Tuesday, March 14, 2017

2017 Legislative Review of Water-Related Bills

The 2017 General Session of the Utah Legislature ended on Thursday, March 9. The last day for the Governor to sign or veto bills is March 29. Here are the highlights of the water-related bills that passed and didn't pass during the session:
HB 84 - Water Law - Nonuse Requirements
Rep. Tim Hawkes
House Bill 84, which was recommended by the Executive Water Rights Task Force, clarifies that: (1) an approved nonuse application excuses the requirement of beneficial use from the nonuse application's filing date; (2) the filing or approval of a nonuse application, or a series of nonuse applications, does not constitute beneficial use or protect a water right that is already subject to forfeiture; and (3) a nonuse application does not bar a water right owner from using the water as permitted under the water right or from claiming any available defense against forfeiture. The bill also modifies the procedures for instituting a forfeiture action for nonuse.
HB 118 - Authority of State Engineer
Rep. Tim Hawkes
House Bill 118, which was recommended by the Executive Water Rights Task Force, allows the State Engineer to develop rules regarding the "duty of water" or in other words, a quantification of the maximum amount of water that can be beneficially used, without waste, for a particular purpose. Although the State Engineer and the courts in General Adjudications have used this concept for over 100 years, there is no statutory authority for this concept. This bill gives the State Engineer express authority to do what is already being done with respect to the duty of water.

HB 180 (2nd Sub.) – Water Right Transfer Amendments
Rep. Logan Wilde
House Bill 180 modifies Utah Code section 73-3-18 regarding assignment of an unperfected application to appropriate. If an assignment is made using the Division of Water Rights’ assignment form, and it is recorded and forwarded to the Division, the assignment will be treated as a report ofconveyance for updating title on the Division’s database.

HB 181 – State Engineer Fee Application Amendments
Rep. Logan Wilde
House Bill 181, which was recommended by the Executive Water Rights Task Force, updates the name of an "extension of time in which to resume use application" to its current name used elsewhere in the code, i.e., a "nonuse application."

HB 301 (1st Sub.) – Canal Safety Amendments
Rep. Scott D. Sandall
House Bill 301 removes a requirement that a canal owner receive notice from a municipality or county of any proposed subdivision located within 100 feet of the canal. The bill adds a more defined requirement that a municipality or county not approve or reject a subdivision that is located within 100 feet of canal until after the municipality has provided at least 20 days’ notice of the subdivision to the canal owner so that the canal owner can provide input regarding access to the canal, maintenance of the canal, canal protection, and canal safety. The bill also makes minor changes to the requirement that canal owners provide contact information and canal location information to each municipality and county in which its canal is located.

SB 11 (2nd Sub.) - Water Development Commission Amendments
Sen. Margaret Dayton
Senate Bill 11 renames the State Water Development Commission to the Legislative Water Development Commission and modifies the membership of the Commission. The bill removes all of the non-legislative, non-voting members from the Commission: the state treasurer; two representatives of the Governor's Office, including one representative from the Governor's Office of Management and Budget; nine representatives of different river districts; the executive director of the Department of Natural Resources; the executive director of the Department of Environmental Quality; the commissioner of agriculture and food; a member of the Board of Water Resources; a representative of an organized environmental group; a representative of agricultural production; and a representative with experience with finance and economics. The bill adds that non-voting members can be appointed to two-year terms by the Legislative Management Committee upon recommendation of the Commission co-chairs.

SB 45 – Retail Water Line Disclosure Amendments
Sen. Karen Mayne
Senate Bill 45 affects public entities that provide culinary water service to customers. The bill requires that twice per calendar year, these public retail water providers must provide a disclosure to its customers that states whether the property owner or the provider is responsible for repairs to the water line that serves the customer. The purpose of this requirement is to give better clarification of where the provider's responsibility for water line maintenance ends and where the property owner's responsibility for water line maintenance begins. The bill modifies Utah Code section 11-8-4, which was enacted in 2016 and requires the same disclosure for sewer service providers relative to sewer line maintenance responsibilities.

