Water experts in Utah have been assigned to study amending the state constitution to address a common practice that some fear could one day deprive thousands of Utah households of reliable drinking water.
A proposal making its way through the Utah Legislature would have tweaked the constitution to free Utah’s cities and towns of rules that currently prohibit them from leasing their water rights to others.
HJR15’s sponsor, Rep. Keven Stratton, R-Orem, said those rules were originally intended to prevent Utah’s municipalities from buying and selling water rights. Some water experts fear that a desire for profit could lead cities to sell too much water, leaving them without an adequate supply for their future residents.
But today, an unknown number of Utah cities are under contract to provide water service to residents who live outside their municipal boundaries — a practice that several experts contend falls into a sort of legal gray area. These water contracts have been allowed for decades in Utah, under the assumption that cities can sell their surplus water supplies — but not the water rights underlying those supplies — to others on a temporary basis.
“Our current practices are not consistent with the constitution’s intent,” Stratton said Tuesday before the House Natural Resources, Agriculture and Environment Standing Committee. “If we don’t correct course here, in time it could be very problematic.”
Though the threat of a legal challenge to these contracts isn’t thought to be imminent, Stratton said, water demand driven by Utah’s population growth could soon jeopardize the stability of these water pacts, through which thousands of Utah households are thought to get their water supplies.
Some of these contracts are subject to cancellation with 30 days’ notice, Stratton said.
“We have been able to kick this can down the road,” he said, “and we’re getting to the point now with our size and growth that we need to be taking some action.”
But after debating the proposed amendment, HJR15, early Tuesday, House committee members voted unanimously to postpone a decision and instead create a panel of water experts to study the issue and report its findings to the Legislature by September.
Amending the state constitution to allow cities to formally — but still temporarily — lease these water supplies to others could strengthen the viability of these contracts, Stratton argued. To explain, he likened a water right to a cow.
“If you have a cow, the citizens of Utah own the cow, but they’ve given you the opportunity to take care of the cow,” he told colleagues. “You have more milk than you can use, and [this proposal] is allowing you to sell the milk from that cow.”
But Mark Stratford, an attorney representing both the city of Ogden and the Utah League of Cities and Towns, argued that neither Stratton’s language in HJR15 nor a suggested alternative would help buttress the reliability of Utah’s surplus water agreements.
“Neither the resolution or the substitute do anything to change the status quo,” Stratford said. “Someone living outside the city would not be in a better or worse position. They keep us where we are.”
Stratford said the current system was akin to building a house below a known rock slide area.
“People live with a certain amount of risk,” the attorney said. “It’s not an immediate threat, but it’s a problem that should be addressed.”
Laura Briefer, director of Salt Lake City Public Utilities, also questioned the significance of the threat posed by her city’s surplus water agreements.
Utah’s capital city has provided water to residents of Salt Lake County’s east bench as far south as Cottonwood Heights since the 1920s, Briefer said, and the city considers them part of its service area, even though many have since incorporated to form cities of their own.
Salt Lake City includes those residents in its long-range planning of future water needs, Briefer said, to ensure it can continue to deliver water to them.
But David Fife, a Salt Lake-area residential real-estate appraiser, said it was important that the committee and the public understand how “catastrophic” these temporary water agreements could be to property valuations in Salt Lake County. Fife testified that although he has worked in real estate for more than 20 years, he had no idea these surplus water agreements existed until the debate during this year’s legislative session.
He warned that if banks “were aware of the nebulous nature of the water, they won’t fund debt in Salt Lake County. Or else they will rate the debt, and this would increase interest rates.
“This is an economic weapon of mass destruction, if this were fully understood,” Fife said.
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