Water and the Law
Is It Time for Blue Stakes ?
by J. Craig Smith

As more and more open canals and ditches are replaced with underground pipelines, water users need to be aware of Utah law governing buried utilities. Unlike open canals, ditches and reservoirs, which have historically comprised the bulk of facilities of a mutual irrigation company, buried pipelines are not open and visible. A different set of laws applies to these underground and often unseen facilities.

One such law is found in Chapter 8a of Title 54 of the Utah Code, "Damage to Underground Facilities Act." This Act provides the legal basis for the Blue Stakes program commonly associated with large utilities. While large utilities and municipalities have historically participated in Blue Stakes, many mutual water companies have not. However, Utah law does not exempt mutual water companies from either the Act or participation in Blue Stakes. An "operator" is the term used in the Act for owners of underground facilities. An operator is defined as "a person or entity which owns, operates, or maintains underground facilities." Utah Code Ann. § 54-8a-2(7)(a). This definition includes mutual water companies. The definition of an underground facility includes a buried water pipeline. Utah Code Ann. § 54-8a-2(9)(a). Municipalities, water districts, and mutual water companies, as well as utilities, all come under the Act if they have buried pipelines that run through property they do not own or control.

The Act is designed to minimize inadvertent damage to underground utilities by excavators. It accomplishes this purpose by requiring excavators to notify of their intent to dig, and allow the operators to mark the location of their underground facilities. The excavator, under the Act, must give 48-hour notice during the business week of its intent to excavate. The operator must, within that period of time, mark the location of its underground facilities. Hand tools only may be used within 24 inches of the marking until the underground facilities are actually located.

Blue Stakes of Utah Utility Notification, Inc. is a statewide association created under Utah Code Ann. § 54-8a-9 to facilitate the exchange of information between operators of underground facilities. Membership and participation in Blue Stakes are voluntary, but Utah Code Ann. § 54-8a-9 provides that if an operator (i.e., owner of an underground pipeline) does not belong to or participate in Blue Stakes, the operator is liable for damages incurred by an excavator who has complied with the Act, and the excavator is not liable for damages caused to the underground facility. This is also important to remember when a water entity is planning to excavate as well.

While no reported decisions of Utah's appellate courts have interpreted the Act, water entities with buried pipelines should carefully consider participation in Blue Stakes of Utah. There is, of course, a cost to participate in Blue Stakes. Although Blue Stakes of Utah is a non-profit organization, it must generate revenue to operate. It charges a set-up fee along with a notification fee each time it notifies a participant of a plan to excavate.

Currently, 124 of the 237 incorporated municipalities and 61 water districts and irrigation companies belong to Blue Stakes. Further information on the Blue Stakes program can be obtained by calling James Wingate, Operations Manager, or Sherrie Bowen, database manager at (801) 539-8683 or (800) 662-7836. Their e-mail addresses are jamessw@bluestakes.org and sherrieb@bluestakes.org. Blue Stakes of Utah also has a website at www.bluestakes.org. If you have comments or questions, the author can be reached at (801) 413-1600 or jcraigsmith@smithlawonline.com.

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