The following article was published in the Water & The Law newsletter, which 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.
The 2013 General Session of the Utah Legislature ran from Monday, January 28, 2013 through Thursday, March 14, 2013. The following bills and resolutions passed both the House of Representatives and the Senate, and in most cases are awaiting signature by the Governor.
House Bill 29: Adjudication of Water Rights, Representative Joe Briscoe.
H.B. 29 amends Utah Code sections 73-4-1, -3, -4, -5, -9, -11, and -22. It allows the State Engineer to divide a general adjudication into divisions and subdivisions and conduct the adjudication for each division or subdivision separately. The bill also provides that notices in general adjudications are to be completed by the Division of Water Rights rather than the court clerk, and allows for electronic service of Water Users Claims and the Proposed Determinations in certain instances.
House Bill 36: Storm Water Capture Amendments, Representative Jim Nielson.
H.B. 36 amends Utah Code sections 73-2-25 and 73-3-1.5. The bill would prevent enforcement actions by the State Engineer for detention of water for storm water purposes so long as the detention does not interfere with any water right and does not put the detained water to beneficial use. The bill also proposes changes to the rain water harvesting section to allow capture and use of water from as much as two 100-gallon tanks without registration with the State Engineer, and to allow capture and use of water from a maximum 2500-gallon tank (or multiple tanks totaling no more than 2500 gallons) after registering with the State Engineer. The bill would also clarify that the ability to harvest rainwater consistent with section 1.5 does not constitute a water right and cannot be assigned, consolidated, or be the subject of a change application.
House Bill 72: Safe Drinking Water Disclosure Act, R. Barrus.
H.B. 72 requires certain disclosures related to fluoridation of water supplies. It also requires that fluoridation be temporarily discontinued under certain circumstances and requires Utah Division of Drinking Water oversight of fluoridation record keeping.
House Bill 73: Water Easement Amendments, Representative John G. Mathis.
H.B. 73 amends Utah Code section 57-13a-104 and would establish a procedure for a holder of a prescriptive easement for water conveyance to abandon all or a portion of its easement. The bill contains notice provisions to ensure that others who may have an interest in the canal easement or in keeping the canal corridor active can take appropriate action. The abandonment would be subject to others who may have established a right, but if no others exist, then the owner of the underlying property may reclaim the property.
House Bill 166: Water Rights Amendments, Representative Ken Ivory.
H.B. 166 allows a beneficial user of water for livestock on public lands to access and improve public land that has been designated for grazing to use, develop, and maintain beneficial use of water appurtenant to that designated area. Additionally, if the federal government files a diligence claim, the state engineer is obligated to notify the Natural Resources, Agriculture, and Environment Interim Committee of the claim. Finally, the bill requires the Department of Natural Resources to, before November 30, 2013, study the state's jurisdiction over water right conflicts between state or its subdivisions or citizens and the federal government.
House Bill 326: Division of Water Rights Amendments, Representative R. Curt Webb.
H.B. 326 requires the state engineer to consider a recorded water rights deed addendum as a report of water right conveyance. The bill further provides that if a county recorder updates ownership based on a recorded document, the state engineer shall rely on that document to update title to a water right appurtenant to that land. Finally, the bill also requires that, absent clear language in a company's articles or bylaws, the right to use of water evidenced by shares of stock may only transfer under chapter 8 of the Utah Uniform Commercial Code and not as an appurtenance to land.
House Bill 358: Instream Flow Amendments, Representative Mike Noel.
H.B. 358 gives more flexibility for fishing groups wanting to file for an instream flow water right. Specifically, a change application for instream flow may occur if there is a Candidate Conservation Agreement with Assurances or if there is the fishing group as entered into a contract to indemnify the water right holder against any liability under the Endangered Species Act.
House Bill 360: Water and Irrigation Revisions, Representative Ryan D. Wilcox.
H.B. 360 is a cleanup bill that closes an unintended loophole from a H.B. 51 in 2008. Although H.B. 51 (2008) did provide additional protections against forfeiture, it was not intended to resurrect water rights subject to forfeiture. It arguably allowed a person to do so, however, simply by filing a nonuse application. H.B. 360 clarifies that a nonuse application only prevents the years where the nonuse application is active from being considered in a forfeiture action and does not prevent forfeiture based on nonuse that predated the nonuse application.
House Joint Resolution 14: Joint Resolution on Water Rights, Representative Ken Ivory.
