S.B. 279

1

WATER AND LAND USE DEVELOPMENT
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Darin G. Peterson
5 House Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions relating to water and land use development.
10 Highlighted Provisions:
11 This bill:
12 . prohibits a municipality from conditioning the granting of an annexation petition on
13 a water right transfer unless certain requirements are met;
14 . prohibits a municipality or a county from requiring a land use applicant to transfer a
15 water right in order to receive approval for a development if there is sufficient water
16 to serve the development;
17 . requires a municipality or a county to conduct a water supply study before requiring
18 a land use applicant to transfer a water right;
19 . limits the quantity of water right required to be transferred to the duty values
20 established by the Division of Water Rights;
21 . prohibits the state engineer from denying change application because of nonuse of
22 the water right; and
23 . makes technical changes.
24 Monies Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 None

28 Utah Code Sections Affected:
29 AMENDS:
30 10-2-408, as last amended by Laws of Utah 2001, Chapter 206
31 10-9a-508, as last amended by Laws of Utah 2007, Chapter 291
32 17-27a-507, as last amended by Laws of Utah 2007, Chapter 291
33 73-2-27, as enacted by Laws of Utah 2005, Chapter 215
34 73-3-3, as last amended by Laws of Utah 2005, Chapter 215
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 10-2-408 is amended to read:
38 10-2-408. Denial of or granting the annexation petition.
39 (1) After receipt of the commission's decision on a protest under Subsection
40 10-2-416 (2), a municipal legislative body may:
41 (a) except as provided in Subsection (2) for a proposed annexation of an area located in
42 a county of the first class, deny the annexation petition; or
43 (b) if the commission approves the annexation, grant the annexation petition and, by
44 ordinance and consistent with the commission's decision, annex the area that is the subject of
45 the annexation petition.
46 (2) A municipal legislative body may not deny an annexation petition proposing to
47 annex an area located in a county of the first class if:
48 (a) the petition contains the signatures of the owners of private real property that:
49 (i) is located within the area proposed for annexation;
50 (ii) covers a majority of the private land area within the area proposed for annexation;
51 and
52 (iii) is equal in value to at least 1/2 of the value of all private real property within the
53 area proposed for annexation;
54 (b) the population in the area proposed for annexation does not exceed 10% of the
55 population of the proposed annexing municipality;
56 (c) the property tax rate for municipal services in the area proposed to be annexed is
57 higher than the property tax rate of the proposed annexing municipality; and
58 (d) all annexations by the proposed annexing municipality during the year that the

59 petition was filed have not increased the municipality's population by more than 20%.
60 (3) A municipal legislative body may not condition the granting of an annexation
61 petition on the transfer of a water right unless:
62 (a) the municipality conducts a water supply study, as described in Section 10-9a-508 ,
63 that demonstrates the public water system, as defined in Section 19-4-102 , in whose service
64 area the area proposed for annexation will be located upon annexation, does not have sufficient
65 water rights to deliver water to the area proposed for annexation; and
66 (b) the water right quantity that the legislative body requires the person who filed the
67 petition to transfer does not exceed the duty value, as established by the Division of Water
68 Rights, for the area proposed for annexation.
69 Section 2. Section 10-9a-508 is amended to read:
70 10-9a-508. Exactions.
71 (1) A municipality may impose an exaction or exactions on development proposed in a
72 land use application if:
73 (a) an essential link exists between a legitimate governmental interest and each
74 exaction; and
75 (b) each exaction is roughly proportionate, both in nature and extent, to the impact of
76 the proposed development.
77 (2) (a) If a municipality plans to dispose of surplus real property that was acquired
78 under this section and has been owned by the municipality for less than five years, the
79 municipality shall first offer to reconvey the property, without receiving additional
80 consideration, to the person who granted the property to the municipality.
81 (b) A person to whom a municipality offers to reconvey property under Subsection
82 (2)(a) has 90 days to accept or reject the municipality's offer.
83 (c) If a person to whom a municipality offers to reconvey property declines the offer,
84 the municipality may offer the property for sale.
85 (d) Subsection (2)(a) does not apply to the disposal of property acquired by exaction by
86 a community development [or urban] and renewal agency.
87 (3) (a) As used in this Subsection (3):
88 (i) "Current service area" means the area in which a public water system's distribution
89 facilities deliver water.

