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Third Substitute S.B. 85
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill
on Wed, Feb 27, 2008 at 11:20 AM by smaeser. -->
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill
on Wed, Feb 27, 2008 at 11:55 AM by smaeser. -->
This document includes Senate 2nd Reading Floor Amendments (CORRECTED)
incorporated into the bill on Wed, Mar 5, 2008 at 4:57 PM by rday. -->
Senator Dennis E. Stowell proposes the following substitute bill:
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WATER RIGHTS BOARD
2
2008 GENERAL SESSION
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STATE OF UTAH
4
Chief Sponsor: Dennis E. Stowell
5
House Sponsor:
James R. Gowans
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7
LONG TITLE
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General Description:
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This bill creates the Water Rights Board.
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Highlighted Provisions:
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This bill:
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. creates a Water Rights Board as the policymaking board for the state engineer and
13
the Division of Water Rights;
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. authorizes the Water Rights Board to:
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. set fees;
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. make rules;
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. appoint an administrative law judge to conduct an administrative review a final
18
order of the state engineer;
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. recommend to the governor the suspension or restoration of the appropriation of
20
surplus water;
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. recommend to the Legislature amendments to or enactments of water law; and
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. submit nominations to the governor for the state engineer appointment;
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. requires the governor to appoint the state engineer from names submitted by the
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Water Rights Board;
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. authorizes an administrative law judge to review a final order of the state engineer;
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. revokes the authority of the state engineer to:
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. make rules;
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. set fees;
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. recommend to the governor the suspension or restoration of the appropriation of
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surplus water; and
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. recommend to the Legislature amendments to or enactments of water law;
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. revokes the authority of the Division of Water Rights to:
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. set a bond amount; and
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. make rules; and
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. authorizes an aggrieved person to request administrative or judicial review of a final
36
order of the state engineer.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
43
73-1-10, as last amended by Laws of Utah 2003, Chapter 298
44
73-2-1, as last amended by Laws of Utah 2007, Chapter 329
45
73-2-1.5, as last amended by Laws of Utah 2005, Chapter 33
46
73-2-10, as last amended by Laws of Utah 1983, Chapter 201
47
73-2-14, as last amended by Laws of Utah 2007, Chapter 314
48
73-2-25, as last amended by Laws of Utah 2007, Chapter 136
49
73-2-26, as enacted by Laws of Utah 2005, Chapter 33
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73-3-5.6, as enacted by Laws of Utah 1995, Chapter 121
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73-3-14, as last amended by Laws of Utah 1987, Chapter 161
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73-3-16, as last amended by Laws of Utah 1998, Chapter 33
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73-3-23, Utah Code Annotated 1953
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73-3-25, as last amended by Laws of Utah 2004, Chapter 191
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73-3a-104, as enacted by Laws of Utah 1991, Chapter 234
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73-3b-104, as enacted by Laws of Utah 1991, Chapter 146
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73-3b-201, as last amended by Laws of Utah 1995, Chapter 28
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73-3b-204, as last amended by Laws of Utah 1995, Chapter 28
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73-3b-302, as last amended by Laws of Utah 1995, Chapter 28
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73-3c-302, as enacted by Laws of Utah 2006, Chapter 179
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73-5-13, as last amended by Laws of Utah 2001, Chapter 136
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73-5-15, as last amended by Laws of Utah 2007, Chapters 179 and 329
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73-5a-101, as enacted by Laws of Utah 1990, Chapter 319
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73-5a-105, as enacted by Laws of Utah 1990, Chapter 319
65
73-5a-203, as enacted by Laws of Utah 1990, Chapter 319
66
73-5a-304, as enacted by Laws of Utah 1990, Chapter 319
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73-5a-401, as enacted by Laws of Utah 1990, Chapter 319
68
73-5a-403, as enacted by Laws of Utah 1990, Chapter 319
69
73-5a-502, as last amended by Laws of Utah 1996, Chapter 264
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73-5a-602, as enacted by Laws of Utah 1990, Chapter 319
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73-6-1, Utah Code Annotated 1953
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73-6-2, Utah Code Annotated 1953
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73-22-5, as last amended by Laws of Utah 1987, Chapter 161
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73-22-6, as enacted by Laws of Utah 1981, Chapter 188
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73-22-10, as last amended by Laws of Utah 1987, Chapter 161
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ENACTS:
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73-2-29, Utah Code Annotated 1953
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73-2-30, Utah Code Annotated 1953
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73-2-31, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
73-1-10
is amended to read:
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73-1-10. Conveyance of water rights -- Deed -- Exceptions -- Filing and recording
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of deed -- Report of water right conveyance.
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(1) (a) A water right, whether evidenced by a decree, a certificate of appropriation, a
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diligence claim to the use of surface or underground water, or a water user's claim filed in
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general determination proceedings, shall be transferred by deed in substantially the same
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manner as is real estate.
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(b) The deed must be recorded in the office of the recorder of the county where the
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point of diversion of the water is located and in the county where the water is used.
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(c) A recorded deed of a water right shall from the time of its recording in the office of
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the county recorder constitute notice of its contents to all persons.
93
(2) The right to the use of water evidenced by shares of stock in a corporation shall be
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transferred in accordance with the procedures applicable to securities set forth in Title 70A,
95
Chapter 8, Uniform Commercial Code - Investment Securities.
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(3) (a) To update water right ownership on the records of the state engineer, a water
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right owner shall submit a report of water right conveyance to the state engineer.
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(b) The report of water right conveyance shall be on forms provided by the state
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engineer.
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(c) The report shall be prepared by:
101
(i) or prepared under the direction of and certified by, any of the following persons
102
licensed in Utah:
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(A) an attorney;
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(B) a professional engineer;
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(C) a title insurance producer; or
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(D) a professional land surveyor; or
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(ii) the water right owner as authorized by rule of the [state engineer] Water Rights
108
Board.
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(d) The filing and processing of a report of water right conveyance with the state
110
engineer is neither an adjudication of water right ownership nor an opinion as to title or validity
111
of the water right.
112
(e) The [state engineer] Water Rights Board shall adopt rules that specify:
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(i) the information required in a report of water right conveyance; and
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(ii) the procedures for processing the reports.
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Section 2.
Section
73-2-1
is amended to read:
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73-2-1. State engineer -- Term -- Powers and duties -- Qualification for duties.
117
(1) There shall be a state engineer.
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(2) (a) The state engineer shall:
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[(a)] (i) be appointed by the governor with the consent of the Senate;
120
[(b)] (ii) hold office for the term of four years and until a successor is appointed; and
121
[(c)] (iii) have five years experience as a practical engineer or the theoretical
122
knowledge, practical experience, and skill necessary for the position.
123
(b) The governor shall appoint the state engineer from a list of nominees submitted by
124
the Water Rights Board.
125
(3) (a) The state engineer shall be responsible for the general administrative
126
supervision of the waters of the state and the measurement, appropriation, apportionment, and
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distribution of those waters.
128
(b) The state engineer may secure the equitable apportionment and distribution of the
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water according to the respective rights of appropriators.
130
[(4) The state engineer shall make rules, in accordance with Title 63, Chapter 46a,
131
Utah Administrative Rulemaking Act, consistent with the purposes and provisions of this title,
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regarding:]
133
[(a) reports of water right conveyances;]
134
[(b) the construction of water wells and the licensing of water well drillers;]
135
[(c) dam construction and safety;]
136
[(d) the alteration of natural streams;]
137
[(e) sewage effluent reuse;]
138
[(f) geothermal resource conservation; and]
139
[(g) enforcement orders and the imposition of fines and penalties.]
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[(5) The state engineer may make rules, in accordance with Title 63, Chapter 46a, Utah
141
Administrative Rulemaking Act, consistent with the purposes and provisions of this title,
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governing:]
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[(a) water distribution systems and water commissioners;]
144
[(b) water measurement and reporting;]
145
[(c) ground-water recharge and recovery;]
146
[(d) the determination of water rights; and]
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[(e) the form and content of applications and related documents, maps, and reports.]
148
[(6)] (4) The state engineer may bring suit in courts of competent jurisdiction to:
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(a) enjoin the unlawful appropriation, diversion, and use of surface and underground
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water without first seeking redress through the administrative process;
151
(b) prevent theft, waste, loss, or pollution of those waters;
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(c) enable him to carry out the duties of his office; and
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(d) enforce administrative orders and collect fines and penalties.
