Monday, March 18, 2024

2024 Legislature - Water Bills That Passed

There was a long list of water-related bills that were passed during the 2024 session of the Utah Legislature. Below are bills summaries (drafted by the water attorneys at Smith Hartvigsen) about these bills that passed.

HB 11 (2nd Substitute) – Water Efficient Landscaping Requirements
Rep. Doug Owens

House Bill 11 (2nd Substitute) mandates that certain government entities in the Great Salt Lake Basin will not use overhead spray irrigation of a new construction or reconstruction’s landscaped area after May 1, 2024. Despite this restriction, this bill does not restrict overhead spray irrigation on the following land uses: sports fields, parks, amphitheaters, golf courses (including driving ranges and putting greens), cemeteries, and social gathering areas. This bill does not authorize a municipality or county to impose landscaping requirements on school district entities. The purpose of this bill is to send the message that the government is committed to conserving water that can then be used for the Great Salt Lake. This bill is the product of the Legislative Water Development Commission examining and retooling the 2023 Legislative Session’s failed HB 272 (Water Efficient Landscaping Amendments), as it was not examined by the Commission prior to the 2023 Legislative Session.

To read the full text of the bill, click here.

HB 42 – Water Rights Publication Amendments
Rep. Joel K. Briscoe

House Bill 42 amends Utah Code section 73-3-6, which addresses the State Engineer’s publication of notice of application to appropriate or change application. The bill allows the State Engineer to confirm a newspaper's publication of a notice of application through electronic means.

To read the full text of the bill, click here.

HB 57- Snake Valley Aquifer Advisory Council Amendments
Rep. Walt Brooks

House Bill 57 dissolves the Snake Valley Aquifer Advisory Council by repealing the entirety of Title 63C, Chapter 12 of the Utah Code. The Council was originally established by the legislature in 2009, primarily to deal with the Snake Valley water right filings made by the Southern Nevada Water Authority. Because the SNWA water right filings are now a moot issue, the Council is no longer needed. The bill also removes references to the Council from other sections in the Code. 

To read the full text of the bill, click here.

HB 61 - Water Measuring and Accounting Amendments
Rep. Carl R. Albrecht

House Bill 61 amends Utah Code sections 73-1-21 and 73-2-1. Section 73-1-21 addresses Utah’s overall water policy and section 73-2-1 outlines the State Engineer's powers and duties and the qualifications for those duties. The bill modifies the state water policy to allow for the use of telemetry in water data collection and permits the State Engineer to make rules governing telemetry and water distribution accounting. Finally, the bill also removes outdated language regarding rulemaking authority on preferences of water rights under Section 73-3-21.5, which was repealed in 2023.

To read the full text of the bill, click here.

HB 62 (1st Substitute) - Utah Water Ways Amendments
Rep. Doug Owens

House Bill 62 (1st Substitute) amends Utah Code section 79-2-408 to add an additional method for educating the public about water issues. Specifically, the bill permits Utah Water Ways to coordinate with the State Board of Education to implement resources and development opportunities to select grades in kindergarten through grade twelve of the public school system. These education opportunities may not include information on human-caused climate change. 

To read the full text of the bill, click here.

HB 206 - Columbia Interstate Compact Amendments
Rep. Thomas W. Peterson

House Bill 206 withdraws Utah’s ratification of the Columbia Interstate Compact and repealed several Utah Code sections relating to the Compact. The Compact was never ratified by the other states, so there is no reason for Utah’s ratification to remain in place.

To read the full text of the bill, click here.

HB 249 - Utah Legal Personhood Amendments
Rep. Walt Brooks

House Bill 249 prohibits Utah governmental entities, including courts, the Legislature, and other entities with adjudicatory or rulemaking authority, from granting or recognizing legal personhood in artificial intelligence, inanimate objects, bodies of water, land, real property, atmospheric gases, astronomical objects, weather, plants, and nonhuman animals or other taxa. While the list of creatures and things that cannot receive legal personhood is diverse, the impetus of the bill is a trend in some other states and countries to claim legal personhood for animals or bodies of water. Groups such as Save Our Great Salt Lake spoke against the bill, as it would foreclose the possibility of granting or recognizing personhood in the Great Salt Lake.

To read the full text of the bill, click here.

HB 275 (2nd Substitute) - Water Amendments
Rep. Casey Snider

House Bill 275 (2nd Substitute) amends Utah Code section 57-8a-231 so that HOAs cannot require a property owner to install or keep lawn or turf. The bill also amends Utah Code section 73-5-8 to require first class cities and water conservancy districts within the Great Salt Lake watershed to provide water use data “electronically in a particular format” to the Division of Water Rights. Finally, the bill amends Utah Code section 73-10-34.5 regarding who may receive a State grant for water meter projects. The law previously required secondary water providers to meter every connection, but allowed for some secondary water providers to only meter at strategic points instead of metering every connection. The law provided three circumstances under which a secondary water provider only had to meter at strategic points. In two of the circumstances, however, the secondary water provider was not eligible to receive State grants to install the meters. This bill allows the grants to go to a secondary water provider under any of the three circumstances. 

To read the full text of the bill, click here.