90 (ii) "Projected municipal boundary" means the current and projected boundary of the
91 municipality within the next 40 years.
92 (iii) "Projected service area" means the area into which a public water system's
93 distribution facilities will expand as provided in the public water system's capital facilities
94 plan.
95 (iv) "Public water system" is as defined in Section 19-4-102 .
96 (v) "Sufficient water" is the amount of water that people within the projected municipal
97 boundary will use in the next 40 years as calculated by the water supply study required by
98 Subsection (3)(c).
99 (b) In addition to Subsection (1), a municipality may not condition the approval of a
100 land use application on an applicant transferring a water right unless:
101 (i) the municipality demonstrates that the public water system that delivers water to the
102 current service area or projected service area in which the proposed development in the land
103 use application is located does not have sufficient water to deliver to the proposed
104 development; and
105 (ii) the quantity of water the municipality requires the applicant to transfer does not
106 exceed the duty values established by the Division of Water Rights.
107 (c) Before a municipality may require an applicant to transfer a water right, a
108 municipality shall conduct or obtain a water supply study that:
109 (i) calculates whether there is sufficient water, based on the following information:
110 (A) the projected population growth within the projected municipal boundary;
111 (B) the current water use within the municipality;
112 (C) the water supply available to the public water systems that deliver water within the
113 projected municipal boundary; and
114 (D) the projected water use within the projected municipal boundary;
115 (ii) analyzes and discloses the assumptions and calculations used in the water supply
116 study; and
117 (iii) is conducted in a manner consistent with generally accepted engineering standards.
118 Section 3. Section 17-27a-507 is amended to read:
119 17-27a-507. Exactions.
120 (1) A county may impose an exaction or exactions on development proposed in a land

121 use application provided that:
122 (a) an essential link exists between a legitimate governmental interest and each
123 exaction; and
124 (b) each exaction is roughly proportionate, both in nature and extent, to the impact of
125 the proposed development.
126 (2) (a) If a county plans to dispose of surplus real property under Section 17-50-312
127 that was acquired under this section and has been owned by the county for less than five years,
128 the county shall first offer to reconvey the property, without receiving additional consideration,
129 to the person who granted the property to the county.
130 (b) A person to whom a county offers to reconvey property under Subsection (2)(a) has
131 90 days to accept or reject the county's offer.
132 (c) If a person to whom a county offers to reconvey property declines the offer, the
133 county may offer the property for sale.
134 (d) Subsection (2)(a) does not apply to the disposal of property acquired by exaction by
135 a community development [or urban] and renewal agency.
136 (3) (a) As used in this Subsection (3):
137 (i) "Current service area" means the area in which a public water system's distribution
138 facilities deliver water.
139 (ii) "Projected service area" means the area into which a public water system's
140 distribution facilities will expand as provided in the public water system's capital facilities
141 plan.
142 (iii) "Public water system" is as defined in Section 19-4-102 .
143 (iv) "Sufficient water" is the amount of water that people within the county will use in
144 the next 40 years as calculated by the water supply study required by Subsection (3)(c).
145 (b) In addition to Subsection (1), a county may not condition the approval of a land use
146 application on an applicant transferring a water right unless:
147 (i) the county demonstrates that the public water system that delivers water to the
148 current service area or projected service area in which the proposed development in the land
149 use application is located does not have sufficient water to deliver to the proposed
150 development; and
151 (ii) the quantity of water the county requires the applicant to transfer does not exceed

