Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 96 Second Substitute (2018GS)

Sponsor

Sen. Hinkins, D.

Final action

Governor Signed 3/20/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• provides a process for a property owner and the owner of a water conveyance facility to approve and move forward with a plan to modify a water conveyance facility;
• states that the Office of the Property Rights Ombudsman shall provide mediation and arbitration services to a property owner and facility owner when requested; and
• makes technical changes.

Every vote on this bill

Bill text

CANAL AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: David P. Hinkins
House Sponsor: 
Michael K. McKell
LONG TITLE
General Description:
This bill changes the procedure to modify a water conveyance facility.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ provides a process for a property owner and the owner of a water conveyance
facility to approve and move forward with a plan to modify a water conveyance
facility;
▸ states that the Office of the Property Rights Ombudsman shall provide mediation
and arbitration services to a property owner and facility owner when requested; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
13-43-204
, as last amended by Laws of Utah 2014, Chapter 59
73-1-15
, as last amended by Laws of Utah 2005, Chapter 215
ENACTS:
73-1-15.5
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
13-43-204
 is amended to read:
13-43-204.
Office of the Property Rights Ombudsman -- Arbitration or mediation
of disputes.
(1) If requested by the private property owner
, or in the case of a water conveyance
facility either the private property owner or the facility owner of the water conveyance facility,
and if otherwise appropriate, the Office of the Property Rights Ombudsman shall mediate, or
conduct or arrange arbitration for[
,
]
:
(a)
 a dispute between the owner and a government entity or other type of condemning
entity:
[
(a)
] 
(i)
 involving taking or eminent domain issues;
[
(b)
] 
(ii)
 involved in an action for eminent domain under Title 78B, Chapter 6, Part 5,
Eminent Domain; or
[
(c)
] 
(iii)
 involving relocation assistance under Title 57, Chapter 12, Utah Relocation
Assistance Act[
.
]
; or
(b) the private property owner and the facility owner of a water conveyance facility as
described in Section 
73-1-15.5
 regarding:
(i) the relocation of the water conveyance facility; or
(ii) a modification to the method of water delivery of the water conveyance facility.
(2) If arbitration or mediation is requested by a private property owner under this
section, Section 
57-12-14
,
 or 
78B-6-522
, 
or either the private property owner or the facility
owner of a water conveyance facility under Section 
73-1-15.5
,
 and arranged by the Office of
the Property Rights Ombudsman, the [
government entity or condemning entity
] 
parties
 shall
participate in the mediation or arbitration as if the matter were ordered to mediation or
arbitration by a court.
(3) (a) (i) In conducting or arranging for arbitration under Subsection (1), the Office of
the Property Rights Ombudsman shall follow the procedures and requirements of Title 78B,
Chapter 11, Utah Uniform Arbitration Act.
(ii) In applying Title 78B, Chapter 11, Utah Uniform Arbitration Act, the arbitrator and
parties shall treat the matter as if:
(A) it were ordered to arbitration by a court; and
(B) the Office of the Property Rights Ombudsman or other arbitrator chosen as
provided for in this section was appointed as arbitrator by the court.
(iii) 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 private property involved in the dispute is located is the court referred to
in Title 78B, Chapter 11, Utah Uniform Arbitration Act.
(iv) An arbitration award under this chapter may not be vacated under the provisions of
Subsection 
78B-11-124
(1)(e) because of the lack of an arbitration agreement between the
parties.
(b) The Office of the Property Rights Ombudsman shall issue a written statement
declining to mediate, arbitrate, or to appoint an arbitrator when, in the opinion of the Office of
the Property Rights Ombudsman:
(i) the issues are not ripe for review;
(ii) assuming the alleged facts are true, no cause of action exists under United States or
Utah law;
(iii) all issues raised are beyond the scope of the Office of the Property Rights
Ombudsman's statutory duty to review; or
(iv) the mediation or arbitration is otherwise not appropriate.
(c) (i) The Office of the Property Rights Ombudsman shall appoint another person to
arbitrate a dispute when:
(A) either party objects to the Office of the Property Rights Ombudsman serving as the
arbitrator and agrees to pay for the services of another arbitrator;
(B) the Office of the Property Rights Ombudsman declines to arbitrate the dispute for a
reason other than those stated in Subsection (3)(b) and one or both parties are willing to pay for
the services of another arbitrator; or
(C) the Office of the Property Rights Ombudsman determines that it is appropriate to
