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.

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.

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.

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.

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.

 

Appointment of Great Salt Lake Commissioner

Governor Spencer Cox has appointed Brian Steed to serve as the first Great Salt Lake Commissioner. The Commissioner position was created by 2023 House Bill 491. The Commissioner is tasked with creating a strategic plan by the end of 2023 based on a “holistic approach that balances the diverse interests related to the health of the Great Salt Lake,” and includes provisions concerning the coordination of Great Salt Lake efforts, achieving a sustainable water supply, protecting human health and the ecosystem, economic development, water conservation, water and land use planning, and regional water sharing.

Mr. Steed has significant experience in water and natural resource issues. He previously served as executive director of the Utah Department of Natural Resources and is currently serving as executive director of the Janet Quinney Lawson Institute for Land, Water, and Air at Utah State University.

For more information on the appointment, click here.

Water Rights in Utah Seminar

Attorneys, engineers, city planners, and government officials - If you want a good basic-to-intermediate course on Utah water rights and water law, the "Water Rights in Utah" seminar is a great place to learn. The seminar is May 4, 2023 from 9:00 am to 4:30 pm, and will be held virtually. I will be presenting the first two hours of the seminar, and other talented attorneys at my firm (Craig Smith, Peter Gessel, Emily Haynie, Nathan Bracken, and Clayton Preece) will be presenting the remainder of the seminar. Continuing education credits are available.

Click here to learn more and to register.

2023 Legislature: Water-Related House Bills That Passed

These are the House bills that passed during the 2023 legislative session.

HB 33 (1st Substitute) - Water Related Liability Amendments

Rep. Carl R. Albrecht

House Bill 33 (1st Substitute) amends Utah Code section 73-1-8, which addresses the duties of canal owners or operators and their liability. The bill expands 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 irrigation water.” Similar language has already been inserted into two other sections of the Water Code 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 clarifies that water facility owners and operators have a duty of “reasonable and ordinary care” to maintain the water facilities to prevent the waste of water or property damage, rather than being subject to a higher standard of care that courts have threatened to impose on canals in recent years. In addition, the bill would shield 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” beyond the control of the water facility owner, or “an act of God, including fire, earthquake, storm, flash floods, or similar natural occurrences.”

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

HB 150 (3rd Substitute) - Emergency Water Shortages Amendments

Rep. Carl R. Albrecht

House Bill 150 (3rd Substitute) addresses preferences for water use during a temporary water shortage emergency. The existing statute is extremely vague about what constitutes a water shortage emergency, how the preference determination process should be managed, and how compensation for the preferential use should be calculated. The bill outlines a new procedure by which the governor would declare a temporary water shortage emergency, which would be distinct from the governor’s powers to declare a state of emergency under the Disaster Response and Recovery Act. A temporary water shortage emergency could only be declared if an interruption of water delivery “caused by manmade or natural causes other than drought” either (a) threatens the “availability or quality of an essential water supply or water supply infrastructure” or (b) threatens the operation of the economy and “jeopardizes the peace, health, safety, or welfare” of the public. In issuing an executive order declaring a temporary water shortage emergency, the governor would be required to seek the advice and recommendation of the State Engineer and consult with the state’s Emergency Management Administration Committee. The preferential uses of water in a temporary water shortage emergency, in order, would be for: (1) drinking, (2) sanitation, (3) fire suppression, (4) commercial agriculture animal welfare needs, and (5) generation of electricity. Outside of the ranking of preferential uses, the bill states that water for agriculture purposes, including irrigation, livestock watering, and food processing, would be preferred over the remaining water uses. Preferential users would be required to pay the interrupted users for the reasonable value of the water, applicable crop losses, and “other consequential damages incurred as a result of the interruption.”

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

HB 207 - Compact Commission Amendments

Rep. Casey Snider

House Bill 207 changes Utah’s appointee to the Bear River Compact Commission and the Columbia Compact Commission from the Director of the Division of Water Resources to the State Engineer.

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

HB 208 (1st Substitute) - Criminal Trespass Amendments

Rep. Scott H. Chew

House Bill 208 (1st Substitute) sets forth the elements of criminal trespass when a person is on the “bed or bank of a non-navigable freshwater stream or river that flows through privately owned land and is privately owned.” Defenses against a charge of criminal trespass include that the private property was open to the public and the person charged was complying with “all lawful conditions imposed on access to or remaining on the private property”; that the touching was incidental or otherwise allowed under state code; or the person “acted in compliance with an express easement.” Prescriptive easements are not a valid defense against a criminal trespass charge.