SB 63 (1st Sub.) - Nonprofit Corporation Amendments – Water Companies
Sen. Margaret Dayton
Senate Bill 63 modifies the Utah Revised Nonprofit Corporation Act to change the default rule on the transferability of shares in a water company from non-transferrable to transferrable, unless the articles or bylaws of the water company specify otherwise. The bill further specifies that any restrictions on the transfer of shares in a water company must be reasonable, adopted in good faith and for a legitimate purpose, adopted in the best interests of the water company and its shareholders, and not discriminate against any individual shareholder or class of shareholders. The bill also clarifies that a shareholder in a water company has “an equitable, beneficial interest in the use of the water supply of the water company, proportionate to the shareholder’s shares in the water company, which is an interest in real property” and has a right to receive his/her proportionate share of the company’s water. The bill also expressly allows a water company to purchase delinquent shares of stock and clarifies the process for distributions to shareholders in a water company.
SB 214 (1st Sub.) - Public Water Supplier Amendments
Sen. Jani Iwamoto
Senate Bill 214 originally proposed to modify Utah's instream flow statute (Section 73-3-30) to allow public water suppliers to change perfected water rights for instream use. The substituted bill acknowledged that the instream flow issue is very complex and that additional work and input from a number of stakeholders is necessary before any changes are made to the instream flow statute. The bill encourages the Water Development Commission and the Executive Water Task Force to study possible options for expanding the list of those who can file for instream flow rights.
SJR 11 - Joint Resolution Regarding the Central Utah Project
Sen. Curtis S. Bramble
Senate Joint Resolution 11 urges the United States Congress and the new administration to budget sufficient funds to enable the Bonneville Unit of the Central Utah Project to be completed.
HB 225 – Water Commissioner Amendments
Rep. Scott Chew
House Bill 225 exempts the State Engineer from the Utah Procurement Code with respect to the Water Commissioner Fund, but requires the State Engineer to make administrative rules governing the use of the Fund. The bill also clarifies and expands the items that can be paid from the Fund, including benefits for commissioners, expenses approved by a distribution system committee, and administration expenses of a distribution system committee.

HB 304 (1st Sub.) – Water Conservation Amendments
Rep. Gage Froerer
House Bill 304 modifies water conservation plan requirements, including requiring each water conservancy district and each retail water provider to have a water conservation plan that includes goals for reduction in residential, commercial, and industrial uses, and water conservation measures for these same uses, and including landscaping. The bill also changes some recommended components of a water conservation plan into required components, such as information regarding the installation of water efficient fixtures and appliances; retail water rate structures designed to encourage conservation; and existing or proposed regulations designed to encourage conservation, including restrictions on grass landscaping.

HB 444 – Water Appropriation Modifications
Rep. Merrill F. Nelson
House Bill 444 clarifies which State divisions, departments, and entities can file applications to appropriate water. The bill adds language that these State entities must go through the same appropriation process as a private property owner would have to go through, and that the State entities have no special rights by virtue of being a public entity or public water supplier.
SB 228 (1st Sub.) - Water Infrastructure Revisions
Sen. J. Stuart Adams
Senate Bill 228  seeks to modify rules about loans from the Board of Water Resources, including a requirement that the Board establish a plan to require loan applicants to submit their project plans for an independent value engineering review to examine ways that the project’s value can be increased through reducing costs and improving function.
SB 271 - Canal and Ditch Modifications
Sen. David P. Hinkins
Senate Bill 271 seeks to allow a property owner whose land is crossed by a canal, ditch, drain, or “buried irrigation conduit” to change the location of the canal, ditch, drain, or “buried irrigation conduit,” subject to several requirements and limitations. The property owner must provide written notice to the water owner, including detailed plans and specifications prepared by a licenses engineer. The property owner must provide contact information for two other engineers to independently review the plans and specifications, and must pay for the cost of this independent review if the water owner elects to use one of the two engineers suggested by the property owner. Alternatively, the water owner can select its own independent engineer, but is responsible for paying the costs incurred for this independent review. The property owner and water owner must negotiate terms regarding any restrictions or impediments to the flow of water through the water channel. This bill would not allow for culinary water lines or secondary water lines to be moved.

No comments: