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Controversy continues over trio of Utah water reform measures

SALT LAKE CITY — Three measures that could invoke significant reforms to Utah water law and the state constitution continue to percolate with controversy that could once again derail their progress.

The two bills, SB17 and HB31, as well as HJR001, will be heard Friday morning in the House Natural Resources, Agriculture and Environmental Quality Committee.

On Thursday, the Utah League of Cities and Towns sent out an action alert based on information the organization had indicating possible "negative" revisions might surface at the meeting related to Sen. Ralph Okerlund's bill on extraterritorial jurisdiction, or SB17.

Ricco Cordova catches a fish in Big Cottonwood Creek on Sunday, Oct. 14, 2018.
Ricco Cordova catches a fish in Big Cottonwood Creek on Sunday, Oct. 14, 2018.
Scott G Winterton, Deseret News

The measure by Okerlund, R-Monroe, proposes to retool a law on the books since 1915 that grants extraterritorial jurisdiction to cities of the first class, like Salt Lake City and Provo, to manage an entire watershed even if it falls outside their municipal boundaries.

Other cities can exercise water protections 15 miles from the point of diversion and 300 feet on either side of the stream or river.

In a legislative briefing to a coalition of community councils earlier this year, attorney Nathan Bracken described the three-sentence law as a "Frankenstein document," because of its rambling ambiguity.

Extraterritorial jurisdiction, in one sense, gives rise to complaints by smaller cities or water districts that would like that same type of regulatory power, he said.

American Fork, one of his clients, expressed concern a couple of years ago over development and activity in American Fork Canyon because of a spring that supplies some of its water. It wanted to extend protections beyond its boundaries to the canyon.

On the flip side, Bracken said critics worry extraterritorial jurisdiction is a powerful land use tool.

"It does have the ability to impact properties," he said. "There's concern there is authority there and could be greatly abused."

Officials from Wasatch and Duchesne counties expressed concerns in the past that Salt Lake City could exercise its water muscle into the so-called Wasatch Back via the connectivity of watersheds.

Some lawmakers, too, have worried about potential recreational restrictions could be invoked at water supply reservoirs.

Okerlund's bill proposes to require written agreements if a first class city wants to exercise extra-jurisdictional authority outside of its county boundaries with cities and counties where the source water is, a public hearing and public notification to state water authorities.

Water flows down Big Cottonwood Creek in Big Cottonwood Canyon on Saturday, Dec. 13, 2014.
Water flows down Big Cottonwood Creek in Big Cottonwood Canyon on Saturday, Dec. 13, 2014.
Kristin Murphy, Deseret News

Rep. Kim Coleman, R-West Jordan, who is sponsoring HB31, said she thinks Okerlund's bill is a "big step toward mitigation of extraterritorial jurisdiction," but she questions if there will ever be a way to fully address concerns by non-residents.

"Where we find disenfranchisement is in customers who have no say in representative government, where there are land use impositions with no recourse," she said.

She said she remains critical of land use authority of "no bounds," that governs recreation and other activities in the Wasatch Canyons via a Salt Lake City watershed ordinance in place for decades.

"You can't have a picnic on your own property," she said. "There is a permitting process for that. What we see currently are land use restrictions that exceed protections by the (state) and EPA."

Beyond the issue of extraterritorial jurisdiction, non-residents being served by a water provider also lack recourse to hold people accountable, Coleman noted.

About a dozen homes in a rural area of the county are in White City, but get Sandy City water, which was contaminated with excess fluoride due to a malfunctioning pump.

Although the White City water district opted out of adding fluoride to the water, these homes were part of a different district acquired by Sandy City years ago.

"They have no say about the fluoride, they have no say in the water quality," she said.

The water reform measures surfaced in the 2018 legislative session, but were punted to specialized study committees over last summer to try to eke out compromise legislation to solve gaps or ambiguities in the law dealing with surplus water contracts, water service areas, the state constitution and other areas of conflict.

Laura Briefer, director of the Salt Lake City Division of Public Utilities, said she was disappointed to learn about efforts to change the extraterritorial bill.

"We went to the table in good faith to come up with some solutions everybody could agree on," she said.

Briefer also disputed Coleman's assertion on the watershed ordinance regulation of picnicking.

"I am not sure where that came from."

Coleman cited a section of city code which prohibits picnics in unapproved places.