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

HB 217 (3rd Substitute) - School Energy and Water Reductions

Rep. Gay Lynn Bennion

House Bill 217 (3rd Substitute) provides that the State Board of Education can award grants to school districts or charter schools, upon recommendation by a review panel, for implementation of programs to reduce the use of water or energy. Priority is given to projects that are (1) for rural school districts or charter schools, (2) for school districts or charter schools located within the Great Salt Lake watershed, and (3) for outdoor water conservation. The Board is required to draft rules about the grant program, including procedures for applying for grants, eligibility requirements, and reporting requirements. This program is intended to be a pilot program, so the Board is required to report on the effectiveness of the grants by 2027. The fiscal note contemplates $900,000 to be allocated to the program in fiscal year 2024.

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

HB 299 (4th Substitute) - Boating Amendments

Rep. Casey Snider

House Bill 299 (4th Substitute) provides that 50% of the revenue collected from boat registration fees is to be deposited into the new Utah Boating Grant Account. The Division of Outdoor Recreation is tasked with administering the Account and awarding grants to water conservancy districts, state agencies, counties, and municipalities for projects. Such projects could include construction, repair, or replacement of public boating facilities; waterway shoreline protection; or drought access mitigation.

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

HB 307 (3rd Substitute) - Utah Water Ways

Rep. Calvin R. Musselman

House Bill 307 (3rd Substitute) provides for the creation of a new nonprofit, statewide partnership addressing water. The purpose of the nonprofit is to facilitate the coordination of water optimization efforts by: (1) sponsoring policy discussions about the state’s water supply; (2) engaging the private sector for support to optimize water use; (3) coordinating with the Department of Agriculture and Food and the Department of Environmental Quality on water-related issues; (4) maintaining communication among the partnership; (5) providing a line of communication between the partnership and state leaders; (6) promoting coordination of grants, rebate programs, or sponsorships that support optimal use of water; and (7) encouraging residents to make changes to optimize their water use by providing educational tools, public awareness campaigns and seeking grants, gifts, donations, etc. for these purposes. The bill will take effect on July 1, 2023.

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

HB 349 (4th Substitute) - Water Reuse Projects Amendments

Rep. Casey Snider

House Bill 349 (4th Substitute) prohibits the State Engineer and the Division of Water Quality from approving a water reuse project submitted after November 1, 2023 “if the water related to the reuse project would have otherwise been discharged into a tributary of the Great Salt Lake.” However, this prohibition does not apply to federally owned water rights, reuse projects to supply water to the Great Salt Lake, or reuse projects “approved subject to a water replacement plan.” The water replacement plan must provide “an equivalent amount of water to the Great Salt Lake.” The State Engineer may deny the application or approve it in part if the water replacement plan is inadequate.

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

HB 370 (4th Substitute) - Utility Infrastructure Amendments

Rep. Carl R. Albrecht

House Bill 370 (4th Substitute) makes it a felony to destroy or tamper with a “critical infrastructure facility,” which includes a water facility as it is currently defined in Title 73 of Utah Code. To be subject to the felony charges, the person committing the crime must cause “widespread injury or damage to persons or property” by destroying or substantially damaging a critical infrastructure facility, or by tampering with, inhibiting, or impeding the operation of a critical infrastructure facility.

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

HB 450 (1st Substitute) - Landscaping Requirements

Rep. Ryan D. Wilcox

House Bill 450 (1st Substitute) amends section 57-8a-231 of the Utah Code by adding more limitations on the power of homeowners associations to limit water efficient landscaping. Specifically, the bill states that HOAs cannot require a property owner to have more than 50% coverage that is not water wise landscaping.

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

HB 488 (Amended) - Utah Lake Authority Amendments

Rep. Brady Brammer

House Bill 488 (amended) modifies the membership of the board of the Utah Lake Authority. Previously, the Utah County Council of Governments appointed eight board members, one of whom was an individual designated by a chamber of commerce in Utah County and four of whom were elected officials from municipalities immediately adjacent to the Authority boundary. HB 488 keeps the appointment of eight board members and the one appointee designated by a chamber of commerce, but the other seven board member appointees must be elected officials from municipalities whose boundaries are no more than one-half mile from the Authority boundary.

