- Governor Jon Huntsman signed Ceremonial Water Right Bill
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SIGNING THE BILL • Governor Huntsman signs the Ceremonial Water Right Bill in the Nephi City Chambers. Attending the signing were Representative Patrick Painter; Senator Margaret Dayton; Representative Neal B. Hendrickson; Nephi Mayor Mark Jones; Payson Mayor Burtis Bills; Nephi City Council members Justin Seely and Robert Painter; and Randy McKnight, Nephi City Administrator all gathered in the council chambers for the event. Several members of the Painter family, Seely’s son, and interested citizens were also on hand for the signing.
By Myrna Trauntvein
Times-News Correspondent
It was an historic day in Nephi when Governor Jon Huntsman signed a Ceremonial Water Right Bill in Nephi City Council Chambers on Thursday, May 8.
Huntsman had to perform the ceremonial signing with his left hand because of recent surgery but asked for help from young residents in holding the document still and in affixing the date to the signed copies.
Governor Huntsman; Representative Patrick Painter; Senator Margaret Dayton; Representative Neal B. Hendrickson; Nephi Mayor Mark Jones; Payson Mayor Burtis Bills; Nephi City Council members Justin Seely and Robert Painter; and Randy McKnight, Nephi City Administrator all gathered in the council chambers for the event.
Several members of the Painter family, Seely’s son, and interested citizens were also on hand for the signing.
Huntsman said when Painter first proposed the historic legislation, he was not certain it could be successful. In the first place, similar proposals had been unsuccessful in the recent past.
“We are here today to recognize and salute the work of a couple of great legislators,” said Huntsman.
He said he thought, if Painter could bring about this legislation, the next step for him to undertake would be to bring about peace in the middle east.
“HB 51: Water Right Amendments, is really the result of hard work,” said Huntsman.
In 1989, the state Supreme Court found that Nephi would lose a water right. That was a “sad day,” said Painter.
The court document of 1989 read: “Nephi City argues that under section 73-1-4 it is too easy for a municipality to inadvertently forfeit its water rights through nonuse by overlooking the need to file an application for an extension, as permitted by the statute. If this is a real problem, the legislature is fully capable of crafting a remedy. The remedy is not to rigidify municipal water rights, with attendant unforeseen consequences, by holding that municipal rights cannot be forfeited,” ruled Gordon R. Hall, Chief Justice, Richard C. Howe, Associate Chief Justice, I. Daniel Stewart, Justice, Christine M. Durham, Justice.
“It’s interesting that the Supreme Court invited the Legislature to fix this problem in their decision,” said Patrick Painter. “They said to the effect ‘if this is a problem, the Legislature is fully capable of crafting a remedy’. We finally got around to it. It is also interesting in the Constitution that the framers would not allow a city to sell its water rights so I believe they didn’t really want a City to lose them because of forfeiture. The Court interpreted the Constitution differently.”
The history that helped prompt the legislation was that Nephi City acquired four nonconsumptive water rights on a creek and used them to generate electricity. A flood destroyed the diversion and conveying works, and the city did not use the water rights for several years. It proposed to construct a new hydroelectric facility and filed applications with the State Engineer to permanently change the points of diversion specified for its water rights. The Division of Wildlife Resources protested the applications. The State Engineer rejected the applications on the ground that because the water rights had not been used for a period exceeding five years they had been forfeited. The city appealed to the district court, which granted the State Engineer and Division of Wildlife Resources summary judgment.
The court stated that Section 73-1-4 provided that when an appropriator abandoned or ceased to use water for five years the right ceased and the water reverted to the public. It was not inconsistent with Utah the Constitution which barred voluntary transfers, not involuntary transfers.
“I have never seen anyone work as hard on a bill as Patrick did,” said Hendrickson.
Painter said that Duchesne County was now facing a problem similar to that faced by Nephi in 1989, that the new legislation, had it been in place in advance, would have prevented in both cases.
“It speaks to the importance of this bill that there are three columns of sponsors,” said Dayton.
Water is a primary issue in a desert state such as Utah, she said, and the legislation was highly important.
“HB51S5 Water Right Forfeiture Protection, sponsored and shepherded by Representative Patrick Painter, of Nephi, UT, was the Utah League of Cities and Towns’ highest legislative priority during the 2008 legislative session,” said Jodi Hoffman, ULCT Water Consultant.
“The bill was the product of the unprecedented cooperation of a coalition of public and private water suppliers, led by the patience, wisdom and dogged-determination of Representative Painter.”
Hoffman said the law now affirmatively acknowledges that cities and towns must plan for growth and that the water rights laws must allow cities and towns to plan and supply water for the growth within their long term planning horizon. Further, it allows water users to conserve water and protect their water rights.
“Before HB51, state law literally encouraged public water suppliers to waste water as the only means to protect their valid water rights for future users. With HB51, all water suppliers can legally adopt far more responsible water management programs.” Hoffman said.
Painter’s efforts to forge consensus among public and private water suppliers, non-profit water rights holders, water share holders, farmers, irrigators, and individual water rights holders won the support of peers and the admiration and appreciation of the Utah League of Cities and Towns.
“In my years with the ULCT, I have rarely witnessed a legislator who was willing to take on such a massive and complicated effort and succeed with the grace and dignity that we witnessed in Representative Painter,” said Hoffman. “Without Representative Painter’s uncommon leadership, it would be hard to imagine how such a comprehensive piece of legislation could have been successful. Communities throughout the state owe Representative Painter and the entire 2008 legislature a huge debt of gratitude.”
Rural Water Association of Utah’s (RWAU) supported passage of this bill during the 2008 Legislative Session.
“Our Association believes that public drinking water systems being able to hold water rights for the future needs of the public is an essential part of a system’s planning for future growth and economic development,” said Dale Pierson, Executive Director. “We also felt it was necessary to finally recognize that privately owned drinking water systems fulfill the same function for their customers as do those that are governmentally owned, that private systems also need to plan for future growth and therefore also need to hold water rights for the future.”
Painter said that Alaska, Wyoming, and until this legislation was passed, Utah, were the only states that did not have legislation to protect water right forfeiture protection.
Alaska, of course, has significant amounts of rainfall.
“As for Wyoming, we have more kids in public education than they have population in their state,” he said.
Highlighted provisions of the bill are that it changes the nonuse period of a water right; clarifies the forfeiture procedure and the distribution of water after a forfeiture; allows a shareholder to file a nonuse application.
It protects a water right from forfeiture if: a public water supplier holds the water for the reasonable future water requirements of the public and in some cases, receives approval of a change application; the land where the water is used is under a fallowing program; water is not available because of distribution based on priority date; the water is stored in an aquifer; a storage water right is not used in certain circumstances; and another water source is available for the beneficial use.
The new legislation establishes how the reasonable future water requirements of the public are determined; describes how a community water system’s projected service area is determined; changes the requirements for a nonuse application; clarifies the effect of a nonuse application; allows an applicant to file a subsequent nonuse application.
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