Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 33 First Substitute (2023GS)

Sponsor

Rep. Albrecht, C.

Final action

Governor Signed 3/14/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• makes conforming amendments addressing governmental immunity;
• clarifies language related to operators of a water facility;
• addresses liability of an owner or operator of a water facility, stream, or river along certain trails;
• codifies standard of ordinary care;
• addresses liability of an owner or operator of a water facility;
• addresses interference related to a water facility; and
• makes technical changes.

Every vote on this bill

Bill text

WATER RELATED LIABILITY AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Carl R. Albrecht
Senate Sponsor: 
Derrin R. Owens
LONG TITLE
Committee Note:
The Natural Resources, Agriculture, and Environment Interim Committee
recommended this bill.
Legislative Vote: 14 voting for 1 voting against 4 absent
General Description:
This bill modifies provisions concerning liability related to water facilities, streams, or
rivers and related trails.
Highlighted Provisions:
This bill:
▸ makes conforming amendments addressing governmental immunity;
▸ clarifies language related to operators of a water facility;
▸ addresses liability of an owner or operator of a water facility, stream, or river along
certain trails;
▸ codifies standard of ordinary care;
▸ addresses liability of an owner or operator of a water facility;
▸ addresses interference related to a water facility; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-7-201
, as last amended by Laws of Utah 2021, Chapter 352
73-1-8
, as last amended by Laws of Utah 2007, Chapter 357
73-1-14
, as last amended by Laws of Utah 2022, Chapter 310
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-7-201
 is amended to read:
63G-7-201.
Immunity of governmental entities and employees from suit.
(1) Except as otherwise provided in this chapter, each governmental entity and each
employee of a governmental entity are immune from suit for any injury that results from the
exercise of a governmental function.
(2) Notwithstanding the waiver of immunity provisions of Section 
63G-7-301
, a
governmental entity, its officers, and its employees are immune from suit:
(a) as provided in Section 
78B-4-517
; and
(b) for any injury or damage resulting from the implementation of or the failure to
implement measures to:
(i) control the causes of epidemic and communicable diseases and other conditions
significantly affecting the public health or necessary to protect the public health as set out in
Title 26A, Chapter 1, Local Health Departments;
(ii) investigate and control suspected bioterrorism and disease as set out in Title 26,
Chapter 23b, Detection of Public Health Emergencies Act;
(iii) respond to a national, state, or local emergency, a public health emergency as
defined in Section 
26-23b-102
, or a declaration by the President of the United States or other
federal official requesting public health related activities, including the use, provision,
operation, and management of:
(A) an emergency shelter;
(B) housing;
(C) a staging place; or
(D) a medical facility; and
(iv) adopt methods or measures, in accordance with Section 
26-1-30
, for health care
providers, public health entities, and health care insurers to coordinate among themselves to
verify the identity of the individuals they serve.
(3) A governmental entity, its officers, and its employees are immune from suit, and
immunity is not waived, for any injury if the injury arises out of or in connection with, or
results from:
(a) a latent dangerous or latent defective condition of:
(i) any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, or
viaduct; or
(ii) another structure located on any of the items listed in Subsection (3)(a)(i); or
(b) a latent dangerous or latent defective condition of any public building, structure,
dam, reservoir, or other public improvement.
(4) A governmental entity, its officers, and its employees are immune from suit, and
immunity is not waived, for any injury proximately caused by a negligent act or omission of an
employee committed within the scope of employment, if the injury arises out of or in
connection with, or results from:
(a) the exercise or performance, or the failure to exercise or perform, a discretionary
function, whether or not the discretion is abused;
(b) except as provided in Subsections 
63G-7-301
(2)(j), (3), and (4), assault, battery,
false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process,
libel, slander, deceit, interference with contract rights, infliction of mental anguish, or violation
of civil rights;
(c) the issuance, denial, suspension, or revocation of, or the failure or refusal to issue,
deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