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

HB 491 (3rd Substitute) - Amendments Related to the Great Salt Lake

Rep. Mike Schultz

House Bill 491 (3rd Substitute) creates a new Great Salt Lake Commissioner (“GSL Commissioner) who answers jointly to the Governor, Speaker of the House, and President of the Senate. The GSL Commissioner is tasked with creating a strategic plan by the end of 2023 based on a “holistic approach that balances the diverse interests related to the health of the Great Salt Lake,” and includes provisions concerning the coordination of Great Salt Lake efforts, achieving a sustainable water supply, protecting human health and the ecosystem, economic development, water conservation, water and land use planning, and regional water sharing. The plan needs to be approved by the Governor, after which it will be distributed to state agencies. The GSL Commissioner is also responsible for implementing the strategic plan and may require state agencies—other than the State Engineer and, in some circumstances, the Department of Environmental Quality—to take action or refrain from acting “to benefit the health of the Great Salt Lake to comply with the strategic plan.” The other responsibilities of the GSL Commissioner include maintaining information on the lake; coordinating and consulting with state and federal agencies, political subdivisions, elected officials, and others with responsibilities or interests relating to the lake; monitoring the ongoing integrated water assessment; and other similar duties. The GSL Commissioner will be supported by a new Office of the Great Salt Lake Commissioner, which will be housed in the Department of Natural Resources but staffed and operated independently by the GSL Commissioner. The bill also adds a seat to the Board of Water Resources for a member that “represents the interests of the Great Salt Lake.”

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

HB 513 (3rd Substitute) - Great Salt Lake Amendments

Rep. Casey Snider

House Bill 513 (3rd Substitute) changes how certain mineral royalties from the Great Salt Lake are collected and managed and imposes a new severance tax for the mining of metalliferous compounds from the lake. It also requires that new mineral leases use the most water efficient technologies available and, in some circumstances, provide replacement water to the lake. In addition, the bill requires the Division of Forestry, Fire, and State Lands, as manager of the lake, to make rules for the management of the lake which: (a) provide strategies to manage the lake based on fluctuating lake levels; (b) develop the lake in a manner that protects bird habitats, wetlands, brines, brine shrimp, and wildlife; (c) promote water quality; (d) protect public access to the lake; (e) consider the effects of the lake on the local environment; (f) maintain the flood plain; (g) maintain the lake and marshes for birds; (h) protect recreation; and (i) maintain wildlife refuges. It also requires the division to take on emergency management of the Great Salt Lake when the lake reaches the “emergency trigger,” which is when the salinity levels of the south arm of the lake do not meet the ecological conditions required for brine shrimp and brine fly reproduction. When the emergency trigger is reached, the division may “construct, operate, modify, and maintain” management berms and structures; stop issuing mineral production permits; and withdraw or curtail existing mineral leases.

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

HCR 7 (1st Substitute) - Concurrent Resolution Supporting the Creation of the Great Salt Lake Sentinel Landscape

Rep. Trevor Lee

House Concurrent Resolution 7 (1st Substitute) states that the Utah Legislature and Governor support the Utah Department of Veterans and Military Affairs and its partners in applying for the establishment of the Great Salt Lake Sentinel Landscape. The United States Department of Defense, Department of Agriculture, and Department of Interior have created the Sentinel Landscape Partnership, a federal conservation policy to designate certain lands as “Sentinel Landscapes” that are critical to the nation’s defense mission.

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

 

2023 Legislature: Water-Related Senate Bills That Passed

These are the Senate bills that passed in the 2023 legislative session.

SB 34 (1st Substitute) - Water Infrastructure Funding Study

Sen. Daniel McCay

Senate Bill 34 (1st Substitute) directs the Department of Natural Resources to study the use of property tax revenue to fund water infrastructure, treatment, and delivery. It also requests that recommendations be made for future funding and requires the Department make a written report to the Natural Resources, Agriculture, and Environment Interim Committee on or before October 30, 2024. No money is appropriated for this bill.

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

SB 53 (1st Substitute) - Groundwater Use Amendments

Sen. Evan J. Vickers

Senate Bill 53 (1st Substitute) amends Utah Code section 73-5-15 regarding groundwater management plans. The bill provides that in the context of groundwater management plans, the use of water from a surface source to artificially recharge an aquifer constitutes beneficial use of water (provided certain conditions are met). The bill also corrects a punctuation error that created potential confusion regarding aquifer storage as an exception to claims of nonuse.

