After hearing that fears about pollution are overblown, Utah lawmakers OK plan to pare back watershed protections

(Steve Griffin | The Salt Lake Tribune) Rep. Mike Noel, R-Kanab, speaking on the floor of the Utah House of Representatives on Friday. The lawmaker is sponsoring HB135, which rolls back city authority over some watershed protections.

The Utah House of Representatives will debate a pair of controversial water bills — against the advice of some of the state’s top water-policy experts.

Members of the state’s Executive Water Task Force have unanimously agreed that HB135 and HB124 should be held for further study, but both drew favorable votes Wednesday from the House Natural Resources, Agriculture and Environment Standing Committee.

HB135 would limit the authority of Utah’s largest cities to regulate watersheds beyond their boundaries where they get their drinking water, a move the task force said could cause those water supplies to become polluted.

HB124 aims to require that cities report to state officials the details of agreements through which they provide water outside their municipal boundaries. Task force members said that could jeopardize water supplies in cities that rely on these agreements, rather than obtaining their own water rights.

But Wednesday morning, the bills’ two sponsors testified that their critics’ concerns were overblown.

“It’s all treated, ladies and gentlemen,” Rep. Mike Noel, R-Kanab and the sponsor of HB135, told colleagues Wednesday morning. “So I don’t know — lions, tigers and bears, oh no! It’s not going to happen.”

Noel has removed a controversial funding provision from HB135 that could have added a $1 fee to water bills statewide. Part of the money raised would have gone to funding water-quality projects to help cities provide clean drinking water, but another portion was to fund a state account to pay for large water projects such as dam development on the Bear River and the Lake Powell pipeline.

In addition to removing the fee, Noel added a two-year delay before HB135 would take effect, to allow for study of its potential impact.

With those changes, Noel said Wednesday he hoped his colleagues could focus on the bill’s main objective — removing the special authority of large municipalities over watershed areas outside their city limits, and creating a more level playing field between cities, small towns and individual property owners.

Under the latest version of HB135, Noel said, Salt Lake City and other large Utah cities would still be able to regulate waterways 15 miles upstream from their water treatment facilities. They could also create a roughly 300-foot buffer zone around each stream or river used for drinking water, but they could not impose restrictions on vast tracts of land or enforce ordinances in other counties.

Some who testified in support of HB135 said Salt Lake City interferes with land in five counties and wants to impose restrictions on the Provo River.

Not true, said Laura Briefer, Salt Lake City’s director of public utilities. Utah’s capital city has imposed restrictions in just three canyons, she said, and does not seek to regulate other counties or the Provo River.

HB135’s proposed buffer area, Briefer said, would not be adequate to “protect public health for over a half-million people on the Wasatch Front.”

Tom Ward, director of Public Utilities for Sandy City, similarly argued that HB135 would endanger the cleanliness of city water supplies.

If a drop of water falls in Little Cottonwood or Big Cottonwood canyons, Ward said, “it’s seven hours from when it’s at the top of the canyon to when someone is drinking it.”

Noel argued that all Salt Lake City water contains some amount of bacteria. That’s why it’s cleaned before it is piped to homes and businesses, he said.

Although some voiced concerns that HB135 had not been properly vetted, committee members ultimately voted 10-2 to recommend it favorably to the full House. Reps. Joel Briscoe, D-Salt Lake City, and Susan Duckworth, D-Salt Lake City, opposed the bill.

The other water measure, HB124, was even more successful, passing the committee 11-1, with Rep. Briscoe the sole holdout.

The bill’s sponsor, Rep. Kim Coleman, R-West Jordan, said it was limited in scope.

Earlier versions of HB124 have been changed so reporting requirements would not apply to Utah’s smaller cities and towns, after critics worried that some small communities could not afford to publicly distribute information about their participation in water surplus agreements.

Because the Utah Constitution bars cities from selling water rights once they have acquired them, some cities have entered into agreements in which they sell their surplus water to residents and businesses outside the city’s official boundaries while retaining the rights to the water, Coleman said.

It’s not clear, according to the state Division of Water Rights, how many of these agreements exist. And it’s similarly unclear, Coleman said, whether cities invest adequately in these water systems beyond their borders — or whether surplus water sales are even allowed under the state constitution.

