Utah Watershed Councils

Representative Tim Hawkes’s House Bill 166, the Watershed Council Act, was passed in the 2020 legislative session. The purpose of the Act, which was largely drafted by Smith Hartvigsen attorney Peter Gessel in his previous role at the Utah Department of Agriculture and Food with input from Nathan Bracken and others, is to “develop diverse and balanced stakeholder forums for discussion of water policy and resource issues at watershed and state levels.” The Utah Division of Water Resources was tasked with implementing the Act, though its efforts were delayed by a year due to the pandemic. This past spring, the Division awarded a contract to The Langdon Group, headed by experienced facilitator Dan Adams, with assistance from Nathan Bracken and Peter Gessel as policy counsel, to implement the Act.

The Division’s implementation plan calls for the creation of a statewide Utah Watersheds Council, with council members appointed to represent state agencies, counties, cities, special districts, and others from a variety of interests such as agriculture, conservation, and industrial water use. Many of these representatives have already been identified, and the remainder should be selected as directed by statute within the next two weeks. On November 15, 2021, the Division will hosted a kickoff meeting at the Department of Natural Resources to officially organize the Utah Watersheds Council. This was the first major step to implement the Act, though hundreds of hours have already been spent by Dan Adams and others to reach out to water stakeholders across the state and lay the groundwork for this event. We expect that it will take several meetings for the Utah Watersheds Council to be fully organized and adopt policies and priorities for its work, as the Act was written broadly to allow the council to organize and operate as it sees fit. One of the primary responsibilities of the Utah Watersheds Council is to facilitate the organization of local basin-level watershed councils across the state. The Langdon Group has been tasked with organizing some of these basin-level councils, which Dan hopes to start doing in the next few months.

In addition to facilitating and supporting the basin-level councils, the Utah Watersheds Council is designed to help improve communication and understanding between the many state-level entities and interests that far too often are unaware of each other’s activities and responsibilities. By convening these state-level representatives, the hope is that the Utah Watersheds Council will facilitate communication, coordination, and collaboration, particularly between the Departments of Natural Resources, Environmental Quality, and Agriculture and Food, as well as federal agencies (though the federal agencies are not members of the council). As the basin-level councils are created, with each such council appointing a representative to the Utah Watersheds Council, there will be additional opportunities for local stakeholders to identify their unique needs and priorities and communicate those to the state council. The Utah Watersheds Council can use that information in fulfilling its obligation to provide advice to the governor and legislature on water issues.

As the watershed councils are subject to Utah’s public meeting requirements, all state and local watershed council meetings are open to the public. Scheduled meetings and their agendas will be available on the Utah Public Notice website.

Constitutional Amendment D

The November 2020 ballot in Utah will include Constitutional Amendment D, which asks the following question to voters:

Shall the Utah Constitution be amended to:

• rewrite a provision relating to municipal water rights and sources of water supply;
• allow a municipality to define the boundary of the municipality’s water service area and to set the terms of water service for that area;
• state that a municipality is not prevented from:
  • supplying water to water users outside the municipality’s boundary; or
  • entering into a contract to supply water outside the municipality’s water service area if the water is more than what is needed for the municipality’s water service area; and
• modify the basis upon which a municipality is allowed to exchange water rights or sources of water supply?

The constitutional amendment stems from legislative changes in 2019 and 2020 regarding municipalities providing water service outside of their municipal boundaries. The amendment clarifies that a municipality can provide water service outside of its boundaries by defining a "water service area," which may extend beyond the municipal boundaries. The amendment also explicitly allows "surplus water agreements," which have been long been used by municipalities under statutory authority to provide water outside of municipal boundaries. Municipalities will still be prohibited from selling, leasing, or disposing of its water rights and water sources, but can still exchange water rights or water sources, provided that the exchanged water rights or water sources will equally enable the municipality to meet the water needs of its designated water service area.

For more information on Constitutional Amendment D, click here or read pages 49-51 of Utah's official voter information pamphlet (available here).