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

SB 76 (3rd Substitute) - Groundwater Use Amendments

Sen. Scott D. Sandall

Senate Bill 76 (3rd Substitute) implements changes on the municipal, county, and state agency level to increase coordination in water-related planning. It requires municipal and county planning commissions to consult with the Division of Water Resources when drafting the water use and preservation element of their general plans. Water Resources will help the planning commissions determine how implementing the land use and water use elements of their general plans may affect the Great Salt Lake. County planning commissions are also required to notify and seek feedback from community water systems regarding water supply and distribution planning and to consider the potential opportunities and benefits of planning for regionalization of public water systems. In addition, the bill allows the Division of Drinking Water to change water source, storage, and system minimum sizing standards based on water use data and enforceable water conservation measures implemented by public water systems, and requires the Division to study how greater efficiencies can be found through improved coordination, consolidation, and regionalization of public water systems. In a different vein, the bill also modifies the shareholder change application statute to allow 60 days for an irrigation company to respond to a temporary change application submitted by a shareholder, rather than 120 days for a permanent change application.

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

SB 92 - Special License Plat Designation

Sen. Jen Plumb

Senate Bill 92 creates a Great Salt Lake specialty license plate. The purchase of this specialty license plate will provide funding to the Division of Forestry, Fire, and State Lands to “benefit and conserve the Great Salt Lake watershed and ecosystem.” 

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

SB 118 (5th Substitute) - Water Efficient Landscaping Incentives

Sen. Scott D. Sandall

Senate Bill 118 (5th Substitute) creates landscape conversion incentive programs (commonly called “turf buyback” programs) in the state. The bill allows the Division of Water Resources to provide grants to water conservancy districts who initiate and operate a program for homeowners to replace lawn or turf with water efficient landscaping. The property must, however, be located in municipality that has implemented regional-based water use efficiency standards established by the Division. The bill allocates $3 million of funding to the initiative.

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

SB 119 - Per Capita Consumptive Use

Sen. Michael K. McKell

Senate Bill 119 provides direction for how per capita water use is determined in Utah. Such numbers are often quoted in news articles comparing Utah’s water use with neighboring states, but an issue has been that the states don’t all calculate water use in the same manner. The bill defines per capita consumptive use as “a valid representation of total water consumed divided by the total population for a given area.” The Division of Water Resources designates “reporting districts” that provide wholesale water to calculate the per capita consumptive use in the counties that they serve. The bill provides definition and clarification on determining population, return flow, conserved water, and other items that factor into the per capita calculations. The bill prohibits state agencies and political subdivisions of the state from calculating, publishing, or disseminating a statewide per capita consumptive use number.

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

SB 144 - Water Instream Flow Amendments

Sen. David P. Hinkins

Senate Bill 144 amends Utah’s instream flow statute (Utah Code section 73-3-30) to allow fixed time or temporary change applications to deliver water to reservoirs located partially or entirely within Utah’s portion of the Colorado River System. This bill follows the passage of federal legislation that gave Utah, Colorado, New Mexico, and Wyoming the opportunity to voluntarily conserve water and store the savings in Lake Powell and other reservoirs in the Upper Colorado River Basin. If needed, the conserved water could later be released if the Colorado River Compact requires mandatory reductions in Utah water use. Known as “demand management,” this concept would require the approval of Utah and the three other Upper Colorado River Basin States before it could be implemented. However, the bill is not limited to demand management and would also allow change applications to be filed pursuant to other water conservation programs funded by Utah or the Bureau of Reclamation.

The purpose of the bill is to provide express recognition under Utah law that water conserved for conservation programs in Utah’s portion of the Colorado River System has the legal protection needed to reach a reservoir such as Lake Powell. Water right holders seeking to file a change application under the bill’s new provisions, would need to obtain approval from the Director of the Colorado River Authority of Utah, who would be required to attest that the water can be used in accordance with one of the bill’s enumerated conservation programs.

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

SB 158 (3rd Substitute) - Local Government Water Amendments

Sen. Michael K. McKell

Senate Bill 158 (3rd Substitute) amends Utah statutes governing dedication/exaction of water rights or shares by municipalities, counties, water authorities, and local districts. In many ways it is a follow up to 2018 legislation which amended the Safe Drinking Water Act. The earlier 2018 legislation required community water systems and the Division of Drinking Water to establish system based minimum sizing requirements for source and storage. Systems serving a population of more than 3,300 were supposed to establish system-based standards by March 1, 2019. Systems serving between 500 and 3,300 were given until October 31, 2023 to establish system based standards for source and storage. 