H.J.R. 14 expresses concern with actions by the U.S. Forest Service that seek to take control of water rights originating and used on federal public lands and calls on state, county, and local governments "to protect, preserve, and defend their jurisdiction . . . over the water resources of [Utah]."
Senate Bill 30: Water and Irrigation Amendments, Senator Margaret Dayton.
S.B. 30 makes the following amendments: (a) Amends section 73-1-4 to remove an unintended forfeiture exemption for the sometimes-decades-long period between when the State Engineer issues a proposed determination and when a final decree is issued by the court, to prevent the State Engineer from asserting forfeiture in a proposed determination for periods ending more than fifteen years before the date of the proposed determination, and to prevent a forfeiture challenge by anyone to a water right included in the proposed determination based on pre-proposed determination nonuse unless the challenge comes in the form of a timely objection to the proposed determination. (b) Amends section 73-2-1 to make rulemaking related to sewage effluent reuse discretionary for the State Engineer. (c) Amends section 73-2-22 to update the name of the Emergency Management Administration Council. (d) Amends section 73-3-12 to further define how the State Engineer should assess proof extensions for wholesale electrical cooperatives beyond fifty years. (e) Amends section 73-3-16 to remove the requirement that a submission of proof have both a professional engineer stamp and a notary stamp. (f) And amends section 73-5-13 to require that a diligence claim be prepared by a professional engineer or licensed surveyor rather than require a verification under oath.
Senate Bill 101: Division of Water Rights Revisions, Senator Margaret Dayton.
S.B. 101 makes technical revisions to sections 73-3-10, 73-3-18, 73-3-20, and 73-5-13. The most significant changes are that fixed time applications no longer have a proof due deadline, diligence claimants may file an amended diligence claim, and general adjudications can cut off unfiled diligence claims.
Senate Bill 115: Water Development Commission Amendments, Senator Margaret Dayton.
S.B. 115 provides for staggered, four-year terms for appointed nonvoting members of the Commission.
Senate Bill 276: Water Conservancy District Capital Assets, Senator John Valentine.
S.B. 276 enacts Utah Code section 17B-2a-1010, which requires conservancy districts to "adopt a policy for the assessment, maintenance, and replacement of . . . qualified capital assets" and inventory which of its assets are "qualified capital asset[s]."
Senate Concurrent Resolution 8: Concurrent Resolution for the Provo Reservoir Canal Title Transfer, Senator Margaret Dayton.
S.C.R. 8 calls for transfer of title to the Provo Reservoir Canal from the United States to the Provo River Water Users Association in conformance with the Provo River Project Transfer Act (P.L. 108-382).
Showing posts with label Rainwater Harvesting. Show all posts
Showing posts with label Rainwater Harvesting. Show all posts
Thursday, March 28, 2013
Saturday, January 21, 2012
2012 Legislative Preview on Water Issues
The following article was published in the Water & The Law newsletter, which 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.
The 2012 General Session of the Utah Legislature runs from Monday, January 23, 2012 through Thursday, March 8, 2012. As a result of some major water-related decisions this past summer from the Utah Supreme Court, there will likely be some significant water bills considered during the session. Because of an apparent bottleneck in legislative research and drafting, many of the proposed bills have not yet been formally processed and do not have a bill number assigned. The following legislative preview is divided into three groups: (1) bills addressing significant policy issues; (2) bills proposing technical or minor revisions, refinements, and/or clarifications to the existing laws; and (3) bills that have been discussed but not released for public review and which may or may not surface during the session.
Bills Addressing Significant Policy Issues
S.B. 11 - Department of Environmental Quality Boards Adjudicative Proceedings - This bill, sponsored by Senator Margaret Dayton, creates a distinct type of review proceedings for permits decisions made by five divisions within the Department of Environmental Quality (i.e., Water Quality, Drinking Water, Air Quality, Radiation Control, and Solid & Hazardous Waste). S.B. 11 provides that a permit order may be reviewed by an administrative law judge (ALJ) on the record. Specifically, only issues raised in the initial permit review process may be addressed on review. The ALJ submits a proposed order to the relevant board, which then makes the final decision on the review. The Board's decision can then be appealed to the Court of Appeals for a review of the decision on the record. The Natural Resources, Agriculture, and Environment Interim Committee recommended passage of this bill.