152 the duty values established by the Division of Water Rights.
153 (c) Before a county may require an applicant to transfer a water right, a county shall
154 conduct or obtain a water supply study that:
155 (i) calculates whether there is sufficient water, based on the following information:
156 (A) the projected population growth within the county;
157 (B) the current water use within the county;
158 (C) the water supply available to the public water systems that deliver water within the
159 county; and
160 (D) the projected water use within the county;
161 (ii) analyzes and discloses the assumptions and calculations used in the water supply
162 study; and
163 (iii) is conducted in a manner consistent with generally accepted engineering standards.
164 Section 4. Section 73-2-27 is amended to read:
165 73-2-27. Criminal penalties.
166 (1) This section applies to offenses committed under:
167 (a) Section 73-1-14 ;
168 (b) Section 73-1-15 ;
169 (c) Section 73-2-20 ;
170 (d) Subsection 73-3-3 [(9)] (10);
171 (e) Section 73-3-26 ;
172 (f) Section 73-3-29 ;
173 (g) Section 73-5-9 ;
174 (h) Section 76-10-201 ;
175 (i) Section 76-10-202 ; and
176 (j) Section 76-10-203 .
177 (2) Under circumstances not amounting to an offense with a greater penalty under
178 Subsection 76-6-106 (2)(b)(ii) or Section 76-6-404 , violation of a provision listed in Subsection
179 (1) is punishable:
180 (a) as a felony of the third degree if:
181 (i) the value of the water diverted or property damaged or taken is $2,500 or greater;
182 and

183 (ii) the person violating the provision has previously been convicted of violating the
184 same provision;
185 (b) as a class A misdemeanor if:
186 (i) the value of the water diverted or property damaged or taken is $2,500 or greater; or
187 (ii) the person violating the provision has previously been convicted of violating the
188 same provision; or
189 (c) as a class B misdemeanor if Subsection (2)(a) or (b) does not apply.
190 Section 5. Section 73-3-3 is amended to read:
191 73-3-3. Permanent or temporary changes in point of diversion, place of use, or
192 purpose of use.
193 (1) For purposes of this section:
194 (a) "Permanent changes" means changes for an indefinite length of time with an intent
195 to relinquish the original point of diversion, place of use, or purpose of use.
196 (b) "Temporary changes" means changes for fixed periods not exceeding one year.
197 (2) (a) Any person entitled to the use of water may make permanent or temporary
198 changes in the:
199 (i) point of diversion;
200 (ii) place of use; or
201 (iii) purpose of use for which the water was originally appropriated.
202 (b) A change may not be made if it impairs any vested right without just compensation.
203 (3) Both permanent and temporary changes of point of diversion, place of use, or
204 purpose of use of water, including water involved in general adjudication or other suits, shall
205 be made in the manner provided in this section.
206 (4) (a) A change may not be made unless the change application is approved by the
207 state engineer.
208 (b) Applications shall be made upon forms furnished by the state engineer and shall set
209 forth:
210 (i) the name of the applicant;
211 (ii) a description of the water right;
212 (iii) the quantity of water;
213 (iv) the stream or source;

214 (v) the point on the stream or source where the water is diverted;
215 (vi) the point to which it is proposed to change the diversion of the water;
216 (vii) the place, purpose, and extent of the present use;
217 (viii) the place, purpose, and extent of the proposed use; and
218 (ix) any other information that the state engineer requires.
219 (5) (a) The state engineer shall follow the same procedures, and the rights and duties of
220 the applicants with respect to applications for permanent changes of point of diversion, place of
221 use, or purpose of use shall be the same, as provided in this title for applications to appropriate
222 water.
223 (b) The state engineer may not deny a change application or reduce the quantity of the
224 water right in approving the change application based on nonuse of the water right.
225 [(b)] (6) The state engineer may, in connection with applications for permanent change
226 involving only a change in point of diversion of 660 feet or less, waive the necessity for
227 publishing a notice of application.
228 [(6)] (7) (a) The state engineer shall investigate all temporary change applications.
229 (b) If the state engineer finds that the temporary change will not impair any vested
230 rights of others, he shall issue an order authorizing the change.
231 (c) If the state engineer finds that the change sought might impair vested rights, before
232 authorizing the change, he shall give notice of the application to any person whose rights may
233 be affected by the change.
234 (d) Before making an investigation or giving notice, the state engineer may require the
235 applicant to deposit a sum of money sufficient to pay the expenses of the investigation and
236 publication of notice.
237 [(7)] (8) (a) The state engineer may not reject applications for either permanent or
238 temporary changes for the sole reason that the change would impair the vested rights of others.
239 (b) If otherwise proper, permanent or temporary changes may be approved for part of
240 the water involved or upon the condition that conflicting rights are acquired.
241 [(8)] (9) (a) Any person holding an approved application for the appropriation of water
242 may either permanently or temporarily change the point of diversion, place of use, or purpose
243 of use.
244 (b) A change of an approved application does not:

245 (i) affect the priority of the original application; or
246 (ii) extend the time period within which the construction of work is to begin or be
247 completed.
248 [(9)] (10) Any person who changes or who attempts to change a point of diversion,
249 place of use, or purpose of use, either permanently or temporarily, without first applying to the
250 state engineer in the manner provided in this section:
251 (a) obtains no right;
252 (b) is guilty of a crime punishable under Section 73-2-27 if the change or attempted
253 change is made knowingly or intentionally; and
254 (c) is guilty of a separately punishable offense for each day of the unlawful change.
255 [(10)] (11) (a) This section does not apply to the replacement of an existing well by a
256 new well drilled within a radius of 150 feet from the point of diversion of the existing well.
257 (b) Any replacement well must be drilled in accordance with the requirements of
258 Section 73-3-28 .
259 [(11)] (12) (a) In accordance with the requirements of this section, the Division of
260 Wildlife Resources or Division of Parks and Recreation may file applications for permanent or
261 temporary changes for the purpose of providing water for instream flows, within a designated
262 section of a natural stream channel or altered natural stream channel, necessary within the state
263 for:
264 (i) the propagation of fish;
265 (ii) public recreation; or
266 (iii) the reasonable preservation or enhancement of the natural stream environment.
267 (b) Applications may be filed for changes on:
268 (i) perfected water rights presently owned by the respective division;
269 (ii) perfected water rights purchased by the respective division for the purpose of
270 providing water for instream flows, through funding provided for that purpose by legislative
271 appropriation or acquired by lease, agreement, gift, exchange, or contribution; or
272 (iii) appurtenant water rights acquired with the acquisition of real property by either
273 division.
274 (c) A physical structure or physical diversion from the stream is not required to
275 implement a change for instream flow use.

276 (d) This Subsection [(11)] (12) does not allow enlargement of the water right sought to
277 be changed nor may the change impair any vested water right.
278 (e) In addition to the other requirements of this section, an application filed by either
279 division shall:
280 (i) set forth the legal description of the points on the stream between which the
281 necessary instream flows will be provided by the change; and
282 (ii) include appropriate studies, reports, or other information required by the state
283 engineer that demonstrate the necessity for the instream flows in the specified section of the
284 stream and the projected benefits to the public that will result from the change.
285 (f) The Division of Wildlife Resources and Division of Parks and Recreation may:
286 (i) purchase water rights for the purposes provided in Subsection [(11)] (12)(a) only
287 with funds specifically appropriated by the Legislature for water rights purchases; or
288 (ii) accept a donated water right without legislative approval.
289 (g) This Subsection [(11)] (12) does not authorize either division to:
290 (i) appropriate unappropriated water under Section 73-3-2 for the purpose of providing
291 instream flows; or
292 (ii) acquire water rights by eminent domain for instream flows or for any other
293 purpose.
294 (h) This Subsection [(11)] (12) applies only to change applications filed on or after
295 April 28, 1986.
296 [(12)] (13) (a) Sixty days before the date on which proof of change for instream flows
297 under Subsection [(11)] (12) is due, the state engineer shall notify the applicant by registered
298 mail or by any form of electronic communication through which receipt is verifiable of the date
299 when proof of change is due.
300 (b) Before the date when proof of change is due, the applicant must either:
301 (i) file a verified statement with the state engineer that the instream flow uses have
302 been perfected, which shall set forth:
303 (A) the legal description of the points on the natural stream channel or altered natural
304 stream channel between which the necessary instream flows have been provided;
305 (B) detailed measurements of the flow of water in second feet changed;
306 (C) the period of use; and

307 (D) any additional information required by the state engineer; or
308 (ii) apply for a further extension of time as provided for in Section 73-3-12 .
309 (c) Upon approval of the verified statement required under Subsection [(12)] (13)(b)(i),
310 the state engineer shall issue a certificate of change for instream flow use.




Legislative Review Note
as of 2-19-08 12:10 PM

Office of Legislative Research and General Counsel