9-9-7 WATER RIGHTS ACQUISITION AND CONDITIONS

A. Purpose and Findings: 1. The Town’s primary purpose for establishing this ordinance is to acquire the water rights necessary to serve its expanding population. (ord. 2-009, 9-13-2022, amd. ord. 24014, 10-8-24) 2. The Town supports the 2022 Workforce Housing Plan’s recommendations and the associated incentivized inclusionary housing ordinance in 9-9-7 of this title and therefore will consider the award of water rights to projects that include affordable/workforce housing units. (ord. 23-007, 8-8-2023) 3. Based on studies done by the Town, the Town likely has enough water rights to provide water to all existing parcels (as of August 11, 2022). The Town does not have many extra water rights to provide water for the potentially hundreds of new parcels that can be created when the Town expands. (ord. 22-009, 9-13-2022, amd. ord. 24-014, 10-8-24) B. Time and Conditions for the Town to award Water Rights: 1. One hundred (100)-acre feet of water rights (the “Pool”) will be reserved for certain subdivisions on a first come, first served basis. (ord. 22-009, 9-13-2022, amd. ord. 23-007, 8-8-2023, amd. ord. 24-014, 10-8-24) a. Sixty (60) acre feet of the Pool will be reserved for commercial subdivisions. b. Thirty-seven (37) acre feet of water will be reserved for R1, R2, and R3 subdivisions of more than two (2) lots. For R3 subdivisions, the acre feet may only be accessed through a development agreement with the Town. c. Three (3) acre feet of water will be reserved for single-family lot splits (an individual who wishes to divide their parcel into two (2) lots only). d. Once the Pool has been allocated, any applicant wishing to subdivide must follow all the regulations below in this section. (amd. ord. 24-014, 10-8-24) 2. All property that has not previously dedicated water rights shall be required to dedicate water rights at the time of annexation, or if already in Town limits, at the time the property subdivides. (ord. 22-009, 9-13-2022) 3. Subdivisions or developments requesting water rights from the Town shall provide deed-restricted affordable housing units on site in compliance with all provisions of 9-9-7 except 9-9-7.B.2.a which is replaced with the following percentages of the total development units and income restrictions: a. Rental Units: i. For subdivisions or condominium projects of ten (10) lots/units or more, five percent (5%) of the total dwelling units for rent must be affordable to households earning thirty percent (30%) or less of Iron County’s Median Family Income based on housing size and determined by the US Department of Housing and Urban Development (HUD); or ii. For subdivisions or condominium projects of ten (10) lots/units or more, ten percent (10%) of the total dwelling units for rent must be affordable to households earning sixty percent (60%) or less of Iron County’s Median Family Income based on housing size and determined by the US Department of Housing and Urban Development (HUD); b. Ownership or ‘For Sale’ Units: i. For subdivisions or condominium projects of ten (10) lots/units or more, five percent (5%) of the total dwelling units for sale must be affordable to households earning eighty percent (80%) or less of Iron County’s Family Income based on housing size and determined by the US Department of Housing and Urban Development (HUD); or ii. For subdivisions or condominium projects of ten (10) lots/units or more, ten percent (10%) of the total dwelling units for sale must be affordable to households earning one hundred percent (100%) or less of Iron County’s Median Family income based on housing size and determined by the US Department of Housing and Urban Development (HUD); or iii. For subdivisions or condominium projects of ten (10) lots/units or more, fifteen percent (15%) of the total dwelling units for sale must be affordable to households earning one hundred and twenty percent (120%) or less of Iron County’s Median Family Income based on housing size and determined by the U.S. Department of Housing and Urban Development (HUD). (ord. 23-007, 8-8-2023, amd. ord. 24-014, 10-8-24) C. Amount of Water Rights: 1. Prior to final approval or recordation of the final subdivision plat or other development activity requiring culinary water service from the Town, the applicant shall transfer and dedicate to the Town, the unencumbered, clear title to a sufficient quantity of water rights and/or sources necessary to provide and deliver culinary water to each lot, dwelling unit and/or other use within the new development. 2. Sufficient Quantity of Water Defined: A "sufficient quantity of water" shall be decided as a result of the applicant’s produced water study. The water study shall include open space and all other real property included in the proposed subdivision and/or development. The Land Use Authority, with the recommendation of Town Staff shall review and approve the proposed amount of water based on the buildout study provided by the Town. The Land Use Authority, with the recommendation of Town Staff, may reasonably adjust this amount depending on the type of subdivision and development requested and the water requirements thereof. The Land Use Authority, with the recommendation of Town Staff, may elect to waive the water study requirement and instead require three tenths (0.3) acre feet per residential unit and one and one half (1.5) acre feet per commercial unit. D. Acquisition of Excess Water Rights: If at any time an owner is required to deed water rights to the Town, and if that owner owns more water rights which have been used on the property relating to the land use application than the owner is required to deed to the Town, then the Town shall request that the owner either sell the excess rights to the Town or enter into an agreement with the Town, giving the Town the first right of refusal should the owner decide to sell said water rights in the future. E. Type of Water Rights: Water rights shall be subsurface water rights that have a priority date prior to January 1, 1934, and be available for use in Water Right Area 75. F. Transferring Water Rights: The applicant shall submit a title report showing the type of water right, ownership of the right, and any liens or encumbrances. The applicant shall also provide a title insurance policy in such a sum that is adequate to cover the appraised value of the water rights the policy is covering. 1. A change application with the State of Utah shall be completed at the expense of the party developing the land. Information to be included in the change application will be provided by the Town, including the points of diversion. The change application must be approved by the State Engineer prior to transferring water rights to the Town on the books of the State of Utah Division of Water Rights. This transfer may also be conditioned on approval of the land use application pending before the Town that caused the transfer of water rights. 2. A deed transferring the water rights to the Town shall be completed and held prior to the land use application approval. The deed transferring ownership may be held either by the Town or in an escrow account paid for by the applicant. Once the land use application and change application receive approval from the State, the deed will be recorded. 3. If the Division of Water Rights has not made a final decision on the change application prior to the land use approval, then the land use application will be tabled until a final decision is made. 4. If at any point in this process, the change application is denied by the Division of Water Rights then the request will be denied, and the land use application shall be denied. G. Exceptions: 1. Public Lands Exception: If at the time of annexation, the annexed property is owned by the Bureau of Land Management (BLM) or the US Forest Service (USFS), that acreage shall not be subject to the requirements of this ordinance that mandate the deeding of water rights. This exception only applies to annexation and not when the property is platted as a residential subdivision or receives a building permit. 2. Brian Head Town Exception: Nothing in this ordinance shall require the Town to deed water or pay a fee if the Town develops land. 3. Lot Line Vacation Exception: For purposes of this chapter, lot line vacations shall be considered as “putting water back into the pool”. For example, if two (2) lots vacate one line and become one property, then the equal amount of water rights for one (1) lot shall be added into the three (3) acre feet of water reserved for singlefamily residential lots. (ord. 22-009, 9-13-2022, amd. ord. 24-014, 10-8-24)