2017 Legislative Preview on Water Related Bills, by David Hartvigsen, Jeffry Gittins, and Nathan Bracken
The 2017 General Session of the Utah Legislature begins Monday January 23 and runs through Thursday March 9.
Highlights of the currently released bills of interest:
PROSPOSED: Numbered Bills
HB 84 - Water Law - Nonuse Requirements - Rep. Tim Hawkes
This bill, which has been recommended by the Executive Water Rights Task Force, clarifies that: (1) an approved non-use application excuses the requirement of beneficial use from the non-use application's filing date; (2) the filing or approval of a non-use application, or a series of non-use applications, does not constitute beneficial use or protect a water right that is already subject to forfeiture; and (3) a non-use application does not bar a water right owner from using the water as permitted under the water right or from claiming any available defense against forfeiture. The bill also modifies the procedures for instituting a forfeiture action for non-use.
HB 118 - Authority of State Engineer - Rep. Tim Hawkes
This bill, which has been recommended by the Executive Water Rights Task Force, allows the State Engineer to develop rules regarding the "duty of water" or in other words, a quantification of the maximum amount of water that can be beneficially used, without waste, for a particular purpose. Although the State Engineer and the courts in General Adjudications have used this concept for over 100 years, there is no statutory authority for this concept. This bill gives the State Engineer express authority to do what is already being done with respect to the duty of water.
SB 11 - Water Development Commission Amendments - Sen. Margaret Dayton
This bill, which has been recommended by the Natural Resources, Agriculture, and Environment Interim Committee, modifies the membership of the State Water Development Commission. The bill removes the following non-voting members from the Commission: the state treasurer; two representatives of the Governor's Office, including one representative from the Governor's Office of Management and Budget; the executive director of the Department of Natural Resources; the executive director of the Department of Environmental Quality; the commissioner of agriculture and food; a member of the Board of Water Resources; and a representative with experience with finance and economics. The bill adds one non-voting member to the Commission: a representative of the governor's cabinet or the Governor's Office.
SB 63 - Nonprofit Corporation Amendments - Water Sen. Margaret Dayton
This bill, which has been recommended by the Executive Water Rights Task Force, modifies the Utah Revised Nonprofit Corporation Act to change the default rule on the transferability of shares in a water company from non-transferrable to transferrable, unless the articles or bylaws of the water company specify otherwise. It states that a shareholder in a water company has "an equitable, beneficial interest in the use of the water supply of the water company, proportionate to the shareholder's shares in the water company, which interest is in the nature of real property." It also now expressly allows a water company to purchase delinquent shares of stock and clarifies the process for distributions to shareholders in a water company.
Bill Requests - (Not Yet Numbered)
HB ___ Fee List Amendments - Rep. Logan Wilde
Preliminary drafts of this bill, which has been recommended by the Executive Water Rights Task Force, update the name of an "Extension of Time to Resume Use Application" to its current name used elsewhere in the code, i.e., a "Nonuse Application."
HB ___ Assignment Addendums - Rep. Logan Wilde
Preliminary drafts of this bill, which has been recommended by the Executive Water Rights Task Force, allow "Water Right Deed Addendums" to be used and recorded with water right "Assignments" and to have those Addendums be forwarded to the State Engineer.
SB ___ Public Water Supplier Amendments (Instream Flows) - Sen. Jani Iwamoto
Preliminary drafts of this bill modify Utah's instream flow statute (Section 73-3-30) to allow public water suppliers to change perfected water rights for instream use. The instream flows must be located within the public water supplier's jurisdictional boundaries and the related change application can be up to ten years. The bill would also specify that all approved instream flow change applications will be administered according to the change application's priority date relative to all other rights in the stream system, thereby making the application the most junior right in the system. This represents a change from the current statute, which specifies that change applications for instream flows are distributed according to the application's priority date relative only to other rights the stream section specified in the application, rather than the entire stream system.
HB ___ Public Supplier Water Amendments - Rep. Merrill Nelson
HB ___ Great Salt Lake Commission - Rep. Merrill Nelson
HB ___ Water Commissioner Expenses - Rep. Scott Chew
SB ___ Water Infrastructure Revisions - Sen. J. Stuart Adams
SB ___ Water Law - Protected Purchaser Agreements - Sen. Margaret Dayton
Possible Legislation Recommended by the Executive Water Task Force
The Executive Water Task Force is recommending changes to the process municipalities follow when notifying canal owners of subdivisions that have been approved within 100 feet of the center line of a canal. Currently, municipalities mostly rely on information they receive from canal owners. The Task Force recommends legislation that would require Cities to also use the State Engineer's canal inventory along with information provided by the surveyor who makes the plat for the subdivision. The Task Force also recommends that surveyors consult with the owners of canals that are located within a proposed subdivision or within 100 feet of the subdivision when preparing subdivision plats. Lastly, the Task Force recommends that the State Engineer include enclosed canals within its canal inventory and recommends extending the deadline to complete the inventory until 2019.
The Utah Supreme Court recently issued its decision in the case of Washington Townhomes LLC v. Washington County Water Conservancy District. The case started as a class action lawsuit by property owners and developers who paid impact fees to Washington County Water Conservancy District. These plaintiffs asserted that the impact fees violated the Utah Impact Fees Act and constituted a taking under the state and federal constitutions. The District defended its impact fees by asserting that the fees were based on a "level of service" standard imposed by the Utah Division of Drinking Water, and by asserting that its adoption of the level of service standard was a legislative judgment that should survive judicial scrutiny.
The district court agreed with the District, and concluded that the level of service that was adopted by the District and that was based on DDW standards was "legal and reasonable as a matter of law." Accordingly, the court granted partial summary judgment in favor of the District. Additionally, pursuant to a stipulation of the plaintiffs and the District, the court certified that the case could be immediately appealed under Rule 54(b) of the Utah Rules of Civil Procedure. The case was then appealed to the Utah Supreme Court.
The Supreme Court did not get to the substantive question of whether the impact fees were properly based on the DDW standards. Rather, the Supreme Court dismissed the appeal on jurisdictional grounds. The Supreme Court determined that although the district court's ruling made an important determination in the case context, the ruling did not qualify for appeal certification under Rule 54(b) because the ruling did not finally dispose of any claim and did not finally adjudicate the interests of a party to the case.
The Supreme Court further considered whether to exercise its discretion to treat the appeal as a petition for interlocutory appeal under Rule 5 of the Utah Rules of Appellate Procedure. The Supreme Court noted the precedent that an interlocutory appeal is appropriate "to adjudicate principles of law or procedure in advance as a necessary foundation upon which the trial may proceed." Although the Supreme Court noted that the level of service question was an important issue in the case, the Supreme Court declined to accept the appeal because it determined that the district court's ruling was unclear and had unanswered factual and legal questions. For example, the Supreme Court felt that there was an unanswered question as to whether the District was legally required to build infrastructure and facilities in accordance with the DDW level of service standards.
Accordingly, the Supreme Court declined to accept the appeal, dismissed the appeal, and sent the case back to the district court for further proceedings.
Bills that passed in the 2015 Legislative Session:
2015 BILLS THAT DID NOT PASS IN THE 2015 LEGISLATIVE SESSION:
For more information visit: UTAH WATER LAW & WATER RIGHTS BLOG SITE. A blog written by a Utah water rights lawyer with recent case law summaries, legislative updates, and informative articles about Utah water law.