SB 158 specifically ties the dedication/exaction of water rights and shares to the system source and storage requirements in Utah Code § 19-4-114. Additionally, it requires that dedications/exactions be tied to the expected culinary water demand of a specific development. For example, for a multifamily or townhome development, which will likely have lower per residential connection water demand, the per connection dedication/exaction must reflect this lower demand. The determination of per connection water demand for different types of residential development is to be based on at least five years of water use data, within the water system, for similar developments.

SB 158 also requires that the water supplier make public the methodology used to determine the per connection water demand. If the dedicator disagrees with the calculation of the dedication/exaction there is a right of appeal to the governing body of the municipality, county, or district. In the appeal, the dedicator has the right to present data and information and the governing body must respond with due process.  

Finally, SB 158 grants specific authority to third, fourth, fifth and sixth class counties (less than 175,000 residents) and municipalities in those counties, by ordinance, to adopt drinking water source protection zones for wells and springs. While this power likely exists, regardless of county size, it is now explicitly provided.

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

SB 236 - Legislative Water Development Commission Amendments

Sen. David P. Hinkins

Senate Bill 236 authorizes the existing Legislative Water Development Commission to open committee bill files related to the commission’s duties. Those duties include making recommendations to the Legislature on water needs for the state, funding and ownership of water projects, and water conservation programs.

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

SB 251 - Secondary Water Metering Requirements

Sen. David P. Hinkins

Senate Bill 251 exempts certain secondary water providers from metering every connection. Instead, these exempted providers can meter strategic points of their system. It also amends Section 73-10-34.5 to allow the Board of Water Resources to issue or convert a previous grant issued to secondary water suppliers who fall under the new exemption to fund projects that are alternative to metering, if it can be established that the project will conserve more water than expected through metering.

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

SB 277 (2nd Substitute) - Water Conservation and Augmentation Amendments

Sen. Scott D. Sandall

Senate Bill 277 (2nd Substitute) reorganizes the Agricultural Water Optimization program housed at the Utah Department of Agriculture and Food (UDAF). It dissolves the current Agricultural Water Optimization Task Force located at the Department of Natural Resources and creates a similar Agricultural Water Optimization Committee at UDAF. In addition to assuming the roles of the previous task force, the committee sets the eligibility requirements for agricultural water optimization grants, creates the grant application process, and develops the preliminary screening criteria for the grant applications. The committee reviews and ranks the grant applications, which are approved by the existing Utah Conservation Commission (which is also housed at UDAF). The bill also creates a new change application process by which a person implementing an agricultural water optimization project—whether within or independent of the grant program—can seek a quantification of the “saved water” created by the project, which can then be used for other purposes that do not enlarge the depletion or diversion amounts of the saved water. Finally, the bill adjusts the purposes for which the Water Infrastructure Restricted Account (WIRA) funds can be used, encompassing projects that “benefit the Colorado River drainage in Utah, including projects for water reuse, desalinization, building of dams, or water conservation,” subject to the adoption of certain water conservation policies and practices by the counties and municipalities seeking the funds.

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

2023 Legislature: Water-Related Bills That Didn't Pass

These are the water-related bills that were presented at the 2023 legislative session but that failed to pass.

HB 188 (1st Substitute) - Golf Related Water Modifications

Rep. Douglas R. Welton

House Bill 188 (1st Substitute) would have required the owners and operators of golf courses and driving ranges to report annual water use data to the Division of Water Resources. The data would include the amount of water used for the operation and maintenance of the golf course and the sources of water used. The Division would publish the water use information on its website, and the golf course owners/operators would also have been required to publish the water use information on the golf course’s website. Utah State University would study and establish standards for the use of water on golf courses, and would report its findings to the legislature by June 2026. The bill would have provided up to $30 million in grants for golf courses to implement methods of efficiently using water and established a Golf Advisory Board to administer the grant program.

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

HB 272 (2nd Substitute) - Water Efficient Landscaping Amendments

Rep. Doug Owens

House Bill 277 (2nd Substitute) would have put landscaping limitations on new construction or reconstruction of properties owned by state agencies, cities, towns, counties, and districts. These entities would not be allowed to have more than 20% of the landscaped area be lawn or turf, would not be allowed to have lawn or turf in park strips or any other area less than eight feet with width, and would not be allowed to install overhead spray irrigation on any areas except for where lawn or turf was planted. An exception would be made for “active recreation areas” such as sports fields and parks.