Critics contend HB124 jeopardizes the reliability of drinking water in communities such as Millcreek, Holladay and Cottonwood Heights, which rely on such agreements. Supporters say the agreements are unreliable and subject to short-notice cancellation.

But Coleman said HB124 was instead focused on data and transparency, and did not take sides on the legality of surplus water agreements.

Feb. 20, 2018: Despite calls for further study, Utah lawmaker’s controversial plan on city drinking water supplies gets a second look

Two controversial water proposals on Utah’s Capitol Hill have returned, after a short-lived hold on the measures that some hoped meant they were dead.

Instead, HB135, which rolls back city authority over watershed protections, and HB124, aimed at increasing transparency in water sales in the state, are now scheduled for Wednesday morning hearings — even though the House Natural Resources, Agriculture and Environment Standing Committee voted unanimously on Friday to table both bills.

It remained unclear late Tuesday afternoon what had changed about the context or the language of either bill that could potentially alter the outcome of a second committee hearing so soon after the last.

Rep. Kim Coleman, R-West Jordan, said Tuesday in an email that her bill, HB124, was returning Wednesday to continue a discussion that lawmakers put on hold while they reviewed the measure’s impacts.

Several of Coleman’s colleagues indicated during Friday’s committee hearing that they needed to do more research about how transparency requirements contained in HB124 would affect the cities they represented. The bill would require cities to disclose, among other things, situations where they do not own the water rights they use to provide residents and businesses with drinking water.

Some fear that these agreements could be vulnerable to short-notice cancellation. Others are concerned that gathering the data necessary for such disclosures could be costly and could eventually lead to further legislation that could jeopardize the stability of such water deals.

Committee members also indicated on Friday they thought HB135 needed more work before they could consider it again. HB135 would cut back on the legal authority of Utah’s largest cities to regulate activities in watershed areas outside their municipal boundaries.The measure would also set up a state fund for projects meant to address water pollution.

Both Coleman and HB135 sponsor Rep. Mike Noel, R-Kanab, had indicated Friday that they intended to try to pass their bills again in the near future. But few observers expected the bills to return so soon.

“We were a little surprised to see it come back this fast,” Nick Schou, conservation director for the environmental group Utah Rivers Council, said of HB135. “I would have put money on it coming back. It’s pretty clear that Rep. Noel is intent on attacking cities’ ability to have jurisdiction over their watershed, and … I think we all expected it to come back.”

Despite widespread opposition to HB135, Shou said, Noel “appears to be really going full-bore with this.”

Noel did not respond to the Tribune’s request for comment.

Schou declined to comment on HB124, as the Utah Rivers Council and other environmental advocacy groups have taken no position on the bill.

On the other hand, the state’s Executive Water Task Force has called on lawmakers to put both bills on hold for at least a year for study. Members of the task force have raised concerns the bills have the potential to undermine the reliability of Utah’s drinking water supplies — one by potentially allowing the water to become polluted, the other by tinkering with a kind of legal loophole that some Utah communities use to obtain drinking water.

Cameron Diehl, executive director of the Utah League of Cities and Towns, said the league is also calling for both bills to be set aside for the session, which ends March 8. Diehl said that as of noon on Tuesday, he had not seen any proposed changes that would persuade league members to change their minds.

Noel is rumored to be working on another version of HB136, according to Carl Fisher, executive director of the environmental group Save Our Canyons, “but we have not been able to get a copy of that at all.”

Fisher, like others, urged further study on the measure.

“It seems this bill is being pushed by a handful of speculative interests,” he said, “and we don’t think they should be making water policy for the entire Wasatch.”

Feb. 19, 2018: Utah lawmakers, water experts put the brakes on proposals some fear would destabilize Utah’s water supply

Utah legislators have declined to approve a pair of controversial water bills — one of which included possible funding for large water projects like the Lake Powell pipeline — but the matter may return before the Legislature’s end.

House Bill 135, sponsored by Rep. Mike Noel, R-Kanab, proposes to reduce the scope of the authority Utah’s largest cities have over waterways from which they obtain drinking water. For a short time, that bill also contained a provision to collect funds for the Lake Powell pipeline, Bear River development and other state water projects through Utah residents’ water bills.

