Utah Municipal Code Definition of Culinary Water Authority as defined in 2007 and current 2016: "Culinary Water Authority means the department, agency, or public entity with responsibility to review and approve the feasibility of the culinary water system and sources for the subject property."
“CULINARY WATER AUTHORITY”
AND THE PUBLIC SERVICE COMMISSION (PSC)
WITHIN THE STATE OF UTAH
Legal Review by David B. Hartvigsen, Water Rights Attorney
Smith Hartvigsen PLLC
March 16, 2016
I. DESIGNATION OF CULINARY WATER AUTHORITY. Neither the State of Utah nor the Division of Drinking Water (DDW) can designate or certify a water supplier to be the "Culinary Water Authority" for any geographic area. II. UTAH CODE TITLE 54, PUBLIC UTILITIES, PUBLIC SERVICE COMMISSION (PSC). Title 54 is ambiguous with respect to its jurisdiction of and over a private culinary water system that only serves its members/shareholders. The Code specifically states that the water system must "serve the public generally" before it can become a utility regulated by the PSC.
A few years ago, this statutory ambiguity was tested in the courts on behalf a client who wanted to have their private water company regulated by the PSC. The Utah Supreme Court eventually ruled that the PSC does not have jurisdiction over a private culinary water system that serves only its members/shareholders.
III. Title 54, DEFINITIONS. Under this section, the PSC does not recognize LDWA as a “Public Utility” and “Water Corporation.” However, if one or more non-shareholders were served water by LDWA, LWDA would then be recognized as a “Public Utility” and “Water Corporation” and the PSC would then have jurisdiction over LDWA.
A. LDWA is not required by law to report in any way to the PSC or to even apply for an exemption from regulation by the PSC.
B. LDWA is a public utility in the generic sense, in that water service is a commonly recognized utility service.
Public Utilities regulated under the PSC's jurisdiction are required to obtain a "Certificate of Public Convenience & Necessity" to operate the system, and the certificate typically specifies a geographic service area, which may or may not be exclusive as to other similar utilities.
The designation of “Water Authority” appears to be one that was created by the Town itself, as part of the LEEDS TOWN 2008-01 Ordinance. The Leeds Town Municipality can create the title of “Water Authority” and then designate itself to wear that title, but that is all without any practical impact unless the Town has its own water supply & infrastructure system to actually deliver water and the Town can only enforce their new title with new development they serve within their boundaries and jurisdiction.
David B. Hartvigsen, Water Rights Attorney
SMITH HARTVIGSEN PLLC