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

HB 286 - Great Salt Lake Funding Modifications

Rep. Joel K. Briscoe

House Bill 286 would have modified where a percentage of sales tax proceeds are allocated. There is a 1/16% tax rate revenue that goes 20% to the Transportation Investment Fund and 80% to the Water Infrastructure Restricted Account. The bill would have 100% of this revenue go to the Great Salt Lake Account for fiscal years 2023 through 2028. 

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

HB 538 (3rd Substitute) - Water Usage Amendments

Rep. Doug Owens

House Bill 358 (3rd Substitute) would have required retail water suppliers and secondary water suppliers to enact ordinances prohibiting the use of culinary water or pressurized secondary water for the irrigation of lawn or turf in the Great Salt Lake Basin from October 1 until April 25, also known as the “shoulder season.” The bill also included requirements for certain large retail water providers and large secondary water providers to calculate the amount of water that otherwise would have been depleted during the prior shoulder season and then file an instream flow application to convey an equivalent amount of water to the Great Salt Lake, with some exceptions. The bill was later amended to remove the change application requirement but nevertheless raised questions about its legality and feasibility. Although the bill passed the House, it ultimately failed in the Senate on the final day of the session. Nevertheless, it is likely the bill’s concepts will be a topic for interim study and possible legislation in 2024.

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

HB 562 - Water Rights Inventory Requirements

Rep. Phil Lyman

House Bill 562 would have required all public water suppliers to file an annual “comprehensive inventory” with the Division of Water Rights. The inventory would include, at a minimum, a list of all water rights (and acre-foot amounts associated with each right) owned by the public water supplier, all water contracts (and acre-foot amounts associated with each contract) executed by the public water supplier; all water shares (and acre-foot amounts associated with each share) owned by the public water supplier, all water rights that the public water supplier has under approved nonuse status, all unapproved applications to appropriate water (and acre-feet associated with each application) filed by the public water supplier, and a breakdown of the inventory by surface water and underground water. The bill would also allow the Division of Water Rights to make rules to require additional information in the comprehensive inventory, including depletion amounts, unaccounted leakage water, evaporation, etc.

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

SB 280 - Bear Lake Preservation Amendments

Sen. Chris H. Wilson

Senate Bill 280 sought to address considerations for the Division of Forestry, Fire, and State Lands regarding development of Bear Lake including coordination with other state agencies. Key considerations include preserving Bear Lake as “a natural lake [that] retains the basic form and inherent qualities” and the current and historical uses of Bear Lake. The bill would discourage developments that would utilize Bear Lake as a source for irrigation water.

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

SCR 6 - Concurrent Resolution Regarding the Great Salt Lake Elevation Targets

Sen. Nate Blouin

Senate Concurrent Resolution 6 relates to the Great Salt Lake, its current status, all of the benefits that it brings to Utah, and to encourage Utah to rally to commit to bringing it back to its optimal level. Specifically, the concurrent resolution noted that scientific studies state that the lower end of the Great Salt Lake’s optimal water level elevation is 4,198 feet in elevation and that the Great Salt Lake would need between 4 and 6 million acre-feet to return to 4,198 feet in elevation. The resolution hoped to establish raising the Great Salt Lake’s elevation from its current elevation, reported to be at 4190.4 feet in elevation, to 4,198 feet in elevation as the State’s official goal and that the State would adopt policies, funding, and incentives to achieve this goal.

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

Podcast: 2023 Legislative Wrap-Up

Last week, I was a guest on the Ripple Effect podcast to talk about the many water-related bills that passed (and failed) in the 2023 session of the Utah Legislature. To listen to the podcast, click here.

Public Meeting Regarding Appropriation Policy for Weber and Davis Counties

The Utah Division of Water Rights has set a public meeting to discuss the appropriation policy for the Weber Delta Sub-Area of the East Shore Area of the Great Salt Lake (Area 31 and Area 35) in Davis County and Weber County. The policy change is being driven in part by Governor Cox's recent proclamation to close the Great Salt Lake drainage to new water appropriations. The following information is from the public meeting notice:

What: Public Meeting
Who: Weber Delta Sub-Area Water Users and interested parties
When: March 8, 2023, 6:30 - 8:00 p.m.
Where: Roy High School, 2150 West 4800 South, Roy
Purpose: The purpose of the meeting is to present a proposed update to the appropriation policy in the Weber Delta Sub-Area of the East Shore Area of the Great Salt Lake in Davis County and Weber County. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.