S.B. 21 - Department of Environmental Quality Boards Revisions - This bill, also sponsored by Senator Dayton, revises many attributes and powers of the various boards associated with the Department of Environmental Quality (DEQ). Specifically, the bill assigns executive functions to the division directors rather than the boards. It also changes the composition of the boards and identifies qualifications of individual members. It requires compliance with attendance and conflict of interest standards. And it transfers some powers and duties previously assigned to the boards to the respective directors of the division in DEQ. This bill is currently 187 pages long and represents a significant shift in how decisions are made within DEQ. The Natural Resources, Agriculture, and Environment Interim Committee recommended passage of this bill.
H.B. 67 - Stormwater Capture Amendments - This bill, sponsored by Rep. Fred C. Cox, amends Utah Code section 73-3-1.5, the rainwater harvesting section, to allow for beneficial use of up to 2,500 cubic feet per parcel (18,701 gallons or 0.057 acre-feet) of water without a water right if the primary purpose of capturing the water is stormwater management or pollution control. A person must first submit a simple form to the State Engineer before beneficially using any captured precipitation. This bill was somewhat of a surprise to the water community and was not discussed by either the Water Coalition or the Executive Water Taskforce.
Bills Making Minor Changes or Technical Revisions
Water and Irrigation Amendments - This bill, which has not yet been made public, will be sponsored by Rep. Neal Hendrickson, and is believed to effect a number of largely technical changes proposed by the State Engineer including the following: (1) an amendment of section 73-1-4 that removes a virtual forfeiture exemption for the sometimes-decades-long period between when the State Engineer issues a proposed determination and when a final decree is issued by the court; (2) an amendment of section 73-2-1 that makes rulemaking related to sewage effluent reuse discretionary for the State Engineer; (3) an amendment of section 73-2-22 that updates the name of the Emergency Management Administration Council; (4) an amendment of section 73-3-12 to further define how the State Engineer should assess proof extensions for wholesale electrical cooperatives beyond fifty years; (5) an amendment of section 73-3-16 that removes the requirement that a submission of proof have both a professional engineer stamp and a notary stamp; (6) an amendment of section 73-3-20 that allows small exchange applications that have lapsed to be reinstated with a later priority date; and (7) an amendment to sections 73-4-3, 73-4-4, and 73-4-11 that provides that notices in general adjudications be completed by the Division of Water Rights rather than the court clerk.
Bills That May Surface During the Session
Change Applications I - For the last four years, the State Engineer has requested that the scope of his review of historical beneficial use in acting upon change applications be more clearly defined by statute. This past summer, the Utah Supreme Court issued the Jensen v. Jones opinion that concluded that the State Engineer lacks authority to consider nonuse of a water right when ruling on a change application. As a result, the Water Coalition and Executive Taskforce have recommended approval of a bill that will give the State Engineer statutory authority to consider nonuse and deny or limit a change application if there is nonuse, using a framework that gives the applicant additional notice and protections.
Change Applications II - During 2011, the Utah Supreme Court issued the Salt Lake City v. Big Ditch Irrigation Co. opinion that determined that a water user may be able to file a change application on a water right even if he is not the record owner of the right. As a result, the Water Coalition and Executive Taskforce have recommended approval of a bill that will allow a change application to be filed only by (1) the record owner of the right, (2) one who has permission from that record owner, or (3) a water company shareholder under Utah Code section 73-3-3.5. This proposed amendment will likely be considered as a consolidated bill with the amendment discussed above as Change Application I.
Change Applications III - As an additional response to the Salt Lake City v. Big Ditch Irrigation Co. case, there has been a proposal to amend Utah Code section 73-3-3 to require that a change application on a water right owned by the federal government as part of Bureau of Reclamation project must be signed by both the federal government and the local sponsor of that project.
State Water Development Commission Amendments - This bill, which has not yet been made public, will be sponsored by Senator Margaret Dayton, and is believed to seek conversion of the commission into a permanent legislative task force or commission that addresses water needs of the state.
Other Bill Request Topics - Navajo Water Rights Compensation Account (C. Watkins), Safe Drinking Water Disclosure Act (R. Barrus), Special District Amendments (J. Stevenson)
The 2012 General Session of the Utah Legislature runs from Monday, January 23, 2012 through Thursday, March 8, 2012. As a result of some major water-related decisions this past summer from the Utah Supreme Court, there will likely be some significant water bills considered during the session. Because of an apparent bottleneck in legislative research and drafting, many of the proposed bills have not yet been formally processed and do not have a bill number assigned. The following legislative preview is divided into three groups: (1) bills addressing significant policy issues; (2) bills proposing technical or minor revisions, refinements, and/or clarifications to the existing laws; and (3) bills that have been discussed but not released for public review and which may or may not surface during the session.