authorization;
(d) a failure to make an inspection or making an inadequate or negligent inspection;
(e) the institution or prosecution of any judicial or administrative proceeding, even if
malicious or without probable cause;
(f) a misrepresentation by an employee whether or not the misrepresentation is
negligent or intentional;
(g) a riot, unlawful assembly, public demonstration, mob violence, or civil disturbance;
(h) the collection or assessment of taxes;
(i) an activity of the Utah National Guard;
(j) the incarceration of a person in a state prison, county or city jail, or other place of
legal confinement;
(k) a natural condition on publicly owned or controlled land;
(l) a condition existing in connection with an abandoned mine or mining operation;
(m) an activity authorized by the School and Institutional Trust Lands Administration
or the Division of Forestry, Fire, and State Lands;
(n) the operation or existence of a [
pedestrian or equestrian
] trail 
used for recreational
purposes
 that is along a [
ditch, canal
] 
water facility, as defined in Section 
73-1-8
, stream, or
river, regardless of ownership or operation of the [
ditch, canal
] 
water facility
, stream, or river,
if:
(i) the trail is designated under a general plan adopted by a municipality under Section
10-9a-401
 or by a county under Section 
17-27a-401
;
(ii) the trail right-of-way or the right-of-way where the trail is located is open to public
use as evidenced by a written agreement between:
(A) the owner or operator of the trail right-of-way or of the right-of-way where the trail
is located; and
(B) the municipality or county where the trail is located; and
(iii) the written agreement:
(A) contains a plan for operation and maintenance of the trail; and
(B) provides that an owner or operator of the trail right-of-way or of the right-of-way
where the trail is located has, at a minimum, the same level of immunity from suit as the
governmental entity in connection with or resulting from the use of the trail;
(o) research or implementation of cloud management or seeding for the clearing of fog;
(p) the management of flood waters, earthquakes, or natural disasters;
(q) the construction, repair, or operation of flood or storm systems;
(r) the operation of an emergency vehicle, while being driven in accordance with the
requirements of Section 
41-6a-212
;
(s) the activity of:
(i) providing emergency medical assistance;
(ii) fighting fire;
(iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
(iv) an emergency evacuation;
(v) transporting or removing an injured person to a place where emergency medical
assistance can be rendered or where the person can be transported by a licensed ambulance
service; or
(vi) intervening during a dam emergency;
(t) the exercise or performance, or the failure to exercise or perform, any function
pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources;
(u) an unauthorized access to government records, data, or electronic information
systems by any person or entity;
(v) an activity of wildlife, as defined in Section 
23-13-2
, that arises during the use of a
public or private road; or
(w) a communication between employees of one or more law enforcement agencies
related to the employment, disciplinary history, character, professional competence, or physical
or mental health of a peace officer, or a former, current, or prospective employee of a law
enforcement agency, including any communication made in accordance with Section
53-14-101
.
Section 2. Section 
73-1-8
 is amended to read:
73-1-8.
Duties of owners or operators -- Bridges and trails -- Liability.
(1) As used in this section, "water facility" means a dam, pipeline, culvert, fire hydrant,
flume, conduit, ditch, head gate, canal, reservoir, storage tank, spring box, well, meter, weir,
valve, casing, cap, or other facility used for the diversion, transportation, distribution,
measurement, collection, containment, or storage of water.
[
(1)
] 
(2)
 [
The
] 
An
 owner 
or operator
 of [
any ditch, canal, flume or other watercourse
] 
a
water facility
 shall:
(a) maintain [
it
] 
the water facility
 to prevent waste of water or damage to the property
of others; and
(b) by bridge or otherwise, keep [
it
] 
the water facility
 in good repair where [
it
] 
the
water facility
 crosses [
any
] 
a
 public road or highway to prevent obstruction to travel or damage
or overflow on the public road or highway.
[
(2)
] 
(3)
 [
The provisions of Subsection (1)(b) do
] 
Subsection (2)(b) does
 not apply
where a governmental entity maintains or elects to maintain a bridge or other device to prevent
obstruction to travel or damage or overflow on the public road or highway.
[
(3)
] 
(4)
 [
An
] 
In addition to immunity if the conditions of Title 57, Chapter 14,