2020 Legislature: Additional Water Bills

Since the beginning of the 2020 legislative session, there have been several more water-related bills that have been proposed. These bills are summarized below.

HB 245  – Dogs in Watershed Areas

Rep. Cheryl K. Acton
House Bill 245 provides that counties, cities, districts, and State agencies cannot prohibit individuals from transporting dogs in watershed areas if the dog remains at all times in the passenger compartment of the vehicle. The bill also exempts service dogs, search and rescue dogs, and law enforcement dogs.

HB 278 (1^st Substitute) – Jordan River Amendments

Rep. Cheryl K. Acton
House Bill 278 amends the statute regarding Jordan River improvement projects to allow the Division of Forestry, Fire, and State Lands to work in conjunction with the Utah Department of Transportation to (1) provide access from highways to trails along the Jordan River, and (2) install signs, barriers, and fences where a highway crosses the Jordan River.

 HB 328 (1^st Substitute) – Division of Water Resources Study Update

Rep. Joel Ferry
House Bill 328 requires the Division of Water Resources to (1) update a 2002 study to explore the feasibility of diverting Green River water into the Wasatch Front through the Bear River or the Weber River, and (2) study reasonable alternative methods to divert Green River water into the Wasatch Front. The Division must present the update to the Natural Resources, Agriculture, and Environment Interim Committee by November 2020 and present the second study by November 2021 to the Committee.

HB 331 – Water Infrastructure Safety and Maintenance

Rep. Kim F. Coleman
House Bill 331 requires large water providers to report information about their water infrastructure to the Division of Water Resources and the Natural Resources, Agriculture, and Environment Interim Committee every five years beginning in 2022. Large water providers include cities of the first and second class, as well as water conservancy districts that serve more than 100,000 individuals. The report must include information about the age of water infrastructure, an ongoing repair and replacement plan, and underground water infrastructure that is older than its recommended age.

HCR 22 – Protection, Development, and Beneficial Use of Colorado River Water

Rep. Bradley G. Last
House Concurrent Resolution 22 encourages the State of Utah to expeditiously develop Utah’s portion of the Colorado River Compact. The Resolution also encourages the State to coordinate with the federal government and the other Colorado River basin states to timely implement of the Drought Control Plans and complete the re-consultation on the Colorado River Interim Guidelines.

HCR 23 – Balanced Approach to the Release of Water from Flaming Gorge

Rep. Scott H. Chew
House Concurrent Resolution 23 supports the creation of a new management plan, with input from Green River stakeholders, regarding releases of water from Flaming Gorge Dam that is in the best interest of the stakeholders and endangered fish.

HCR 24 – Quagga Mussels

Rep. Logan Wilde
House Concurrent Resolution 24 urges the continued cooperation by the federal government (particularly the National Park Service) to prevent the spread of the invasive quagga mussels, including allocation of additional funds and staff time to improve the inspection and decontamination processes for all watercraft leaving Lake Powell.

SB 84 – Public Entity Water Users Amendments

Sen. Jacob L. Anderegg
Senate Bill 84 requires each public entity (counties, cities, towns, and metro townships) to develop a plan to meter all water used for buildings, structures, and land owned by the public entity. The bill also requires each public entity to adopt a conservation plan, and to submit the plans to the Division of Water Resources by November 2020. A public entity cannot receive State money for water development if the public entity fails to comply with these requirements.

SB 144 – Water Related Process Amendments

Sen. Ralph Okerlund
Senate Bill 144 modifies several Utah water statutes in light of the recent Utah Supreme Court decision in Rocky Ford Irr. Co. v. Kents Lake Reservoir Co. First, the bill clarifies that judicial review of a State Engineer decision on an application can only be obtained by the applicant or someone who filed a timely protest on the application. Second, the bill clarifies that the filing of a Proof is a request for agency action (as defined in the Utah Administrative Procedures Act) only between the applicant and the State Engineer. Third, the bill clarifies that the State Engineer’s issuance of a Certificate does not constitute a determination by the State Engineer as to whether the appropriation or change has or may impact another water right, and that the State Engineer is not required to deliver a copy of the Certificate to any person other than the water right owner. Finally, the bill clarifies that a person is not required to file a protest or participate in a judicial review of a State Engineer decision as a prerequisite to filing a judicial action for relief based on interference with a water right.

