2006 Utah Code - 73-10-26 — Construction of works, facilities, and projects by board -- Ownership and operation -- Transfer of water rights -- Purchase of bonds from Indian tribes.

     73-10-26.   Construction of works, facilities, and projects by board -- Ownership and operation -- Transfer of water rights -- Purchase of bonds from Indian tribes.
     (1) The Board of Water Resources, through the Division of Water Resources, may construct works and facilities, including hydroelectric generating works, as are necessary and desirable to conserve and develop the water and power resources of the state. Any electrical facilities incidental to a hydroelectric project may be constructed by an electric public utility or a municipality of the state. If the electrical facilities are constructed by the state, the power and energy derived from the hydroelectric generating plant must first be offered to electric public utilities or municipalities in the state for distribution to electric consumers.
     (2) (a) The Board of Water Resources, through the Division of Water Resources, may consider any flood control project provided for in Title 4, Chapter 18, in the same manner, and apply procedures and rules, as the board would consider or apply to any other project within its statutory authority.
     (b) If funds controlled by the Board of Water Resources are to be used for the project, the planning by the Soil Conservation Commission is subject to the review of the board.
     (c) If the project is authorized for construction, the plans, specifications, and construction supervision shall be undertaken as prescribed by the board.
     (3) The Board of Water Resources may enter into an agreement for the construction of any project financed with monies from the Water Resources Construction and Development Fund with another state, the federal government, a political subdivision of the state, an Indian tribe, or a private corporation.
     (4) (a) Title to all projects, including water rights, constructed with monies from the Water Resources Construction and Development Fund, is vested in the state. If a project is being sponsored by an incorporated municipality, metropolitan water district, water conservancy district, improvement district, special improvement district, special service district, or any other political subdivision of the state, the Board of Water Resources may take revenue bonds, general obligation bonds, special assessment bonds, or other bonds or obligations legally issued by the sponsor in lieu of or in addition to taking title to the project and water rights.
     (b) If an Indian tribe sponsors a project, the Board of Water Resources may take revenue bonds, general obligation bonds, or other bonds or obligations legally issued by the tribe, to the extent that federal law allows the tribe to issue bonds, in lieu of taking title to the project and water rights, if the tribe:
     (i) waives the defense of sovereign immunity regarding the bond issue in any action arising out of the issuance or default under the bond; and
     (ii) agrees in writing that it will not challenge state court jurisdiction over any litigation resulting from default on its obligations in the transaction.
     (c) Before entering into any agreement with or purchasing any bonds or obligations from a tribe, the Board of Water Resources shall:
     (i) require that the tribe obtain the written approval of the Secretary of the United States Department of the Interior or his designee to all aspects of the agreement, bonds, or obligations;
     (ii) obtain a legal opinion from a recognized bond counsel certifying:
     (A) that the tribe has legal authority to enter into the agreement or issue the bonds or obligations;
     (B) that the pledge of any assets or revenues by the tribe as security for the payments under the agreement, bonds, or obligations is a valid and legally enforceable pledge; and

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     (C) that the agreement, bonds, or obligations may be enforced in any court of general jurisdiction in the state; and
     (iii) determine whether it has sufficient legal recourse against the tribe and against any security pledged by the tribe in the event of default.
     (5) (a) The Board of Water Resources may own and operate water conservation and development works and projects, and flood control projects, if:
     (i) the works and projects are consistent with plans adopted by the board; and
     (ii) in the opinion of the board the ownership and operation of the projects by the board is in the best interest of the state.
     (b) In the ownership and operation of the projects referred to in Subsection (a), the board shall utilize water rights held in its name under authority of Section 73-10-19.
     (c) The board may enter into contracts with another state, the federal government, a political subdivision of the state, an Indian tribe, or a private corporation for operation, maintenance, and administration of the project. The board may pay the contracting agency a reasonable sum for operation, maintenance, and administration of the project.
     (6) (a) The board may also:
     (i) enter into agreements in which title to projects may be conveyed to cooperating sponsors after charges assessed against the project have been paid to the state in accordance with the terms of construction agreements or amendments to those agreements;
     (ii) make available for the use of the state's citizens who are, in its opinion, best able to utilize it, all water and power conserved by any of the projects to which the state may have title;
     (iii) enter into contracts for the use of that water and power with individuals or with organizations composed of the state's citizens; and
     (iv) assess a reasonable fee against any person using water and power from a project.
     (b) Any amount collected over the amount to be returned to the state for payment of the principal, interest, and maintenance of the project shall become part of the Water Resources Conservation and Development Fund as established by Section 73-10-24.
     (7) The Board of Water Resources shall retain ownership of water rights used for projects owned and operated by the board except as follows:
     (a) water rights originally held by cooperating sponsors shall be conveyed to that sponsor upon payment to the state of charges assessed against the project in accordance with the terms of construction agreements or amendments to those agreements; and
     (b) the board may transfer any unperfected water right held by it which is not being utilized in a state-owned project to a political subdivision of the state, any agency of the federal government, or a nonprofit water company. Any transfer of the board's water rights shall be made to the entity that is best able to utilize the water rights for the benefit of the state's citizens.

Amended by Chapter 234, 1990 General Session