Limitations on Landowner Liability, are met, an
 owner or operator of a [
ditch, canal
] 
water
facility
, stream, or river, is immune from suit if:
(a) the damage or personal injury arises out of, is in connection with, or results from
the use of a [
pedestrian or equestrian
] trail that is
:
(i) used for recreational purposes; and
(ii) located
 along a [
ditch, canal
] 
water facility
, stream, or river, regardless of
ownership or operation of the [
ditch, canal
] 
water facility
, stream, or river;
(b) the trail is designated under a general plan adopted by a municipality under Section
10-9a-401
 or by a county under Section 
17-27a-401
;
(c) the trail right-of-way or the right-of-way where the trail is located is open to public
use as evidenced by a written agreement between the owner or operator of the trail
right-of-way, or of the right-of-way where the trail is located, and the municipality or county
where the trail is located; and
(d) the written agreement:
(i) contains a plan for operation and maintenance of the trail; and
(ii) provides that an owner or operator of the trail right-of-way, or of the right-of-way
where the trail is located has, at minimum, the same level of immunity from suit as the
governmental entity in connection with or resulting from use of the trail.
(5) (a) The duty under Subsection (2) requires only ordinary care and may not be
construed to impose strict liability or to otherwise increase the liability of the owner or operator
of a water facility.
(b) An owner or operator of a water facility is not liable for damage or injury caused
by:
(i) the diversion or discharge of water or another substance into the water facility by a
third party without the permission of the owner or operator of the water facility;
(ii) any other act or omission of a third party, other than an employee or agent of the
owner or operator of the water facility; or
(iii) an act of God, including fire, earthquake, storm, flash floods, or similar natural
occurrences.
(6) This section may not be interpreted to impair a defense that an owner or operator of
a water facility may assert in a civil action.
Section 3. Section 
73-1-14
 is amended to read:
73-1-14.
Acts against water facilities or interfering with apportioning official --
Penalty and liability.
(1) As used in this section:
(a) "Connection to a water facility" includes:
(i) to introduce water or another substance into or take water from a water facility
through a pipeline, flume, ditch, canal, trench, holding pond, or water collection structure;
(ii) to place or maintain a structure capable of introducing water or another substance
directly into or of taking water from a water facility from a pipeline, flume, ditch, canal, trench,
holding pond, or water collection structure; or
(iii) to cut into or breach a canal or ditch bank for the purpose of introducing water or
another substance into or of taking water from the canal or ditch.
(b) "Interfere," for purposes of a water facility, means damage to or modification of the
water facility that results in actual blockage or diversion of water, stormwater, wastewater, or
sewage.
(c) "Knowingly" means the same as that term is defined in Section 
76-2-103
.
(d) "Water facility" means a dam, pipeline, culvert, fire hydrant, flume, conduit, ditch,
head gate, canal, reservoir, storage tank, spring box, well, meter, weir, valve, casing, cap, or
other facility used for the diversion, transportation, distribution, measurement, collection,
containment, or storage of water, stormwater, wastewater, or sewage.
(2) Subject to Subsection (6), a person is guilty of a crime punishable under Section
73-2-27
 if the person:
(a) knowingly makes a temporary or permanent connection to
, or interferes with,
 a
water facility without:
(i) first obtaining the written consent of the owner or operator of the water facility; or
(ii) having other lawful authority; or
(b) without lawful authority, knowingly interferes with an individual authorized to
apportion water while in the discharge of the individual's duties.
(3) A person who commits an act defined as a crime under this section is also liable for
damages, other relief, and reasonable costs and attorney fees as provided in Section 
73-2-28
, in
a civil action brought by a 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.
(5) A person who complies with Title 54, Chapter 8a, Damage to Underground Utility
Facilities, Section 
73-1-7
, or Section 
73-1-15.5
 may not be held criminally or civilly liable for
actions allowed by those sections.
(6) (a) "Person" for purposes of this section does not include a government entity,
including a political subdivision of the state.
(b) This section may not be interpreted to limit or impair a claim otherwise provided by
law of a water facility owner or operator against a government entity.