2020 Legislative Preview

The 2020 Session of the Utah Legislature looks to be a very busy session for the water community. There are a lot of water bills that are being proposed, which are summarized below.

HB 28 - Legislative Water Development Commission Sunset Amendments
(Rep. Keven J. Stratton)
When the Utah Legislature originally created the State Water Development Commission, it provided a sunset date of January 1, 2021 at which point the State Water Development Commission would expire. House Bill 28 extends the sunset date until January 1, 2031. Additionally, HB 28 changes the name of the State Water Development Commission to the Legislative Water Development Commission. It also requires that the Legislative Management Commission may only appoint nonvoting members appointed to the Legislative Water Development Commission who are first recommended by the co-chairs of the Commission.

HB 39 - Agricultural Water Optimization Task Force Amendments

(Rep. Casey Snider)
House Bill 39 modifies the voting membership of the Agricultural Water Optimization Task Force by adding three individuals whose primary source of income derives from the production of agricultural commodities. The bill also provides that the Task Force should recommend legislation regarding the issues within the Task Force's responsibility, and makes minor changes to language about task force members receiving per diem and travel expenses in accordance with current statutes and rules.

HB 40 - Water Loss Accounting Act
(Rep. Melissa G. Ballard)
House Bill 40 would enact the Water Loss Accounting Act that creates a technical advisory committee which provides technical assistance to certain water systems that are required to prepare and submit annual water loss accounting reports. The water systems that would be subject to this Act are "public water systems that serve a population of more than 3,300 individuals." The water losses that are to be accounted for and reported annually include: water lost through leaks, breaks, overflows, etc.; water lost through the unauthorized use of water; and water lost through metering inaccuracies and data handling errors. The first annual reports would be in 2022. The bill proposes a one-time appropriation of $900,000 for technical assistance and to train the covered water systems and $450,000 to develop a validation program for the water loss audits. It also proposes one-time appropriations for data integration ($150,000) and ongoing expenses of the Division of Water Resources to administer this program ($300,000).

HB 41 - State Water Policy Amendments
(Rep. Kevin Stratton)
House Bill 41 outlines water polices for Utah. The bill includes three overarching polices. The first states that Utah will pursue "adequate, reliable, affordable, sustainable, and clean water resources, recognizing that Utah is the second most arid state in the nation and as such, there is, and will continue to be, a need to ensure Utah's finite water resources are used beneficially."

The second policy states that Utah will promote 23 goals, including among others: (1) water conservation, efficiency, and the optimal use of water resources; (2) water resource development and the creation of water infrastructure to meet demands and promote economic development; (3) compliance with state statutes regarding the Lake Powell Pipeline and Bear River development; (4) timely replacement of aging and inefficient infrastructure; (5) optimal use of agriculture water; (6) water quality in rivers and lakes; (7) water pricing and funding mechanisms; (8) respect for water rights; (9) standards for accurate water use measurement, tracking, enforcement and reporting; (10) water education efforts; (11) the study and implementation of mechanisms to increase water use flexibility, including water banking and split-season uses; (12) science-based evaluation of watersheds, increased reservoir capacity, and aquifer storage and recovery; (13) the study and development of strategies to address declining water levels and ways to protect water quality and quantity at the Great Salt Lake; (14) regulations and practices to maintain sufficient stream flows and lake levels; (15) equitable access to safe, affordable, and reliable drinking water; and (16) regulations and practices to encourage the effective treatment and use of wastewater; and (17) control of invasive species that threaten or degrade water resources.

The third policy states that Utah supports the "timely and appropriate" negotiated settlement of federally reserved water rights claims for Native American trust lands and other federal reservations, but opposes future federal reservations that result in unquantified federal reservations of water.

