1     
WATER RELATED LIABILITY AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Carl R. Albrecht

5     
Senate Sponsor: Derrin R. Owens

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions concerning liability related to water facilities, streams, or
10     rivers and related trails.
11     Highlighted Provisions:
12          This bill:
13          ▸     makes conforming amendments addressing governmental immunity;
14          ▸     clarifies language related to operators of a water facility;
15          ▸     addresses liability of an owner or operator of a water facility, stream, or river along
16     certain trails;
17          ▸     codifies standard of care;
18          ▸     addresses liability of an owner or operator of a water facility;
19          ▸     addresses interference related to a water facility; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          63G-7-201, as last amended by Laws of Utah 2021, Chapter 352
28          73-1-8, as last amended by Laws of Utah 2007, Chapter 357
29          73-1-14, as last amended by Laws of Utah 2022, Chapter 310

30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 63G-7-201 is amended to read:
33          63G-7-201. Immunity of governmental entities and employees from suit.
34          (1) Except as otherwise provided in this chapter, each governmental entity and each
35     employee of a governmental entity are immune from suit for any injury that results from the
36     exercise of a governmental function.
37          (2) Notwithstanding the waiver of immunity provisions of Section 63G-7-301, a
38     governmental entity, its officers, and its employees are immune from suit:
39          (a) as provided in Section 78B-4-517; and
40          (b) for any injury or damage resulting from the implementation of or the failure to
41     implement measures to:
42          (i) control the causes of epidemic and communicable diseases and other conditions
43     significantly affecting the public health or necessary to protect the public health as set out in
44     Title 26A, Chapter 1, Local Health Departments;
45          (ii) investigate and control suspected bioterrorism and disease as set out in Title 26,
46     Chapter 23b, Detection of Public Health Emergencies Act;
47          (iii) respond to a national, state, or local emergency, a public health emergency as
48     defined in Section 26-23b-102, or a declaration by the President of the United States or other
49     federal official requesting public health related activities, including the use, provision,
50     operation, and management of:
51          (A) an emergency shelter;
52          (B) housing;
53          (C) a staging place; or
54          (D) a medical facility; and
55          (iv) adopt methods or measures, in accordance with Section 26-1-30, for health care
56     providers, public health entities, and health care insurers to coordinate among themselves to
57     verify the identity of the individuals they serve.

58          (3) A governmental entity, its officers, and its employees are immune from suit, and
59     immunity is not waived, for any injury if the injury arises out of or in connection with, or
60     results from:
61          (a) a latent dangerous or latent defective condition of:
62          (i) any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, or
63     viaduct; or
64          (ii) another structure located on any of the items listed in Subsection (3)(a)(i); or
65          (b) a latent dangerous or latent defective condition of any public building, structure,
66     dam, reservoir, or other public improvement.
67          (4) A governmental entity, its officers, and its employees are immune from suit, and
68     immunity is not waived, for any injury proximately caused by a negligent act or omission of an
69     employee committed within the scope of employment, if the injury arises out of or in
70     connection with, or results from:
71          (a) the exercise or performance, or the failure to exercise or perform, a discretionary
72     function, whether or not the discretion is abused;
73          (b) except as provided in Subsections 63G-7-301(2)(j), (3), and (4), assault, battery,
74     false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process,
75     libel, slander, deceit, interference with contract rights, infliction of mental anguish, or violation
76     of civil rights;
77          (c) the issuance, denial, suspension, or revocation of, or the failure or refusal to issue,
78     deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
79     authorization;
80          (d) a failure to make an inspection or making an inadequate or negligent inspection;
81          (e) the institution or prosecution of any judicial or administrative proceeding, even if
82     malicious or without probable cause;
83          (f) a misrepresentation by an employee whether or not the misrepresentation is
84     negligent or intentional;
85          (g) a riot, unlawful assembly, public demonstration, mob violence, or civil disturbance;