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[(7)] (5) The state engineer may:
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(a) upon request from the board of trustees of an irrigation district under Title 17B,
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Chapter 2a, Part 5, Irrigation District Act, or another local district under Title 17B, Limited
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Purpose Local Government Entities - Local Districts, or a special service district under Title
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17A, Chapter 2, Part 13, Utah Special Service District Act, that operates an irrigation water
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system, cause a water survey to be made of all lands proposed to be annexed to the district in
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order to determine and allot the maximum amount of water that could be beneficially used on
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the land, with a separate survey and allotment being made for each 40-acre or smaller tract in
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separate ownership; and
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(b) upon completion of the survey and allotment under Subsection [(7)] (5)(a), file with
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the district board a return of the survey and report of the allotment.
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[(8)] (6) (a) The state engineer may establish water distribution systems and define
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their boundaries.
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(b) The water distribution systems shall be formed in a manner that:
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(i) secures the best protection to the water claimants; and
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(ii) is the most economical for the state to supervise.
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Section 3.
Section
73-2-1.5
is amended to read:
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73-2-1.5. Procedures -- Adjudicative proceedings.
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Except as provided in Sections
63-46b-1
and
73-2-25
, the Water Rights Board, the state
173
engineer, and the Division of Water Rights shall comply with the procedures and requirements
174
of Title 63, Chapter 46b, Administrative Procedures Act, in their adjudicative proceedings.
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Section 4.
Section
73-2-10
is amended to read:
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73-2-10. Knowledge of waterways and irrigation -- Suggestions as to amendment
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or enactment of laws.
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(1) The state engineer shall become conversant with the waterways of the state and its
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needs as to irrigation matters[; and he shall make such suggestions as to the amendment of].
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(2) The Water Rights Board shall suggest an amendment to existing laws or the
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enactment of new laws [as his information and experience shall suggest].
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Section 5.
Section
73-2-14
is amended to read:
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73-2-14. Fees -- Deposited as a dedicated credit.
184
(1) The [state engineer] Water Rights Board shall charge fees pursuant to Section
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63-38-3.2
for the following:
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(a) applications to appropriate water;
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(b) applications to temporarily appropriate water;
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(c) applications for permanent or temporary change;
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(d) applications for exchange;
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(e) applications for an extension of time in which to resume use of water;
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(f) applications to appropriate water, or make a permanent or temporary change, for use
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outside the state filed pursuant to Title 73, Chapter 3a, Water Exports;
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(g) groundwater recovery permits;
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(h) diligence claims for surface or underground water filed pursuant to Section
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73-5-13
;
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(i) republication of notice to water users after amendment of application where
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required by this title;
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(j) applications to segregate;
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(k) requests for an extension of time in which to submit proof of appropriation not to
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exceed 14 years after the date of approval of the application;
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(l) requests for an extension of time in which to submit proof of appropriation 14 years
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or more after the date of approval of the application;
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(m) groundwater recharge permits;
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(n) applications for a well driller's license, annual renewal of a well driller's license,
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and late annual renewal of a well driller's license;
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(o) certification of copies;
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(p) preparing copies of documents; [and]
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(q) reports of water right conveyance[.]; and
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(r) administrative review under Section
73-2-31
.
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(2) (a) Fees for the services specified in Subsections (1)(a) through (i) shall be based
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upon the rate of flow or volume of water.
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(b) If it is proposed to appropriate by both direct flow and storage, the fee shall be
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based upon either the rate of flow or annual volume of water stored, whichever fee is greater.
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(c) The fee for the service specified in Subsection (1)(r) shall be based on the cost of
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the administrative review process.
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(3) [Fees] Except as provided in Subsection (4), a fee collected under this section:
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(a) shall be deposited in the General Fund as a dedicated credit to be used by the
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Division of Water Rights; and
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(b) may only be used by the Division of Water Rights to:
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(i) meet the publication of notice requirements under this title; and
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(ii) process reports of water right conveyance.
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(4) The fee collected under Subsection (1)(r) shall be deposited in the General Fund as
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a dedicated credit to be used by the Water Rights Board for the costs associated with the
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administrative review process.
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Section 6.
Section
73-2-25
is amended to read:
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73-2-25. State engineer enforcement powers.
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(1) For purposes of this section, "initial order" means one of the following issued by
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the state engineer:
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(a) a notice of violation; or
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(b) a cease and desist order.
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(2) (a) The state engineer may commence an enforcement action under this section if
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the state engineer finds that a person:
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(i) is diverting, impounding, or using water for which no water right has been
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established;
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(ii) is diverting, impounding, or using water in violation of an existing water right;
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(iii) violates Section
73-5-4
;
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(iv) violates Section
73-5-9
;
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(v) violates a written distribution order from the state engineer;
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(vi) violates an order issued under Section
73-3-29
regarding the alteration of the bed
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or bank of a natural stream channel; or
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(vii) violates a notice or order regarding dam safety issued under Chapter 5a, Dam
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Safety.
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(b) To commence an enforcement action under this section, the state engineer shall
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issue an initial order, which shall include:
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(i) a description of the violation;
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(ii) notice of any penalties to which a person may be subject under Section
73-2-26
;
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and
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(iii) notice that the state engineer may treat each day's violation of the provisions listed
249
in Subsection (2)(a) as a separate violation under Subsection
73-2-26
(1)(d).
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(c) The state engineer's issuance and enforcement of an initial order is exempt from
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Title 63, Chapter 46b, Administrative Procedures Act.
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(3) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
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[state engineer] the Water Rights Board shall make rules necessary to enforce an initial order,
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which shall include:
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(a) provisions consistent with this section and Section
73-2-26
for enforcement of the
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initial order if a person to whom an initial order is issued fails to respond to the order or abate
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the violation;
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(b) the right to a hearing, upon request by a person against whom an initial order is
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issued; and
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(c) provisions for timely issuance of a final order after:
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(i) the person to whom the initial order is issued fails to respond to the order or abate
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the violation; or
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(ii) a hearing held under Subsection (3)(b).
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(4) A person may not intervene in an enforcement action commenced under this
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section.
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(5) After issuance of a final order under rules made pursuant to Subsection (3)(c), the
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state engineer shall serve a copy of the final order on the person against whom the order is
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issued by:
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(a) personal service under Utah Rules of Civil Procedure 5; or
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(b) certified mail.
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(6) (a) The state engineer's final order may be reviewed by:
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(i) the Water Rights Board as authorized by Section
73-2-31
; or
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(ii) trial de novo by the district court in:
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[(i)] (A) Salt Lake County; or
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[(ii)] (B) the county where the violation occurred.
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(b) A person shall file a petition for administrative or judicial review of the state
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engineer's final order issued under this section within 20 days from the day on which the final
278
order was served on that person.
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(7) The state engineer may bring suit in a court of competent jurisdiction to enforce a
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final order issued under this section.
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(8) If the state engineer prevails in an action brought under Subsection (6)(b) or (7), the
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state may recover all court costs and a reasonable attorney fee.
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Section 7.
Section
73-2-26
is amended to read:
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73-2-26. Administrative penalties.
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(1) (a) As part of a final order issued under Section
73-2-25
, the state engineer may
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order that a person to whom an order is issued:
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(i) pay an administrative fine not to exceed:
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(A) $5,000 for each knowing violation; or
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(B) $1,000 for each violation that is not knowing;
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(ii) replace up to 200% of water taken; and
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(iii) be liable for any expense incurred by the state engineer or division in investigating
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and stopping the violation.
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(b) The definition of "knowingly" under Subsection
76-2-103
(2) shall apply to
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determinations under Subsection (1)(a)(i).
295
(c) The penalties described in Subsection (1)(a) shall be in addition to:
296
(i) any criminal penalty established for a violation described in Subsection (1); and
297
(ii) any private right of action.
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(d) (i) Each day of a continuing violation of the provisions described in Subsection
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73-2-25
(2)(a) or an initial or final order issued under Section
73-2-25
is a separate violation.
300
(ii) A penalty may not be imposed for a violation of the provisions listed in Subsection
301
73-2-25
(2)(a) or an initial or a final order issued under Section
73-2-25
for a violation
302
occurring more than 12 months before the day on which a notice of violation is issued.
303
(e) Separate violations under Subsection (1)(d) may be consolidated for resolution in
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one enforcement proceeding under Section
73-2-25
.
