73-10-26 - Definitions -- Construction of a project by board -- Ownership and operation -- Transfer of a water right -- Purchase of a bond from an Indian tribe.

UTAH STATUTES AND CODES

73-10-26 - Definitions -- Construction of a project by board -- Ownership and operation -- Transfer of a water right -- Purchase of a bond from an Indian tribe.

73-10-26. Definitions -- Construction of a project by board -- Ownership andoperation -- Transfer of a water right -- Purchase of a bond from an Indian tribe.
(1) As used in this section:
(a) "Board" means the Board of Water Resources created in Section 73-10-1.5.
(b) "Bond" means:
(i) a written obligation to repay borrowed money, whether denominated a bond, note,warrant, certificate of indebtedness, or otherwise; and
(ii) a lease agreement, installment purchase agreement, or other agreement that includesan obligation to pay money.
(c) "Division" means the Division of Water Resources created in Section 73-10-18.
(d) "Project" means a facility, works, or other real or personal property that:
(i) conserves or develops the water or hydroelectric power resources of the state; or
(ii) controls flooding.
(2) (a) The board, through the division, may construct a project.
(b) An electric public utility or a municipality of the state may construct an electricalfacility incidental to a project.
(c) If the state constructs the electrical facility, the state must first offer the power andenergy derived from the hydroelectric generating project to an electric public utility ormunicipality in the state for distribution to electric consumers.
(3) (a) The board, through the division, may consider a flood control project in the samemanner and apply the same procedures and rules as the board would consider or apply to anotherproject within its statutory authority.
(b) If funds controlled by the board are to be used for the flood control project, theplanning of the project is subject to the review of the board.
(c) If the flood control project is authorized for construction, the plans, specifications,and construction supervision shall be undertaken as prescribed by the board.
(4) The board may enter into an agreement for the construction or financing of a projectfinanced with money from the Water Resources Conservation and Development Fund withanother state, the federal government, a political subdivision of the state, an Indian tribe, or aprivate corporation.
(5) (a) (i) Except as provided by Subsections (5)(a)(ii) and (b), title to a project,including a water right, constructed or acquired with money from the Water ResourcesConservation and Development Fund is vested in the state.
(ii) The board may take a bond legally issued by the project sponsor in lieu of or inaddition to taking title to the project and water right.
(b) If an Indian tribe sponsors a project, the board may take a bond legally issued by thetribe, to the extent that federal law allows the tribe to issue a bond, in lieu of taking title to theproject and water right, if the tribe:
(i) waives the defense of sovereign immunity regarding the bond issue in an actionarising out of the issuance or default under the bond; and
(ii) agrees in writing that it will not challenge state court jurisdiction over any litigationresulting from default on its obligation in the transaction.
(c) Before entering into an agreement with or purchasing a bond from a tribe, the boardshall:
(i) require that the tribe obtain the written approval of the Secretary of the United States

Department of the Interior or the secretary's designee to all aspects of the agreement or bond;
(ii) obtain a legal opinion from a recognized bond counsel certifying:
(A) that the tribe has legal authority to:
(I) enter into the agreement; or
(II) issue the bond;
(B) that the pledge of an asset or revenue by the tribe as security for the payments underthe agreement or bond is a valid and legally enforceable pledge; and
(C) that the agreement or bond may be enforced in a court of general jurisdiction in thestate; and
(iii) determine whether it has sufficient legal recourse against the tribe and against asecurity pledged by the tribe in the event of default.
(6) (a) The board may own and operate a project if:
(i) the project is consistent with the plan adopted by the board; and
(ii) in the opinion of the board the ownership and operation of the project by the board isin the best interest of the state.
(b) In the ownership and operation of a project referred to in Subsection (6)(a), the boardshall use a water right held in its name under authority of Section 73-10-19.
(c) (i) The board may enter into a contract with another state, the federal government, apolitical subdivision of the state, an Indian tribe, or a private corporation for operation,maintenance, and administration of the project.
(ii) The board may pay the contracting agency a reasonable sum for operation,maintenance, and administration of the project.
(7) (a) The board may also:
(i) enter into an agreement in which title to a project is conveyed to a cooperating projectsponsor after charges assessed against the project have been paid to the state in accordance withthe terms of the construction agreement or amendment to the agreement;
(ii) make the water and power available to the state's citizens who are, in the board'sopinion, best able to use the water and power:
(A) that is conserved by the project; and
(B) to which the state has title;
(iii) enter into a contract for the use of the water and power with an individual or anorganization composed of the state's citizens; and
(iv) assess a reasonable fee against a person using water and power from a project.
(b) The amount collected over the amount to be returned to the state for payment of theprincipal, interest, and maintenance of the project shall be deposited in the Water ResourcesConservation and Development Fund as established by Section 73-10-24.
(8) The board shall retain ownership of a water right used for a project owned andoperated by the board unless:
(a) the water right originally held by a cooperating project sponsor is conveyed to theproject sponsor upon payment to the state of charges assessed against the project in accordancewith the terms of the construction agreement or an amendment to the agreement; or
(b) the board transfers an unperfected water right held by the board that is not being usedin a state-owned project to a political subdivision of the state, an agency of the federalgovernment, or a nonprofit water company.
(9) A transfer of the board's water right shall be made to the entity that is best able to use