H.B. 51

1

WATER RIGHT FORFEITURE PROTECTION
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Patrick Painter
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 Committee Note:
9 The Natural Resources, Agriculture, and Environment Interim Committee
10 recommended this bill.
11 General Description:
12 This bill protects specific entities from forfeiture of water rights for nonuse.
13 Highlighted Provisions:
14 This bill:
15 . defines terms;
16 . changes the nonuse period of a water right from five to seven years;
17 . clarifies the forfeiture procedure;
18 . allows a person that owns stock in a water company to file a nonuse application;
19 . protects a water right from forfeiture if:
20 . a public water supplier holds the water for the reasonable future water
21 requirement of the public;
22 . the land where the water is used is under a fallowing program;
23 . the water is stored in an aquifer; and
24 . another water source is available for the beneficial use;
25 . establishes how the reasonable future water requirement of the public are
26 determined; and
27 . makes technical changes.

28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 None
32 Utah Code Sections Affected:
33 AMENDS:
34 73-1-4, as last amended by Laws of Utah 2007, Chapters 136 and 329
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 73-1-4 is amended to read:
38 73-1-4. Reversion to the public by abandonment or forfeiture for nonuse within
39 seven years -- Extension of time.
40 [(1) (a) In order to further the state policy of securing the maximum use and benefit of
41 its scarce water resources, a person entitled to the use of water has a continuing obligation to
42 place all of a water right to beneficial use.]
43 [(b) The forfeiture of all or part of any right to use water for failure to place all or part
44 of the water to beneficial use makes possible the allocation and use of water consistent with
45 long established beneficial use concepts.]
46 [(c) The provisions of Subsections (2) through (6) shall be construed to carry out the
47 purposes and policies set forth in this Subsection (1).]
48 [(2)] (1) As used in this section[, "public water supply entity"]:
49 (a) "Public entity" means:
50 (i) the United States;
51 (ii) an agency of the United States;
52 (iii) the state;
53 (iv) a state agency;
54 (v) a political subdivision of the state; or
55 (vi) an agency of a political subdivision of the state.
56 (b) "Public water supplier" means an entity that:
57 (i) supplies water [as a utility service or for irrigation purposes and is also:], directly or
58 indirectly, to the public for municipal, domestic, or industrial use; and

59 (ii) is:
60 [(a)] (A) a [municipality, water conservancy district, metropolitan water district,
61 irrigation district, or other public agency] public entity;
62 [(b)] (B) a water [company regulated] corporation, as defined in Section 54-2-1 , that is
63 regulated by the Public Service Commission; [or]
64 [(c) any other owner of a community] (C) a public water system[.], as defined in
65 Section 19-4-102 ; or
66 (D) a water users association:
67 (I) in which one or more public entities own at least 70% of the outstanding shares; and
68 (II) that is a local sponsor of a water project constructed by the United States Bureau of
69 Reclamation.
70 (c) "Water company" is as defined in Section 73-3-3.5 .
71 [(3)] (2) (a) When an appropriator or the appropriator's successor in interest abandons
72 or ceases to use all or a portion of a water right for a period of [five] seven years, the water
73 right or the unused portion of that water right [ceases and the water reverts to the public] is
74 subject to forfeiture in accordance with Subsection (2)(c), unless, before the expiration of the
75 [five] seven-year period, the appropriator or the appropriator's successor in interest files a
76 verified nonuse application with the state engineer.
77 (b) (i) A nonuse application may be filed on all or a portion of the water right,
78 including water rights held by [mutual irrigation companies] a water company.
79 (ii) [Public water supply entities] A person that [own] owns stock in a [mutual] water
80 company, after giving written notice to the water company, may file a nonuse [applications]
81 application with the state engineer on the water represented by the stock.
82 (c) (i) A water right or a portion of the water right may not be forfeited unless a judicial
83 action to declare the right forfeited is commenced within 15 years from the end of the latest
84 period of nonuse of at least [five] seven years.
85 (ii) If forfeiture is asserted in an action for general determination of rights in
86 conformance with the provisions of Chapter 4, Determination of Water Rights, the 15-year
87 limitation period shall commence to run back in time from the date the state engineer's
88 proposed determination of rights is served upon each claimant.
89 (iii) A decree entered in an action for general determination of rights under Chapter 4,

90 Determination of Water Rights, shall bar any claim of forfeiture for prior nonuse against any
91 right determined to be valid in the decree, but [shall] does not bar a claim for periods of nonuse
92 that occur after the entry of the decree.
93 (iv) A proposed determination by the state engineer in an action for general
94 determination of rights under Chapter 4, Determination of Water Rights, shall bar any claim of
95 forfeiture for prior nonuse against any right proposed to be valid, unless a timely objection has
96 been filed within the time allowed in Chapter 4, Determination of Water Rights.
97 [(d) The extension of time to resume the use of that water may not exceed five years
98 unless the time is further extended by the state engineer.]
99 [(e) The provisions of this section are applicable]
100 (d) This section applies whether the unused or abandoned water or a portion of the
101 water is:
102 (i) permitted to run to waste; or [is]
103 (ii) used by others without right with the knowledge of the water right holder[,
104 provided that the use of water pursuant to a lease or other agreement with the appropriator or
105 the appropriator's successor shall be considered to constitute beneficial use].
106 [(f)] (e) [The provisions of this] This section [shall] does not apply to:
107 (i) the use of water according to a lease or other agreement with the appropriator or the
108 appropriator's successor in interest;
109 (ii) a water right if its place of use is contracted under an approved state agreement or
110 federal conservation fallowing program;
111 [(i) to] (iii) those periods of time when a surface water or groundwater source fails to
112 yield sufficient water to satisfy the water right[, or when groundwater is not available because
113 of a sustained drought];
114 [(ii) to] (iv) water stored, according to a water right, in [reservoirs pursuant to an
115 existing water right] a surface reservoir or an aquifer, in accordance with Title 73, Chapter 3b,
116 Groundwater Recharge and Recovery Act, where the stored water is being held in storage for
117 present or future use; [or]
118 [(iii) when] (v) a water right if a water user has beneficially used substantially all of
119 [a] the water right within a [five] seven-year period, provided that this exemption [shall] does
120 not apply to the adjudication of a water right in a general determination of water rights under

