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7 LONG TITLE
8 General Description:
9 This bill addresses preferences of water rights during a temporary water shortage
10 emergency.
11 Highlighted Provisions:
12 This bill:
13 ▸ repeals language related to a temporary water shortage emergency;
14 ▸ enacts a provision related to a temporary water shortage emergency with a delayed
15 effective date;
16 ▸ requires a study;
17 ▸ addresses rulemaking authority; and
18 ▸ makes technical changes.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 This bill provides a special effective date.
23 Utah Code Sections Affected:
24 AMENDS:
25 73-2-1, as last amended by Laws of Utah 2020, Chapters 60 and 352
26 73-3-21.1, as last amended by Laws of Utah 2011, Chapter 201
27 ENACTS:
28 73-3-21.3, Utah Code Annotated 1953
29 73-3-21.5, Utah Code Annotated 1953
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31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 73-2-1 is amended to read:
33 73-2-1. State engineer -- Term -- Powers and duties -- Qualification for duties.
34 (1) There shall be a state engineer.
35 (2) The state engineer shall:
36 (a) be appointed by the governor with the advice and consent of the Senate;
37 (b) hold office for the term of four years and until a successor is appointed; and
38 (c) have five years experience as a practical engineer or the theoretical knowledge,
39 practical experience, and skill necessary for the position.
40 (3) (a) The state engineer shall be responsible for the general administrative
41 supervision of the waters of the state and the measurement, appropriation, apportionment, and
42 distribution of those waters.
43 (b) The state engineer may secure the equitable apportionment and distribution of the
44 water according to the respective rights of appropriators.
45 (4) The state engineer shall make rules, in accordance with Title 63G, Chapter 3, Utah
46 Administrative Rulemaking Act, consistent with the purposes and provisions of this title,
47 regarding:
48 (a) reports of water right conveyances;
49 (b) the construction of water wells and the licensing of water well drillers;
50 (c) dam construction and safety;
51 (d) the alteration of natural streams;
52 (e) geothermal resource conservation;
53 (f) enforcement orders and the imposition of fines and penalties;
54 (g) the duty of water; and
55 (h) standards for written plans of a public water supplier that may be presented as
56 evidence of reasonable future water requirements under Subsection 73-1-4(2)(f).
57 (5) The state engineer may make rules, in accordance with Title 63G, Chapter 3, Utah
58 Administrative Rulemaking Act, consistent with the purposes and provisions of this title,
59 governing:
60 (a) water distribution systems and water commissioners;
61 (b) water measurement and reporting;
62 (c) groundwater recharge and recovery;
63 (d) wastewater reuse;
64 (e) the form, content, and processing procedure for a claim under Section 73-5-13 to
65 surface or underground water that is not represented by a certificate of appropriation;
66 (f) the form and content of a proof submitted to the state engineer under Section
67 73-3-16;
68 (g) the determination of water rights; [
69 (h) preferences of water rights under Section 73-3-21.5; or
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71 (6) The state engineer may bring suit in courts of competent jurisdiction to:
72 (a) enjoin the unlawful appropriation, diversion, and use of surface and underground
73 water without first seeking redress through the administrative process;
74 (b) prevent theft, waste, loss, or pollution of surface and underground waters;
75 (c) enable the state engineer to carry out the duties of the state engineer's office; and
76 (d) enforce administrative orders and collect fines and penalties.
77 (7) The state engineer may:
78 (a) upon request from the board of trustees of an irrigation district under Title 17B,
79 Chapter 2a, Part 5, Irrigation District Act, or another local district under Title 17B, Limited
80 Purpose Local Government Entities - Local Districts, or a special service district under Title
81 17D, Chapter 1, Special Service District Act, that operates an irrigation water system, cause a
82 water survey to be made of the lands proposed to be annexed to the district in order to
83 determine and allot the maximum amount of water that could be beneficially used on the land,
84 with a separate survey and allotment being made for each 40-acre or smaller tract in separate
85 ownership; and
86 (b) upon completion of the survey and allotment under Subsection (7)(a), file with the
87 district board a return of the survey and report of the allotment.
88 (8) (a) The state engineer may establish water distribution systems and define the water
89 distribution systems' boundaries.
90 (b) The water distribution systems shall be formed in a manner that:
91 (i) secures the best protection to the water claimants; and
92 (ii) is the most economical for the state to supervise.
93 Section 2. Section 73-3-21.1 is amended to read:
94 73-3-21.1. Priorities between appropriators.