HB 280 (5th Substitute) - Water Related Changes
Rep. Casey Snider

House Bill 280 (5th Substitute) changes how Utah funds water infrastructure projects. Under the bill, “relevant agencies” with water-related missions, such as the Divisions of Water Resources, Drinking Water, and Water Quality, among others, will develop annual water infrastructure plans beginning on June 30, 2025, that will describe needed water projects that fall within their jurisdiction. Once adopted, these relevant agencies will submit their plans to Utah’s Water Development Coordinating Council, which consists of representatives from the Division of Water Resources, the Water Quality Board, the Drinking Water Board, the Housing and Community Development Division, the Treasurer’s office, the Department of Agriculture and Food, and, as amended by HB 280, an individual appointed by the governor with the consent of the Senate who is employed by a water conservancy district with asset management obligations. Using the plans submitted by the relevant agencies, the Council will then develop a “unified water infrastructure plan,” that will identify water projects needed to “maintain the reliable supply of safe and clean water.” The Council will adopt the first unified plan by March 1, 2026, which it will update at least every four years. Once created, the Division of Water Resources will be required to reference the unified plan in the state water plan. 

The Council will also work in consultation with the relevant agencies to develop a written process for ranking and prioritizing water infrastructure projects that are or will be funded with state money beginning in fiscal year 2027. This process will also include several criteria requiring consideration of hardships, the public interest (including conservation and the protection of public health and safety), the use of state funding to match federal funding, and local entity consultation. H.B. 280 also requires the Council to seek and consider public input in developing the prioritization process.  

The bill further requires the Utah Division of Water Resources to study and make several recommendations by October 31, 2024, regarding: (1) which funds or accounts used to finance water infrastructure projects should be tied to the planning and prioritization process; (2) whether any funds or accounts should be consolidated; and (3) whether changes to the membership of the Council are needed. In addition, by October 31, 2025, the Division will make recommendations about whether to impose a new fee to fund water infrastructure projects identified in the unified water infrastructure projects, including who will pay the fee, how the fee will be calculated and collected, where the generated revenue will be deposited, whether the fee should be a tax, how the revenue should be spent, the affordability for end users, and how to ensure revenue is distributed equitably statewide. 

To help fund these efforts, the bill creates a new “Water Infrastructure Fund” to provide money to help pay for the Council’s water infrastructure prioritization activities, the studies H.B. 280 requires, and to provide loans and grants for projects prioritized in the unified water infrastructure plan. The fund will consist of appropriations from the Legislature, money received from the federal government, grants and donations from the public, and loan repayments. The State Treasurer will invest money in the fund and interest and earnings from those investments will be deposited into the fund.

To read the full text of the bill, click here.

HB 295 - Produced Water Amendments
Rep. Steven J. Lund

House Bill 295 came from the oil and gas industry. Many oil and gas wells also produce water, thus the term “produced water.” Due to the great depths where oil and gas are found in Utah, the produced water is brackish and is considered a waste product by the oil and gas producer. However, in Utah, “all waters of this state, whether above or under the ground, are declared to be public, subject to the existing rights to the use thereof.” Utah Code Ann. § 73-1-1(1). Thus, under current law, to make any beneficial use of produced water would require a water right issued by the State Engineer. One beneficial use of produced water gaining popularity is to reinject the water back into the oil and gas bearing strata under high pressure, in the process of hydraulic fracturing, or as it is commonly known, “fracking.” Fracking is widely used in Utah’s oil and gas fields to increase production, most commonly in the production of natural gas. The fractures created free gas from the rock. Under current law a water right is needed to use produced water for fracking, which is a beneficial use of water. The alternative is to purchase municipal water for fracking.

Beginning May 1, 2024, the bill creates an exception for produced water which will no longer be subject to administration and control by the State Engineer or Utah’s Water Code (Title 73). Instead, produced water will be governed by Title 40, Chapter 12 of the Utah Code. Title 40 addresses mining and authorizes the Board of Oil, Gas, and Mining (“Board’) to govern production of oil and gas. Under new Chapter 12, rather than the State Engineer, the Board will regulate the nonconsumptive beneficial use of produced water. The nonconsumptive use of produced water will be neither an appropriation nor waste of water. No water right will be needed to put produced water to any nonconsumptive beneficial use.

Disposal of produced water and fracking are already regulated by the Board under Utah Code section 40-6-5 and Rule R649. This new law will consolidate the regulation of produced water by the Board. Limiting the use of produced water without a water right to nonconsumptive use is intended to avoid abuse of this exemption from water right regulation and provides an important “sideboard” or “guard rail” to protect water users. A larger concern for the water community is whether this exemption is simply an isolated encroachment or is the first step of a slippery slope of future exemptions from water right regulations. If it is the former, creation of this exception will create little impact on water right holders and users. However, if this is simply the first of such exceptions, the regulation of water under Title 73 and by the State Engineer may become compromised.

To read the full text of the bill, click here.

HB 453 (4th Substitute) - Great Salt Lake Revisions
Rep. Casey Snider

House Bill 453 (4th Substitute) directs the State Engineer to develop a distribution management plan by October 1, 2025, for “Great Salt Lake water rights,” which the bill defines as “a water right that allows for the diversion of surface water or groundwater from a point below the Great Salt Lake meander line and that contemplates the recovery of salts or another mineral or element.” In other words, the distribution management plan will focus on water rights used in mineral extraction within Great Salt Lake and will not focus on water rights used for other purposes that have points of diversion upstream of Great Salt Lake. 

Through the plan, the State Engineer will establish requirements for the measurement, quantification, and reporting of diversions, depletions, and return flows associated with extractive water rights in the Lake in accordance with “the principles of prior appropriation and multiple use sustained yield.” 