appoint another person to arbitrate the dispute with no charge to the parties for the services of
the appointed arbitrator.
(ii) In appointing another person to arbitrate a dispute, the Office of the Property Rights
Ombudsman shall appoint an arbitrator who is agreeable to:
(A) both parties; or
(B) the Office of the Property Rights Ombudsman and the party paying for the
arbitrator.
(iii) The Office of the Property Rights Ombudsman may, on its own initiative or upon
agreement of both parties, appoint a panel of arbitrators to conduct the arbitration.
(iv) The Department of Commerce may pay an arbitrator per diem and reimburse
expenses incurred in the performance of the arbitrator's duties at the rates established by the
Division of Finance under Sections 
63A-3-106
 and 
63A-3-107
.
(d) In arbitrating a dispute, the arbitrator shall apply the relevant statutes, case law,
regulations, and rules of Utah and the United States in conducting the arbitration and in
determining the award.
(e) 
(i)
 The property owner and government entity, or other condemning entity, may
agree in advance of arbitration that the arbitration is binding and that no de novo review may
occur.
(ii) The private property owner and facility owner of a water conveyance facility, as
described in Section 
73-1-15.5
, may agree in advance of arbitration that the arbitration is
binding and that no de novo review may occur.
(f) Arbitration by or through the Office of the Property Rights Ombudsman is not
necessary before bringing legal action to adjudicate any claim.
(g) The lack of arbitration by or through the Office of the Property Rights Ombudsman
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.
(h) 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.
(i) Within 30 days after an arbitrator issues a final award, and except as provided in
Subsection (3)(e), 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.
(4) The filing with the Office of the Property Rights Ombudsman of a request for
mediation or arbitration of a constitutional taking issue does not stay:
(a) a county or municipal land use decision;
(b) a land use appeal authority decision; or
(c) the occupancy of the property.
(5) A member of the Office of the Property Rights Ombudsman, or an arbitrator
appointed by the office, may not be compelled to testify in a civil action filed concerning the
subject matter of any review, mediation, or arbitration by the Office of the Property Rights
Ombudsman.
Section 2. Section 
73-1-15
 is amended to read:
73-1-15.
Obstructing canals or other watercourses -- Penalties.
(1) 
(a)
 Whenever any person has a right-of-way of any established type or title for any
canal or other watercourse it shall be unlawful for any person to place or maintain in place any
obstruction, or change of the water flow by fence or otherwise, along or across or in such canal
or watercourse, except as where said watercourse inflicts damage to private property, without
first
:
(i)
 receiving written permission for the change and providing gates sufficient for the
passage of the owner or owners of such canal or watercourse[
.
]
; or
(ii) complying with the requirements of Section 
73-1-15.5
.
(b)
 That the vested rights in the established canals and watercourse shall be protected
against all encroachments.
(c)
 That indemnifying agreements may be entered as may be just and proper by
governmental agencies.
(2) Any person violating this section is guilty of a crime punishable under Section
73-2-27
.
(3) Any person who commits an act defined as a crime under this section is also liable
for damages or other relief and costs in a civil action to any person injured by that act.
(4) (a) A civil action under this section may be brought independent of a criminal
action.
(b) Proof of the elements of a civil action under this section need only be made by a
preponderance of the evidence.
Section 3. Section 
73-1-15.5
 is enacted to read:
 73-1-15.5.
Relocation of easements for a water conveyance facility -- Alteration of
a water conveyance facility.
(1) As used in this section:
(a) "Facility owner" means an individual, entity, mutual water company, or
unincorporated organization:
(i) operating a water conveyance facility;
(ii) owning any interest in a water conveyance facility; or
(iii) having a property interest in real property based on the presence of the water
conveyance facility located and operating on the real property.
(b) (i) "Water conveyance facility" means a ditch, canal, flume, pipeline, or other
watercourse used to convey water used for irrigation or storm water drainage and any related
easement for the ditch, canal, flume, pipeline, or other watercourse.
(ii) "Water conveyance facility" does not mean a ditch, canal, flume, pipeline, or other
watercourse used to convey water used for culinary or industrial water, or any federal water
project facility.
(2) Unless prohibited by the terms of a written grant of easement or an agreement for
which consideration was given, a property owner may make reasonable changes in the location
