2023 Legislation: Water Related Liability Amendments

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

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

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

The text of the proposed bill can be found here.   

  

2014 Legislature: Canal Safety Amendments

Representative Johnny Anderson has introduced House Bill 370 (HB 370), entitled "Canal Safety Amendments."  The bill would require the State Engineer to make and maintain an inventory list of all open canal/ditch systems in the state.  For each system, the list would include the alignment of the canals and ditches, the contact information for the owner, the maximum flow of the system, whether the system is used for storm water management, and whether a management plan has been adopted for the system.  The bill would allow the State Engineer to contract with the Utah Association of Conservation Districts to perform these duties, and would require the State Engineer to contract with the Association to provide technical support to canal owners who are adopting a management plan.  The bill would also modify the definition of a "water conveyance facility."  Current law exempts fully piped pressurized systems from the definition, but this bill would also exempt fully piped systems that are not pressurized.

To read a full copy of the bill, as amended, click here.

2014 Legislature: Water Conveyance Facilities Amendments

Representative Carol Moss has introduced House Bill 298 (HB 298), entitled "Water Conveyance Facilities Amendments." This bill makes only one change to existing canal safety laws, which is that it exempts ditch systems that carry less than 15 cubic feet per second (cfs) from the canal safety requirements.

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

2014 Legislative Preview: Canal Safety Act

Senator Gene Davis will introduce Senate Bill 114 (SB 114), entitled "Canal Safety Act."  The bill seeks to enact several new statutes to govern canal safety issues.  The bill begins by defining a canal as a water conveyance system that conveys a flow of more than 10 cfs of water.  The bill would require all canal owners to conduct an assessment of the condition of each canal before January 1, 2015, and at least once every five years thereafter.  The canal owner must determine whether each section of the canal is high risk, medium risk, or low risk; determine if any repairs or improvements are necessary to reduce the risk of canal failure; and report the findings to the Utah Division of Water Rights.  The Division would then maintain a "canal action list" to include all canals that are high risk and/or require repairs or improvements.  If a canal is on the canal action list, the canal owner must prepare a remediation plan, which must be approved by the Division of Water Rights and the Division of Water Resources.  The canal owner cannot receive state funding for a project related to the canal unless they have an approved remediation plan.

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

Are You Ready for the Canal Safety Plan Deadline?

The following article was written by David Hartvigsen, a partner at Smith Hartvigsen, PLLC, for the Water & The Law newsletter that our firm publishes on a quarterly basis. If you would like to receive an email version of the newsletter, please click here to join our mailing list.

In response to the tragic loss of life when a landslide breached the Logan & Northern Canal in Logan on July 11, 2009, the Utah State Legislature passed two canal safety bills - 2010 House Bill 298, Land Use Authority Notification of Canal Development, and 2010 House Bill 60, Water Conveyance Facilities Safety Act (Act). The Utah Association of Conservation Districts (UACD) has helped the Logan & Northern Irrigation Company (LNIC) and the Logan, Hyde Park and Smithfield Canal Company (which is allowing LNIC to use part of its canal to get water around the breach) complete a joint Safety Plan on their canal systems. Though a confidential and protected document under the Act, it follows the template plan that is now available to all irrigation companies through UACD and the Utah Division of Water Resources (DWRe).

The purpose of House Bill 298 was to ensure that residential construction projects within close proximity to a canal do not proceed until the canal owner has been given an opportunity to review the project. Thus the canal owner can protect the integrity of the canal system and assist homeowners and developers to safeguard adjacent water structures. Canal owners had until July 1, 2010 to provide a general description of their canal, including contact information, to each county or municipality in which the canal operates. If you haven't provided this information yet, the sooner the better, because a homeowner or developer could argue that damages or losses could have been avoided if this information had been timely provided.

The purpose of House Bill 60 was to encourage canal owners to identify the risks associated with their canal systems and to develop solutions to reduce or eliminate those risks. This information is to be documented in a Water Conveyance Facility Safety Management Plan ("Safety Plan") by no later than May 1, 2013. As a means of promoting compliance with the Act, DWRe may only provide financial assistance to canal companies that have met this deadline, with some limited exceptions. If your canal company has not yet started on the inspections needed for the Safety Plan, you should be including funding in this year's budget and assessments to get that work done because this summer is the last summer before the deadline to do the inspections and field work. It is very difficult to assess site conditions and certain of the risk factors when the canal is under a blanket of snow.

In January 2011, UACD partnered with various state, federal, and private organizations, including the Strawberry-Highline Canal Company, DWRe, and the U.S. Bureau of Reclamation, to produce a Safety Plan template. Canal companies can use this template as they develop their own Safety Plan. The template, as well as the full text of House Bills 60 and 298, are available online here.

The main canal risk factors that must be addressed in the Safety Plan are slope instability and storm water. Subsection 4 of House Bill 60 places the responsibility on the municipalities to identify storm water inlets into canals and estimate the maximum flow that could occur at each inlet. As canal companies have sought to obtain this information from local governments, it has become apparent that many cities do not have accurate data nor up-to-date maps of their storm water drainage systems. On canals with multiple storm water inlets, canal operators have faced the task of balancing water levels so that there was adequate capacity for storm water each time a large rainfall occurred. However, city governments and canal companies have begun to work more closely together for comprehensive storm water management.