86          (h) the collection or assessment of taxes;
87          (i) an activity of the Utah National Guard;
88          (j) the incarceration of a person in a state prison, county or city jail, or other place of
89     legal confinement;
90          (k) a natural condition on publicly owned or controlled land;
91          (l) a condition existing in connection with an abandoned mine or mining operation;
92          (m) an activity authorized by the School and Institutional Trust Lands Administration
93     or the Division of Forestry, Fire, and State Lands;
94          (n) the operation or existence of a [pedestrian or equestrian] trail that is along a [ditch,
95     canal] water facility, as defined in Section 73-1-8, stream, or river, regardless of ownership or
96     operation of the [ditch, canal] water facility, stream, or river, if:
97          (i) the trail is designated under a general plan adopted by a municipality under Section
98     10-9a-401 or by a county under Section 17-27a-401;
99          (ii) the trail right-of-way or the right-of-way where the trail is located is open to public
100     use as evidenced by a written agreement between:
101          (A) the owner or operator of the trail right-of-way or of the right-of-way where the trail
102     is located; and
103          (B) the municipality or county where the trail is located; and
104          (iii) the written agreement:
105          (A) contains a plan for operation and maintenance of the trail; and
106          (B) provides that an owner or operator of the trail right-of-way or of the right-of-way
107     where the trail is located has, at a minimum, the same level of immunity from suit as the
108     governmental entity in connection with or resulting from the use of the trail;
109          (o) research or implementation of cloud management or seeding for the clearing of fog;
110          (p) the management of flood waters, earthquakes, or natural disasters;
111          (q) the construction, repair, or operation of flood or storm systems;
112          (r) the operation of an emergency vehicle, while being driven in accordance with the
113     requirements of Section 41-6a-212;

114          (s) the activity of:
115          (i) providing emergency medical assistance;
116          (ii) fighting fire;
117          (iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
118          (iv) an emergency evacuation;
119          (v) transporting or removing an injured person to a place where emergency medical
120     assistance can be rendered or where the person can be transported by a licensed ambulance
121     service; or
122          (vi) intervening during a dam emergency;
123          (t) the exercise or performance, or the failure to exercise or perform, any function
124     pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources;
125          (u) an unauthorized access to government records, data, or electronic information
126     systems by any person or entity;
127          (v) an activity of wildlife, as defined in Section 23-13-2, that arises during the use of a
128     public or private road; or
129          (w) a communication between employees of one or more law enforcement agencies
130     related to the employment, disciplinary history, character, professional competence, or physical
131     or mental health of a peace officer, or a former, current, or prospective employee of a law
132     enforcement agency, including any communication made in accordance with Section
133     53-14-101.
134          Section 2. Section 73-1-8 is amended to read:
135          73-1-8. Duties of owners or operators -- Bridges and trails -- Liability.
136          (1) As used in this section:
137          (a) "Water facility" means a dam, pipeline, culvert, flume, conduit, ditch, head gate,
138     canal, reservoir, spring box, well, meter, weir, valve, casing, cap, or other facility used for the
139     diversion, transportation, distribution, measurement, collection, containment, or storage of
140     irrigation water.
141          (b) "Water facility" does not mean a facility used primarily as part of a:

142          (i) public water system as defined in Section 19-4-102; or
143          (ii) residential irrigation system.
144          [(1)] (2) [The] An owner or operator of [any ditch, canal, flume or other watercourse] a
145     water facility shall:
146          (a) maintain [it] the water facility to prevent waste of water [or], damage to [the
147     property of others] property, or injury to others; and
148          (b) by bridge or otherwise, keep [it] the water facility in good repair where [it] the
149     water facility crosses [any] a public road or highway to prevent obstruction to travel or damage
150     or overflow on the public road or highway.
151          [(2)] (3) [The provisions of Subsection (1)(b) do] Subsection (2)(b) does not apply
152     where a governmental entity maintains or elects to maintain a bridge or other device to prevent
153     obstruction to travel or damage or overflow on the public road or highway.
154          [(3)] (4) [An] In addition to immunity if the conditions of Title 57, Chapter 14,
155     Limitations on Landowner Liability, are met, an owner or operator of a [ditch, canal] water
156     facility, stream, or river, is immune from suit if:
157          (a) the damage or personal injury arises out of, is in connection with, or results from
158     the use of a [pedestrian or equestrian] trail that is located along a [ditch, canal] water facility,
159     stream, or river, regardless of ownership or operation of the [ditch, canal] water facility,
160     stream, or river;
161          (b) the trail is designated under a general plan adopted by a municipality under Section
162     10-9a-401 or by a county under Section 17-27a-401;
163          (c) the trail right-of-way or the right-of-way where the trail is located is open to public
164     use as evidenced by a written agreement between the owner or operator of the trail
165     right-of-way, or of the right-of-way where the trail is located, and the municipality or county
166     where the trail is located; and
167          (d) the written agreement:
168          (i) contains a plan for operation and maintenance of the trail; and
169          (ii) provides that an owner or operator of the trail right-of-way, or of the right-of-way