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(f) The state engineer has discretion to pursue an administrative fine, order requiring
306
replacement, or both.
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(2) Before imposing a fine or ordering replacement under Subsection (1), the state
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engineer shall consider:
309
(a) the value or quantity of water unlawfully taken, including the cost or difficulty of
310
replacing the water;
311
(b) the gravity of the violation, including the economic injury or impact to others;
312
(c) whether the person subject to fine or replacement attempted to comply with the
313
state engineer's orders; and
314
(d) the violator's economic benefit from the violation.
315
(3) (a) The state engineer may require that the water unlawfully taken be replaced after:
316
(i) a person fails to request administrative or judicial review of a final order issued
317
under Section
73-2-25
; or
318
(ii) the completion of administrative or judicial review, including any appeals.
319
(b) The state engineer's order shall require that replacement of water begin within one
320
year of the day on which:
321
(i) the time period for requesting administrative or judicial review of a final order
322
issued under Section
73-2-25
expires without a person requesting administrative or judicial
323
review of the final order; or
324
(ii) the completion of administrative or judicial review, including any appeals.
325
(4) Water replaced under Subsection (3) shall be taken from water that the person
326
subject to the order requiring replacement would be entitled to use during the replacement
327
period.
328
(5) (a) If the state engineer issues an order requiring replacement, a copy of the order
329
shall be placed in the Division of Water Rights' water rights records.
330
(b) The order requiring replacement shall constitute a lien upon the water right affected
331
if the state engineer files a notice of lien in the office of the county recorder in the county
332
where the place of use of the water right is located.
333
(c) A notice of lien under Subsection (5)(b) shall include a legal description of the
334
place of use of the water right.
335
(6) Any monies collected under this section shall be deposited into the General Fund.
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Section 8.
Section
73-2-29
is enacted to read:
337
73-2-29. Water Rights Board created.
338
(1) As used in this section, "board" means the Water Rights Board.
339
(2) There is created the Water Rights Board that is the policymaking board for the state
340
engineer and the Division of Water Rights.
341
(3) (a) The governor, with the consent of the Senate, shall appoint the following five
342
members to the board:
343
(i) one member who:
344
(A) represents an agricultural or livestock interest;
345
(B) owns a surface water right; and
346
(C) is nominated by an organization that promotes agriculture;
347
(ii) one member who:
348
(A) represents an agricultural or livestock interest;
349
(B) owns a groundwater right; and
350
(C) is nominated by an organization that promotes agriculture;
351
(iii) one member who:
352
(A) represents a municipality; and
353
(B) is nominated by an organization that promotes municipal interests;
354
(iv) one member who:
355
(A) represents a water conservancy district; and
356
(B) is nominated by an organization that represents water conservancy districts; and
357
(v) one member who:
358
(A) represents a fish, wildlife, or recreational interest; and
359
(B) is nominated by an organization that promotes the instream flow of water.
360
(b) (i) At least one member appointed under Subsection (3)(a) shall be:
361
(A) licensed to practice law in the state; and
362
(B) knowledgeable about water law.
363
(ii) No member appointed under Subsection (3)(a) may reside in the same county as
364
another member.
365
(c) (i) A nominating organization shall nominate at least three people.
366
(ii) If the governor rejects all nominations submitted for a member, the nominating
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367
organization shall submit additional names.
368
(d) If no organization submits a nomination, the governor shall appoint a member who
369
represents the interest listed in Subsection (3)(a).
370
(4) (a) Except as provided by Subsection (4)(b), a member shall serve a four year term.
371
(b) The governor shall, at the time of appointment or reappointment, adjust the length
372
of terms to ensure that the terms of no more than half of the members expire in a fiscal year.
373
(c) When a vacancy occurs on the board for any reason, the governor shall appoint a
374
replacement for the unexpired term with the consent of the Senate.
375
(5) (a) A board member may not receive compensation or benefits for the member's
376
services, but may receive per diem and expenses incurred in the performance of the member's
377
official duties at the rates established by the Division of Finance under Sections
63A-3-106
and
378
63A-3-107
.
379
(b) A member may decline to receive per diem and expenses for the member's service.
380
(6) (a) The board shall elect one of its members to serve as chair for a term of two
381
years.
382
(b) All members on the board have equal voting rights on a board matter when present
383
at a board meeting.
384
(c) Four board members is a quorum for conducting board business.
385
(d) A majority vote of the quorum present is required for an action to be taken by the
386
board.
387
(7) The board shall meet at each of the Division of Water Rights' regional offices at
388
least once a year, but may hold other meetings at times and places as scheduled by:
389
(a) the chair; or
390
(b) three members, upon filing a written request for a meeting with the chair.
391
(8) The attorney general shall provide the Water Rights Board with:
392
(a) legal advice; and
393
(b) legal services in the prosecution or defense of an action resulting from the
394
performance of the board's duties.
395
(9) The Division of Water Rights shall provide necessary administrative and staff
396
support services to the Water Rights Board.
397
Section 9.
Section
73-2-30
is enacted to read:
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Senate 3rd Reading Amendments 2-27-2008 sm/
398
73-2-30. Water Rights Board -- Powers -- Duties.
399
(1) The Water Rights Board shall:
400
(a) set policy consistent with this title for the state engineer and the Division of Water
401
Rights by making rules in accordance with Title 63, Chapter 46a, Utah Administrative
402
Rulemaking Act, and as provided in this title;
403
(b) adopt a fee authorized by this title;
404
(c) appoint an administrative law judge to review an order by the state engineer as
405
provided by Section
73-2-31
;
406
(d) nominate at least three people for the appointment of the state engineer in
407
accordance with Section
73-2-1
; and
408
(e) perform other duties assigned to the Water Rights Board in this title.
409
(2) A rule made by the state engineer or the Division of Water Rights that is in effect
410
on May 4, 2008 is considered a rule made by the board on May 5, 2008.
411
Section 10.
Section
73-2-31
is enacted to read:
412
73-2-31. Administrative Review by the Water Rights Board.
413
(1) A person aggrieved by a final order of the state engineer regarding a water right of
414
50 S. [
acre-fee
]
acre-feet
.S or less:
415
(a) may seek administrative review of the order by the administrative law judge
416
appointed by the Water Rights Board by:
417
(i) following Section
63-46b-12
; and
418
(ii) paying the fee set in accordance with Section
73-2-14
.
419
(b) is not required to seek an administrative review before seeking judicial review of
420
the order in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
421
(2) (a) For purposes of Section
63-46b-12
, the administrative law judge is a superior
422
agency that may review a final order of the state engineer.
423
(b) After review of a state engineer's final order in accordance with Title 63, Chapter
424
46b, Administrative Procedures Act, the administrative law judge may:
425
(i) take no action;
426
(ii) vacate or remand the order; or
427
(iii) amend the order.
428
(c) The administrative law judge shall sign a written final order on review as required
Text Box
- 15 -
429
by Section
63-46b-12
.
430
(3) A person aggrieved by a final order of the administrative law judge may seek
431
judicial review of the order in accordance with Title 63, Chapter 46b, Administrative
432
Procedures Act.
433
(4) An order by the state engineer is final 30 days after the day on which the order is
434
issued unless stayed, amended, or overturned by:
435
(a) the administrative law judge under Section
63-46b-12
;
436
(b) a district court under Section
63-46b-15
; or
437
(c) the Supreme Court under Section
63-46b-16
.
438
Section 11.
Section
73-3-5.6
is amended to read:
439
73-3-5.6. Applications to appropriate or permanently change a small amount of
440
water.
441
(1) The state engineer may approve an application to appropriate or permanently
442
change a small amount of water necessary to meet the requirements of one residence, 1/4 acre
443
of irrigable land, and ten cattle or the equivalent amount of water for livestock purposes, if:
444
(a) the state engineer undertakes a thorough investigation of the proposed appropriation
445
or permanent change;
446
(b) notice is provided in accordance with Subsection (2); and
447
(c) the application complies with [the state engineer's]:
448
(i) the Water Rights Board's regional policies and restrictions made by rule; and
449
(ii) Section
73-3-3
or
73-3-8
, as applicable.
450
(2) (a) Advertising of an application to appropriate or permanently change a small
451
amount of water as specified in Subsection (1) shall be at the discretion of the state engineer.
452
(b) If the state engineer finds that the uses proposed by the application may impair
453
other rights, before approving the application, the state engineer shall give notice of the
454
application according to Section
73-3-6
.