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104 their respective appropriations, so that each appropriator is entitled to receive the appropriator's
105 whole supply before any subsequent appropriator has any right.
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122 Section 3. Section 73-3-21.3 is enacted to read:
123 73-3-21.3. Study of preferences during temporary water shortage emergency.
124 (1) The state engineer shall study how the state should address preferred uses of water
125 during a temporary water shortage emergency including issues such as:
126 (a) the process for determining whether and how a water use may be given preference;
127 and
128 (b) compensation for holders of water rights that are affected by preferences being
129 given to certain water uses.
130 (2) The state engineer may work with stakeholders in conducting the study under this
131 section.
132 (3) The state engineer shall report the state engineer's findings, including any
133 recommended legislation, to the Natural Resources, Agriculture, and Environment Interim
134 Committee by no later than the 2022 November interim meeting of the Natural Resources,
135 Agriculture, and Environment Interim Committee.
136 Section 4. Section 73-3-21.5 is enacted to read:
137 73-3-21.5. Preferences between appropriators.
138 (1) As used in this section:
139 (a) "Electric utility" means:
140 (i) a municipal electric utility, as defined in Section 10-19-102;
141 (ii) an electric interlocal entity, as defined in Section 11-13-103;
142 (iii) an energy services interlocal entity, as defined in Section 11-13-103;
143 (iv) a project entity, as defined in Section 11-13-103;
144 (v) an electric improvement district, as defined in Section 17B-2a-406; or
145 (vi) an electrical corporation, as defined in Section 54-2-1.
146 (b) "Military facility" means an installation, base, air field, camp, post, station, yard,
147 center, or other facility owned, leased, or operated by, or under the jurisdiction of, the United
148 States Department of Defense or the National Guard.
149 (c) (i) "Temporary water shortage emergency" means a shortage of water:
150 (A) whether caused by drought, manmade causes, or natural causes;
151 (B) for which the governor has declared temporary water shortage emergency in a
152 designated geographic area by executive order; and
153 (C) that may not exceed in duration more than one calendar year.
154 (ii) An executive order of the governor declaring a temporary water shortage
155 emergency under this section is not a declaration of a state of emergency under Section
156 53-2a-206 and is not subject to Title 53, Chapter 2a, Part 2, Disaster Response and Recovery
157 Act. To exercise an authority granted under Title 53, Chapter 2a, Part 2, Disaster Response and
158 Recovery Act, related to a declaration of a state of emergency, the governor shall issue an
159 executive order that is separate from an executive order declaring a temporary water shortage
160 emergency.
161 (2) (a) Notwithstanding Section 73-3-21.1, if there is a temporary water shortage
162 emergency, the use of water for drinking, sanitation, generation of electricity, and fire
163 suppression has a preferential right over any other water right for the duration of the temporary
164 water shortage emergency if:
165 (i) the water is used by:
166 (A) an individual water user;
167 (B) a county or municipality;
168 (C) a public water supplier, as defined in Section 73-1-4;
169 (D) a military facility that was in operation on March 10, 2011; or
170 (E) an electric utility; and
171 (ii) the water is used without unnecessary waste.
172 (b) Notwithstanding Section 73-3-21.1, if there is a temporary water shortage
173 emergency, the use of water for agricultural purposes, including irrigation and livestock water,
174 has a preferential right over any other right, except as provided in Subsection (2)(a).
175 (3) A person using water preferentially during a temporary water shortage emergency
176 shall pay the appropriator whose water use is interrupted the reasonable value of the water use
177 interrupted, crop losses, and other consequential damages incurred as a result of the
178 interruption.
179 (4) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
180 state engineer may make rules establishing the process to:
181 (a) determine the preferential right under Subsection (2) over other water rights for the
182 duration of a temporary water shortage emergency; and
183 (b) provide for payments under Subsection (3).
184 Section 5. Effective date.
185 (1) If approved by two-thirds of all the members elected to each house, the
186 amendments to Section 73-3-21.1 take effect upon approval by the governor, or the day
187 following the constitutional time limit of Utah Constitution, Article VII, Section 8, without the
188 governor's signature, or in the case of a veto, the date of veto override.
189 (2) The enactment of Section 73-3-21.3 takes effect May 4, 2022.
190 (3) The following take effect on May 3, 2023:
191 (a) the amendments to Section 73-2-1; and
192 (b) the enactment of Section 73-3-21.5.