Bills Addressing Significant Policy Issues
S.B. 11 - Department of Environmental Quality Boards Adjudicative Proceedings - This bill, sponsored by Senator Margaret Dayton, creates a distinct type of review proceedings for permits decisions made by five divisions within the Department of Environmental Quality (i.e., Water Quality, Drinking Water, Air Quality, Radiation Control, and Solid & Hazardous Waste). S.B. 11 provides that a permit order may be reviewed by an administrative law judge (ALJ) on the record. Specifically, only issues raised in the initial permit review process may be addressed on review. The ALJ submits a proposed order to the relevant board, which then makes the final decision on the review. The Board's decision can then be appealed to the Court of Appeals for a review of the decision on the record. The Natural Resources, Agriculture, and Environment Interim Committee recommended passage of this bill.
S.B. 21 - Department of Environmental Quality Boards Revisions - This bill, also sponsored by Senator Dayton, revises many attributes and powers of the various boards associated with the Department of Environmental Quality (DEQ). Specifically, the bill assigns executive functions to the division directors rather than the boards. It also changes the composition of the boards and identifies qualifications of individual members. It requires compliance with attendance and conflict of interest standards. And it transfers some powers and duties previously assigned to the boards to the respective directors of the division in DEQ. This bill is currently 187 pages long and represents a significant shift in how decisions are made within DEQ. The Natural Resources, Agriculture, and Environment Interim Committee recommended passage of this bill.
H.B. 67 - Stormwater Capture Amendments - This bill, sponsored by Rep. Fred C. Cox, amends Utah Code section 73-3-1.5, the rainwater harvesting section, to allow for beneficial use of up to 2,500 cubic feet per parcel (18,701 gallons or 0.057 acre-feet) of water without a water right if the primary purpose of capturing the water is stormwater management or pollution control. A person must first submit a simple form to the State Engineer before beneficially using any captured precipitation. This bill was somewhat of a surprise to the water community and was not discussed by either the Water Coalition or the Executive Water Taskforce.
Bills Making Minor Changes or Technical Revisions
Water and Irrigation Amendments - This bill, which has not yet been made public, will be sponsored by Rep. Neal Hendrickson, and is believed to effect a number of largely technical changes proposed by the State Engineer including the following: (1) an amendment of section 73-1-4 that removes a virtual forfeiture exemption for the sometimes-decades-long period between when the State Engineer issues a proposed determination and when a final decree is issued by the court; (2) an amendment of section 73-2-1 that makes rulemaking related to sewage effluent reuse discretionary for the State Engineer; (3) an amendment of section 73-2-22 that updates the name of the Emergency Management Administration Council; (4) an amendment of section 73-3-12 to further define how the State Engineer should assess proof extensions for wholesale electrical cooperatives beyond fifty years; (5) an amendment of section 73-3-16 that removes the requirement that a submission of proof have both a professional engineer stamp and a notary stamp; (6) an amendment of section 73-3-20 that allows small exchange applications that have lapsed to be reinstated with a later priority date; and (7) an amendment to sections 73-4-3, 73-4-4, and 73-4-11 that provides that notices in general adjudications be completed by the Division of Water Rights rather than the court clerk.
Bills That May Surface During the Session
Change Applications I - For the last four years, the State Engineer has requested that the scope of his review of historical beneficial use in acting upon change applications be more clearly defined by statute. This past summer, the Utah Supreme Court issued the Jensen v. Jones opinion that concluded that the State Engineer lacks authority to consider nonuse of a water right when ruling on a change application. As a result, the Water Coalition and Executive Taskforce have recommended approval of a bill that will give the State Engineer statutory authority to consider nonuse and deny or limit a change application if there is nonuse, using a framework that gives the applicant additional notice and protections.
Change Applications II - During 2011, the Utah Supreme Court issued the Salt Lake City v. Big Ditch Irrigation Co. opinion that determined that a water user may be able to file a change application on a water right even if he is not the record owner of the right. As a result, the Water Coalition and Executive Taskforce have recommended approval of a bill that will allow a change application to be filed only by (1) the record owner of the right, (2) one who has permission from that record owner, or (3) a water company shareholder under Utah Code section 73-3-3.5. This proposed amendment will likely be considered as a consolidated bill with the amendment discussed above as Change Application I.
Change Applications III - As an additional response to the Salt Lake City v. Big Ditch Irrigation Co. case, there has been a proposal to amend Utah Code section 73-3-3 to require that a change application on a water right owned by the federal government as part of Bureau of Reclamation project must be signed by both the federal government and the local sponsor of that project.