455
(3) An applicant receiving approval under this section shall be responsible for the time
456
limit of construction and submitting proof of appropriation or permanent change as required
457
under this chapter.
458
Section 12.
Section
73-3-14
is amended to read:
459
73-3-14. Judicial and administrative review.
Text Box
- 16 -
460
(1) (a) Any person aggrieved by an order of the state engineer may obtain:
461
(i) administrative review by the Water Rights Board in accordance with Section
462
73-2-31
; or
463
(ii) judicial review by following the procedures and requirements of Title 63, Chapter
464
46b, Administrative Procedures Act.
465
(b) Venue for judicial review of informal adjudicative proceedings shall be in the
466
county in which the stream or water source, or some part of it, is located.
467
(2) The state engineer shall be joined as a defendant in all suits to review [his] the state
468
engineer's decisions, but no judgment for costs or expenses of the litigation may be rendered
469
against [him] the state engineer.
470
Section 13.
Section
73-3-16
is amended to read:
471
73-3-16. Proof of appropriation or permanent change -- Notice -- Manner of
472
proof -- Statements -- Maps, profiles, and drawings -- Verification -- Waiver of filing --
473
Statement in lieu of proof of appropriation or change.
474
(1) Sixty days before the date set for the proof of appropriation or proof of change to be
475
made, the state engineer shall notify the applicant by mail when proof of completion of the
476
works and application of the water to a beneficial use will be due.
477
(2) On or before the date set for completing the proof in accordance with the
478
application, the applicant shall file proof with the state engineer on forms furnished by the state
479
engineer.
480
(3) Except as provided in Subsection (4), the applicant shall submit the following
481
information:
482
(a) a description of the works constructed;
483
(b) the quantity of water in acre-feet or the flow in second-feet diverted, or both;
484
(c) the method of applying the water to beneficial use; and
485
(d) (i) detailed measurements of water put to beneficial use;
486
(ii) the date the measurements were made; and
487
(iii) the name of the person making the measurements.
488
(4) (a) On applications filed for appropriation or permanent change of use of water to
489
provide a water supply for state projects constructed pursuant to Title 73, Chapter 10, Board of
490
Water Resources - Division of Water Resources, or for federal projects constructed by the
Text Box
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491
United States Bureau of Reclamation for the use and benefit of the state, any of its agencies, its
492
political subdivisions, public and quasi-municipal corporations, or water users' associations of
493
which the state, its agencies, political subdivisions, or public and quasi-municipal corporations
494
are stockholders, the proof shall include:
495
(i) a statement indicating construction of the project works has been completed;
496
(ii) a description of the major features with appropriate maps, profiles, drawings, and
497
reservoir area-capacity curves;
498
(iii) a description of the point or points of diversion and rediversion;
499
(iv) project operation data;
500
(v) a map showing the place of use of water and a statement of the purpose and method
501
of use;
502
(vi) the project plan for beneficial use of water under the applications and the quantity
503
of water required; and
504
(vii) a statement indicating what type of measuring devices have been installed.
505
(b) The director of the Division of Water Resources shall sign proofs for the state
506
projects and an authorized official of the Bureau of Reclamation shall sign proofs for the
507
federal projects specified in Subsection (4)(a).
508
(5) The proof on all applications shall be sworn to by the applicant or the applicant's
509
appointed representative and proof engineer.
510
(6) (a) Except as provided in Subsection (6)(b), when filing proof, the applicant shall
511
submit maps, profiles, and drawings made by a Utah licensed land surveyor or Utah licensed
512
professional engineer that show:
513
(i) the location of the completed works;
514
(ii) the nature and extent of the completed works;
515
(iii) the natural stream or source from which and the point where the water is diverted
516
and, in the case of a nonconsumptive use, the point where the water is returned; and
517
(iv) the place of use.
518
(b) The state engineer may waive the filing of maps, profiles, and drawings if in the
519
state engineer's opinion the written proof adequately describes the works and the nature and
520
extent of beneficial use.
521
(7) The completed proof shall conform to rules [and standards] established by the [state
Text Box
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522
engineer] Water Rights Board.
523
(8) In those areas in which general determination proceedings are pending, or have
524
been concluded, under Title 73, Chapter 4, Determination of Water Rights, the state engineer
525
may petition the district court for permission to:
526
(a) waive the requirements of this section and Section
73-3-17
; and
527
(b) permit each owner of an application to file a verified statement to the effect that the
528
applicant has completed the appropriation or change and elects to file a statement of water
529
users claim in the proposed determination of water rights or any supplement to it in accordance
530
with Title 73, Chapter 4, Determination of Water Rights, in lieu of proof of appropriation or
531
proof of change.
532
Section 14.
Section
73-3-23
is amended to read:
533
73-3-23. Replacement of water.
534
(1) In all cases of appropriations of underground water the right of replacement is
535
hereby granted to any junior appropriator whose appropriation may diminish the quantity or
536
injuriously affect the quality of appropriated underground water in which the right to the use
537
thereof has been established as provided by law.
538
(2) No replacement may be made until application in writing has been made to and
539
approved by the state engineer.
540
(3) In all cases replacement shall be at the sole cost and expense of the applicant and
541
subject to [such] rules [and regulations as the state engineer may prescribe] made by the Water
542
Rights Board.
543
(4) The right of eminent domain is hereby granted to any applicant for the purpose of
544
replacement as provided herein.
545
Section 15.
Section
73-3-25
is amended to read:
546
73-3-25. Well driller's license -- Bond -- Revocation or suspension for
547
noncompliance.
548
(1) (a) Every person that constructs a well in the state shall obtain a license from the
549
state engineer.
550
(b) [The state engineer] In accordance with Title 63, Chapter 46a, Utah Administrative
551
Rulemaking Act, the Water Rights Board shall enact rules:
552
(i) defining the form, the expiration date, and the renewal cycle of the application for a
Text Box
- 19 -
553
license[.]; and
554
(ii) regulating well construction.
555
(c) Well drillers' licenses are not transferable. [The state engineer shall enact rules for
556
well construction according to the procedures and requirements of Title 63, Chapter 46a, Utah
557
Administrative Rulemaking Act.]
558
(2) (a) (i) A person who constructs a well in this state must first obtain a license as
559
provided in this section.
560
(ii) Before a well driller's license will be issued, the applicant must file a well driller
561
bond with the state engineer.
562
(iii) The bond shall be made payable to the Office of the State Engineer.
563
(iv) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
564
the [state engineer] Water Rights Board may make rules to set the amount, form, and general
565
administrative requirements of a well driller bond. Proper compliance with the provisions of
566
this section and the rules enacted under the authority of this section are required to obtain or
567
renew a license.
568
(b) (i) Well drillers shall comply with the rules [enacted by the state engineer under this
569
chapter] authorized by this section.
570
(ii) If the state engineer determines, following an investigation, that the licensee has
571
failed to comply with these rules, the state engineer may revoke or suspend the license, and
572
exact the bond and deposit the money as a nonlapsing dedicated credit.
573
(iii) The state engineer may expend the funds to investigate or correct any deficiencies
574
which could adversely affect the public interest resulting from noncompliance with the rules
575
promulgated under this chapter by any well driller.
576
(iv) The state engineer may refuse to issue a license to a well driller if it appears that
577
there has been a violation of the rules or a failure to comply with Section
73-3-22
.
578
Section 16.
Section
73-3a-104
is amended to read:
579
73-3a-104. Rulemaking power of Water Rights Board.
580
In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
581
[state engineer] Water Rights Board may make rules necessary to administer this chapter.
582
Section 17.
Section
73-3b-104
is amended to read:
583
73-3b-104. Rulemaking power of Water Rights Board.
Text Box
- 20 -
584
The [state engineer] Water Rights Board may make rules to administer this chapter in
585
accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
586
Section 18.
Section
73-3b-201
is amended to read:
587
73-3b-201. Application for a recharge permit -- Required information -- Filing
588
fee.