To accompany the plan, the bill requires the State Engineer to establish a priority schedule that apportions extractive water rights based on their relative priority to one another, as well as an apportionment schedule and distribution accounting tool. The bill also requires the State Engineer to prohibit extractive rights from diverting water rights that the Divisions of Wildlife; State Parks; and Forestry, Fire and State Lands deliver to Great Salt Lake under Utah’s instream flow statute, Utah Code section 73-3-30. In adopting the plan, the State Engineer may allow water users to participate in voluntary arrangements that compensate or mitigate for the use of extractive rights. 

In addition to the plan, the bill increases the severance tax on operators from 2.6% to 7.8%, with some exceptions. Among other things, it also requires the royalty agreements issued by the Division of Forestry, Fire and State Lands to include standards to protect Great Salt Lake and will require extraction companies to measure their water use and test and report the salinity of any water they discharge. 

To read the full text of the bill, click here.

SB 18 (1st Substitute) - Water Modifications
Sen. Scott D. Sandall

Senate Bill 18 (1st Subsitute) is a follow-up to Senate Bill 277, a bill passed late in the 2023 Legislative Session, which allowed water users who install agricultural water optimization projects to file applications with the Division of Water Rights to put the “saved water”—the now-excess water which was diverted and consumed under the more wasteful irrigation system—to another beneficial use. SB 18 clarifies the definition of saved water as well as the administrative procedures to secure its separate use and protect it from forfeiture. It also clarifies that saved water cannot increase the depletion of the underlying water right.

To read the full text of the bill, click here.

SB 39 - Water Shareholder Amendments
Sen. Scott D. Sandall

Senate Bill 39 amends Utah Code section 73-3-3.5 regarding shareholder change applications. Previously, if a shareholder filed a proposed change application with a water company, the water company had 120 days to respond if it was a permanent change application and 60 days to respond if it was a temporary change application. Now, a water company has 120 days to respond, irrespective of whether the change application is permanent or temporary. The bill also has some minor clean-up language, which mainly clarifies when the term “it” in the statute is referring to a water company or to a court

To read the full text of the bill, click here.

SB 77 - Water Rights Restricted Account Amendments
Sen. Scott D. Sandall

Senate Bill 77 modifies the purposes for which money in the Water Rights Restricted Account may be used. The bill adds that the Division of Water Rights may use the Account to pay for installing, operating, and maintaining water measurement infrastructure and for sharing in the costs of installing stream gauges (with the U.S. Geological Survey).

To read the full text of the bill, click here.

SB 125 (1st Substitute) - Secondary Water Amendments
Sen. David P. Hinkins

Senate Bill 125 (1st Substitute) clarifies the secondary water metering requirements that have been imposed by the legislature in the past couple of years. Specifically, it states that secondary water suppliers in the Great Salt Lake Basin do not need to meter every connection but must meter at strategic points, even if they have fewer than 1,000 connections. The bill does not define what a “strategic point” is, but states that secondary water suppliers must submit an application with the State Engineer regarding where it believes the strategic points are, and that that State Engineer will review and approve where the strategic points are that must be metered. Senate Bill 125 goes into effect on May 1, 2024.

To read the full text of the bill, click here.

SB 145 (2nd Substitute) - Utility Easement Amendments
Sen. Daniel McCay

Senate Bill 145 (2nd Substitute) creates a statewide association to manage requests to utility operators to mark utility facilities before any excavation. An excavator must provide notice to a utility operator before beginning any excavation and if damage occurs, the excavator must contact the utility operator and stop work immediately. Senate Bill 145’s new association will overlap with the already-created blue stakes, but the new association is more focused on reviewing the design process and how it will affect utility operators. Senate Bill 145 goes into effect on May 1, 2024.

To read the full text of the bill, click here.

SB 211 (1st Substitute) - Generational Water Infrastructure Amendments
Sen. Stuart Adams

Senate Bill 211 (1st Substitute), which was sponsored by Speaker Schultz in the House, creates the Water District Water Development Council comprised of the four largest water conservancy districts in Utah—Weber Basin, Jordan Valley, Central Utah, and Washington County—and the Director of the Division of Water Rights. The new council is tasked with planning for “generational water infrastructure” within the four districts’ service areas and reporting their findings and recommendations annually to the Governor and Legislature. The council cannot establish policy for the state, control money to fund water infrastructure, or own or operate water infrastructure. The bill also creates a new state officer, the “Utah water agent,” who is appointed by the Governor to a six-year term with the advice and consent of the Senate. Outside of the Bear River and Colorado River drainages, the Utah water agent assumes the responsibilities previously assigned to the Board of Water Resources to represent Utah in interstate negotiations. In particular, the Utah water agent is responsible for exploring and negotiating opportunities for interstate water importation projects. The bill was appropriated $3 million in one-time funding and $1 million per year in ongoing funding. 

To read the full text of the bill, click here.

SB 242 - Utah Lake Modifications
Sen. Michael K. McKell

Senate Bill 242 repeals the Utah Lake Restoration Act (Title 65A, Chapter 15 of the Utah Code). The Restoration Act was originally passed in 2018 and allowed for the possibility of the State to exchange public land for restoration purposes. The bill also removes a reference to the Restoration Act in the current Utah Lake Authority Act, which was passed in 2022.

To read the full text of the bill, click here.