Under the bill, State agencies would be "encouraged" to conduct activities consistent with the above policies and other policies that the Legislature may establish. The Natural Resources, Agriculture, and Environmental Interim Committee would also review the state policy each year to recommend priority balancing and other changes to the Legislature.

HB 88 - School and Child Care Center Water Testing
(Rep. Stephen G. Handy)
House Bill 88 provides water quality testing of all water taps at schools and childcare centers by 2022. The testing is targeted at understanding and reducing lead levels in water consumed by children. All taps must be tested by June 1, 2022, and at least once every five years thereafter. If a test result reveals lead levels above 10 parts per billion, the school or childcare center must take steps to either stop using the tap or reduce the lead levels below 10 parts per billion. The records related to the tests and the remediation steps must be kept for five years and must be made available to the public at no charge.

HB 94 - Water Applications Amendments
(Rep. Timothy D. Hawkes)
House Bill 94 makes one addition to Utah Code section 73-3-5.6 regarding applications for a small amount of water. This statute was amended last year under HB 355 to provide that in areas with ongoing general adjudications, reinstatements of small applications that had lapsed were to be evaluated as part of the adjudication process. HB 94 provides the State Engineer with the discretion to issue a certificate before evaluating the claim as part of the general adjudication.

HB 95 - General Adjudication Water Amendments
(Rep. Timothy D. Hawkes)
House Bill 95 is a "clean up" bill proposed by the state engineer that would amend the General Adjudication statutes to: (1) better define what is required in a written objection to a proposed determination or an addendum thereto; (2) prohibit the filing of water user claims after the final summons stage of the General Adjudication is completed; and (3) make several minor technical corrections to the language in the existing statutes.

HB 96 - Water Forfeiture Amendments
(Rep. Timothy D. Hawkes)
House Bill 96 is another "clean up" bill proposed by the state engineer that would amend the water forfeiture statute, Utah Code section 73-1-4, to: (1) require that a lease be in writing and have an specific termination date before it qualifies as an exception to the forfeiture provisions; (2) limit the time to seven years that an exception to the forfeiture provisions apply where use of a reservoir is limited due to safety, regulatory, or engineering restrictions; (3) allow the state engineer to establish rules regarding the evidence that is to be submitted by a public water supplier in order to qualify for an exemption to the forfeiture provisions when holding water for the reasonable future water needs of the public; and (4) make several minor technical corrections to the language in the existing forfeiture statute.

HB 105 - Water Facilities Amendments
(Rep. Logan Wilde)
House Bill 105 would expand the existing protections provided to owners and operators of water facilities and to water apportionment officials. These protections are proposed to be separated into three separate scenarios, including where a person: (1) maliciously interferes with, damages, destroys, or removes a water facility; (2) intentionally or knowingly makes an unauthorized connection to water facility; and (3) unlawfully interferes with a water apportionment official in his or her authorized duties. There is a different standard of conduct required for each of these three scenarios. Presently, the "unlawfully interferes" standard applies to both the first and third scenario and the code does not address the second scenario. The definition of water facility is expanded to include all water facilities "used for the diversion, transportation, distribution, measurement, collection, or storage of water, stormwater, wastewater, or sewage." The bill would apply this same expanded definition to the statute governing obstructing or changing water facilities, whereas the law currently applies only to obstructing or changing water canals and/or water courses.

HB 130 - Water Use Amendments
(Rep. Timothy D. Hawkes)
House Bill 130 would modify Section 73-3-3 of the Utah Code to expressly authorize split-season and fixed-time change applications. In particular, the bill would allow holders of a perfected water right to "split" their right by allowing others to use or lease their rights for a portion of the applicable periods of use. These split-season change applications could be approved for a period of up to ten years. Similarly, for fixed time change applications, water right holders could request a change in how, where, and when they use their water right for a period of up to ten years. With a few limited exceptions, Utah law currently requires most change applications be temporary changes that cannot exceed one year or permanent changes. The bill is intended to provide greater flexibility on how water rights are used to encourage water sharing among multiple uses to help address growing water demands. Notably, the Governor's 2017 Water Strategy also identifies split season leases as a possible tool for addressing competing water demands.

