73-3d - Water Preferences During Emergencies
Title 73 > 73-3d
Sections (9)
General Provisions
73-3d-101 - Definitions.
As used in this chapter:
(1) “Electric utility” means:a municipal electric utility, as defined in Section 10-19-102;an electric interlocal entity, as defined in Section 11-13-103;an energy services interlocal entity, as defined in Section 11-13-103;a project entity, as defined in Section 11-13-103;an electric improvement district, as defined in Section 17B-2a-406; oran electrical corporation, as defined in Section 54-2-1.
(2) “Local food” means the same as that term is defined in Section 4-1-109.
(3) “Military facility” means an installation, base, air field, camp, post, station, yard, center, or other facility owned, leased, or operated by, or under the jurisdiction of, the United States Department of Defense or the National Guard.
(4) “Person entitled to make a request” means:the holder of an approved but unperfected application to appropriate water;the record owner of a perfected water right; ora person who provides water using an approved but unperfected application or a perfected water right with the written authorization of a person described in Subsection (4)(a) or (b).
(5) “Temporary water shortage emergency” means an interruption of water delivery for which the governor may declare an emergency in accordance with Section 73-3d-201.
Amended by Chapter 152, 2024 General Session
73-3d-102 - Scope of chapter.
(1) The powers vested in the governor under this chapter are in addition to, and not in lieu of, any other emergency powers otherwise statutorily vested in the governor, including the power of the governor to authorize the use of water sources as necessary for fire suppression under Subsection 53-2a-204(1)(o).An executive order of the governor declaring a temporary water shortage emergency under this chapter is not a declaration of a state of emergency under Section 53-2a-206 and is not subject to Title 53, Chapter 2a, Part 2, Disaster Response and Recovery Act. To exercise an authority granted under Title 53, Chapter 2a, Part 2, Disaster Response and Recovery Act, related to a declaration of a state of emergency, the governor shall issue an executive order that is separate from an executive order declaring a temporary water shortage emergency.
(2) Nothing in this chapter modifies: the statutory duties of the state engineer under this title; orexcept as specifically provided in an executive order declaring a temporary water shortage emergency, Subsection 73-3-1(5)(a) or Section 73-3-21.1.
(3) Nothing in this chapter may be construed to extend or enlarge the powers of the governor except as specifically stated in this chapter.
Enacted by Chapter 126, 2023 General Session
Declaration of Temporary Water Shortage Emergency
73-3d-201 - Declaration of a temporary water shortage emergency by the governor.
(1) Subject to the requirements of this section, the governor may declare a temporary water shortage emergency by issuing an executive order if, on the governor’s own initiative or at the request of a person entitled to make a request, the governor determines that an existing or imminent short-term interruption of water delivery in this state caused by manmade or natural causes other than drought:threatens:the availability or quality of an essential water supply or water supply infrastructure; orthe operation of the economy; andbecause of the threats described in Subsection (1)(a)(i), jeopardizes the peace, health, safety, or welfare of the people of this state.The governor may only issue the executive order declaring a temporary water shortage emergency described in Subsection (1)(a):with the advice and recommendation of the state engineer; andin consultation with the emergency management administration council created by Section 53-2a-105.An executive order issued under this Subsection (1) shall state with specificity:the nature of the interruption of water supply;subject to Subsection (2), the time period for which the temporary water shortage emergency is declared;a description of the geographic area that is subject to the executive order;a list of the specific persons entitled to make a request who may exercise the preferential use of water under Section 73-3d-301 during the effective period of the temporary water shortage emergency; andthe purposes outlined in Subsection 73-Ch73_3d|73-3d-301] for which a person who is described in Subsection (1)(c)(iv) may take the water subject to Section 73-3d-301.Subject to the provisions of Title 13, Chapter 41, Price Controls During Emergencies Act, an executive order issued under this Subsection (1) may not control the distribution or sale price of local food.Before providing a recommendation to the governor under Subsection (1)(b)(i), the state engineer shall require a person entitled to make a request who is described in Subsection (1)(c)(iv) to provide a written statement describing how the person entitled to make a request has exhausted other reasonable means to acquire water.A person entitled to make a request who is described in Subsection (1)(c)(iv) may take water preferentially during a temporary water shortage emergency only for a purpose authorized by the executive order.Within seven calendar days of the day on which the governor issues an executive order declaring a temporary water shortage emergency, the Legislative Management Committee shall:review the executive order;advise the governor on the declaration of a temporary water shortage emergency; andrecommend to the Legislature whether the executive order should be kept as issued by the governor, extended, or terminated.The failure of the Legislative Management Committee to meet as required by Subsection (1)(g)(i) does not affect the validity of the executive order declaring a temporary water shortage emergency.
