2011 Issue

59 G IVENTHE STATE’S growing population and fully appropriated water rights, Utah law has long provided some deference to municipalities and other public water supply agencies by liberally granting extensions of time to perfect a water right being held for the reasonable future needs of the commu- nity and by insulating a perfected right from forfeiture, where the water right is being held to meet future public needs. This liberal policy has its critics, who assert that cities have accumulated by appropriation and developer-exaction more water rights than they can reason- ably use, and they have begun to ques- tion the policy. The State Engineer has started to read the municipal deference provisions more narrowly in recent years, and has terminated several perfected ground water rights of a city on the basis that it is not sufficient beneficial use to simply develop source capacity in wells without there being a corresponding demand for the use of water. General Authority of Cities and Water Supply Entities to Address Water Shortages Public water suppliers have under their broad statutory grants of power the nec- essary authority to ration water during times of shortage; to enact moratoriums on new connections when the entity has reached the limits of its firm water sup- plies. The law implies a duty to protect the water sources from over-subscription to the detriment of existing consumers. No absolute right exists on the part of every person within a city or district to receive water on demand. Moreover, the court has held that a water company had no absolute duty to serve new growth when the water company lacked a suf- ficient supply to serve and supply the additional connections. The courts have also held that where extension of service would force a city to breach a contract, that service could be denied. However, a city or public district must allow a connection if the new home seeking service is adjacent to an existing main and the city’s water supply is adequate to provide additional service connections. In response to these cases and devel- oper pressure to provide service, most public water suppliers and municipalities adopted ordinances and regulations that allow developers to help solve economic feasibility and water supply issues by dedicating water rights, wa- ter sources and extending distribution systems and storage facilities at their own expense as a condition of obtain- ing service. The entity providing these services and charging impact fees to solve water supply and infrastructure problems, must be cautious to see that costs fall equitably upon those who are similarly situated and in just proportion to the benefits being conferred in order to avoid unconstitutionally discrimina- tory treatment. Generally, water is a poor land use regulator in the sense that the reasons for denying growth, e.g., lack of water rights; lack of capacity; and, lack of source capacity can all be solved with money. Developers have routinely paid upwards of $15,000 to $30,000 in impact fees per connection in order to sell their developments. However, water can be used as a growth management tool; not Municipal Water Supplies Steven E. Clyde The Impending Conflict between beneficial Use, Statutory Forfeiture and Providing Public Water Supply Agencies Time to Plan for the Reasonable Future needs of the Public They Serve to deny new growth, but to insure that the pace of new development does not outstrip the available supplies. Land use ordinances can be enacted that force the water service entities to verify their ability to serve new growth and to take affirmative steps to insure the service capability exists at the time the demand on its system requires it. Urban Growth and Availability of Water Supply: Input Into Local Planning Process Urban growth in the West is causing some states to become more involved in local land use decisions. California requires that the environmental report required for a large-scale development assess the capacity of the local public water provider to meet the project’s water demand. The legislation does not create any entitlement to a specific quantity of water nor does it impose, expand or limit any public utility duty on the provider. Arizona requires a devel- oper to demonstrate the availability of a 100-year water supply as a condition to development. Colorado’s El Paso County required a demonstration of a 300-year water supply as a precondition to plat approval. However, the Colorado Supreme Court held that 100 year plan- ning period was too long for a public dis- trict to hold water without development and still satisfy the anti-speculation provisions of Colorado water law. Local governments can legitimately tie growth to the availability of water and other essential public ser vices, No absolute right exists on the part of every person within a city or district to receive water on demand.