The lesser-known bill, House Bill 124, would require cities to disclose arrangements that allow them to provide drinking water to properties outside their jurisdiction without signing over the actual ownership of the source water. That bill’s sponsor, Rep. Kim Coleman, R-West Jordan, said she worried that Utah residents are disenfranchised when they aren’t made aware of these agreements, which in at least some cases can be canceled with short notice.

Some of the state’s top experts on water law say both bills could have unforeseen consequences for the stability of Utah’s municipal water supplies. Before Friday’s meeting, members of the Executive Water Task Force, a state advisory board, voted unanimously to pressure lawmakers to hold the bills until the matter can be more thoroughly vetted.

Members of the House Natural Resources, Agriculture and Environment Standing Committee went with that advice and voted unanimously to table HB124 and HB135. Both of the bills’ sponsors indicated that they may raise the matter again this session.

“That’s fine, we can hold the bill,” Noel said just before the final vote on his HB135. “If we need more work on this, we’ve got time left in the session and we can bring it back.”

The Executive Water Task Force and other critics opposed HB135 on the basis that its original broad repeal of a concept called extraterritorial jurisdiction, which allows Utah cities to regulate activity around streams, rivers and other waterways from which they pull drinking water, could cause drinking water in the state to become polluted and potentially unsafe for human consumption. Noel has since revised his bill to reduce the scope of the jurisdiction of Utah’s five largest cities, and he added provisions to create an optional statewide water fee to help fund water projects that could help remove contaminants from drinking water.

While defending his bill on Friday, Noel said that contrary to what his critics have said, he was actually trying to look out for the public’s well-being. Salt Lake City’s mismanagement of the watershed has caused area canyons to become overgrown, he said, which creates potential for large wildfires.

But Noel’s colleagues focused largely on the funding mechanism his bill proposed, which many interpreted as taking money away from state municipalities to subsidize projects they may not directly benefit them, including the Lake Powell pipeline. As originally proposed, that clause would have created a monthly $1 fee state water retailers could add to customers’ bills. The water agencies would have retained half the fee, while the other half would accumulate in state accounts. Twenty-five cents of each fee was to be redirected to an account earmarked for state-sanctioned water projects.

To build support for his bill, Noel altered this language to allow water retailers to keep three-fourths of the fee, removing the reference to the state’s water infrastructure fund but retaining the 25-cent contribution to a yet-to-be-created fund for water quality projects. But he chafed at his colleagues’ reluctance to support the Lake Powell pipeline, which would supply water to Washington County and the water district Noel heads in Kane County.

“There are two kinds of people in Utah — people who have a second home in St. George and people who are planning to live there and buy one,” he said. “I hear some people say they don’t want to give one dime to these projects. That’s fine. We’ll take that out.”

Noel’s colleagues remained unconvinced. Rep. Joel Briscoe, D-Salt Lake City, said that although the change was helpful, he didn’t believe the bill was ready for a vote.

“There is a lot of confusion,” Briscoe said, “because there were some very big ideas that were mashed together in this. I’m concerned … about dramatic, far-reaching impacts, and I think we ought to hold it for now.”

“I’ve heard it said several times that we should turn this over to the Executive Water Task Force,” Noel retorted. “Since when did the Executive Water Task Force make policy for the state of Utah?”

Noel also supported Coleman’s attempt to bring more transparency to Utah water sales, though that bill met a similar fate.

“This issue is a very, very important issue,” Noel said. “Contrary to what has been said tonight, it’s very difficult to get information on who has homes on surplus water. To just get that on a website, it’s a very simple basic requirement we should put out there, to let the public know there is a possibility that their water could be shut down.”

The state constitution prohibits Utah’s cities from selling water rights — the legal authority to withdraw water from the environment — once they have been acquired by the municipality. However, some communities in Utah have entered into contracts known as surplus water agreements. These agreements allow cities to provide water service to residents outside their official boundaries. The water provider retains the underlying rights to the water, which some fear could allow the water provider to stop service in the event of population growth or a water shortage.

Boyd Clayton, deputy state engineer at the Utah Division of Water Rights, and Marie Owens, director of the state Division of Drinking Water, both testified on Friday, saying state officials are not sure how many cities have surplus water agreements, or how many residents may rely on them.

