Basin Water Export Amendments — the working draft

What this is

A working draft of a Utah bill. Water of the Great Salt Lake basin that leaves the basin — in any wrapper, including embodied in a crop, an animal or a beverage — is charged at the rate commercial buyers inside the basin already pay. Water used within the basin is untouched.

⚠ This is not a tax and not a tariff. The rate is set by §1(d) to the volume-weighted average that public suppliers already charge commercial and industrial customers here. It is the removal of a discount — one written down in 1903, for an economy that grew its own food, and never revisited since.

⚠ This was not drafted by a lawyer and it is not legal advice. It was drafted by a layman with machine assistance, against six enrolled Utah bills that passed and the live Utah Code. It is published in order to be corrected.

It never names alfalfa

§4 applies the rate “without regard to the product in which the water is embodied… the crop, animal, beverage, container or process by which it is embodied.” The bill does not know what alfalfa is. Hay simply happens to be the thing that leaves.

Which means there is no crop to defend and no farmer to single out. The people who pay self-select, by loading a truck.

Your rights survive intact

§6 is the load-bearing section and a hostile reader should be sent to it first. Nothing in the section limits, conditions, curtails, forfeits or reduces a water right; requires a change application; prohibits the production, sale or export of any crop; or authorises the state engineer to deny an application by reason of it.

⭐ The right is untouched. The use is untouched. The export is priced. A right granted for beneficial use within this state was never a right to sell the water out of it — and §2(a) says so as a legislative finding, so it survives the amendment of everything else.

The hard part, named

Embodied water is the whole fight. §1(b) determines it by rule from published crop and process coefficients, not by measurement at the point of sale, because measuring it any other way is impossible and every hour spent arguing about a particular field is an hour the bill loses.

⚠ The coefficients are where the lobbying will happen — not on the principle and not on the rate, on the table. Whoever writes the alfalfa coefficient writes the bill. That argues for naming the source in statute rather than leaving it to be created.

The question for counsel

Sporhase v. Nebraska (1982). A charge falling only on export is precisely what that case was about. The defence is that the rate is the rate in-basin buyers already pay — so it removes a discount rather than imposing a penalty. That has to be true on the page and not only in the framing, and it is the first thing to put in front of a lawyer.

The instrument

BASIN WATER EXPORT AMENDMENTS

LONG TITLE

General Description:
        This bill establishes the rate charged for water of the Great Salt Lake basin that is
exported from the basin, including water embodied in a product.

Highlighted Provisions:
        This bill:
        ▸ provides that water of the basin exported from the basin, in any form, is charged at the
market rate for water in the basin;
        ▸ provides that water used within the basin is not affected by this bill;
        ▸ provides that this bill does not limit, condition, curtail or forfeit a water right; and
        ▸ requires the state engineer to publish the market rate annually.

Money Appropriated in this Bill:
        None

Other Special Clauses:
        None

Utah Code Sections Affected:
ENACTS:
        73-3-33, Utah Code Annotated 1953

Be it enacted by the Legislature of the state of Utah:

Section 1. Section 73-3-33 is enacted to read:

73-3-33. Rate for water exported from the basin.
        (1) As used in this section:
                (a) "Basin" means the Great Salt Lake watershed as defined in Section 65A-16-101.
                (b) "Embodied water" means water of the basin consumed in producing a product,
determined by rule made under Subsection (7) using published crop and process coefficients, and
not by measurement at the point of sale.
                (c) "Export" means the shipment of a product from a point within the basin to a
point outside the basin, by the person who ships it.
                (d) "Market rate" means the volume-weighted average rate charged during the
preceding calendar year by public water suppliers in the basin to commercial and industrial
customers.
        (2) The Legislature finds that:
                (a) the waters of this state were appropriated for beneficial use within this
state;
                (b) water consumed within the basin returns to the basin in part, and water
exported from the basin returns to it not at all; and
                (c) a rate that does not distinguish between the two charges the basin for the
difference.
        (3) A person who exports a product containing embodied water shall pay the market rate for
that embodied water.
        (4) The rate under Subsection (3) applies to the embodied water only, and applies without
regard to:
                (a) the product in which the water is embodied;
                (b) the crop, animal, beverage, container or process by which it is embodied; or
                (c) the identity, priority date or seniority of any water right.
        (5) This section does not apply to:
                (a) a product sold, consumed or used within the basin;
                (b) a product shipped from the basin by a person other than the producer, if the
producer sold it within the basin; or
                (c) water conveyed into the basin from outside it, or a product containing that
water.
        (6) Nothing in this section:
                (a) limits, conditions, curtails, forfeits or reduces a water right;
                (b) requires a change application under Section 73-3-3;
                (c) prohibits the production, sale or export of any crop, animal or product; or
                (d) authorizes the state engineer to deny an application by reason of this section.
        (7) The state engineer shall make rules under Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, establishing:
                (a) the coefficients by which embodied water is determined for each class of
product;
                (b) the manner of reporting and payment; and
                (c) a de minimis threshold below which this section does not apply.
        (8) The state engineer shall publish the market rate under Subsection (1)(d) on or before
January 31 of each year.
        (9) Money collected under this section shall be deposited in the Great Salt Lake Watershed
Enhancement Program created in Section 65A-16-201.
        (10) This section takes effect for products exported on or after January 1, 2030.

Section 2. Effective date.

        This bill takes effect on May 4, 2028.

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