589
(1) The application for obtaining a groundwater recharge permit shall include the
590
following information:
591
(a) the name and mailing address of the applicant;
592
(b) the name of the groundwater basin or groundwater sub-basin in which the applicant
593
proposes to operate the project;
594
(c) the name and mailing address of the owner of the land on which the applicant
595
proposes to operate the project;
596
(d) a legal description of the location of the proposed project;
597
(e) the source and annual quantity of water proposed to be stored underground;
598
(f) evidence of a water right or an agreement to use the water proposed to be stored
599
underground;
600
(g) the quality of the water proposed to be stored underground and the water quality of
601
the receiving groundwater aquifer;
602
(h) evidence that the applicant has applied for all applicable water quality permits;
603
(i) a plan of operation for the proposed recharge and recovery project which shall
604
include:
605
(i) a description of the proposed project;
606
(ii) its design capacity;
607
(iii) a detailed monitoring program; and
608
(iv) the proposed duration of the project;
609
(j) a copy of a study demonstrating[;]:
610
(i) the area of hydrologic impact of the project;
611
(ii) that the project is hydrologically feasible;
612
(iii) that the project will not:
613
(A) cause unreasonable harm to land; or
614
(B) impair any existing water right within the area of hydrologic impact; and
Text Box
- 21 -
615
(iv) the percentage of anticipated recoverable water;
616
(k) evidence of financial and technical capability; and
617
(l) any other information that the state engineer requires.
618
(2) (a) A filing fee must be submitted with the application.
619
(b) The [state engineer] Water Rights Board shall establish the filing fee in accordance
620
with Section
63-38-3.2
.
621
Section 19.
Section
73-3b-204
is amended to read:
622
73-3b-204. Application for a recovery permit -- Required information.
623
(1) If a person intends to recharge and recover water, the recovery application and
624
permit may be filed and processed with the groundwater recharge application and permit.
625
(2) The application for obtaining a recovery permit shall include the following
626
information:
627
(a) the name and mailing address of the applicant;
628
(b) a legal description of the location of the existing well or proposed new well from
629
which the applicant intends to recover stored water;
630
(c) a written consent from the owner of the recharge permit;
631
(d) the name and mailing address of the owner of the land from which the applicant
632
proposes to recover stored water;
633
(e) the name or description of the artificially recharged groundwater aquifer which is
634
the source of supply;
635
(f) the purpose for which the stored water will be recovered;
636
(g) the depth and diameter of the existing well or proposed new well;
637
(h) a legal description of the area where the stored water is proposed to be used;
638
(i) the design pumping capacity of the existing well or proposed new well; and
639
(j) any other information including maps, drawings, and data that the state engineer
640
requires.
641
(3) (a) A filing fee must be submitted with the application.
642
(b) The [state engineer] Water Rights Board shall establish the filing fee in accordance
643
with Section
63-38-3.2
.
644
Section 20.
Section
73-3b-302
is amended to read:
645
73-3b-302. Fee.
Text Box
- 22 -
646
(1) The [state engineer] Water Rights Board shall assess an annual fee, in accordance
647
with Section
63-38-3.2
, on each person who holds a groundwater recharge or recovery permit.
648
(2) The fee shall reflect the division's costs to administer and monitor groundwater
649
recharge and recovery projects.
650
Section 21.
Section
73-3c-302
is amended to read:
651
73-3c-302. Application to the state engineer.
652
(1) A public agency proposing water reuse shall apply to the state engineer.
653
(2) An application for water reuse under Subsection (1) shall be made upon forms
654
furnished by the state engineer and shall include:
655
(a) the name of the applicant;
656
(b) a description of the underlying water right;
657
(c) an evaluation of the underlying water right's diversion, depletion, and return flow
658
requirements;
659
(d) the estimated quantity of water to be reused;
660
(e) the location of the POTW;
661
(f) the place, purpose, and extent of the proposed water reuse;
662
(g) an evaluation of depletion from the hydrologic system caused by the water reuse;
663
and
664
(h) any other information consistent with this chapter that is requested by the state
665
engineer.
666
(3) An application under Subsection (1) shall include a copy of a reuse authorization
667
contract for water reuse proposed by a public agency for any underlying water right not owned
668
by the public agency.
669
(4) In considering an application for water reuse, the state engineer shall comply with:
670
(a) Section
73-3-6
;
671
(b) Section
73-3-7
;
672
(c) Section
73-3-10
; and
673
(d) Section
73-3-14
.
674
(5) In determining whether a proposed water reuse is consistent with the underlying
675
water right, the state engineer shall conclude that a proposed water reuse is consistent with the
676
underlying water right if:
Text Box
- 23 -
677
(a) the use of the reuse water does not enlarge the underlying water right; and
678
(b) any return flow requirement of the underlying water right is satisfied.
679
(6) (a) The state engineer shall approve a water reuse application if the state engineer
680
concludes that the proposed water reuse is consistent with the underlying water right.
681
(b) The state engineer may:
682
(i) deny an application for water reuse if the proposed water reuse is inconsistent with
683
the underlying water right; or
684
(ii) approve the application in part or with conditions to assure consistency with the
685
underlying water right.
686
(7) A public agency with an approved reuse application shall submit a report, as
687
directed by the state engineer, concerning the ongoing water reuse operation.
688
(8) The [state engineer] Water Rights Board may make rules in accordance with Title
689
63, Chapter 46a, Utah Administrative Rulemaking Act, to implement the provisions of this
690
chapter.
691
Section 22.
Section
73-5-13
is amended to read:
692
73-5-13. Claim to surface or underground water not otherwise represented --
693
Information required -- Corrections -- Filing -- Investigation -- Publication -- Judicial
694
action to determine validity -- Rules.
695
(1) (a) All claimants to the right to the use of water, including both surface and
696
underground, whose rights are not represented by certificates of appropriation issued by the
697
state engineer, by applications filed with the state engineer, by court decrees, or by notice of
698
claim filed pursuant to law, shall submit the claim to the state engineer.
699
(b) Subsections (2) through (7) shall only apply to claims submitted to the state
700
engineer pursuant to this section after May 4, 1997.
701
(2) (a) Each claim submitted under this section shall be verified under oath by the
702
claimant or the claimant's duly appointed representative and submitted on forms furnished by
703
the state engineer setting forth any information the state engineer requires, including:
704
(i) the name and post office address of the person making the claim;
705
(ii) the quantity of water claimed in acre-feet or rate of flow in second-feet, or both,
706
where appropriate;
707
(iii) the source of supply;
Text Box
- 24 -
708
(iv) the priority date of the right;
709
(v) the location of the point of diversion with reference to a United States land survey
710
corner;
711
(vi) the place of use;
712
(vii) the nature and extent of use;
713
(viii) the time during which the water has been used each year; and
714
(ix) the date when the water was first used.
715
(b) The claim shall also include the following information verified under oath by a
716
registered engineer or land surveyor:
717
(i) measurements of the amount of water diverted;
718
(ii) a statement that the quantity of water claimed either in acre-feet or cubic feet per
719
second is consistent with the beneficial use claimed and the supply which the source is capable
720
of producing; and
721
(iii) a map showing the original diversion and conveyance works and where the water
722
was placed to beneficial use, including irrigated lands, if irrigation is the claimed beneficial
723
use.
724
(c) The state engineer may require additional information as necessary to evaluate any
725
claim including:
726
(i) affidavits setting forth facts of which the affiant has personal knowledge;
727
(ii) authenticated or historic photographs, plat or survey maps, or surveyors' notes;
728
(iii) authenticated copies of original diaries, personal histories, or other historical
729
documents which document the claimed use of water; and
730
(iv) other relevant records on file with any county recorder's, surveyor's, or assessor's
731
office.
732
(3) (a) A claim may be corrected by submitting to the state engineer a verified
733
corrected claim designated as such and bearing the same number as the original claim.
734
(b) No fee shall be charged for submitting a corrected claim.
735
(4) (a) Upon submission by a claimant of a claim that is acceptably complete under
736
Subsection (2) and the deposit of money by a claimant with the state engineer sufficient to pay
737
the expenses of conducting a field investigation and publishing a notice of the claim, the state
738
engineer shall:
Text Box
- 25 -
739
(i) file the claim;
740
(ii) endorse the date of its receipt;
741
(iii) assign the claim a water right number; and
742
(iv) publish a notice of the claim following the same procedures as provided in Section
743
73-3-6
.
744
(b) Any claim not acceptably complete under Subsection (2) shall be returned to the
745
claimant.
746
(c) The acceptance of any claim filed under this section by the state engineer may not
747
be considered to be an adjudication by the state engineer of the validity of the claimed water
748
right.
