Plan A doesn't work.

Representative Abbott. Thank You Mr. Speaker. Motion to adopt house amendment one in my name.

Yes. This amendment makes it clear that this bill does not touch or mess with water rights in rural parts of the state or with easements in rural parts of the state.

Thank you. So, uh, along the Wasatch front, we are switching from a more agrarian society to more, uh, suburban or even urban society. So we have a bunch of canals that run through our communities, and those canals are now used for multiple purposes. One purpose would be to convey irrigation water. And those rights are held by canal companies for the most part. Uh, most of those easements that the canal companies hold are prescriptive easements, meaning that they're not recorded at the county recorder's office, but that they're just established by long use. Other entities hold oftentimes hold easements on the same canal. For example, a municipality might have an easement to run storm water. A service district may have an easement to run a water that's on its way to a, a treatment facility to become drinking water. And so it, we have multiple easements on the same canal held by various entities. And it's not always obvious to the property owners, uh, what water is what, et cetera, et cetera. So what this bill does is, is it essentially gives a municipality or a service district a first right of refusal to obtain the easement of a canal company. When that canal company goes out of business, there's a process where the canal company files an abandonment of the easement and then the, uh, political subdivision can, uh, file a notice that they're interested in retaining that it gives property owners the opportunity to object. And so that's the bill in a nutshell. I'm happy to take any questions.

Well, the sponsor yield to a question. Representative Abbott, will you yield?

I'd be happy to. Yes. Representative Shelley.

Thank you. So as a prescriptive easement, it's, uh, easements that's granted for a very specific purpose. Does this now move it from a prescriptive easement to ownership? So, correct. This would, there would be a, they don't get fee of the property. They still only own an easement, but this easement now becomes recorded at the county recorder's office and the property owners have notice of it. A follow up question. Uh, Representative Abbott, will you yield to a follow up question?

Yes. Yes. Representative.

Would it not be more appropriate to give that first right of refusal to the property owner who's adjacent to that prescriptive easement? Um, 'cause what I can see happening is possibly if a city purchases a right of way or an easement that now becomes real property through the back of someone's yard, they could potentially build a road on that easement. Is that how I, is that understood correctly?

So they can't change the burden on the property owner. So if, if a road was more burdensome, then they would be prohibited from doing that. But what they could do, for example, is a special district could say we're, we're going to use that canal to convey water to a water treatment facility. Right? So it gives some flexibility. A city could say, we're going to use this to convey storm water to a river or a lake, right? They could potentially, I suppose, um, say, well, we think it's consistent to do more than that. And that would be between, you know, that would potentially, I guess, I mean they can always do that. And so, but we do have laws in place that are existing to say you can't increase the burden on the property owner.

Further discussion to the bill Representative. Chew Mr. Speaker. I'd have to say, you know, the, how it's been amended definitely makes it a better bill. I'm still really struggling with it through the fact that, that we're talking about the potential of changing the use of what it was to something else, uh, because we get it. Uh, you know, a recorded ownership. What? I'm not sure that, uh, you know, if, if it's a canal and the city takes over the canal from a, an irrigation company that is dissolved, they're not in the water, uh, transfer business. And so I really struggle with this is the, the, I worry that we're, we're getting the, the camel's nose under the tent and other things happen and what are or create the po possibility of other things to happen and what it is intended to do. So with that, I'm still struggling whether it's the right thing, I appreciate the amendment and it will, uh, benefit my part of the world, but I'm not sure it's the right thing to do.

I will waive summation has been waived.