Making this information public, Noel said on Friday, would be the first step toward amending the constitution to allow cities to sell their surplus water to the communities that use it. But that’s exactly what some critics, including the Executive Water Task Force, fear may happen.

Utah municipalities are barred from selling water to prevent them from putting short-term financial interests — water rights can be valuable commodities in many parts of the state — ahead of the long-term interests of their residents, said Steve Clyde, a prominent Utah water attorney with the firm Clyde Snow & Sessions and a member of the Executive Water Task Force.

Laura Briefer, director of Salt Lake City Public Utilities, said this was the reason so many people, including her, opposed HB 124. It’s not that they’re against transparency, she said, but that they worry that the bill’s underlying goal is to dissolve the agreements that provide water to so many Utah communities, including Millcreek, Holladay and Cottonwood Heights.

But Coleman said her only goal was to inform the residents who subsist on this water to give them a voice in the process.

“This bill doesn’t speak to the broader issue,” she said. “I worked with a number of people to make sure the scope was narrow enough. ... We need to know what [water] distribution outside city boundaries looks like.”

Feb. 16, 2018: Utah lawmaker seeks to add a statewide fee to water bills to fund projects, such as the Lake Powell Pipeline

A proposal to strip cities of their ability to protect nearby sources of drinking water ran into opposition, so the legislator behind the idea changed it to ask cities to help fund big Utah water projects, like the proposed Lake Powell pipeline, instead.

The controversial bill, HB135, originally took aim at the authority Utah’s cities wield over watershed areas. But a substitute released late Thursday by Rep. Mike Noel, R-Kanab, would allow municipalities to protect some of the land around rivers and streams that flow into drinking water systems.

It also would let the state’s water suppliers add a $1 fee to customers’ water bills to pay for drinking water projects. Half of the fee would be redirected to the state, where part would be applied to unspecified projects. The remaining 25 cents would be redirected to a state savings account intended to fund proposals such as the Lake Powell pipeline, a series of dams on the Bear River, and other large developments.

Zach Frankel, executive director of the Utah Rivers Council advocacy group, said he suspected Noel had tried to introduce the substitute as late as possible before a holiday weekend in order to avoid scrutiny.

“He’s clearly trying to sneak this in,” Frankel said. “The only way Rep. Noel could make this proposal worse is if he could figure out how to pollute the air at the same time.”

Noel has not yet responded to a request for comment.

In the past, Noel has argued that Salt Lake City has used its water authority to stop development of private property, particularly in Big Cottonwood Canyon’s Cardiff Fork. Several Cottonwood land owners have complained to the Legislature’s Commission for the Stewardship of Pubic Lands.

“My major concern is private property rights and how we impact those rights through extraterritorial jurisdiction with terms like ‘quality growth,’” Noel said at an Oct. 19 meeting. “I always want to look at who are the players behind these. In many cases, the players are the ones who stand to gain financially. We pick winners and losers, government seems to do, and I think it’s wrong.”

Noel is a big supporter of the Lake Powell pipeline project and he lives in Kane County, which would receive water if that pipeline is ever constructed.

In addition to creating a possible funding mechanism for the Lake Powell pipeline, which has already cost the state of Utah more than $33 million, Carl Fisher, executive director of Save Our Canyons, said the substitute’s language appears to acknowledge the bill’s potential to endanger drinking water supplies.

“This new special revenue fund essentially anticipates the degradation that’s going to come from that,” Fisher said, by providing funds “to clean the drinking water that they’re essentially authorizing to degrade.”

Fisher said it seemed to him the state would be better off protecting good water sources than allowing those waterways to become polluted and paying to clean them up afterward. And if Utah continues to protect its waterways, he said, maybe the state’s residents “won’t have to foot the bill for funding from other sources.”

Environmental advocates aren’t the only people upset by this prosposal. Laura Briefer, director of Salt Lake City Public Utilities, said even with the substitute, the city remained strongly opposed.

The new version would limit Salt Lake and other cities to regulating activities within 300 feet of a stream that provides drinking water, and that’s not enough to guarantee a safe, clean supply, Briefer said. The voluntary surcharge the bill suggests in exchange, Briefer said, would be a really hard sell to customers, and there’s no guarantee that projects funded by the state would benefit Salt Lake City.