Agenda:
1. Welcome/Introduction
2. Summary of Current Appropriation Policy and the Governor's Proclamation
3. Update to Appropriation Policy
4. Public Questions and Comments

The meeting will also be broadcast via Internet at https://waterrights.utah.gov/publicmeetings.

If you are unable to attend the meeting, you can provide written comments to the Division of Water Rights at PO Box 146300, Salt Lake City, UT 84114-6300.

For more information about the meeting, click here.

For current water right policies in Area 31, click here.

For current water right policies in Area 35, click here.

Ripple Effect Podcast - Episode 118

I was recently invited by my colleague, Emily E. Lewis, to join her on the Ripple Effect podcast to discuss the water bills that are being considered by the Utah legislature in the 2023 session. To listen to the podcast, click here.

Public Meeting Regarding Appropriation Policy for Bear River Basin

The Utah Division of Water Rights has set a public meeting to discuss the appropriation policy for the Bear River Basin in Cache County (Area 25). The policy change is being driven in part by Governor Cox's recent proclamation to close the Great Salt Lake drainage to new water appropriations. The following information is from the public meeting notice:

What: Public Meeting
Who: Bear River Basin Water Users and interested parties
When: February 22, 2023, 7:00 - 8:30 p.m.
Where: Council Chambers, Cache County Building, 199 North Main, Logan
Purpose: The purpose of the meeting is to present a proposed update to the appropriation policy in the Bear River Basin area of Cache County. Personnel from the Division of Water Rights will be available to take all questions and comments provided by the general public and interested parties.

Agenda:
1. Welcome/Introduction
2. Summary of Current Appropriation Policy and the Governor's Proclamation
3. Update to Appropriation Policy
4. Public Questions/Comments

The meeting will also be broadcast via Internet at https://waterrights.utah.gov/publicmeetings.

If you are unable to attend the meeting, you can provide written comments to the Division of Water Rights at PO Box 146300, Salt Lake City, UT 84114-6300.

For more information about the meeting, click here.

For current water right policies in Area 25, click here.

2023 Legislative Preview of Water Bills

The 2023 session of the Utah Legislature is (once again) going to be a very busy session for the water community. There are a number of water bills that are being proposed, which are summarized below. More water bills are also expected to be filed as the session goes on.

HB 33 - Water Related Liability Amendments Rep. Carl R. Albrecht

House Bill 33 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 the Water Code 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 clarifies that water facility owners and operators have a duty of “ordinary care” to maintain water facilities to prevent the waste of water or property damage, rather than being subject to a higher standard of care courts have threatened to impose on canals in recent years. In addition, the bill would shield 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, flash floods, or similar natural occurrences.” To read the full text of the bill, click here.

HB 150 - Emergency Water Shortages Amendments Rep. Carl R. Albrecht

House Bill 150 addresses preferences for water use during a temporary water shortage emergency. The existing statute is extremely vague about what constitutes a water shortage emergency, how the preference determination process should be managed, and how compensation for the preferential use should be calculated. The bill outlines a new procedure by which the governor would declare a temporary water shortage emergency, which would be distinct from the governor’s powers to declare a state of emergency under the Disaster Response and Recovery Act. A temporary water shortage emergency could only be declared if an interruption of water delivery “caused by manmade or natural causes other than drought” either (a) threatens the “availability or quality of an essential water supply” or (b) threatens the economy and “jeopardizes the peace, health, safety, or welfare” of the public. In issuing an executive order declaring a temporary water shortage emergency, the governor would be required to seek the advice and recommendation of the State Engineer and consult with the state’s Emergency Management Administration Committee. The preferential uses of water in a temporary water shortage emergency, in order, would be for: (1) drinking, (2) sanitation, (3) fire suppression, (4) commercial agriculture animal welfare needs, and (5) generation of electricity. Outside of the ranking of preferential uses, the bill states that water for agriculture purposes, including irrigation, livestock watering, and food processing, would be preferred over the remaining water uses. Preferential users would be required to pay the interrupted users for the reasonable value of the water, applicable crop losses, and “other consequential damages incurred as a result of the interruption.” To read the full text of the bill, click here.

