2023 Legislation: Water Related Liability Amendments

Rep. Carl Albrecht is sponsoring proposed legislation in response to concerns from his constituents who utilize irrigation water from canals that divert Sevier River water across the Sevier Valley. The irrigation companies that operate the canals have had problems in the past with thunderstorms flowing down the nearby canyons and flooding the canals, which exceeds the capacity of the canals and floods out neighboring properties, particularly when the floodwater fills the canals with debris. Some canals are not insured for flooding, leaving them fully exposed to liability for such events, while others that are insured often lose their insurance when such claims are paid out. In addition, it is fairly common for these canals to be used by municipalities and others to convey stormwater, sometimes without permission, further exposing the canal owners to liability. 

The bill proposes amending Utah Code section 73-1-8, which addresses the duties of canal owners or operators and their liability. The bill would expand the section’s applicability by changing the existing “ditch, canal, flume or other watercourse” language to “water facility,” which includes any facility “used for the diversion, transportation, distribution, measurement, collection, containment, or storage of water.” Identical language has already been inserted into two other sections of Title 73, Chapter 1 that apply to the operation of canals to reflect the changing uses of canals and the need to extend protections to other types of water facilities as well. Among other things, the bill shields the owners or operators of water facilities from liability for damage or injury caused by “the diversion or discharge of water or another substance into the water facility by a third party” without permission, or “an act of God, including fire, earthquake, storm, flashfloods, or similar natural occurrences.” In addition, the bill clarifies that water facility owners or operators have a duty of “ordinary care” to maintain the water facilities to prevent the waste of water or property damage, rather than a higher degree of liability which courts have threatened to impose on canals in particular in recent years.

The Natural Resources, Agriculture, and Environment Interim Committee unanimously adopted this draft legislation as a committee bill in its August 17, 2022 meeting. In addition, the Legislative Water Development Commission endorsed the bill in its September 22, 2022 meeting. As an interim committee-sponsored and approved bill, it should move directly to the House floor without an additional committee hearing when the 2023 General Session of the Utah Legislature gets underway in January.

The text of the proposed bill can be found here.