SB 270 (1st Substitute) - Utah Lake and Great Salt Lake Study Amendments
Sen. Curtis S. Bramble

Senate Bill 270 (1st Substitute) enacts Utah Code section 65A-10-5, which mandates the Division of Forestry, Fire, and State Lands to conduct a study to enhance the benefits associated with Utah Lake. The Division will examine, among other things, improving the clarity and quality of the water, conserving water resources, removing invasive species, restoring and conserving native fish and other aquatic species, and increasing the suitability for shore birds and waterfowl. The study is to be completed no later than November 1, 2025, and report the findings to the Natural Resources, Agriculture, and Environment Interim Committee. The bill appropriates $1.5 million from the general fund to pay for the study. It also amends Utah Code section 63I-1-265 to state the Utah Lake Study legislation will be repealed on July 1, 2027. 

To read the full text of the bill, click here.

2024 Legislature - Water Bills That Did Not Pass

There were a number of water-related bills that were considered during the 2024 legislative session that were ultimately not passed. Below are bill summaries (drafted by the water attorneys at Smith Hartvigsen) about these bills that did not pass.

HB 230 - State Agency Application Review Requirements
Rep. Thomas W. Peterson

House Bill 230 sought to put time limitations on decisions made by agencies within the Utah Department of Natural Resources, including the Utah Division of Water Rights. For example, the bill would have required the Division of Water Rights to issue an Order on a Change Application within 30 days after the protest period ended. Similar timelines would also have been required on other water filings, including Exchange Applications, Nonuse Applications, Reports of Conveyance, Extension Requests, and Proofs of Beneficial Use. If the Division had failed to issue an Order within the timeframe, the filing would have been considered approved.

To read the full text of the bill, click here.

HB 242 (2nd Substitute) - Water Usage Data Amendments
Rep. Melissa G. Ballard

House Bill 242 (2nd Substitute) would have required the Utah Division of Water Resources to study the water use of Utah’s public schools, including charter schools, in the more populous counties. The Division would have to complete the study by October 1, 2025. The results of the study were to include recommendations of actions that schools can take to reduce water use and recommendations to the legislature regarding whether schools should be required to provide annual reports of water use to the Division. The bill would have provided a mechanism for schools and school districts to purchase smart irrigation controllers. Finally, the bill would have required all State agencies to report their annual water use data to the Division beginning in 2027.

To read the full text of the bill, click here.

HB 243 (4th Substitute) - Riparian Amendments
Rep. Gay Lynn Bennion

The original draft of HB 243 would have required counties and municipalities to include a riparian area element in their general plans beginning in 2029. It also would have created a riparian resources database and provided technical assistance in the development of the required plans. Due to concerns about implementation costs and the protection of private property rights, the bill’s regulatory requirements and scope were pared back substantially in successive substitutes to the bill. Ultimately, the 4th Substitute was defeated on the House floor. Rep. Bennion has expressed an intent to continue working with stakeholders in the interim period to introduce another riparian bill in the 2025 Legislature.

To read the full text of the bill, click here.

HB 401 - Water Usage Amendments
Rep. Doug Owens

House Bill 401 was a significant retooling of legislation run by Rep. Owens in the 2023 Legislative Session. The bill would have prohibited the irrigation of lawn or turf in most of northern Utah from October 1 to April 30—the so-called “shoulder seasons.” Violations would have resulted in a fine of at least $50 for the first violation and $100 for successive violations. The bill included exceptions for newly planted sod or grass seed. The Division of Water Rights would have been required to produce an annual “good faith estimate” of water savings from restricting shoulder season irrigation. The bill was on a committee agenda in mid-February, but was not considered in that meeting and never resurfaced during the session. 

To read the full text of the bill, click here.

HJR 27 - Water Efficient Landscaping for New Construction
Rep. Doug Owens

House Joint Resolution 27 recognized the low water level in the Great Salt Lake and the need for conservation in order to help restore the Great Salt Lake. This resolution specifically detailed that landscaping techniques that use less water is an appropriate solution and requested that municipalities and counties adopt water efficiency standards and promote water efficient landscaping. If House Joint Resolution 27 had passed, it would not have been a requirement for municipalities and counties to have water efficient landscaping or water efficiency standards but would have only a suggestion from the legislature. This resolution seems to have not passed as the Utah legislature appears to be much more focused on providing incentives for water conservation instead of mandating conservation or even the appearance of mandating conservation.  

To read the full text of the bill, click here.

SB 118 (4th Substitute) - Water Efficiency Amendments
Sen. Michael K. McKell

Senate Bill 118 (4th Substitute) sought to provide incentives for developers to use water efficient landscaping in new residential developments in the Great Salt Lake Basin. In order to receive any incentives, the district where the residential development would be located needed to request grant money from the Division of Water Resources and provide the Division with a new construction landscaping incentive program. Districts that obtained grants could then disperse grant money to new residential construction projects in accordance with rules set by the Division of Water Resources. Although this bill did not pass, it was extensively worked on and amended. In order to promote conservation, the Utah legislature seems to be focused on providing incentives for conservation instead of requiring conservation through mandates. It would not be surprising if a similar bill is presented in next year’s legislative session.

To read the full text of the bill, click here.

SB 203 (1st Substitute) - Drinking Water Amendments
Sen. Scott D. Sandall

Senate Bill 203 proposed to enact Utah Code section 19-4-116 to permit the Department of Environmental Quality to establish and implement an annual fee on a public water system in the state for the direct delivery of water to an end user for human consumption and other domestic uses, on a per connection or consumption basis; implement a reasonable fee for plan review; and implement a reasonable fee for a public water system sanitary survey. These may all include fees that provide financial incentives for certain public and community water systems, except for wholesale water suppliers. The department would retain the fees as dedicated credits and use the fees to administer the regulation of public water systems, under monitoring from the Office of the Legislative Fiscal Analyst.

 To read the full text of the bill, click here.


Friday, March 15, 2024

Podcast - 2024 Legislative Recap

I was a guest on the Ripple Effect podcast to talk about some of the water-related bills passed (and did not pass) during the 2024 session of the Utah Legislature. To listen to the podcast, click here.



Friday, January 19, 2024

Podcast - 2024 Legislative Preview

I was a guest on the Ripple Effect podcast to talk about some of the water-related bills that will be considered at the 2024 session of the Utah Legislature. To listen to the podcast, click here.



Saturday, January 13, 2024

2024 Legislative Preview

The 2024 general session of the Utah Legislature begins next week. Here is a summary of the water-related bills that have been released so far. As the session goes along, additional water bills will certainly be added.

HB 11 - Water Efficient Landscaping Requirements
Rep. Doug Owens

House Bill 11 mandates that after May 1, 2024 certain government entities in the Great Salt Lake Basin will not use grass or turf in more than 20% the landscaped area of a new construction or reconstruction of a building or facility. Despite this restriction, this bill does not consider the following type of grass or turf uses to be included in the 20% limitation: land for sporting purposes, parks, amphitheaters, golf courses (including driving ranges and putting greens), cemeteries, retention basins, and other areas that use grass and turf for a special use. This bill also authorizes a municipality or county to impose landscaping requirements on state government facilities or require certain government entities to obtain approval for their landscaping. The purpose of this bill is to conserve water that then can be used for the Great Salt Lake and other conservation needs. This bill is the product of the Legislative Water Development Commission examining and retooling the 2023 Legislative Session’s failed HB 272 (Water Efficient Landscaping Amendments), as it was not examined by the Legislative Water Development Commission prior to the 2023 Legislative Session. 

To read the full text of the bill, click here.

HB 42 - Water Rights Publication Amendments
Rep. Joel K. Briscoe

House Bill 42 proposes amending Utah Code section 73-3-6, which addresses the State Engineer’s publication of notices of Applications to Appropriate, Change Applications, and other filings. The bill would allow the State Engineer to confirm the publication of a notice of application through electronic means.

To read the full text of the bill, click here.

HB 57 – Snake Valley Aquifer Advisory Council Amendments
(Rep. Walt Brooks)

House Bill 57 dissolves the Snake Valley Aquifer Advisory Council by repealing the entirety of Title 63C, Chapter 12 of the Utah Code. The Council was originally established by the legislature in 2009, primarily to deal with the Snake Valley water right filings made by the Southern Nevada Water Authority. Because the SNWA water right filings are now a moot issue, the Council is no longer needed. The bill also removes references to the Council from other sections in the Code.

To read the full text of the bill, click here.

HB 61 - Water Measuring and Accounting Amendments
Rep. Carl R. Albrecht

House Bill 61 proposes amending Utah Code sections 73-1-21 and 73-2-1. Section 73-1-21 addresses Utah’s overall water policy and section 73-2-1 outlines the State Engineer's powers and duties and the qualifications for those duties. The bill modifies the state water policy to allow for the use of telemetry in water data collection and permits the State Engineer to make rules governing telemetry and water distribution accounting. The bill also removes outdated language regarding rulemaking authority on preferences of water rights under Section 73-3-21.5, which was repealed in 2023.

To read the full text of the bill, click here.

HB 62 - Utah Water Ways Amendments
Rep. Doug Owens

House Bill 62 proposes amending Utah Code section 79-2-408 to add an additional method for educating the public about water issues. Specifically, the bill permits the partnership to coordinate with the department of education to implement resources and development opportunities to select grades in kindergarten through grade twelve of the public school system. 

To read the full text of the bill, click here.

HB 206 – Columbia Interstate Compact Amendments
Rep. Thomas W. Peterson

House Bill 206 withdraws Utah’s ratification of the Columbia Interstate Compact and repeals several Utah Code sections relating to the Compact.

To read the full text of the bill, click here.

HB 242 – Water Usage Data Amendments
Rep. Melissa G. Ballard

House Bill 242 requires the Utah Division of Water Resources to study the water use of Utah’s public schools, including charter schools. The Division is to complete the study by October 1, 2025. The results of the study are to include recommendations of actions that schools can take to reduce water use and recommendations to the legislature regarding whether schools should be required to provide annual reports of water use to the Division. The bill also provides a mechanism for schools and school districts to purchase smart irrigation controllers. Finally, the bill requires all State agencies to report their annual water use data to the Division beginning in 2027.

To read the full text of the bill, click here.

HB 243 – Riparian Amendments
Rep. Gay Lynn Bennion

House Bill 243 requires counties and municipalities (except for fifth class cities and towns) to include a riparian area element in their general plans, beginning in 2029. The riparian area element should address the preservation and enhancement of natural streams; management of erosion, sedimentation, and flood control; removal of dead or diseased vegetation to minimize flood and fire risk; reduction of water pollution; protection of fish and wildlife; preservation or restoration of vegetation; management of invasive plant species and weeds; and preservation of aesthetic and recreation values.

To read the full text of the bill, click here.

HB 275 – Water Amendments
Rep. Casey Snider

House Bill 275 amends a provision about who may receive a State grant for water meter projects. The law currently requires secondary water providers to meter every connection, but allows for some secondary water providers to only meter at strategic points instead of metering every connection. The law provides three circumstances under which a secondary water provider only has to meter at strategic points. In two of the circumstances, however, the secondary water provider was not eligible to receive State grants to install the meters. This bill would allow the grants to go to a secondary water provider under any of the three circumstances.

To read the full text of the bill, click here.

SB 18 - Water Modifications
Sen. Scott D. Sandall

Senate Bill 18 is a follow-up to SB 277, Water Conservation and Augmentation, which passed late in the 2023 Legislative Session. Among other things, SB 277 allowed water users who install agricultural water optimization projects to file applications with the Division of Water Rights to put the “saved water”—the now-excess water which was diverted and consumed under the more wasteful irrigation system—to another beneficial use. SB 18 retools those provisions, moving them into the State Engineer’s section of code and adding language clarifying the definition of saved water and the administrative procedures to secure its separate use and protect it from forfeiture. It also clarifies that saved water cannot increase the depletion of the underlying water right.

To read the full text of the bill, click here.

SB 39 – Water Shareholder Amendments
(Sen. Scott D. Sandall)

Senate Bill 39 proposes amended Utah Code section 73-3-3.5 regarding shareholder change applications. Previously, if a shareholder filed a proposed change application with a water company, the water company had 120 days to respond if it was a permanent change application and 60 days to respond if it was a temporary change application. This bill would make it a 120-day deadline for the water company, irrespective of whether the change application is permanent or temporary. The bill also has some minor clean-up language, which mainly clarifies when the term “it” in the statute is referring to a water company or to a court.

To read the full text of the bill, click here.

SB 77 – Water Rights Restricted Account Amendments
Sen. Scott D. Sandall

Senate Bill 77 modifies the purposes for which money in the Water Rights Restricted Account may be used. The bill adds that the Division of Water Rights may use the Account to pay for installing, operating, and maintaining water measurement infrastructure and for sharing in the costs of installing stream gauges (with the U.S. Geological Survey).

To read the full text of the bill, click here.

Unnumbered - Water Related Changes
Rep. Casey Snider

This bill would change how Utah funds water infrastructure projects. The bill is currently unnumbered, but the Utah Legislative Water Development Commission recommended it to the full Legislature in November. 

Under the bill, “relevant agencies” with water-related missions, such as the Divisions of Water Resources, Drinking Water, and Water Quality, among others, would develop annual water infrastructure plans that would describe needed water projects that fall within their jurisdiction. Once adopted, these relevant agencies would submit their plans to Utah’s Water Development Coordinating Council, which consists of representatives from the Division of Water Resources, the Water Quality Board, the Drinking Water Board, the Housing and Community Development Division, the Treasurer’s office, and the Department of Agriculture and Food. Using the plans submitted by the relevant agencies, the Council would develop a “unified water infrastructure plan” that would identify water projects needed to “maintain the reliable supply of safe and clean water.” The Council would create the first unified plan by January 1, 2025, which it would update at least every four years. Once created, the Division of Water Resources would be required to reference the unified plan in the state water plan. 

The Council would also work in consultation with the relevant agencies to develop a written prioritization process for ranking and prioritizing water infrastructure projects that are or will be funded with state money beginning in fiscal year 2026. This process would also include several criteria requiring consideration of hardships, the public interest, the use of state funding to match federal funding, and local entity consultation, along with the requirement to solicit public input on the prioritization process.  

The bill would further require the Board of Water Resources to assess an annual “water use fee” on retail water providers beginning on July 1, 2027. This fee would be based in part on the amount of water suppliers provide to their end users and would be deposited into a new “Water Infrastructure Fund,” which would also include appropriations from the Legislature and interest earnings on the fund. The Board would use the fund to issue loans and grants for water projects the Council has prioritized. In addition, the bill would require the Board to make recommendations to the Legislature by the October 2024 interim session regarding the possible consolidation of Utah’s various water infrastructure funding tools into a single fund or account.

To read the full text of the bill, click here.

Unnumbered - Water Usage Amendments
Rep. Doug Owens

This bill is an amended version of HB 538, which passed the House in the 2023 Legislative Session but failed in the Senate. It would prohibit the watering of lawn or turf from October 1 to April 1 in counties in the Great Salt Lake watershed. However, irrigation of trees, shrubs, gardens, and newly established turf would be allowed. Violating the prohibitions would be a civil infraction with a fine of at least $50 for the first violation and $100 for additional violations. It would allow municipalities and other water providers to impose these and other penalties or consequences for violation of the law.

To read the full text of the bill, click here.

