H.B. 131

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DILIGENCE AND UNDERGROUND WATER
2 CLAIMS - PUBLICATION AND REVIEW
3 1997 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Michael R. Styler
6 AN ACT RELATING TO WATER AND IRRIGATION; CHANGING PROCEDURES AND
7 REQUIRING CERTAIN INFORMATION AS A PREREQUISITE FOR THE FILING OF
8 DILIGENCE CLAIMS; AND PROVIDING THAT THE VALIDITY OF A DILIGENCE
9 CLAIM MAY BE ESTABLISHED THROUGH JUDICIAL ACTION AND THAT THE
10 CLAIMANT HAS THE INITIAL BURDEN OF PROOF AS TO THE VALIDITY OF THE
11 CLAIM.
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 73-5-13, as last amended by Chapter 160, Laws of Utah 1955
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 73-5-13 is amended to read:
17 73-5-13. Claim to surface or underground water not otherwise represented --
18 Information required -- Corrections -- Filing -- Investigation -- Publication -- Judicial action
19 to determine validity -- Rules.
20 (1) (a) All claimants to the right to the use of water, including both surface and
21 underground, whose rights are not represented by certificates of appropriation issued by the state
22 engineer, by applications filed with the state engineer, by court decrees, or by notice of claim
23 [heretofore] filed pursuant to law, shall [file notice of such] submit the claim [or claims with] to
24 the state engineer [on forms furnished by him setting forth such information and accompanied by
25 such proof as the state engineer may require, including but not limited to the following:].
26 [The name and post-office address of the person making the claim; the quantity of water
27 claimed in acre-feet; and/or the rate of flow in second feet; the source of supply; the priority of the

1 right, the location of the point of diversion with reference to a United States land survey corner,
2 the place, nature, and extent of use; the time during which the water has been used each year and
3 the date when the water was first used. A notice of claim may be corrected by filing with the state
4 engineer a corrected notice designated as such and bearing the same number as the original claim.
5 No fees shall be charged for filing a corrected notice of claim.]
6 [Such notices of claim, or claims, as provided in this section, shall be prima facie evidence
7 of claimed right or rights therein described.]
8 (b) Subsections (2) through (7) shall only apply to claims submitted to the state engineer
9 pursuant to this section after May 4, 1997.
10 (2) (a) Each claim submitted under this section shall be verified under oath by the claimant
11 or the claimant's duly appointed representative and submitted on forms furnished by the state
12 engineer setting forth any information the state engineer requires, including:
13 (i) the name and post office address of the person making the claim;
14 (ii) the quantity of water claimed in acre-feet or rate of flow in second-feet, or both, where
15 appropriate;
16 (iii) the source of supply;
17 (iv) the priority date of the right;
18 (v) the location of the point of diversion with reference to a United States land survey
19 corner;
20 (vi) the place of use;
21 (vii) the nature and extent of use;
22 (viii) the time during which the water has been used each year; and
23 (ix) the date when the water was first used.
24 (b) The claim shall also include the following information verified under oath by a
25 registered engineer or land surveyor:
26 (i) measurements of the amount of water diverted;
27 (ii) a statement that the quantity of water claimed either in acre-feet or cubic feet per
28 second is consistent with the beneficial use claimed and the supply which the source is capable of
29 producing; and
30 (iii) a map showing the original diversion and conveyance works and where the water was
31 placed to beneficial use, including irrigated lands, if irrigation is the claimed beneficial use.

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1 (c) The state engineer may require additional information as necessary to evaluate any
2 claim including:
3 (i) affidavits setting forth facts of which the affiant has personal knowledge;
4 (ii) authenticated or historic photographs, plat or survey maps, or surveyors' notes;
5 (iii) authenticated copies of original diaries, personal histories, or other historical
6 documents which document the claimed use of water; and
7 (iv) other relevant records on file with any county recorder's, surveyor's, or assessor's
8 office.
9 (3) (a) A claim may be corrected by submitting to the state engineer a verified corrected
10 claim designated as such and bearing the same number as the original claim.
11 (b) No fee shall be charged for submitting a corrected claim.
12 (4) (a) Upon submission by a claimant of a claim that is acceptably complete under
13 Subsection (2) and the deposit of money by a claimant with the state engineer sufficient to pay the
14 expenses of conducting a field investigation and publishing a notice of the claim, the state engineer
15 shall:
16 (i) file the claim;
17 (ii) endorse the date of its receipt;
18 (iii) assign the claim a water right number; and
19 (iv) publish a notice of the claim following the same procedures as provided in Section
20 73-3-6.
21 (b) Any claim not acceptably complete under Subsection (2) shall be returned to the
22 claimant.
23 (c) The acceptance of any claim filed under this section by the state engineer may not be
24 considered to be an adjudication by the state engineer of the validity of the claimed water right.
25 (5) (a) The state engineer shall:
26 (i) conduct a field investigation of each claim filed; and
27 (ii) prepare a report of the investigation.
28 (b) The report of the investigation shall:
29 (i) become part of the file on the claim; and
30 (ii) be admissible in any administrative or judicial proceeding on the validity of the claim.
31 (6) (a) Any person who may be damaged by a diversion and use of water as described in

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1 a claim submitted pursuant to this section may file an action in district court to determine the
2 validity of the claim, whether or not the claim has been accepted for filing by the state engineer.
3 (b) Venue for the action shall be in the county in which the point of diversion listed in the
4 claim is located, or in a county where the place of use, or some part of it, is located.
5 (c) The action shall be brought against the claimant to the use of water or the claimant's
6 successor in interest.
7 (d) In any action brought to determine the validity of a claim to the use of water under this
8 section, the claimant shall have the initial burden of proof as to the validity of the claimed right.
9 (e) Any person filing an action challenging the validity of a claim to the use of water under
10 this section shall notify the state engineer in writing of the pendency of the action. Upon receipt
11 of the notice, the state engineer may take no action on any change or exchange applications
12 founded on the claim that is the subject of the pending litigation, until the court adjudicates the
13 matter.
14 (f) Upon the entering of any final order or decree in any judicial action to determine the
15 validity of a claim under this section, the prevailing party shall file a certified copy of the order
16 or decree with the state engineer, which shall become part of the state engineer's file on the claim.
17 (7) The state engineer may make rules consistent with this section specifying information
18 required to be included in a claim and claim procedures.




Legislative Review Note
as of 2-7-97 7:32 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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