1     
LOCAL GOVERNMENT WATER AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Michael K. McKell

5     
House Sponsor: Stephen L. Whyte

6     

7     LONG TITLE
8     General Description:
9          This bill addresses local government's actions related to a water interest.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies provisions related to determining the basis for an exaction for a water
13     interest imposed by certain local government entities;
14          ▸     addresses water source protection ordinances; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          10-9a-508, as last amended by Laws of Utah 2016, Chapter 350
23          17-27a-507, as last amended by Laws of Utah 2013, Chapter 309
24          17-41-402.5, as enacted by Laws of Utah 2009, Chapter 376
25          17B-1-120, as enacted by Laws of Utah 2011, Chapter 205
26          19-4-113, as last amended by Laws of Utah 2009, Chapter 173
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 10-9a-508 is amended to read:
30          10-9a-508. Exactions -- Exaction for water interest -- Requirement to offer to
31     original owner property acquired by exaction.
32          (1) A municipality may impose an exaction or exactions on development proposed in a
33     land use application, including, subject to Subsection (3), an exaction for a water interest, if:
34          (a) an essential link exists between a legitimate governmental interest and each
35     exaction; and
36          (b) each exaction is roughly proportionate, both in nature and extent, to the impact of
37     the proposed development.
38          (2) If a land use authority imposes an exaction for another governmental entity:
39          (a) the governmental entity shall request the exaction; and
40          (b) the land use authority shall transfer the exaction to the governmental entity for
41     which it was exacted.
42          (3) (a) (i) [A] Subject to the requirements of this Subsection (3), a municipality shall
43     base [any] an exaction for a water interest on the culinary water authority's established
44     calculations of projected water interest requirements.
45          (ii) Except as described in Subsection (3)(a)(iii), a culinary water authority shall base
46     an exaction for a culinary water interest on:
47          (A) consideration of the system-wide minimum sizing standards established for the
48     culinary water authority by the Division of Drinking Water pursuant to Section 19-4-114; and
49          (B) the number of equivalent residential connections associated with the culinary water
50     demand for each specific development proposed in the development's land use application,
51     applying lower exactions for developments with lower equivalent residential connections as
52     demonstrated by at least five years of usage data for like land uses within the municipality.
53          (iii) A municipality may impose an exaction for a culinary water interest that results in
54     less water being exacted than would otherwise be exacted under Subsection (3)(a)(ii) if the
55     municipality, at the municipality's sole discretion, determines there is good cause to do so.
56          (iv) A municipality shall make public the methodology used to comply with Subsection
57     (3)(a)(ii)(B). A land use applicant may appeal to the municipality's governing body an exaction
58     calculation used by the municipality under Subsection (3)(a)(ii). A land use applicant may
59     present data and other information that illustrates a need for an exaction recalculation and the
60     municipality's governing body shall respond with due process.
61          [(ii)] (v) Upon an applicant's request, the culinary water authority shall provide the
62     applicant with the basis for the culinary water authority's calculations under Subsection
63     (3)(a)(i) on which an exaction for a water interest is based.
64          (b) A municipality may not impose an exaction for a water interest if the culinary water
65     authority's existing available water interests exceed the water interests needed to meet the
66     reasonable future water requirement of the public, as determined under Subsection
67     73-1-4(2)(f).
68          (4) (a) If a municipality plans to dispose of surplus real property that was acquired
69     under this section and has been owned by the municipality for less than 15 years, the
70     municipality shall first offer to reconvey the property, without receiving additional
71     consideration, to the person who granted the property to the municipality.
72          (b) A person to whom a municipality offers to reconvey property under Subsection
73     (4)(a) has 90 days to accept or reject the municipality's offer.
74          (c) If a person to whom a municipality offers to reconvey property declines the offer,
75     the municipality may offer the property for sale.
76          (d) Subsection (4)(a) does not apply to the disposal of property acquired by exaction by
77     a community reinvestment agency.
78          Section 2. Section 17-27a-507 is amended to read:
79          17-27a-507. Exactions -- Exaction for water interest -- Requirement to offer to
80     original owner property acquired by exaction.
81          (1) A county may impose an exaction or exactions on development proposed in a land
82     use application, including, subject to Subsection (3), an exaction for a water interest, if:
83          (a) an essential link exists between a legitimate governmental interest and each
84     exaction; and
85          (b) each exaction is roughly proportionate, both in nature and extent, to the impact of
86     the proposed development.
87          (2) If a land use authority imposes an exaction for another governmental entity:
88          (a) the governmental entity shall request the exaction; and
89          (b) the land use authority shall transfer the exaction to the governmental entity for
90     which it was exacted.
91          (3) (a) (i) [A] Subject to the requirements of this Subsection (3), a county or, if
92     applicable, the county's culinary water authority shall base any exaction for a water interest on
93     the culinary water authority's established calculations of projected water interest requirements.
