Water and the Law – Update from Smith Hartvigsen, PLLC

Water and the Law 2023 Legislative Preview Issue
Welcome to the 2023 Legislative Preview issue of Water and the Law, focusing on legislation on water-related issues in the upcoming Utah legislative session. As expected, a number of water-related bills have already been made public and are available for review. The 2023 Legislative Session starts on January 17 and runs through March 3. As the session progresses, undoubtedly more water related bills will be made public. Legislation can move quickly. The Legislature’s website at le.utah.gov is the best tool to track legislation, watch committee meetings, and follow floor debates.   We hope you will find this newsletter to be helpful and informative. As always, we welcome your feedback. If you have questions or comments, please reply to this email or call us at 801-413-1600.
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   SB 76 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. Finally addition, 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.
Water Efficient Landscaping Amendments (Not Yet Numbered) Rep. Doug Owens   This bill would amend Section 73-10-37 of the Utah Code 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. Owen 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.  
Water Efficient Landscaping Incentives (Not Yet Numbered) Sen. Scott D. Sandall   This bill, which is similar to Rep. Owens’ bill, 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.
Upcoming Conferences   Rural Water Association of Utah Annual Conference February 27 – March 3, 2023 St. George, UT For more information, click here   Utah Water Law & Policy Seminar March 20, 2023 St. George, UT For more information, click here   Utah Water Users Association Annual Workshop March 20-22, 2023 St. George, UT For more information, click here   American Water Works Association Intermountain Section Midyear Conference April 20, 2023 For more information, click here  Contact Us   If you have any questions or if you would like to see something discussed in the future, please let us know by sending an email to info@water.law or contact one of us directly through the following links:   J. Craig Smith Jeffry Gittins Nathan Bracken Ethan Smith Jay Springer Jennifer Bowen-Crockett Emily Haynie Peter Gessel   Smith Hartvigsen, PLLC 257 East 200 South, Suite 500 Salt Lake City, UT 84111 Tel.: (801) 413-1600