170     where the trail is located has, at minimum, the same level of immunity from suit as the
171     governmental entity in connection with or resulting from use of the trail.
172          (5) (a) The duty under Subsection (2) requires only reasonable and ordinary care and
173     may not be construed to impose strict liability or to otherwise increase the liability of the owner
174     or operator of a water facility.
175          (b) An owner or operator of a water facility is not liable for damage or injury caused
176     by:
177          (i) the diversion or discharge of water or another substance into the water facility by a
178     third party beyond the control of the owner or operator of the water facility, including control
179     exercised by the owner's or operator's employees or agents;
180          (ii) any other act or omission of a third party that is beyond the control of the owner or
181     operator of the water facility, including control exercised by the owner's or operator's
182     employees or agents; or
183          (iii) an act of God, including fire, earthquake, storm, flash floods, or similar natural
184     occurrences.
185          (6) This section may not be interpreted to impair a defense that an owner or operator of
186     a water facility may assert in a civil action.
187          Section 3. Section 73-1-14 is amended to read:
188          73-1-14. Acts against water facilities or interfering with apportioning official --
189     Penalty and liability.
190          (1) As used in this section:
191          (a) "Connection to a water facility" includes:
192          (i) to introduce water or another substance into or take water from a water facility
193     through a pipeline, flume, ditch, canal, trench, holding pond, or water collection structure;
194          (ii) to place or maintain a structure capable of introducing water or another substance
195     directly into or of taking water from a water facility from a pipeline, flume, ditch, canal, trench,
196     holding pond, or water collection structure; or
197          (iii) to cut into or breach a canal or ditch bank for the purpose of introducing water or

198     another substance into or of taking water from the canal or ditch.
199          (b) "Interfere," for purposes of a water facility, means damage to or modification of the
200     water facility that results in actual blockage or diversion of water, stormwater, wastewater, or
201     sewage.
202          (c) "Knowingly" means the same as that term is defined in Section 76-2-103.
203          (d) "Water facility" means a dam, pipeline, culvert, fire hydrant, flume, conduit, ditch,
204     head gate, canal, reservoir, storage tank, spring box, well, meter, weir, valve, casing, cap, or
205     other facility used for the diversion, transportation, distribution, measurement, collection,
206     containment, or storage of water, stormwater, wastewater, or sewage.
207          (2) Subject to Subsection (6), a person is guilty of a crime punishable under Section
208     73-2-27 if the person:
209          (a) knowingly makes a temporary or permanent connection to, or interferes with, a
210     water facility without:
211          (i) first obtaining the written consent of the owner or operator of the water facility; or
212          (ii) having other lawful authority; or
213          (b) without lawful authority, knowingly interferes with an individual authorized to
214     apportion water while in the discharge of the individual's duties.
215          (3) A person who commits an act defined as a crime under this section is also liable for
216     damages, other relief, and reasonable costs and attorney fees as provided in Section 73-2-28, in
217     a civil action brought by a person injured by that act.
218          (4) (a) A civil action under this section may be brought independent of a criminal
219     action.
220          (b) Proof of the elements of a civil action under this section need only be made by a
221     preponderance of the evidence.
222          (5) A person who complies with Title 54, Chapter 8a, Damage to Underground Utility
223     Facilities, Section 73-1-7, or Section 73-1-15.5 may not be held criminally or civilly liable for
224     actions allowed by those sections.
225          (6) (a) "Person" for purposes of this section does not include a government entity,

226     including a political subdivision of the state.
227          (b) This section may not be interpreted to limit or impair a claim otherwise provided by
228     law of a water facility owner or operator against a government entity.