HB 188 - Golf Related Water Modifications Rep. Douglas R. Welton

House Bill 188 requires the owners and operators of golf courses and driving ranges to report annual water use data to the Division of Water Resources. The data includes the amount of water used for the operation and maintenance of the golf course and the sources of water used. The golf course owners/operators are also required to publish the water use information on the golf course’s website. The Division will also publish the water use information on its website. To read the full text of the bill, click here.

HB 207 - Compact Commission Amendments Rep. Casey Snider

House Bill 207 changes Utah’s appointee to the Bear River Compact Commission and the Columbia Compact Commission from the Director of the Division of Water Resources to the State Engineer. To read the full text of the bill, click here.

SB 34 - Water Infrastructure Funding Study Sen. Daniel McCay

Senate Bill 34 directs the Department of Natural Resources (DNR) to study the current use of property tax revenue to fund water infrastructure, treatment, and delivery by local governments. DNR’s study, conducted by a working group, would include: (i) developing policies to ensure tax exempt entities contribute to infrastructure funded with property tax revenue; (ii) considering the effects of removing or reducing the use of property taxes for infrastructure; and (iii) developing tiered water rate structures that promote water conservation and ensure reasonable revenue stability. By October 30, 2024, DNR would report on the study to the two Interim Committees: (i) Natural Resources, Agriculture, and Environment and (ii) Revenue and Taxation Interim Committee. To read the full text of the bill, click here.

SB 53 - Groundwater Use Amendments Sen. Evan J. Vickers

Senate Bill 53 seeks to amend Utah Code section 73-5-15 regarding groundwater management plans. The bill provides that in the context of groundwater management plans, the use of water from a surface source to artificially recharge an aquifer constitutes beneficial use of water (provided certain conditions are met). The bill also corrects a punctuation error that created potential confusion regarding aquifer storage as an exception to claims of nonuse. To read the full text of the bill, click here.

SB 76 - Water Amendments Sen. Scott D. Sandall

Senate Bill 76 implements changes on the municipal, county, and state agency levels to increase coordination in water-related planning. It requires municipal and county planning commissions to consult with the Division of Water Resources when drafting the water use and preservation element of their general plans. Water Resources will help the planning commissions determine how implementing the land use and water use elements of their general plans may affect the Great Salt Lake. County planning commissions are also required to notify and seek feedback from community water systems regarding water supply and distribution planning and to consider the potential opportunities and benefits of planning for regionalization of public water systems. In addition, the bill allows the Division of Drinking Water to change water source, storage, and system minimum sizing standards based on water use data and enforceable water conservation measures implemented by public water systems. Finally, the bill tasks the existing Water Development Coordination Commission—comprised of state water agency heads, the Commissioner of the Department of Agriculture and Food, the director of the Housing and Community Development Division, and the state treasurer—with identifying incentives to develop and implement conservation plans and regionalize water systems. To read the full text of the bill, click here.

(Not Yet Numbered) - Water Efficient Landscaping Amendments Rep. Doug Owens

This bill would amend Utah Code section 73-10-37 by, among other things, increasing appropriations from $5,000,000 to $12,500,000 and allow administration through the local water districts or the municipality. The municipality would first need to enact an ordinance to establish water use efficiency standards. The bill includes specific details a municipality would need to include in the ordinance; for example, an owner may not install or maintain a lawn or turf within a park strip or an area that is less than eight feet wide. The purpose here is to ensure municipalities are committed to more efficient water use for the long term. When Rep. Owens discussed this bill at the Utah Water Task Force meeting on January 11, 2023 his emphasis was combating the bad press Utah has received for our lack of water conservation. Many provisions in this bill revolve around combating this perception by showing long term commitment to water efficiency. A similar bill was introduced by Sen. Sandall (discussed below). One of the main differences is Rep. Owen’s bill requests more appropriations to implement the turf buyback program. The bills do not conflict and many feel unifying the two bills would be the best approach.

(Not Yet Numbered) - Water Efficient Landscaping Incentives Sen. Scott D. Sandall

This bill, which is similar to Rep. Owens' bill discussed above, establishes a financial incentive program for the conversion of lawn or turf to water-efficient landscaping. The Division of Water Rights will award grants to water conservancy districts that administer landscaping conversion incentive programs. In areas without these programs, landowners are eligible to directly receive financial incentives to voluntarily remove lawn or turf. The bill also permits the Division of Water Rights and/or water conservancy districts to hold a lien on a property if the recipient of a financial incentive subsequently re-installs lawn, turf, or overhead spray irrigation on the property.