94          (ii) Except as described in Subsection (3)(a)(iii), a culinary water authority shall base
95     an exaction for a culinary water interest on:
96          (A) consideration of the system-wide minimum sizing standards established for the
97     culinary water authority by the Division of Drinking Water pursuant to Section 19-4-114; and
98          (B) the number of equivalent residential connections associated with the culinary water
99     demand for each specific development proposed in the development's land use application,
100     applying lower exactions for developments with lower equivalent residential connections as
101     demonstrated by at least five years of usage data for like land uses within the county.
102          (iii) A county or culinary water authority may impose an exaction for a culinary water
103     interest that results in less water being exacted than would otherwise be exacted under
104     Subsection (3)(a)(ii) if the county or culinary water authority, at the county's or culinary water
105     authority's sole discretion, determines there is good cause to do so.
106          (iv) A county shall make public the methodology used to comply with Subsection
107     (3)(a)(ii)(B). A land use applicant may appeal to the county's governing body an exaction
108     calculation used by the county or the county's culinary water authority under Subsection
109     (3)(a)(ii). A land use applicant may present data and other information that illustrates a need
110     for an exaction recalculation and the county's governing body shall respond with due process.
111          [(ii)] (v) Upon an applicant's request, the culinary water authority shall provide the
112     applicant with the basis for the culinary water authority's calculations under Subsection
113     (3)(a)(i) on which an exaction for a water interest is based.
114          (b) A county or its culinary water authority may not impose an exaction for a water
115     interest if the culinary water authority's existing available water interests exceed the water
116     interests needed to meet the reasonable future water requirement of the public, as determined
117     under Subsection 73-1-4(2)(f).
118          (4) (a) If a county plans to dispose of surplus real property under Section 17-50-312
119     that was acquired under this section and has been owned by the county for less than 15 years,
120     the county shall first offer to reconvey the property, without receiving additional consideration,
121     to the person who granted the property to the county.
122          (b) A person to whom a county offers to reconvey property under Subsection (4)(a) has
123     90 days to accept or reject the county's offer.
124          (c) If a person to whom a county offers to reconvey property declines the offer, the
125     county may offer the property for sale.
126          (d) Subsection (4)(a) does not apply to the disposal of property acquired by exaction by
127     a community development or urban renewal agency.
128          Section 3. Section 17-41-402.5 is amended to read:
129          17-41-402.5. Limits on political subdivisions with respect to a vested mining use --
130     Exception.
131          (1) A political subdivision may not:
132          (a) terminate a vested mining use, whether by amortization, the exercise of police
133     power, or otherwise;
134          (b) prohibit, restrict, or otherwise limit a mine operator with a vested mining use from
135     exercising the rights permitted under this chapter;
136          (c) require, for a vested mining use:
137          (i) a variance;
138          (ii) a conditional use permit;
139          (iii) a special exception;
140          (iv) the establishment or determination of a nonconforming use right; or
141          (v) any other type of zoning or land use permit; or
142          (d) prohibit, restrict, limit, or otherwise regulate a vested mining use under a variance,
143     conditional use permit, special exception, or other zoning or land use permit issued before May
144     12, 2009.
145          (2) Subsection (1) does not prohibit a political subdivision from requiring a vested
146     mining use to comply with the generally applicable, reasonable health and safety regulations
147     and building code adopted by the political subdivision including a drinking water protection
148     zone as defined and limited to [Subsection] [19-4-113(4)(a)] Subsections 19-4-113(5)(a) and
149     (b).
150          Section 4. Section 17B-1-120 is amended to read:
151          17B-1-120. Exactions -- Exaction for water interest -- Requirement to offer to
152     original owner property acquired by exaction.
153          (1) A local district may impose an exaction on a service received by an applicant,
154     including, subject to Subsection (2), an exaction for a water interest if:
155          (a) the local district establishes that a legitimate local district interest makes the
156     exaction essential; and
157          (b) the exaction is roughly proportionate, both in nature and extent, to the impact of the
158     proposed service on the local district.
159          (2) (a) (i) [A] Subject to the requirements of this Subsection (2), a local district shall
160     base an exaction for a water interest on the culinary water authority's established calculations of
161     projected water interest requirements.
162          (ii) Except as described in Subsection (2)(a)(iii), a culinary water authority shall base
163     an exaction for a culinary water interest on:
164          (A) consideration of the system-wide minimum sizing standards established for the
165     culinary water authority by the Division of Drinking Water pursuant to Section 19-4-114; and
166          (B) the number of equivalent residential connections associated with the culinary water
167     demand for each specific development proposed in the development's land use application,
168     applying lower exactions for developments with lower equivalent residential connections as
169     demonstrated by at least five years of usage data for like land uses within the local district.
170          (iii) A local district may impose an exaction for a culinary water interest that results in
171     less water being exacted than would otherwise be exacted under Subsection (2)(a)(ii) if the
172     local district, at the local district's sole discretion, determines there is good cause to do so.
173          (iv) A local district shall make public the methodology used to comply with Subsection
174     (2)(a)(ii)(B). A service applicant may appeal to the local district's governing body an exaction
175     calculation used by the local district under Subsection (2)(a)(ii). A service applicant may
176     present data and other information that illustrates a need for an exaction recalculation and the
177     local district's governing body shall respond with due process.