(2) The governor shall state in an executive order declaring a temporary water shortage emergency the time period for which the temporary water shortage emergency is declared, except that the governor may not declare a temporary water shortage emergency for longer than 30 days after the date the executive order is issued.The governor may terminate an executive order declaring a temporary water shortage emergency before the expiration of the time period stated in the executive order.An executive order declaring a temporary water emergency issued by the governor within 30 days of the expiration or termination of a prior executive order for the same emergency is considered an extension subject to Subsection (2)(e).The Legislature may extend the time period of an executive order declaring a temporary water shortage emergency by joint resolution, except that the Legislature may not extend a temporary water shortage emergency for longer than one year from the day on which the executive order declaring a temporary water shortage emergency is issued.An executive order declaring a temporary water shortage emergency may be renewed or extended only by joint resolution of the Legislature.
Amended by Chapter 152, 2024 General Session
73-3d-202 - Existing agencies to be used in implementation.
The governor shall use, to the extent practicable, existing state boards, commissions, or agencies, or officers or employees for the purpose of carrying out this chapter.
Enacted by Chapter 126, 2023 General Session
Preferences Under a Temporary Water Shortage Emergency
73-3d-301 - Preferences between persons using water.
(1) Notwithstanding Section 73-3-21.1, if the governor issues an executive order declaring a temporary water shortage emergency under this chapter: use of water is preferred over other water use during the time period of the temporary water shortage emergency under the executive order if the water is used in accordance with the executive order:for one or more of the following purposes, with preference exercised in the order listed: drinking;sanitation;fire suppression;commercial agriculture animal welfare needs; orgeneration of electricity; andby one of the following: a public water supplier, as defined in Section 73-1-4;a military facility that was in operation on March 10, 2011;a commercial agriculture operation for purposes described in Subsection (1)(a)(i)(D); oran electric utility; anduse of water for agricultural purposes, including irrigation, livestock watering, or food processing, is preferred over other rights, except as provided in Subsection (1)(a).
(2) A preference for fire suppression under Subsection (1) is in addition to the governor’s authorization to use water sources as necessary for fire suppression under Subsection 53-2a-204(1)(o).
(3) The state engineer shall determine, consistent with the executive order declaring a temporary water shortage emergency, through a priority schedule, which water rights a person specified in the executive order as required by Subsection 73-3d-201(1)(c)(iv) may interrupt for purposes of this section.
(4) A person entitled to make a request who uses water preferentially during a temporary water shortage emergency shall measure the water taken preferentially during the temporary water shortage emergency.A duty to measure under this Subsection (4) does not replace or modify any other duty to measure water under this title or rules made under this title.
Enacted by Chapter 126, 2023 General Session
73-3d-302 - Emergency planning by a person requesting the declaration of a temporary water shortage emergency.
A person entitled to make a request seeking a preference under Section 73-3d-301 by requesting that the governor declare a temporary water shortage emergency may exercise a preference under Section 73-3d-301 only if:
(1) the person entitled to make a request adopts an emergency response plan before the declaration of a temporary water shortage emergency if the person entitled to make a request is a community water system, as defined in Section 19-4-102, serving a population of more than 3,300; orthe governor includes a statement in the executive order that the person entitled to make a request is eligible to exercise a preference under Section 73-3d-301 notwithstanding that the person entitled to make a request who is described in Subsection (1)(a) has not adopted an emergency response plan before the declaration of a temporary water shortage emergency; or
(2) the person entitled to make a request is not described in Subsection (1)(a).
Enacted by Chapter 126, 2023 General Session
Compensation
73-3d-401 - Definitions.
As used in this part:
(1) “Arbitration” means a private hearing before a neutral or panel of neutrals from the department who hear the evidence, consider the contentions of the parties, and enters a written award to resolve the issues presented.
(2) “Commission” means the Conservation Commission created in Section 4-18-104.
