2010 Legislature: Preference for Drinking Water

Last year, the Utah legislature passed House Bill 241, which repealed the law giving priority to domestic use in times of water shortage. (Click here to read my blog post from last year.) The legislature postponed the effective date of the repeal until May 11, 2010, in order to allow this year's legislature to consider the repeal again.

Representative Kerry W. Gibson, who sponsored last year's bill, is sponsoring a new bill this year that will keep the priority statute in place, with some amendments. The bill is numbered House Bill 231 (HB 231). The bill clarifies the priority of water uses during times of water shortage. Generally speaking, the use of water for drinking, sanitation, and fire suppression has a preferential right over all other uses. Next in priority is the use of water for irrigation and stockwatering. The bill also provides that an appropriator whose water use is interrupted due to the prefernce must be compensated for crop loss and other consequential damages.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Shareholder Change Applications

Senator John Valentine has introduced a bill that modifies Utah Code section 73-3-3.5 regarding shareholder change applications. The bill is numbered Senate Bill 99 (SB 99). The bill clarifies that a water company (i.e., irrigation company, canal company, or ditch company) cannot deny a shareholder's request for a change application merely because the change would result in water being used outside of the water company's historic service area. The bill also clarifies that the water company may charge the shareholder for the costs of the change application, including the costs for the water company's engineers and/or attorneys and the costs associated with submitting proof. The water company must, however, provide the shareholder of an accounting of the fees and costs and copies of invoices for the fees and costs.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Pump Installer Licensing

Representative Patrick Painter has introduced a bill that would require well pump installers to be licensed and regulated in the same way that well drillers are. The bill is numbered House Bill 226 (HB 226). The purpose of the bill is to prevent health risks that can occur when non-professionals install pumps onto wells without properly sanitizing the pumps, pipes, and well. A person who is installing a pump on their own well is not required to have a license, but is required to register with the State Engineer's office.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislature: Water Banking

Representative Jack Draxler has introduced a bill that would allow the banking of water rights. The bill is numbered House Bill 84 (HB 84). The bill would allow local districts to bank water. Counties or portions of counties that are not within the boundary of a water conservancy district may also bank water. Representative Draxler has been working on this bill with Cache County, who is worried about losing forfeited water rights in the Bear River to Idaho water users.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislative Preview: Leasing of Municipal Water Rights

Representative Kay McIff has proposed a constitutional amendment that would allow a city or town to lease water rights that it owns, if the city or town does not currently need the water. The term of the lease agreements may not exceed seven years. The Utah Constitution currently prohibits municipalities from leasing or selling any of their water rights. If two-thirds of the Senate and House approve the Joint Resolution, the constitutional amendment would then have to be adopted by a majority of Utah voters in the next general election.

Click here to read the full text of the Joint Resolution.

(For an update on this bill, click here.)

2010 Legislative Preview: Artesian Wells

Representative James Gowans has registered a bill that would repeal the State Engineer's duty to plug certain artesian wells. The bill is numbered House Bill 69 (HB 69), and was requested by the State Engineer. The bill repeals Utah Code section 73-2-21, an archaic statute that required the State Engineer to plug certain artesian wells that were no longer in use and were wasting water. The motive behind the repeal is so that the owner of the well--and not the State Engineer--bears the burden of plugging it when it is no longer in use.

Click here to read the statute that will be repealed.

(For an update on this bill, click here.)

2010 Legislative Preview: Canal Safety

Representative Fred Hunsaker has registered a bill aimed at canal safety. The bill, numbered House Bill 60 (HB 60), is in response to last summer's catastrophic canal failure in Logan that resulted in the death of three people.

Under the bill, owners of canals and ditches are to prepare a written management plan for each segment of the canal or ditch that constitutes a hazard because of location, elevation, soil conditions, structural instability, water volume, or other reasons. The management plans are to be submitted to the Utah Division of Water Resources, who reports to a legislative committee.

There is no real penalty if a management plan is not submitted. The only thing a canal or ditch company loses is the right to receive state funds or state loans for water development, including funds or loans to repair or improve the canal or ditch.

The bill also provides that the management plans cannot be obtained through a government records request, nor can they be introduced into evidence in any civil litigation.

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislative Preview: Rainwater Harvesting

Senator Scott Jenkins has registered a rainwater harvesting bill for the upcoming session of the Utah legislature. The bill has been numbered Senate Bill 32 (SB 32), and is similar to the Senate Bill 128 that Senator Jenkins ran last year.

Under this bill, a person could capture and store rainwater in an underground storage tank (with a maximum capacity of 2500 gallons) or in covered storage containers above ground (with a maximum capacity of 55 gallons per container).

Click here to read the full text of the bill.

(For an update on this bill, click here.)

2010 Legislative Preview: Stream Access

Representative Fowlke has registered a stream access bill for the upcoming session of the Utah legislature. There are quite a few differences between the registered bill and the original draft that I blogged about a few months ago. Here are some differences that I noticed:

• The definition of "bed" is now "the area within the ordinary high water mark."
• The definition of "recreational activity" now includes waterfowl hunting.
• A person must obtain a public access certificate to engage in recreational activities on private streambeds. This requirement replaced the earlier idea of making those who purchase a fishing license also purchase a public access stamp.
• An owner of a private streambed can place a fence across the stream, as long as the fence is for a legitimate purpose and not just to block recreational access.
• The Division of Wildlife Resources will create a free public education program to teach the public about recreational access to private streambeds. The program will be available by Internet, and once a person has completed the program, they can obtain a public access certificate.

This bill (House Bill 80) may see some changes during the legislative session, but it appears that this is the bill that will be introduced to the legislature.
To read the complete text of HB 80, click here.
(For an update on this bill, click here.)

How Are Utah Water Rights Transferred?

Under Utah law, water rights can be transferred in two ways.

First, water rights can be transferred by deeding the water right and recording the deed in the county (or counties) where the water is diverted and used. Utah Code section 73-1-10.

Second, water rights can pass by appurtenance, which occurs when land is conveyed and an appurtenant (i.e., “attached”) water right automatically passes with the land. Utah Code section 73-1-11.

Thus, true ownership of a water right can be determined only by researching the deeds at the county recorder’s office.

The Utah Division of Water Rights maintains a database of all water rights and associated information, which includes the name(s) of the owner(s) of each water right. The Division does not, however, actively monitor any transfers of water rights; rather, the Division relies on each water right owner to file a Report of Conveyance to notify the Division when ownership transfers.

Sometimes, individuals are conveyed a water right through a properly recorded deed or through appurtenance, but do not notify the Division of the conveyance. Thus, there can be a discrepancy between the true ownership (based on recorded deeds) and the Division’s database of ownership.