121 Chapter 4, Determination of Water Rights[.];
122 (vi) a water right:
123 (A) (I) owned by a public water supplier;
124 (II) represented by a public water supplier's ownership interest in a water company; or
125 (III) to which a public water supplier owns the right of use; and
126 (B) conserved or held for the reasonable future water requirement of the public, which
127 is determined according to Subsection (2)(f); or
128 [(g)] (vii) [Groundwater rights used to supplement the quantity or quality of other
129 water supplies may not be subject to loss or reduction under this section if not used] a surface
130 water right or a groundwater right during [periods] a period of time when [the other water
131 source delivers sufficient water] another water right available to the appropriator or the
132 appropriator's successor in interest provides sufficient water so as to not require use of the
133 supplemental surface water right or groundwater right.
134 (f) The reasonable future water requirement of the public is the amount of water
135 needed in the next 30 years by the persons within the public water supplier's projected service
136 area based on projected population growth or other water use demand.
137 [(4)] (3) (a) The state engineer shall furnish [an] a nonuse application form requiring
138 the following information:
139 (i) the name and address of the applicant;
140 (ii) a description of the water right or a portion of the water right, including the point of
141 diversion, place of use, and priority;
142 (iii) the date the water was last diverted and placed to beneficial use;
143 (iv) the quantity of water;
144 (v) the period of use;
145 (vi) the extension of time applied for;
146 (vii) a statement of the reason for the nonuse of the water; and
147 (viii) any other information that the state engineer requires.
148 (b) Filing the nonuse application extends the time during which nonuse may continue
149 until the state engineer issues his order on the nonuse application.
150 (c) (i) Upon receipt of the application, the state engineer shall publish a notice of the
151 application once a week for two successive weeks in a newspaper of general circulation in the

152 county in which the source of the water supply is located and where the water is to be used.
153 (ii) The notice shall:
154 (A) state that an application has been made; and
155 (B) specify where the interested party may obtain additional information relating to the
156 application.
157 (d) Any interested person may file a written protest with the state engineer against the
158 granting of the application:
159 (i) within 20 days after the notice is published, if the adjudicative proceeding is
160 informal; and
161 (ii) within 30 days after the notice is published, if the adjudicative proceeding is
162 formal.
163 (e) In any proceedings to determine whether the application for extension should be
164 approved or rejected, the state engineer shall follow the procedures and requirements of Title
165 63, Chapter 46b, Administrative Procedures Act.
166 (f) After further investigation, the state engineer may approve or reject the application.
167 [(5)] (4) (a) [Nonuse applications] The state engineer shall grant a nonuse application
168 on all or a portion of a water right [shall be granted by the state engineer for periods] for a
169 period of time not exceeding [five] seven years [each, upon a showing of] if the applicant
170 shows a reasonable cause for nonuse.
171 (b) [Reasonable causes] A reasonable cause for nonuse [include] includes:
172 (i) a demonstrable financial hardship or economic depression;
173 (ii) the initiation of recognized water conservation or efficiency practices, or the
174 operation of a groundwater recharge recovery program approved by the state engineer;
175 (iii) operation of legal proceedings;
176 [(iv) the holding of a water right or stock in a mutual water company without use by
177 any public water supply entity to meet the reasonable future requirements of the public;]
178 [(v)] (iv) situations where, in the opinion of the state engineer, the nonuse would assist
179 in implementing an existing, approved water management plan; or
180 [(vi) situations where all or part of the land on which water is used is contracted under
181 an approved state agreement or federal conservation fallowing program;]
182 [(vii)] (v) the loss of capacity caused by deterioration of the water supply or delivery

183 equipment if the applicant submits, with the application, a specific plan to resume full use of
184 the water right by replacing, restoring, or improving the equipment[; or].
185 [(viii) any other reasonable cause.]
186 [(6)] (5) (a) Sixty days before the expiration of [any extension of time] a nonuse
187 application, the state engineer shall notify the applicant by mail or by any form of electronic
188 communication through which receipt is verifiable, of the date when the [extension period]
189 nonuse application will expire.
190 (b) Before the [date of] expiration of the nonuse application, the applicant shall either:
191 (i) file a verified statement with the state engineer setting forth the date on which use of
192 the water was resumed, and whatever additional information is required by the state engineer;
193 or
194 (ii) apply for [a further extension of time in which to resume use of the water] another
195 nonuse application according to the procedures and requirements of this section.
196 (c) Upon receipt of the applicant's properly completed, verified statement, the state
197 engineer shall conduct investigations necessary to verify that beneficial use has resumed and, if
198 so, shall issue a certificate of resumption of use of the water as evidenced by the resumed
199 beneficial use.
200 [(7)] (6) The appropriator's water right or a portion of the water right [ceases and the
201 water reverts to the public] is subject to forfeiture in accordance with Subsection (2)(c) if the:
202 (a) appropriator or the appropriator's successor in interest fails to apply for an
203 extension of time;
204 (b) state engineer denies the nonuse application; or
205 (c) appropriator or the appropriator's successor in interest fails to apply for a further
206 extension of time.




Legislative Review Note
as of 11-15-07 7:23 AM

Office of Legislative Research and General Counsel