749
(5) (a) The state engineer shall:
750
(i) conduct a field investigation of each claim filed; and
751
(ii) prepare a report of the investigation.
752
(b) The report of the investigation shall:
753
(i) become part of the file on the claim; and
754
(ii) be admissible in any administrative or judicial proceeding on the validity of the
755
claim.
756
(6) (a) Any person who may be damaged by a diversion and use of water as described
757
in a claim submitted pursuant to this section may file an action in district court to determine the
758
validity of the claim, whether or not the claim has been accepted for filing by the state
759
engineer.
760
(b) Venue for the action shall be in the county in which the point of diversion listed in
761
the claim is located, or in a county where the place of use, or some part of it, is located.
762
(c) The action shall be brought against the claimant to the use of water or the claimant's
763
successor in interest.
764
(d) In any action brought to determine the validity of a claim to the use of water under
765
this section, the claimant shall have the initial burden of proof as to the validity of the claimed
766
right.
767
(e) Any person filing an action challenging the validity of a claim to the use of water
768
under this section shall notify the state engineer of the pendency of the action in a manner
769
prescribed by the state engineer. Upon receipt of the notice, the state engineer may take no
Text Box
- 26 -
770
action on any change or exchange applications founded on the claim that is the subject of the
771
pending litigation, until the court adjudicates the matter.
772
(f) Upon the entering of any final order or decree in any judicial action to determine the
773
validity of a claim under this section, the prevailing party shall file a certified copy of the order
774
or decree with the state engineer, which shall become part of the state engineer's file on the
775
claim.
776
(7) The [state engineer] Water Rights Board may make rules consistent with this
777
section specifying information required to be included in a claim and claim procedures.
778
Section 23.
Section
73-5-15
is amended to read:
779
73-5-15. Groundwater management plan.
780
(1) As used in this section:
781
(a) "Critical management area" means a groundwater basin in which the groundwater
782
withdrawals consistently exceed the safe yield.
783
(b) "Safe yield" means the amount of groundwater that can be withdrawn from a
784
groundwater basin over a period of time without exceeding the long-term recharge of the basin
785
or unreasonably affecting the basin's physical and chemical integrity.
786
(2) (a) The state engineer may regulate groundwater withdrawals within a specific
787
groundwater basin by adopting a groundwater management plan in accordance with this section
788
for any groundwater basin or aquifer or combination of hydrologically connected groundwater
789
basins or aquifers.
790
(b) The objectives of a groundwater management plan are to:
791
(i) limit groundwater withdrawals to safe yield;
792
(ii) protect the physical integrity of the aquifer; and
793
(iii) protect water quality.
794
(c) The state engineer shall adopt a groundwater management plan for a groundwater
795
basin if more than 1/3 of the water right owners in the groundwater basin request that the state
796
engineer adopt a groundwater management plan.
797
(3) (a) In developing a groundwater management plan, the state engineer may consider:
798
(i) the hydrology of the groundwater basin;
799
(ii) the physical characteristics of the groundwater basin;
800
(iii) the relationship between surface water and groundwater, including whether the
Text Box
- 27 -
801
groundwater should be managed in conjunction with hydrologically connected surface waters;
802
(iv) the geographic spacing and location of groundwater withdrawals;
803
(v) water quality;
804
(vi) local well interference; and
805
(vii) other relevant factors.
806
(b) The state engineer shall base the provisions of a groundwater management plan on
807
the principles of prior appropriation.
808
(c) (i) The state engineer shall use the best available scientific method to determine
809
safe yield.
810
(ii) As hydrologic conditions change or additional information becomes available, safe
811
yield determinations made by the state engineer may be revised by following the procedures
812
listed in Subsection (5).
813
(4) (a) (i) Except as provided in Subsection (4)(b), the withdrawal of water from a
814
groundwater basin shall be limited to the basin's safe yield.
815
(ii) Before limiting withdrawals in a groundwater basin to safe yield, the state engineer
816
shall:
817
(A) determine the groundwater basin's safe yield; and
818
(B) adopt a groundwater management plan for the groundwater basin.
819
(iii) If the state engineer determines that groundwater withdrawals in a groundwater
820
basin exceed the safe yield, the state engineer shall regulate groundwater rights in that
821
groundwater basin based on the priority date of the water rights under the groundwater
822
management plan, unless a voluntary arrangement exists under Subsection (4)(c) that requires a
823
different distribution.
824
(b) When adopting a groundwater management plan for a critical management area, the
825
state engineer shall, based on economic and other impacts to an individual water user or a local
826
community caused by the implementation of safe yield limits on withdrawals, allow gradual
827
implementation of the groundwater management plan.
828
(c) (i) In consultation with the state engineer, water users in a groundwater basin may
829
agree to participate in a voluntary arrangement for managing withdrawals at any time, either
830
before or after a determination that groundwater withdrawals exceed the groundwater basin's
831
safe yield.
Text Box
- 28 -
832
(ii) A voluntary arrangement under Subsection (4)(c)(i) shall be consistent with other
833
law.
834
(iii) The adoption of a voluntary arrangement under this Subsection (4)(c) by less than
835
all of the water users in a groundwater basin does not affect the rights of water users who do
836
not agree to the voluntary arrangement.
837
(5) To adopt a groundwater management plan, the state engineer shall:
838
(a) give notice as specified in Subsection (7) at least 30 days before the first public
839
meeting held in accordance with Subsection (5)(b):
840
(i) that the state engineer proposes to adopt a groundwater management plan;
841
(ii) describing generally the land area proposed to be included in the groundwater
842
management plan; and
843
(iii) stating the location, date, and time of each public meeting to be held in accordance
844
with Subsection (5)(b);
845
(b) hold one or more public meetings in the geographic area proposed to be included
846
within the groundwater management plan to:
847
(i) address the need for a groundwater management plan;
848
(ii) present any data, studies, or reports that the state engineer intends to consider in
849
preparing the groundwater management plan;
850
(iii) address safe yield and any other subject that may be included in the groundwater
851
management plan;
852
(iv) outline the estimated administrative costs, if any, that groundwater users are likely
853
to incur if the plan is adopted; and
854
(v) receive any public comments and other information presented at the public
855
meeting, including comments from any of the entities listed in Subsection (7)(a)(iii);
856
(c) receive and consider written comments concerning the proposed groundwater
857
management plan from any person for a period determined by the state engineer of not less
858
than 60 days after the day on which the notice required by Subsection (5)(a) is given;
859
(d) (i) at least 60 days prior to final adoption of the groundwater management plan,
860
publish notice:
861
(A) that a draft of the groundwater management plan has been proposed; and
862
(B) specifying where a copy of the draft plan may be reviewed; and
Text Box
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863
(ii) promptly provide a copy of the draft plan in printed or electronic form to each of
864
the entities listed in Subsection (7)(a)(iii) that makes written request for a copy; and
865
(e) provide notice of the adoption of the groundwater management plan.
866
(6) A groundwater management plan shall become effective on the date notice of
867
adoption is completed under Subsection (7), or on a later date if specified in the plan.
868
(7) (a) A notice required by this section shall be:
869
(i) published once a week for two successive weeks in a newspaper of general
870
circulation in each county that encompasses a portion of the land area proposed to be included
871
within the groundwater management plan;
872
(ii) published conspicuously on the state engineer's Internet website; and
873
(iii) mailed to each of the following that has within its boundaries a portion of the land
874
area to be included within the proposed groundwater management plan:
875
(A) county;
876
(B) incorporated city or town;
877
(C) improvement district under Title 17B, Chapter 2a, Part 4, Improvement District
878
Act;
879
(D) service area, under Title 17B, Chapter 2a, Part 9, Service Area Act;
880
(E) drainage district, under Title 17B, Chapter 2a, Part 2, Drainage District Act;
881
(F) irrigation district, under Title 17B, Chapter 2a, Part 5, Irrigation District Act;
882
(G) metropolitan water district, under Title 17B, Chapter 2a, Part 6, Metropolitan
883
Water District Act;
884
(H) special service district providing water, sewer, drainage, or flood control services,
885
under Title 17A, Chapter 2, Part 13, Utah Special Service District Act;
886
(I) water conservancy district, under Title 17B, Chapter 2a, Part 10, Water
887
Conservancy District Act; and
888
(J) conservation district, under Title 17A, Chapter 3, Part 8, Conservation Districts.
889
(b) A notice required by this section is effective upon substantial compliance with
890
Subsections (7)(a)(i) through (iii).
