instream flows. Recognizing the potential costs of this request, the Legislature also appropriated $400,000 to support the continued study of water banking. Notwithstanding the recent passage of SJR, a large and diverse multi-stakeholder group of over 50 water professionals has already been working for nearly two years to study water banking. Participants include FRIENDS of Great Salt Lake, representatives from the State Engineer’s office and other state water management agencies, the Utah Farm Bureau, the Utah Department of Agriculture, the Central Utah Water Conservancy District, and many others. For almost two years, this group has studied water banks in other
states and analyzed key watersheds around Utah to understand how water banking may work in Utah. As a result of its studies, the group has identified the following consensus guidelines that it believes will be needed for any water banking program to be effective in Utah: • Voluntary: no one should be required or forced to participate in a water bank. • Local: water banks should be created and organized at the local level, with appropriate state oversight to ensure that banks are operated property and do not injure right holders. • Temporary: water rights should only be placed into banks on a temporary basis and right holders who deposit water rights must maintain ownership of their rights. • Prior Appropriation: the priority rights of banked water rights should remain unchanged and banked rights should not be subject to abandonment and forfeiture. • Low Transaction Costs: water banks should not be expensive or burdensome. • Efficient Transactions: water banks should be easy to understand and execute. • Access: water banks should promote equal access to banked water. • Non-Exclusive and Complimentary: water banks should not impede but support other water marketing or sharing efforts. Currently, the group is developing term legislation that would allow right holders to create water banks for their local regions during a specific period of time, during which the banks will be studied and assessed. The group is also preparing to begin a slow and steady but robust public outreach and education effort throughout Utah to solicit input, comments, and concerns regarding the draft legislation and water banking in general. To test the concepts it develops, the group will implement pilot projects and is in the process of applying for a federal
(Photo credit: Heber Valley and Mount Timpanogos, photograph courtesy of L. de Freitas)
WaterSMART grant to leverage the Legislature’s $400,000 appropriation for these efforts. Notwithstanding its potential benefits, water banking is not a panacea and additional tools and approaches will be needed to satisfy Utah’s growing water demands and to carry out the goals of Governor Herbert’s recommended water strategy. Nevertheless, water banking has the potential to fulfill a number of the goals of this strategy, including preserving agriculture while facilitating access to water for a variety of purposes, including environmental uses. For more information on Utah’s water banking effort, including updates on the water banking group’s efforts, please visit: info@utahwaterbanks.org. ■ Nathan Bracken is a partner at Smith Hartvigsen, PLLC, where he practices water law and local government law, with a focus on public policy. He is also a member of a collaborative multi-stakeholder group working to develop a water banking program for Utah. The views expressed in this article are those of the author alone and do not necessarily reflect the views of the water banking group or of Smith Hartvigsen and any of the persons or entities it represents.
Smith|Hartvigsen, PLLC, 257 East 200 South Suite 500, Salt Lake City, UT 84111 Contact: nbracken@shutah.law
12 | VOLUME 21 • NUMBER 5
Water Resources IMPACT
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