and method of delivery of a water conveyance facility located on the property owner's real
property after:
(a) having a licensed engineer:
(i) redesign the water conveyance facility, which may include relocating the water
conveyance facility to a new location on the property owner's real property or on the real
property of another person who consents to the relocation; and
(ii) certify that the engineered redesign of the water conveyance facility and method of
delivery meets the requirements of Subsection (4);
(b) providing the plans designed by the licensed engineer under Subsection (2)(a)(i) to
the facility owner;
(c) allowing the facility owner a reasonable time to review the plans designed by the
licensed engineer under Subsection (2)(a)(i), provide comments to the plans, and subject to
Subsection (3), require changes and approve the planned redesign before commencing the
modifications;
(d) allowing the facility owner to inspect the modified water conveyance facility during
construction of the modification and require reasonable changes if construction of the
modification is not occurring according to an approved redesign plan as required by Subsection
(3)(b); and
(e) providing the facility owner with the ability to reasonably access, operate, maintain,
and replace the modified water conveyance facility.
(3) A facility owner:
(a) may require a change to the plans designed by the licensed engineer under
Subsection (2)(a)(i) only if the change is:
(i) directly related to a reasonably anticipated negative impact, resulting from the
relocation of the water conveyance facility or a change in the method of water delivery; and
(ii) the least costly means of addressing the anticipated negative impact described in
Subsection (3)(a)(i) after taking into account the provisions of Subsection (4); and
(b) shall approve the plans designed by the licensed engineer under Subsection (2)(a)(i)
if:
(i) the plans reasonably address any anticipated negative impacts resulting from the
relocation of the water conveyance facility or a change in the method of water delivery;
(ii) the property owner has proposed reasonable terms or conditions to satisfy the
provisions of Subsection (4); and
(iii) the property owner satisfies the provisions of Subsection (2).
(4) A property owner may not relocate a water conveyance facility or change the
method of delivery of a water conveyance facility in accordance with Subsection (2) if the
modification:
(a) significantly decreases the utility of the water conveyance facility for its current
use;
(b) increases the burden on the facility owner's use of the water conveyance facility in a
way not compensated for by the property owner; or
(c) frustrates the purpose of the water conveyance facility.
(5) (a) A property owner or a facility owner may request the Office of the Property
Rights Ombudsman to mediate any dispute over the application of this section.
(b) A property owner and a facility owner may jointly request the Office of the
Property Rights Ombudsman to arbitrate any dispute over the application of this section.
(6) A property owner relocating a water conveyance facility under this section is
responsible for:
(a) the reasonable, actual costs incurred in modifying the water conveyance facility,
including:
(i) planning and construction costs;
(ii) the actual engineering and inspection costs during construction;
(iii) costs reasonably and necessarily incurred by the facility owner related to the
modification of the water conveyance facility; and
(iv) legal costs incurred by the facility owner in reviewing and approving plans and
proposing modifications, limited to the lesser amount of actual attorney fees incurred or
$5,000; and
(b) the costs of preparing instruments associated with any new easement for the
modified water conveyance facility, as described in Subsection (8).
(7) In an action where a claim is made that a provision of this section has been
violated, a court may, in addition to any other relief granted, award costs and reasonable
attorney fees:
(a) to the facility owner if the court finds that the property owner failed to comply with
the plan approved in accordance with Subsection (3); or
(b) to the property owner if the court finds that the facility owner made unreasonable
demands in reviewing the property owner's proposed plans or in requiring changes to the
proposed or approved plans.
(8) (a) If a water conveyance facility is relocated under this section, the facility owner
shall record an instrument extinguishing the existing easement in exchange for the grant of a
new easement for the relocated water conveyance facility by the property owner burdened by
the modified water conveyance facility.
(b) The instruments extinguishing the previous easement and granting the new
easement shall be:
(i) in a form mutually acceptable to the facility owner and the property owner; and
(ii) recorded in the county in which the modified water conveyance facility is located.
(c) The property owner shall pay all recording fees for the instruments described in
Subsections (8)(a) and (b).