891
(8) A groundwater management plan may be amended in the same manner as a
892
groundwater management plan may be adopted under this section.
893
(9) The existence of a groundwater management plan does not preclude any otherwise
Text Box
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894
eligible person from filing any application or challenging any decision made by the state
895
engineer within the affected groundwater basin.
896
(10) (a) A person aggrieved by a groundwater management plan may challenge any
897
aspect of the groundwater management plan by:
898
(i) requesting administrative review by the Water Rights Board in accordance with
899
Section
73-2-31
; or
900
(ii) filing a complaint within 60 days after the adoption of the groundwater
901
management plan in the district court for any county in which the groundwater basin is found.
902
(b) Notwithstanding Subsection (9), a person may challenge the components of a
903
groundwater management plan only in the manner provided by Subsection (10)(a).
904
(c) An action brought under [this] Subsection (10)(a)(ii) is reviewed de novo by the
905
district court.
906
(d) A person challenging a groundwater management plan under [this] Subsection
907
(10)(a)(ii) shall join the state engineer as a defendant in the action challenging the groundwater
908
management plan.
909
(e) (i) Within 30 days after the day on which a person files an action challenging any
910
aspect of a groundwater management plan under Subsection (10)(a), the person filing the action
911
shall publish notice of the action in a newspaper of general circulation in the county in which
912
the district court is located.
913
(ii) The notice required by Subsection (10)(e)(i) shall be published once a week for two
914
consecutive weeks.
915
(iii) The notice required by Subsection (10)(e)(i) shall:
916
(A) identify the groundwater management plan the person is challenging;
917
(B) identify the case number assigned by the district court;
918
(C) state that a person affected by the groundwater management plan may petition the
919
district court to intervene in the action challenging the groundwater management plan; and
920
(D) list the address for the clerk of the district court in which the action is filed.
921
(iv) (A) Any person affected by the groundwater management plan may petition to
922
intervene in the action within 60 days after the day on which notice is last published under
923
Subsections (10)(e)(i) and (ii).
924
(B) The district court's treatment of a petition to intervene under this Subsection
Text Box
- 31 -
925
(10)(e)(iv) is governed by the Utah Rules of Civil Procedure.
926
(v) A district court in which an action is brought under Subsection (10)(a) shall
927
consolidate all actions brought under that Subsection and include in the consolidated action any
928
person whose petition to intervene is granted.
929
(11) A groundwater management plan adopted or amended in accordance with this
930
section is exempt from the requirements in Title 63, Chapter 46a, Utah Administrative
931
Rulemaking Act.
932
(12) Recharge and recovery projects permitted under Chapter 3b, Groundwater
933
Recharge and Recovery Act, are exempted from this section.
934
(13) Nothing in this section may be interpreted to require the development,
935
implementation, or consideration of a groundwater management plan as a prerequisite or
936
condition to the exercise of the state engineer's enforcement powers under other law, including
937
powers granted under Section
73-2-25
.
938
(14) A groundwater management plan adopted in accordance with this section may not
939
apply to the dewatering of a mine.
940
(15) (a) A groundwater management plan adopted by the state engineer before May 1,
941
2006, remains in force and has the same legal effect as it had on the day on which it was
942
adopted by the state engineer.
943
(b) If a groundwater management plan that existed before May 1, 2006, is amended on
944
or after May 1, 2006, the amendment is subject to this section's provisions.
945
Section 24.
Section
73-5a-101
is amended to read:
946
73-5a-101. Power of state engineer to regulate dams -- Water Rights Board rules.
947
(1) The state engineer has the authority to regulate dams for the purpose of protecting
948
public safety.
949
(2) To protect life and property, the [state engineer] Water Rights Board may make
950
rules controlling the construction and operation of dams, including rules controlling:
951
(a) design;
952
(b) maintenance;
953
(c) repair;
954
(d) removal; and
955
(e) abandonment.
Text Box
- 32 -
956
(3) The [state engineer] Water Rights Board may by rule exempt from this chapter any
957
dam that:
958
(a) impounds less than 20 acre-feet of water and does not constitute a threat to human
959
life if it fails; or
960
(b) does not constitute a threat to human life and would result in only minor damage to
961
property of the owner if it fails.
962
Section 25.
Section
73-5a-105
is amended to read:
963
73-5a-105. Independent consultants -- Owner to pay costs.
964
(1) The state engineer may require the owner of a dam or proposed dam to obtain the
965
services of an independent consultant or team of consultants approved by the state engineer to
966
consult regarding the adequacy of the design, construction, or operation of the dam if safety
967
considerations pertaining to the design, construction, or operation of the dam warrant an
968
independent review.
969
(2) The [state engineer] Water Rights Board shall make rules specifying:
970
(a) the safety considerations that will be considered in determining if an independent
971
review is required;
972
(b) the requisite qualifications and experience of the independent consultants; and
973
(c) the timing of the consultants' review so that their recommendations are made in a
974
timely manner.
975
(3) (a) The independent consultants shall be considered to be the agents of the owner of
976
the dam.
977
(b) The costs of the independent consultants' services shall be paid by the owner of the
978
dam.
979
(c) The owner of the dam may require the independent consultants to consider other
980
issues, in addition to safety considerations, such as:
981
(i) design selections or alternatives;
982
(ii) site selection;
983
(iii) cost effectiveness; or
984
(iv) other tasks as defined by the contract.
985
Section 26.
Section
73-5a-203
is amended to read:
986
73-5a-203. Review of plans.
Text Box
- 33 -
987
(1) The state engineer shall establish a formal written procedure for the review of plans
988
submitted pursuant to Section
73-5a-202
. Plans shall be reviewed according to:
989
(a) design criteria which the [state engineer] Water Rights Board shall specify in rules;
990
and
991
(b) data or criteria generally accepted by the general dam design community.
992
(2) Upon review of the plans, the state engineer will:
993
(a) approve them with appropriate conditions;
994
(b) reject them; or
995
(c) return them for correction.
996
(3) The state engineer shall document each review indicating:
997
(a) how the plans were reviewed; and
998
(b) his evaluation of the plans.
999
Section 27.
Section
73-5a-304
is amended to read:
1000
73-5a-304. Final inspection.
1001
(1) Following construction and prior to impounding any water, the state engineer shall
1002
undertake a final inspection of the project.
1003
(2) A written final approval of the project shall be issued if:
1004
(a) the state engineer determines that:
1005
(i) the project was constructed in accordance with plans approved by the state engineer
1006
under Sections
73-5a-203
and
73-5a-303
; and
1007
(ii) during construction, inspections and tests were conducted as required by Section
1008
73-5a-301
; and
1009
(b) the emergency action plan and standard operating plan meet the requirements set
1010
forth in rules adopted by the [state engineer] Water Rights Board.
1011
(3) (a) The state engineer may require the owner to:
1012
(i) submit a formal operating plan for the initial filling of the reservoir; or
1013
(ii) follow certain procedures during the initial filling of the reservoir.
1014
(b) Failure to submit the operating plan or follow the specified procedures shall result
1015
in revocation of the final approval.
1016
Section 28.
Section
73-5a-401
is amended to read:
1017
73-5a-401. Records and reports.
Text Box
- 34 -
1018
The [state engineer] Water Rights Board may make rules requiring the owner of any
1019
dam to:
1020
(1) maintain records pertaining to the construction, operation, or maintenance of the
1021
dam; or
1022
(2) submit:
1023
(a) reports to the state engineer regarding maintenance, operation, or instrumentation
1024
readings; or
1025
(b) any other data considered necessary by the state engineer.
1026
Section 29.
Section
73-5a-403
is amended to read:
1027
73-5a-403. Contents of standard operating plans.
1028
[By May 1, 1991, the state engineer] The Water Rights Board shall adopt rules
1029
specifying the contents of standard operating plans.
1030
Section 30.
Section
73-5a-502
is amended to read:
1031
73-5a-502. Legislative findings -- Immunity from suit -- Minimum standards for
1032
existing high hazard dams -- Exceptions -- Investigations and plans for compliance with
1033
minimum standards.