A water company may be exempt from the requirement of adopting a Safety Plan depending on the type of water conveyance facility owned by the company. Natural channels and pipelines are not considered water conveyance facilities according to House Bill 60. In addition, since the bill was meant to address the risks to population and infrastructure, canals that don't have any potential risk locations may also be exempt. A potential risk location is defined as a segment of a water conveyance facility that, if it were to fail, would create a high probability of causing loss of human life or extensive damage to infrastructure. To determine if their canals have potential risk locations, canal companies must consider the following parameters: location, elevation, soil conditions, structural instability, water volume or pressure, or other conditions. Each parameter must be evaluated in relation to existing and future urban development.

As water companies continue to implement House Bill 60, there will be additional issues and concerns that come forth. A recent request was made to DWRe to consider different canal systems within a single company as separate entities. The canal company determined that one canal system had no potential risk locations and was therefore exempt from adopting a Safety Plan, even though other canal systems owned by the company, once they have been fully evaluated, may still require the adoption of a Safety Plan. DWRe will evaluate these types of requests on an individual basis.

Can Owners of Ditches, Canals, and Pipelines Be Liable for Damage?

Utah Code section 73-1-8 law imposes an affirmative duty on “[t]he owner of any ditch, canal, flume or other watercourse [to] maintain it to prevent waste of water or damage to the property of others.” An easement holder violates this statutory mandate only if he is found to be negligent by failing to follow the standard of care and damage results to the property of another. The law establishes that this standard of care is determined by the reasonable care taken by a person who is “of some experience and skill in the management of water, who would have an awareness of the various hazards in the failure to properly control them and would therefore exercise the degree of foresight and precaution which people of such experience and skill would observe to avoid injury or damage to others and their property.” This statutory duty and standard of care have been applied to pipelines, such that owners of pipelines used to convey water are required to exercise reasonable care in the construction and maintenance of the pipeline. A pipeline owner can be found negligent if the pipeline is not properly constructed or maintained, causing the pipeline to leak and cause damage to another’s property.

In sum, the owner of a ditch, canal, or pipeline can be held liable for flooding or other damage to property if the owner is negligent in constructing or maintaining the ditch, canal, or pipeline.

Draft Environmental Impact Statement for Logan & Northern Canal

The USDA Natural Resources Conservation Service (NRCS) recently issued its draft Environmental Impact Statement (EIS) for the Logan and Northern canal reconstruction project. NRCS has identified the "Purple Alternative" as its preferred alternative. This alternative proposes to move the point of diversion to the Logan, Hyde Park, and Smithfield canal point of diversion (below Second Dam) and put the combined flows into a box culvert until the Lundstrom Park / 1500 North area, at which point a pipeline will carry 40 cfs down to the old Logan and Northern canal.

A summary of the draft EIS is available by clicking here.

A full copy of the draft EIS, along with other documents and information related to the reconstrucion project, is available by clicking here.

The public is invited to make comments on the draft EIS. NRCS will host a public open house on Thursday, March 31, 2011 at BATC (1000 West 1400 North, Logan) from 5:30 to 7:30 pm. Those attending the meeting can provide written or oral comments. Comments can also be emailed or mailed to NRCS. Comments must be received by May 2, 2011 to be considered in the final Environmental Impact Statement. For more information about submitting comments, click here.

2010 Legislature: New Canal Safety Bill

The text of Senate Bill 185, which was previously numbered without substance, has now been released. The bill would make administration of canal safey more similar to the administration of dam safety. The Utah Division of Water Rights would be required to assess the level of risk of every canal in the state by January 1, 2012, and at least once every five years thereafter. The Division would assess whether a canal is high risk, medium risk, or low risk. If a canal is high risk or requires repairs or maintenance, the canal would be placed on a "canal action list." The canal company would then be responsible to develop a remediation plan to make the necessary repairs or maintenance. A canal company is not eligible for funding from the Division or from the Board of Water Resources unless the an approved remediation plan is in place.

Click here to read the full text of the bill.

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

2010 Legislature: Development Near Canals

Representative Ben Ferry has introduced a new bill regarding development near canals. The bill is number House Bill 298 (HB 298) and is entitled "Land Use Authority Notification of Canal Development."

The bill seeks to amend the municipal and county land use, development, and management acts (commonly referred to as "LUDMA") by requiring municipalities and counties to notify canal companies of proposed development within 100 feet of the center line of a canal. In order to facilitate this notice requirement, canal companies will be obligated to provide the municipalities and counties with the company's contact information and a general description of the location of their canal(s).

Click here to read the full text of the bill.

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

2010 Legislature: New Canal Safety Bill

Senator Gene Davis has opened a new bill file for a canal safety bill. The bill has been numbered Senate Bill 185 (SB 185) and is entitled "Canal and Irrigation Safety and Inspections." However, the bill was filed without any substance, so the contents of the bill are still unknown. It appears that this bill will go up against House Bill 60, the other canal safety bill sponsored by Representative Fred Hunsaker.

(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.)