State Water Development Commission Amendments - This bill, which has not yet been made public, will be sponsored by Senator Margaret Dayton, and is believed to seek conversion of the commission into a permanent legislative task force or commission that addresses water needs of the state.
Other Bill Request Topics - Navajo Water Rights Compensation Account (C. Watkins), Safe Drinking Water Disclosure Act (R. Barrus), Special District Amendments (J. Stevenson)
Wednesday, June 2, 2010
Rainwater Harvesting Registration
This year, the Utah Legislature passed Senate Bill 32, which permits the capture and storage of precipitation (i.e., rainwater harvesting). The bill has now been codified as section 73-3-1.5 of the Utah Code. One of the requirements of the new law is that a person who wants to harvest rainwater must first register with the Utah Division of Water Rights. The Division now has an online registration form (click here to access), which asks for the person's name, phone number, address, email address and storage size. Once the information is submitted, the person will receive a rainwater harvesting registration certificate.
Thursday, February 18, 2010
2010 Legislature: Substituted Rainwater Harvesting Bill
Senate Bill 32, regarding rainwater harvesting, has been amended and substituted. The changes are:
- Harvested water can be stored and used on a "parcel," which is now a defined term (the bill previously used the word "property").
- There is a limit of one underground storage container per parcel.
- There is a limit of two covered storage containers per parcel.
- The maximum size of covered storage containers was increased to 100 gallons (previously, it was 55 gallons).
Click here to read the full text of the substitute bill.
(For an update on this bill, click here.)
Thursday, January 14, 2010
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.)
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.)
Saturday, May 30, 2009
Is It Illegal to Harvest Rainwater in Utah?
Collecting and using rainwater has become a hot topic in Utah during the past few months. The issue first made news headlines in August 2008 when a car dealership came under scrutiny of the Utah Division of Water Rights for collecting rainwater from the roof of the dealership’s building, storing the water in a cistern, and then using the water in a car wash. The Division informed the dealership that it needed a water right in order to divert, store, and use the rainwater. This story stirred up lots of curiosity and controversy, with many people (including state legislators) questioning why individuals should not be allowed collect and use rainwater.
During the 2009 legislative session, two bills were introduced that addressed the issue of rainwater harvesting. The first bill was Senate Bill 58, sponsored by Senator Scott McCoy. Under this bill, public water suppliers could allow individuals to capture and beneficially use precipitation under the public water supplier’s approved exchange application. The second bill was Senate Bill 128, sponsored by Senator Scott Jenkins. Under this bill, a person would be permitted to capture and store precipitation in an underground storage container with a maximum capacity of 2,500 gallons. This captured precipitation could be beneficially used without having to obtain a water right or go through the appropriation process.
Both bills passed the Senate, but were not voted on by the House. It is likely that one or both bills will be presented during the 2010 legislative session.
The Division of Water Rights has also prepared a response to the question of whether harvesting rainwater is illegal in Utah. In sum, the Division’s position is that if rainwater is merely controlled or directed (such as with rain gutters and drain piping), then a water right is not needed. However, if rainwater is stored and then later used for some other purpose rather than being released back into the drainage system, then a water right is needed.
To read the text of Utah Bill 58, click here.
To read the text of Utah Bill 128, click here.
During the 2009 legislative session, two bills were introduced that addressed the issue of rainwater harvesting. The first bill was Senate Bill 58, sponsored by Senator Scott McCoy. Under this bill, public water suppliers could allow individuals to capture and beneficially use precipitation under the public water supplier’s approved exchange application. The second bill was Senate Bill 128, sponsored by Senator Scott Jenkins. Under this bill, a person would be permitted to capture and store precipitation in an underground storage container with a maximum capacity of 2,500 gallons. This captured precipitation could be beneficially used without having to obtain a water right or go through the appropriation process.
Both bills passed the Senate, but were not voted on by the House. It is likely that one or both bills will be presented during the 2010 legislative session.
The Division of Water Rights has also prepared a response to the question of whether harvesting rainwater is illegal in Utah. In sum, the Division’s position is that if rainwater is merely controlled or directed (such as with rain gutters and drain piping), then a water right is not needed. However, if rainwater is stored and then later used for some other purpose rather than being released back into the drainage system, then a water right is needed.
To read the text of Utah Bill 58, click here.
To read the text of Utah Bill 128, click here.
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