Wednesday, December 20, 2023

Public Meeting Regarding Proposed Determination for Big Cottonwood Creek Area

The Utah Division of Water Rights recently published the Proposed Determination for the Big Cottonwood Creek area (Book 57-18). The Division has set a public meeting to discuss the Proposed Determination. The following information is from the public meeting notice:

What: Public Meeting
Who: Water Users within the Big Cottonwood Creek area
When: January 10, 2024, 4:00 to 5:00 pm
Where: Cottonwood Heights City Hall, 2277 East Bengal Blvd.
Purpose: In accordance with Chapter 73-4, Utah Code Annotated, and the Third Judicial District Court (Civil No. 365729835), the State Engineer has completed a general determination of the rights to the use of all water, both surface and underground, within the drainage area of the Big Cottonwood Creek Subdivision, Salt Lake County East Division, of the Utah Lake and Jordan River drainage in Salt Lake County. In light of the completion of this work, the Division of Water Rights will hold a public meeting in order to review the proposed determination and answer questions. Representatives from the Division of Water Rights will be available during this time to discuss water rights within the proposed determination and answer any questions. If individuals cannot attend but have questions regarding the adjudication process or water rights within the Big Cottonwood Creek Subdivision, please contact Mike Drake at 801-538-7397.

Agenda:
1.  Introduction: Mike Drake, Assistant State Engineer - Adjudication
2.  Adjudication Process Review
3.  Public Comments and Questions

The meeting will also be broadcast electronically at https://waterrights.utah.gov/meetinfo.

For more information regarding this meeting, click here.

Monday, December 11, 2023

Metropolitan Water District v. Sorf

The Utah Court of Appeals recently issued its decision in the case of Metropolitan Water District of Salt Lake & Sandy v. Sorf. The primary issue in the case was enforcement of an easement for a water pipeline. This case has been ongoing for many years. (Click here to read about a 2019 decision by the Utah Supreme Court in the same case.)

The District operates the Salt Lake Aqueduct, which is a large pipeline that runs for 42 miles through Utah County and Salt Lake County -- including through the backyard of Zdenek Sorf. The District owns a 125-foot easement for the pipeline, which the District acquired by warranty deed in 1946 from Sorf's predecessor-in-interest. In 2009, Sorf installed some improvements in his backyard, including sheds, a hot tub, decks, rock walls, and a pond, and some of these improvements are within the District's easement. In 2010, the District filed suit against Sorf and sought to have the district court require Sorf to remove the improvements from the easement area. Following a trial, a jury determined that Sorf's improvements did not unreasonably interfere with the District's use and enjoyment of the easement. The district court accordingly granted judgment in favor of Sorf, and the District appealed to the Utah Court of Appeals.
The District argued that district court should have instructed the jury that the placement of any permanent structure within the easement area was unreasonable as a matter of law. Some courts in other states have made this determination with respect to easements for ingress and egress, but not with respect to easements for underground pipelines. The Court of Appeals refused to adopt such a bright-line rule, and instead reiterated the "rule of mutual reasonableness, which is that "the owners of the dominant and servient estates must exercise their rights so as not unreasonably to interfere with the other."
The District also argued that the district court should have asked the jury about the cumulative effect of the improvements on the easement, instead of asking the jury to determine if each individual improvement unreasonably interfered with the District's easement rights. The Court of Appeals determined that if the district court had included a cumulative effect question to the jury, it would have made it more difficult to fashion a remedy; in other words, how would the court know which improvements would need to be removed in order to resolve the issue.
The District also argued that the district court should have limited the testimony of an engineer who testified on behalf of Sorf. In particular, the District argued that the engineer should not have been allowed to testify about possible alternative methodologies that the District could use to rehabilitate and repair the pipeline. The Court of Appeals rejected this argument, and reiterated that the "rule of mutual reasonableness" made it highly relevant how the District might make use of the easement area to operate, maintain, repair, and replace the pipeline.
In the end, the Court of Appeals ruled for Sorf and upheld the decision made by the district court (and the jury).
To read the full opinion, click here.

Sunday, October 8, 2023

Park City Premier Properties v. Silver Summit Estate

The Utah Court of Appeals recently issued its decision in Park City Premier Properties LLC v. Silver Summit Estates. The central issue in this case was whether a developer was required to install a secondary water system for a residential subdivision.

In 2013, Park City Premier Properties ("Premier") acquired property in Weber County, along with 94 shares in Co-op Farm Irrigation Company. The irrigation company water had historically been used for agricultural irrigation on the property. Premier then filed a subdivision application with Weber County, which noted the irrigation company shares. Ultimately, Premier determined that each subdivision lot would have its own well that would provide water to be used for culinary purposes in the home as well as for irrigation of a small lawn/garden around the home. Water use from each well was authorized through (1) a water contract with Weber Basin Water Conservancy District ("Weber Basin") for one acre-foot of water and (2) an exchange application approved by the Utah Division of Water Rights. Some lot owners also acquired  irrigation company shares, if they requested such shares under their Real Estate Purchase Contract. 

Several years later, several lot owners became dissatisfied with the limited amount of irrigation water that they had. For example, a 3-acre lot might have enough well water to irrigate only 0.18 acres of the land. These lot owners sued Premier and asserted that Premier was obligated by Weber County ordinance to install a secondary water system and provide more irrigation water to the subdivision lots. The district court ultimately ruled in favor of the lot owners, and Premier appealed the decision to the Utah Court of Appeals.

The Court focused its decision on the plain language of the relevant Weber County ordinance, which provided as follows: "Where a subdivision is proposed within an existing culinary water district[,]...the planning commission shall, as part of the approval of the subdivision, require the applicant to furnish adequate secondary water and install a secondary water delivery system to the lots in the subdivision sufficient to conform to the public works standards, if such water district or company files or has filed a written statement with the Weber County Planning Division which specifies that the policy of such water district or company is to the effect that its water is not to be used for other than culinary purposes and will not permit culinary water connections unless secondary water is provided by the applicant."