(3) “Consequential damages” means the losses or injuries from the exercise of a preference under this chapter that result in material losses to an interrupted user and that are reasonably foreseeable to someone familiar with the industry where use is being made of the water at the time the preference is exercised, including: loss of sales or operating revenue;damage to equipment; ordamage to capital facilities or operational assets.
(4) “Department” means the Department of Agriculture and Food.
(5) “Fund” means the Agriculture Resource Development Fund created in Section 4-18-106.
(6) “Interrupted user” means a person whose beneficial use of water is interrupted by the preferential use of water under this chapter, and is: the holder or lessee of an approved application to appropriate water that is interrupted;the record or equitable holder or lessee of a perfected water right that is interrupted; orthe owner, lessor, or lessee of a right to use water that is represented by shares of stock in a mutual water company whose water rights are interrupted.
(7) “Mediation” means a private forum in which one or more impartial persons from the department facilitate communication between the interrupted user and the preferential user to promote a mutually acceptable resolution or settlement.
(8) “Preferential user” means a person specified in the executive order declaring a temporary water shortage emergency who uses water preferentially during the temporary water shortage emergency.
Enacted by Chapter 126, 2023 General Session
73-3d-402 - Payment of compensation.
(1) A preferential user shall pay an interrupted user an amount equal to the total of the following:the reasonable value of the water interrupted by the preferential use;applicable crop losses;other consequential damages incurred as a result of the interruption; andinterest on the amounts described in Subsections (1)(a)(i), (ii), and (iii) in the amount of 8% per annum.Interest described in Subsection (1)(a)(iv) shall start the day on which the preferential user first begins to take water preferentially.A preferential user shall pay an interrupted user the amount described in Subsection (1)(a) by the later of 30 days from the day on which:the preferential user stops diverting water preferentially under this chapter; ormediation or arbitration under Subsection (2) is complete.Once an interrupted user informs the preferential user of the amount owed under Subsection (1)(a), the preferential user has the burden of proof to prove, by a preponderance of the evidence, that an amount different from that asserted by the interrupted user is owed under Subsection (1)(a).The burden of proof described in this Subsection (1)(d) applies throughout the process of paying compensation, including during mediation, arbitration, or a court action.
(2) If the interrupted user or the preferential user requests mediation, the department shall mediate a dispute over the application of this section.If the interrupted user and the preferential user jointly request arbitration, the department shall arbitrate a dispute over the application of this section.In conducting mediation under this Subsection (2), Title 78B, Chapter 10, Utah Uniform Mediation Act, applies.In conducting arbitration under this Subsection (2), the department shall follow the Title 78B, Chapter 11, Utah Uniform Arbitration Act.In applying Title 78B, Chapter 11, Utah Uniform Arbitration Act, the arbitrator and parties shall treat the matter as if: the arbitration was ordered by a court; andthe department was appointed as arbitrator by the court.For the purpose of an arbitration conducted under this section, if the dispute to be arbitrated is not already the subject of legal action, the district court having jurisdiction over the county where the preferential use of water involved in the dispute is located is the court referred to in Title 78B, Chapter 11, Utah Uniform Arbitration Act.Arbitration by the department is not necessary before bringing legal action to adjudicate a claim under this section. The lack of arbitration by the department does not constitute, and may not be interpreted as constituting, a failure to exhaust available administrative remedies or as a bar to bringing legal action.Arbitration under this section is not subject to Title 63G, Chapter 4, Administrative Procedures Act, or Title 78B, Chapter 6, Part 2, Alternative Dispute Resolution Act.Within 30 days after an arbitrator issues a final award, any party to the arbitration may submit the dispute, the award, or any issue upon which the award is based, to the district court for review by trial de novo unless the parties agree in advance of arbitration that the arbitration is binding and that no de novo review may occur.
(3) If the persons described in Subsection (2) participate in mediation or arbitration under Subsection (2), at the conclusion of the mediation or arbitration, the preferential user shall pay the interrupted user an amount equal to the lesser of:the amount of actual attorney fees incurred; or$15,000.An interrupted user or preferential user may not seek mediation or arbitration by the Office of the Property Rights Ombudsman under Title 13, Chapter 43, Property Rights Ombudsman Act.