178          [(ii)] (v) If requested by a service applicant, the culinary authority shall provide the
179     basis for the culinary water authority's calculations described in Subsection (2)(a)(i).
180          (b) A local district may not impose an exaction for a water interest if the culinary water
181     authority's existing available water interests exceed the water interests needed to meet the
182     reasonable future water requirement of the public, as determined in accordance with Section
183     73-1-4.
184          (3) (a) If a local district plans to dispose of surplus real property that was acquired
185     under this section and has been owned by the local district for less than 15 years, the local
186     district shall offer to reconvey the surplus real property, without receiving additional
187     consideration, first to a person who granted the real property to the local district.
188          (b) The person described in Subsection (3)(a) shall, within 90 days after the day on
189     which a local district makes an offer under Subsection (3)(a), accept or reject the offer.
190          (c) If a person rejects an offer under Subsection (3)(b), the local district may sell the
191     real property.
192          Section 5. Section 19-4-113 is amended to read:
193          19-4-113. Water source protection ordinance .
194          (1) As used in this section, "municipality" means the same as that term is defined in
195     Section 10-1-104.
196          [(1)] (2) (a) Before May 3, 2010, a first or second class county shall:
197          (i) adopt an ordinance in compliance with this section after:
198          (A) considering the rules established by the board to protect a watershed or water
199     source used by a public water system;
200          (B) consulting with a wholesale water supplier or retail water supplier whose drinking
201     water source is within the county's jurisdiction;
202          (C) considering the effect of the proposed ordinance on:
203          (I) agriculture production within an agricultural protection area created under Title 17,
204     Chapter 41, Agriculture, Industrial, or Critical Infrastructure Materials Protection Areas; and
205          (II) a manufacturing, industrial, or mining operation within the county's jurisdiction;
206     and
207          (D) holding a public hearing in accordance with Title 52, Chapter 4, Open and Public
208     Meetings Act; and
209          (ii) file a copy of the ordinance with the board.
210          (b) A municipality in a first or second class county may adopt an ordinance that a first
211     or second class county is required to adopt by this section by following the procedures and
212     requirements of this section.
213          [(2)] (3) (a) A county ordinance adopted in accordance with this section applies to the
214     incorporated and unincorporated areas of the county unless a municipality adopts an ordinance
215     in accordance with this section.
216          (b) A municipal ordinance adopted in accordance with this section supercedes, within
217     the municipality's jurisdiction, a county ordinance adopted in accordance with this section.
218          [(3)] (4) An ordinance required or authorized by this section at a minimum shall:
219          (a) designate a drinking water source protection zone in accordance with Subsection
220     [(4)] (5) for a groundwater source that is:
221          (i) used by a public water system; and
222          (ii) located within the county's or municipality's jurisdiction;
223          (b) contain a zoning provision regulating the storage, handling, use, or production of a
224     hazardous or toxic substance within a drinking water source protection zone designated under
225     Subsection [(3)(a)] (4)(a); and
226          (c) authorize a retail water supplier or wholesale water supplier to seek enforcement of
227     the ordinance provision required by Subsections [(3)(a)] (4)(a) and (b) in a district court
228     located within the county or municipality if the county or municipality:
229          (i) notifies the retail water supplier or wholesale water supplier within 10 days of
230     receiving notice of a violation of the ordinance that the county or municipality will not seek
231     enforcement of the ordinance; or
232          (ii) does not seek enforcement within two days of a notice of violation of the ordinance
233     when the violation may cause irreparable harm to the groundwater source.
234          [(4)] (5) A county shall designate a drinking water source protection zone required by
235     Subsection [(3)(a)] (4)(a) within:
236          (a) a 100 foot radius from the groundwater source; and
237          (b) a 250 day groundwater time of travel to the groundwater source if the supplier
238     calculates the time of travel in the public water system's drinking water source protection plan
239     in accordance with board rules.
240          [(5)] (6) A zoning provision required by Subsection [(3)(b)] (4)(b) is not subject to
241     Subsection 17-41-402(3).
242          [(6)] (7) An ordinance authorized by Section 10-8-15 supercedes an ordinance required
243     or authorized by this section to the extent that the ordinances conflict.
244          [(7)] (8) The board shall[:]
245          [(a)] provide information, guidelines, and technical resources to a county or
246     municipality preparing and implementing an ordinance in accordance with this section[; and]
247          [(b) report to the Natural Resources, Agriculture, and Environment Interim Committee
248     before November 30, 2010 on:]
249          [(i) compliance with this section's requirement to adopt an ordinance to protect a public
250     drinking water source; and]
251          [(ii) the effectiveness of the ordinance in retaining state primacy in regulating drinking
252     water].
253          (9) A third, fourth, fifth, or sixth class county or a municipality located within a third,
254     fourth, fifth, or sixth class county may adopt an ordinance in accordance with this section to
255     establish a drinking water source protection zone and take any other action allowed under this
256     section.