The Court determined that the ordinance was unambiguous in its application to the Premier subdivision. The Court noted that Weber Basin had not adopted a policy that its water could not be used for irrigation purposes. To the contrary, Weber Basin's water contracts, as well as the exchange applications based on the water contracts, specifically allowed for the water to be used for both culinary and irrigation purposes. The lot owners argued that the limited amount of irrigation allowed for each lot was a "de facto policy" that met the requirements of the ordinance. The Court, however, held that the ordinance explicitly required a written policy adopted by the water district, and not an inferred policy. In the end, the Court held that "[b]y it's plain language, the Weber County Code does not require Premier to provide secondary water" to the subdivision lots, thereby reversing the decision of the district court.

To read the full opinion, click here.

Wednesday, August 16, 2023

Public Meeting to Discuss Increased Fees

The Utah Division of Water Rights has announced a public meeting on September 5, 2023 to discuss a proposed increase to the fees associated with Reports of Conveyance. The current fee is $40 per Report of Conveyance, and a separate Report of Conveyance is required for each water right. There is no mention about how much the proposed fee increase will be.

The following information comes from the notice of the public meeting:

PUBLIC MEETING CONCERNING THE INCREASE OF TITLE FEES FOR THE SUBMITTAL OF A REPORT OF CONVEYANCE WITH THE DIVISION OF WATER RIGHTS

Who:     Holders of water rights within the State of Utah that update title.
When:   September 5, 2023, 4:00 p.m. to 5:00 p.m.
Where:  Virtually
Video call link: https://meet.google.com/tfz-xuuv-uur
Alternatively, dial   (US) +1 620-359-7451  PIN:  709 247 587 #

Purpose: The State Engineer is not the official office of record of title for water rights. However, once a water right holder updates title with the appropriate county recorder's office, said holder must also update title with the State Engineer, aka the Division of Water Rights. A water right holder updates title with the Division of Water Rights via a Report of Conveyance, which has an associated fee. In an effort to represent the true cost to process certain documents the State Engineer is proposing to increase the fees collected for the submission of a Reports of Conveyance.

A recording of the public meeting will be viewable on-line at http://www.waterrights.utah.gov/meetinfo/oldmeet.asp.  Questions and comments may be sent via email to waterrights@utah.gov with the subject line Title Fees. For more information, please contact the Utah Division of Water Rights at 801-538-5282.

Agenda for September 5, 2023 Public Meeting
1. Welcome and Introduction
2. Overview of Current Title Fees
3. Proposed Changes and Rationale for Fee Increase
4. Open Forum for Public Comments & Questions
5. Closing Remarks

In accordance with the Americans with Disability Act, individuals needing special accommodations should notify Marianne Burbidge at (801) 538-7370 at least three (3) days prior to the meeting.

Information from the meeting will be posted on the Utah Division of Water Rights website at http://waterrights.utah.gov as a resource for those who are unable to view the meeting live or require additional information.

For more information about the meeting, click here.

Thursday, June 1, 2023

Utah Stream Access Coalition v. VR Acquisitions LLC

The Utah Supreme Court recently issued its decision in Utah Stream Access Coalition v. VR Acquisitions LLC. This case focused on one question: “whether there was a 19th-century basis for an easement providing the public with the right to touch privately owned streambeds underlying state waters.”

In the 2008 decision in Conatser v. Johnson, the Utah Supreme Court established a broad public easement to utilize the beds of Utah's waterways for recreational purposes. In response to this decision, the Utah legislature adopted the Public Water Access Act in 2010. The Act placed restrictions on the broad easement recognized under Conatser. Specifically, the Act restricted recreational access to water on public property and to waterways that are navigable.

In 2010, Utah Stream Access Coalition (USAC) filed a lawsuit challenging the constitutionality of the Act under several different arguments. The district court originally ruled against USAC on the majority of its claims, but did rule that the Act violated the public trust doctrine found in Article XX, Section 1 of the Utah Constitution. That decision was previously appealed to the Utah Supreme Court, who reversed the district court’s decision and sent the case back to the district court to determine if the Conatser easement was “in line with the sort of public access right that our law would have dictated at the time of the framing of the Utah Constitution.”

After hearing additional evidence and argument from the parties, the district court determined that USAC was unable to show that there was a “historical basis as a public easement at the time of the framing of the Utah Constitution” and therefore held that the Act was not unconstitutional. USAC then appealed to the Utah Supreme Court for a second time.

The Court first looked at the modern caselaw that USAC cited in support of the public easement. The Court determined that these cases were the product of common-law developments in the 20th and 21st centuries, and were therefore inapplicable to the status of the law in 1896 when the Utah Constitution was adopted. The Court then examined the customs and practices of early Utahns that USAC asserted in support of an “easement by custom.” The Court concluded that USAC did not carry its burden in establishing a legal basis for a Conatser easement based on the 19th century customs and practices of Utahns. Finally, the Court examined USAC’s argument that 19th century federal laws suggested the existence of a Conatser easement. The Court determined that the federal laws were irrelevant because they related to the appropriative use of water, and not the public’s use of easements for accessing the bed of waterways.

In sum, the Utah Supreme Court upheld the district court’s determination that there is not a historical basis for the type of public easement established by the Conatser case. This therefore means that the Public Water Access Act is constitutional in its current form.

To read the full opinion, click here.