(4) In an action when the court is asked to determine the amount described in Subsection (1), the court shall award costs and reasonable attorney fees: to the interrupted user if the preferential user declines to participate in mediation or arbitration under Subsection (2);to the preferential user if the interrupted user declines to participate in mediation or arbitration under Subsection (2);to the interrupted user if the amount determined by the court is 85% or more of:the final amount offered by the interrupted user as part of the mediation described in Subsection (2)(a); orthe final amount determined by the department as a result of arbitration described in Subsection (2); andto the preferential user if the amount determined by the court is less than 85% of:the final amount offered by the interrupted user as part of the mediation described in Subsection (2)(a); orthe final amount determined by the department as a result of arbitration described in Subsection (2).
(5) In accordance with this Subsection (5), an interrupted user may apply for one or more 0% interest loans from the commission to compensate the interrupted user while the interrupted user is waiting to be compensated by the preferential user under this section.Before the commission may make a loan under this Subsection (5) to an interrupted user, the interrupted user shall apply for the loan by:providing information sufficient to establish to the satisfaction of the commission: the basis by which the person is entitled to use of the water;the use of water that would have been made by the person without the interruption;the length of the interruption;a good faith estimate of the amount of water the person entitled to the use of water would otherwise have made;the losses and consequential damages incurred as a result of the interruption; andwhether the interrupted user has previously received a loan under this Subsection (5) for the same interruption of water use;agreeing in writing to repay the amount of a loan within 30 days of the day on which the interrupted user is paid in full by the preferential user; andproviding any other information required by rules made by the department in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.Once the commission obtains a complete application under Subsection (5)(b), the commission shall determine whether the interrupted user is eligible for a loan and the amount to be loaned using reliable third-party market and producer information, when available, as close as possible to the beginning date of the water delivery interruption, except that a single loan may not exceed $150,000.For agriculture commodities, the commission may determine unit prices and base adjustments by using: applicable United States Department of Agriculture crop pricing data sets;Utah State University Extension data sets; andpublications, fact sheets, and enterprise budgets data sets published by a university.For agriculture commodities, the commission may consider documents filed under Subsection (5)(b) to establish historical production records provided by the interrupted user.For nonagricultural products or services, the commission may determine the loan amount using information from: other state agencies;federal agencies; andindustry leaders within the state associated with the goods or service forgone by the interrupted user.For nonagricultural products or services, the commission shall determine the quantity of units of nonagricultural good and services during the temporary water shortage emergency by using: industry standards, if available; orrecent product or service records.The commission may issue a loan to an interrupted user only to the extent that there is money in the fund and the limit on outstanding loans from the fund under Subsection 4-18-106(6) has not been met. The commission shall issue loans from the fund in the order that an interrupted user submits a completed application for the loan.An interrupted user who receives a loan under this Subsection (5) shall repay the amount of the loan within 30 days of the day on which the interrupted user is paid in full by the preferential user.
(6) If the department determines that the preferential user fails to comply with Subsection (1), the department may bring suit in a court of competent jurisdiction to require a preferential user to reimburse the fund for a loan issued under Subsection (5) that is based on the use of the water by the preferential user.If the department determines that an interrupted user fails to repay a loan in accordance with Subsection (5), the department may bring suit in a court of competent jurisdiction to require repayment of the loan.If the department prevails in an action brought under this Subsection (6), the department may recover amounts owed, court costs, and reasonable attorney fees.
(7) The department shall establish by rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, procedures to: request mediation or arbitration under this section;apply for a loan under Subsection (5);determine the amount to be loaned to an interrupted user under Subsection (5); andprovide for the repayment of a loan issued under Subsection (5).
Enacted by Chapter 126, 2023 General Session
73-3d-403 - Security requirements.
(1) As a condition of participating in mediation or arbitration under Section 73-3d-402, a person specified in the executive order declaring a temporary water shortage emergency shall post with the department a corporate surety bond, irrevocable letter of credit, trust fund agreement, or any other security agreement considered reasonable in an amount not less than $100,000.
(2) The bond or other security posted shall be conditioned upon: the faithful performance in mediation or arbitration; andthe payment of amounts owed under Section 73-3d-402.
(3) If the department determines that the conditions of Subsection (2) are not met, the commissioner of the department shall bring an action upon the bond or other security.
Enacted by Chapter 126, 2023 General Session