HB 156 - Water Amendments and Education Entities
(Rep. Stephen G. Handy)
House Bill 156 modifies the list of public entities for purposes of categorizing public water suppliers under Utah's water nonuse statute, Utah Code section 73-1-4. Institutions of higher education that are part of the state system of higher education are added to the list of public entities. The purpose of the bill is therefore to allow the University of Utah, Utah State University, and other state institutions of higher education to qualify as public water suppliers. The bill also makes other minor wording edits to the nonuse statute.

HB 166 - Watershed Councils
(Rep. Timothy D. Hawkes)
House Bill 166 would enact the Watershed Councils Act in response to  a recommendation in Section 9.9 of the 2017 Recommended State Water Strategy report generated by the Governor's Water Strategy Advisory Team.  The new Act would divide the state into 12 different watersheds or drainage basins and would create a state watersheds council with defined membership.  The Act would also allow creation of local watershed council on a voluntary basis.  The primary purpose of these councils is to provide a forum for discussions on water policy and water resource issues.  These councils would be open to the public and would be subject to the Open and Public Meetings Act as well as the Government Records Access and Management Act.

HB 168 - Public Water Supplier Relocation Amendments
(Rep. Timothy D. Hawkes)
House Bill 168 amends provisions related to reimbursement of costs by UDOT for relocation of water facilities. Currently, UDOT is required to pay 100% of relocation costs for utilities owned by political subdivisions of the state, including cities, towns, and districts. Otherwise, UDOT is only required to pay 50% of the relocation costs. This bill would add public water suppliers to the list of entities that receive 100% relocation costs from UDOT.

HJR 3 - Proposal to Amend the Utah Constitution - Water Resources of Municipalities
(Rep. Keven J. Stratton)
House Joint Resolution 3 furthers the effort began last session to amend Utah's constitutional prohibition of alienating water rights and waterworks by Utah municipalities. Article XI, Section 6 forbids Utah's cities and towns to "directly or indirectly, lease, sell, alien, or dispose of any waterworks, water rights, or sources of supply." This provision has often been considered an anachronism from long ago. It also required municipalities to be creative, only selling "surplus" water and exchange rather than sell water rights or water shares, or form a district, not subject to this prohibition, to hold water rights. A likely unintended consequence of this ban is that the Town of Alta, that receives all drinking water under a contract with Salt Lake City, only has surplus water that could be cut off, with thirty days' notice, if no longer surplus to Salt Lake City.

In place of the absolute prohibition, new language will continue to ban the outright sale, lease, or alienation, but will allow water right exchanges and the designation of service areas outside of the municipal limits and preserve and maintain those water rights and sources of supply to serve those within the entire service area. It will also recognize the long-utilized practice of exchanging water rights and sources by municipalities. In other words, not much will change.

If passed, this proposed constitutional amendment will next be submitted to the voters of Utah.

SB 26 - Water Banking Amendments
(Sen. Jani Iwamoto)
Senate Bill 26 creates a water banking program in Utah. A water bank is a market tool that facilitates the voluntary, temporary transfer of water rights from one use to another. Most other western states have some form of banking, and the bill would further a number of recommendations in the Governor's 2017 Recommended Strategy, which identified water banking as a possible tool to support agriculture while also providing water for urban and environmental needs in the face of Utah's growing population. The bill also responds to S.J.R. 1, which the Legislature passed during the 2019 General Session to request water banking legislation to consider during the 2020 session.

Working since 2017, a diverse group of over 70 stakeholders representing agriculture, public water suppliers, conservation groups, and other interests developed the legislation by meeting with stakeholders across Utah and reviewing water banking programs in other western states. Based on its outreach efforts, the group determined that in order to be successful in Utah, water banks must be voluntary, temporary, and local. To support these goals, the bill would create the framework for a 10-year pilot program that would authorize water right holders to create and manage water banks for their local areas. Ideally, this would allow water banks to be specifically tailored to their regions' unique conditions and needs. During the pilot period the banking program would be monitored, evaluated, and modified as needed. The Board of Water Resources would oversee the creation and operation of water banks while the State Engineer would regulate water rights deposited in a bank.

