H.B. 418

1

TRUST REQUIREMENT FOR DIVISION OF
2 SHARED GROUNDWATER
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Jackie Biskupski
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill establishes the requirements for an agreement to divide groundwater with
11 another state.
12 Highlighted Provisions:
13 This bill:
14 . defines terms; and
15 . requires an agreement dividing groundwater with another state to include:
16 . a monitoring program;
17 . an agreement to manage the aquifer at safe yield;
18 . provisions specifying an incremental withdrawal of water;
19 . provisions specifying mitigation measures if adverse impacts occur;
20 . provisions to reduce or cease withdrawal if certain adverse impacts are
21 discovered; and
22 . a requirement for the other state to deposit money into a trust fund to mitigate
23 and compensate for the withdrawal's adverse impacts.
24 Monies Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 None

28 Utah Code Sections Affected:
29 ENACTS:
30 73-29-101, Utah Code Annotated 1953
31 73-29-102, Utah Code Annotated 1953
32 73-29-103, Utah Code Annotated 1953
33 73-29-104, Utah Code Annotated 1953
34 73-29-105, Utah Code Annotated 1953
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 73-29-101 is enacted to read:
38 CHAPTER 29. INTERSTATE GROUNDWATER ACT
39 73-29-101. Title.
40 This chapter is known as the "Interstate Groundwater Act."
41 Section 2. Section 73-29-102 is enacted to read:
42 73-29-102. Definitions.
43 As used in this chapter:
44 (1) "Adverse impact" means the threshold level of degradation, established in the
45 agreement, to Utah's water resources, water users, and ecosystem.
46 (2) "Agreement" means the agreement between Utah and Nevada to divide the water
47 resources of an interstate groundwater flow system required by the Lincoln County
48 Conservation, Recreation, and Development Act of 2004, Pub. L. No. 108-424.
49 (3) "Ecosystem" means the air, land, plants, animals, and sensitive or endangered
50 species affected directly or indirectly by the interstate groundwater flow systems.
51 (4) "Phreatophytes" means deep-rooted plants that obtain water from the water table or
52 the layer of soil just above it.
53 (5) "Project" means the withdrawal and transbasin diversion of water from the
54 interstate groundwater flow system.
55 (6) "Safe yield" means the amount of groundwater that can be withdrawn from a
56 groundwater flow system over a period of time without:
57 (a) exceeding the annual recharge of the system; or
58 (b) lowering the level of the groundwater flow system to the extent that the

59 phreatophytes will be adversely affected.
60 Section 3. Section 73-29-103 is enacted to read:
61 73-29-103. Contents of agreement.
62 (1) The agreement shall include provisions for:
63 (a) a groundwater monitoring program that measures the affect the project has on:
64 (i) water resources, including:
65 (A) groundwater and well levels; and
66 (B) surface water, including rivers, streams, springs, seeps, wet meadows, and
67 wetlands;
68 (ii) agricultural interests, including water used for irrigation and livestock; and
69 (iii) the ecosystem;
70 (b) the limitation of water withdrawals from the interstate groundwater system to the
71 safe yield of the system;
72 (c) Nevada to implement and enforce an incremental withdrawal of water from the
73 interstate groundwater flow system over an adequate, specified period of time to ensure that
74 there is no adverse impact;
75 (d) Nevada to order the reduction or cessation of withdrawal of water from the
76 interstate groundwater flow system if an adverse impact is discovered or the monitoring
77 program indicates that an adverse impact is likely to occur;
78 (e) Nevada to undertake specific mitigation measures if an adverse impact occurs; and
79 (f) Nevada to establish a trust as required by Section 73-29-104 .
80 (2) The Department of Natural Resources shall post and update monthly the results of
81 the monitoring program required by Subsection (1).
82 Section 4. Section 73-29-104 is enacted to read:
83 73-29-104. Trust required.
84 (1) (a) The agreement shall require Nevada to deposit money in a trust fund at a bank
85 located in Utah.
86 (b) Nevada is encouraged to acquire the money from the owners and operators of the
87 project.
88 (2) The agreement shall establish:
89 (a) a Board of Trustees;

90 (b) a trust administrator; and
91 (c) qualification criteria for beneficiaries.
92 (3) The agreement shall specify the amount, which shall be sufficient to cover the costs
93 associated with:
94 (a) the monitoring program;
95 (b) the legal costs incurred by Utah in enforcing or litigating the agreement; and
96 (c) mitigating any adverse impact of the project, including:
97 (i) increasing a well's depth and the power required to lift the water from a deeper well;
98 (ii) revegetating the land adversely affected by the project;
99 (iii) blowing dust;
100 (iv) lost water rights;
101 (v) lost income and the costs of relocation for agricultural producers and other business
102 owners in the area;
103 (vi) damage to real property; and
104 (vii) reduced water quality.
105 (4) The Board of Trustees may authorize the trust administrator to make payments to
106 any person adversely impacted by the project, including:
107 (a) the state;
108 (b) an agricultural producer;
109 (c) an owner of a water right;
110 (d) a business owner; and
111 (e) a real property owner.
112 Section 5. Section 73-29-105 is enacted to read:
113 73-29-105. Severability.
114 If any provision of this chapter, or the application of a provision of this chapter to any
115 person or circumstance is held to be invalid, the remainder of this chapter shall be given effect
116 without the invalid provision or application.

Legislative Review Note
as of 2-5-07 12:17 PM

As required by legislative rule and practice, the Office of Legislative Research and
General Counsel provides the following legislative review note to assist the Legislature in
making its own determination as to the constitutionality of the bill. The note is based on an
analysis of relevant state and federal constitutional law as applied to the bill. The note is not
written for the purpose of influencing whether the bill should become law, but is written to
provide information relevant to legislators' consideration of this bill. The note is not a
substitute for the judgment of the judiciary, which has authority to determine the
constitutionality of a law in the context of a specific case.

This legislation requires any agreement with Nevada dividing interstate groundwater to
include provisions requiring Nevada to (1) limit water withdrawal to safe yield, as defined in
the legislation; (2) deposit an amount of money into a trust fund to mitigate any adverse
impact; (3) only allow the incremental withdrawal of water; and (4) limit or stop water
withdrawal if certain adverse impacts occur. The United States Constitution declares the laws
of the United States to be the supreme law of the land. The United States Supreme Court has
interpreted this to mean that federal law preempts state law to the extent that state law actually
conflicts with federal law. Conflict exists when compliance with both the federal and state law
is a physical impossibility or when the state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.

The Lincoln County Conservation, Recreation, and Development Act of 2004 requires
Utah and Nevada to reach an agreement dividing the water resources of the interstate
groundwater flow system from which water will be diverted in a transbasin pipeline to southern
Nevada. The federal law requires the agreement to allow for the maximum sustainable
beneficial use of the water resources and protect existing water rights. To the extent that the
provisions of this legislation prevent the maximum sustainable beneficial use of the water,
curtail existing water rights, or prevent Nevada from agreeing to the provisions because
compliance with the provisions would require Nevada to violate it's own state water law,
compliance with both the federal and state law could be a physical impossibility. Furthermore,
to the extent that requiring Nevada to deposit in a Utah trust fund an amount of money
sufficient to mitigate any adverse impact prevents Nevada from entering into the agreement,
the legislation frustrates the objective of Congress that an agreement be reached. There is a
high probability that a federal court would determine that this legislation conflicts with the
Lincoln County Conservation, Recreation, and Development Act of 2004 and therefore may be
held unconstitutional as preempted by federal law.

Office of Legislative Research and General Counsel