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Governor endorses water rights bill sponsored by District 67 representative

Juab Times-News correspondent

On May 8, Gov. Jon Huntsman signed the state's ceremonial water rights bill in Nephi.

Huntsman, Utah Rep. Patrick Painter, Sen. Margaret Dayton, Rep. Neal Hendrickson, Nephi Mayor Mark Jones, Payson Mayor Burtis Bills, Nephi councilmembers Justin Seely and Robert Painter and Nephi city administrator Randy McKnight participated in the event.

When Painter proposed the historic legislation, the governor said he was not certain the bill could be successful. Painter represents Utah House District 67 which encompasses the western part of Carbon County,

"We are here today to recognize and salute the work of a couple of great legislators," said Huntsman.

If Painter could bring about the legislation, the governor said he thought the next step for him to undertake would be to bring about peace in the Middle East.

In 1989, the Utah Supreme Court found that Nephi would lose a water right. That was a "sad day," said Painter.

The court's ruling read:

"Nephi city argues that under section 73-1-4 it is too easy for a municipality to inadvertently forfeit its water rights through non-use 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.

The decision was issued by Utah Supreme Court Chief Justice Gordon Hall, associate chief justice Richard Howe, Justice Daniel Stewart, Justice and Justice Christine Durham.

"It's interesting that the supreme court invited the Legislature to fix this problem in their decision," said 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 non-consumptive water rights on a creek and used them to generate electricity.

After a flood destroyed the diversion and conveying works, Nephi did not use the water rights for several years.

Nephi proposed to construct a new hydroelectric facility and filed applications with the state engineer's office to permanently change the points of diversion specified for its water rights.

The Utah Division of Wildlife Resources protested the applications.

The state engineer rejected the city's applications on the ground that, because the water rights had not been used for a period exceeding five years, they had been forfeited.

Nephi appealed the matter to the district court, which granted the state engineer's office and DWR a summary judgment.

The district 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.

The district court ruling was not inconsistent with the 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 Duchesne County was currently facing a problem similar to the 1989 situation encountered by Nephi. Had the water right legislation been in place in advance, the bill would have prevented the problem 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 and the legislation was highly important, added the state senator.

"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 Rep. Painter," said Jodi Hoffman, Utah League of Cities and Towns water consultant.

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, the legislation allows users to conserve water and protect their rights.

"Before HB-51, state law literally encouraged public water suppliers to waste water as the only means to protect their valid water rights for future users. With HB-51, all water suppliers can legally adopt far more responsible water management programs," pointed out Hoffman

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 appreciation of the ULCT.

"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 Rep. Painter," continued Hoffman. "Without Rep. 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 Rep. Painter and the entire 2008 Legislature a huge debt of gratitude."

The Rural Water Association of Utah's (RWAU) also supported passage of the 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 of the RWAU. "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."

Alaska, Wyoming and, until the 2008 bill was passed, Utah were the only states that did not have legislation to protect water right forfeiture protection, said Painter.

The 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 non-use application, clarifies the effect of a non-use application and allows an applicant to file a subsequent non-use application.

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