The banking program is intended to build upon and utilize existing Utah law as much as possible. For instance, to deposit a water right into a bank, a right holder would file a change application pursuant to the current process. Similarly, Section 73-3-3.5 of the Utah Code would require shareholders seeking to deposit a water right into a bank to first obtain approval from their water company. The State Engineer's Office has also indicated that it would only approve the consumptive portion of a water right for use within a water bank and that it would impose conditions where necessary to govern the right's use within a bank to avoid impacts to other users. Once the State Engineer approves a water right for use within a bank, the right would be available for others to use for a variety of uses, including water quality and environmental purposes.

SB 51 - Secondary Water Requirements
(Sen. Jacob L. Anderegg)
Senate Bill 51 is a continuation from the 2019 legislative session regarding secondary water metering. The bill requires all water suppliers that provide pressurized secondary water in first and second class counties to meter water use by December 31, 2040. Each water supplier must develop and submit a strategy to comply with the metering requirement by March 31, 2021. If the meters provide real-time data, the water supplier must make the data available to the users in an open-source format upon request. Water suppliers must also provide monthly information to each user, including the user's secondary water use in relation to other users in the area and suggestions for conserving water. With respect to funding, the bill establishes the Secondary Water Metering Restricted Account, which will be funded through legislative appropriations and will be used by the Division of Water Resources to give up to $10 million per year in grants to water suppliers to install the meters. The bill provides that no more than 25% of the funding can come from a loan from the Division of Water Resources, that no more than 50% of the funding can come from a grant through the Secondary Water Metering Restricted Account, and that at least 25% must come from the water supplier through some other funding mechanism.

SB 52 - Agricultural Water Use Amendments
(Sen. Jacob L. Anderegg)
Senate Bill 52 would require the Utah Division of Water Rights to compile and provide a report about agricultural use of water to the Natural Resources, Agriculture, and Environmental Interim Committee and the Economic Development Workforce Services Interim Committee by November 1, 2020. The report must include the following:

• the total amount of water used for agricultural use in the State of Utah;
• how the water used for agricultural use is distributed, including how much water is used by flood irrigation, drip irrigation, through pressurized systems, or any other irrigation method;
• the amount of water used for agricultural use that is metered;
• the amount of water used for agricultural use that is owned by different ownership types, including special service districts, municipalities, or private entities;
• explanations of regional issues that impact metering of agricultural use of water; and
• any other relevant information about metering agricultural use of water.

SB 63 - Recreational Activities Related to Public Waters
(Sen. Scott D. Sandall)
In 2010, the Utah Legislature passed HB141, which is now referred to as the Public Waters Access Act. The Public Waters Access Act provides, among other things, how recreationists may access and use the public waters in the State of Utah. SB63 seeks to amend the Public Waters Access Act to provide greater protections for private property owners along a 40 mile section of the Weber River between Holiday Park and Echo Reservoir that is considered navigable waters.
Regarding the described 40 mile section of the Weber River navigable waters, SB63 would prohibit a person who does not own the adjacent property from the following:

• Destroying, materially damaging, removing, or altering real or personal property;
• Altering or obstructing water flows;
• Constructing or maintaining a structure on the bed of the river;
• Traveling on the water by horseback, motor vehicle, off-highway vehicle, or non-motorized vehicle; and
• Hunting

SB63 would also prohibit an individual recreating on the Weber River navigable waters from littering, destroying, or defacing public or private property, and harassing livestock or property owners. SB63 would further allow a private property owner to place a fence or other obstruction across a Weber River navigable waters as long as the fence or other obstruction is not intended to block access for recreational activity. In turn, SB63 prohibits any person from harassing an individual recreating on the Weber River navigable waters.
More broadly, SB63 would impose a class B misdemeanor on anyone trespassing on private property along any public water in the State of Utah and also impose fines, which increase with each recurring offense.