1034
(1) The Legislature finds that:
1035
(a) it is in the interest of the people of the state to improve the safety of existing dams;
1036
(b) mutual irrigation companies and water users associations cannot afford to bring
1037
dams into conformance with the state's current minimum safety standards without financial
1038
assistance from the state;
1039
(c) due to limited financial, physical, and human resources, it is necessary to establish
1040
priorities for the upgrade of dams; and
1041
(d) the state and its officers and employees are immune from suit for any injury or
1042
damage resulting from the exercise or performance or the failure to exercise or perform any
1043
function pursuant to this chapter.
1044
(2) The [state engineer] Water Rights Board shall establish minimum standards for
1045
existing high hazard dams by rule. The standards for existing high hazard dams may differ
1046
from the design criteria established for new construction.
1047
(3) No seismic standards shall be established for existing high hazard dams within the
1048
flood control use classification.
Text Box
- 35 -
1049
(4) (a) In implementing this section, the state engineer will develop a priority list of
1050
high hazard dams. The list will be determined by calculating the relative anticipated breach
1051
flows in the event of a dam failure. The dams will be ranked from the largest breach flow to
1052
the smallest for all high hazard dams.
1053
(b) The state engineer shall investigate annually 25 dams on the priority list in order of
1054
their ranking to determine in what areas they are deficient or do not meet minimum standards.
1055
(c) Once a determination is made, the owner will be notified that the owner will be
1056
required to undertake investigations to determine requirements necessary to bring the dam into
1057
compliance with minimum standards.
1058
(d) Once the owner has been informed of the deficiencies of the dam, the owner will be
1059
given 90 days to respond, in writing, as to what steps the owner is taking to investigate the
1060
deficiencies and the time required to complete the investigations.
1061
(e) The state engineer will review the proposal, and if it appears reasonable, will
1062
approve it.
1063
(5) The state engineer may not require any mutual irrigation company or water users
1064
association to upgrade a dam in conformance with minimum standards, unless a grant to pay
1065
for 80% of the costs is made available from the Board of Water Resources.
1066
Section 31.
Section
73-5a-602
is amended to read:
1067
73-5a-602. Contents of emergency action plans.
1068
[By May 1, 1991, the state engineer] The Water Rights Board shall adopt rules
1069
specifying the contents of an emergency action plan.
1070
Section 32.
Section
73-6-1
is amended to read:
1071
73-6-1. Suspension of right to appropriate -- By proclamation of governor.
1072
For the purpose of preserving the surplus and unappropriated waters of any stream or
1073
other source of water supply for use by irrigation districts and organized agricultural water
1074
users, or for any use whatsoever, when in the judgment of the governor and the [state engineer]
1075
Water Rights Board the welfare of the state demands it, the governor by proclamation may,
1076
upon the recommendation of the [state engineer] Water Rights Board, suspend the right of the
1077
public to appropriate such surplus or unappropriated waters.
1078
Section 33.
Section
73-6-2
is amended to read:
1079
73-6-2. Restoration by proclamation -- Priority of applications.
Text Box
- 36 -
1080
Waters withdrawn from appropriation under this chapter may be restored by
1081
proclamation of the governor upon the recommendation of the [state engineer] Water Rights
1082
Board. Such proclamation shall not become effective until notice thereof has been published at
1083
least once a week for three successive weeks in a newspaper of general circulation within the
1084
boundaries of the river system or water source within which the waters so to be restored are
1085
situated. Applications for appropriations shall not be filed during the time such waters are
1086
withdrawn from appropriation; provided, that after the first publication of notice aforesaid
1087
applications may be deposited with the state engineer and at the time such proclamation
1088
becomes effective the engineer shall hold public hearings, giving all applicants notice, to
1089
determine which applications so filed during the period of publication of such notice are most
1090
conducive to the public good, and shall file such applications in order of priority according to
1091
such determination.
1092
Section 34.
Section
73-22-5
is amended to read:
1093
73-22-5. Jurisdiction of division -- Hearings -- Subpoena power -- Restraining
1094
violations -- Actions for damages against violators unaffected.
1095
(1) (a) The division has jurisdiction and authority over all persons and property, public
1096
and private, necessary to enforce the provisions of this chapter [and may enact, issue, and
1097
enforce].
1098
(b) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
1099
Water Rights Board shall make rules necessary [rules and orders] to carry out the requirements
1100
of this chapter.
1101
(2) (a) Any affected person may apply for a hearing before the division, or the division
1102
may initiate proceedings upon any question relating to the administration of this chapter by
1103
following the procedures and requirements of Title 63, Chapter 46b, Administrative Procedures
1104
Act.
1105
(b) The Division of Water Rights shall comply with the procedures and requirements
1106
of Title 63, Chapter 46b, Administrative Procedures Act, in its adjudicative proceedings.
1107
(3) The division shall have the power to summon witnesses, to administer oaths, and to
1108
require the production of records, books, and documents for examination at any hearing or
1109
investigation conducted by it.
1110
(4) (a) If any person fails or refuses to comply with a subpoena issued by the division,
Text Box
- 37 -
1111
or if any witness fails or refuses to testify about any matter regarding which he may be
1112
interrogated, the division may petition any district court in the state to issue an order
1113
compelling the person to:
1114
(i) comply with the subpoena and attend before the division;
1115
(ii) produce any records, books, and documents covered by the subpoena; or
1116
(iii) to give testimony.
1117
(b) The court may punish failure to comply with the order as contempt.
1118
(5) (a) Whenever it appears that any person is violating or threatening to violate any
1119
provision of this chapter, or any rule or order made under this chapter, the division may file suit
1120
in the name of the state to restrain that person from continuing the violation or from carrying
1121
out the threat of violation.
1122
(b) Venue for the action is in the district court in the county where any defendant
1123
resides or in the county where the violation is alleged to have occurred.
1124
(6) (a) Nothing in this chapter, no suit by or against the division, and no violation
1125
charged or asserted against any person under this chapter, or any rule or order issued under it,
1126
shall impair, abridge, or delay any cause of action for damages that any person may have or
1127
assert against any person violating this chapter, or any rule or order issued under it.
1128
(b) Any person so damaged by the violation may sue for and recover whatever damages
1129
that he is otherwise entitled to receive.
1130
Section 35.
Section
73-22-6
is amended to read:
1131
73-22-6. Information required concerning resource development --
1132
Confidentiality -- Regulation of wells -- Surety bonds -- Inspection.
1133
(1) The division shall have authority to require:
1134
(a) Identification of the location and ownership of all wells and producing geothermal
1135
leases.
1136
(b) Filing with the division of a notice of intent to drill, redrill, deepen, permanently
1137
alter the casing of, or abandon any well. Approval of the notice of intent must be obtained from
1138
the division prior to commencement of operations.
1139
(c) Keeping of well logs and filing true and correct copies with the division. These
1140
records are public records when filed with the division, unless the owner or operator requests,
1141
in writing, that the records be held confidential. The period of confidentiality shall be
Text Box
- 38 -
1142
established by the division, not to exceed five years from the date of production or injection for
1143
other than testing purposes or five years from the date of abandonment, whichever occurs first,
1144
as determined by the division. Well records held confidential by the division are open to
1145
inspection by those persons authorized in writing by the owner or operator. Confidential status
1146
shall not restrict inspection by state officers charged with regulating well operations or by
1147
authorized officials of the Utah State Tax Commission for purposes of tax assessment.
1148
(d) The spacing, drilling, casing, testing, operating, producing, and abandonment of
1149
wells so as to prevent:
1150
(i) geothermal resources, water, gases, or other fluids from escaping into strata other
1151
than the strata in which they are found (unless in accordance with a subsurface injection
1152
program approved by the division);
1153
(ii) pollution of surface and groundwater;
1154
(iii) premature cooling of any geothermal system by water encroachment or otherwise
1155
which tends to reduce the ultimate economic recovery of the geothermal resources;
1156
(iv) blowouts, cave-ins, and seepage; and
1157
(v) unreasonable disturbance or injury to neighboring properties, prior water rights,
1158
human life, health, and the environment.
1159
(e) The operator to file cash or individual surety bonds with the division for each new
1160
well drilled and each abandoned well redrilled. The amount of surety required shall be
1161
determined by the [division] Water Rights Board. In lieu of bonds for separate wells, the
1162
operator may file a blanket cash or individual surety bond in an amount set by the division to
1163
cover all the operator's drilling, redrilling, deepening, maintenance, or abandonment activities
1164
for wells in the state. Bonds filed with the division shall be executed by the operator, as
1165
principal, conditioned on compliance with division regulations in drilling, redrilling,
1166
deepening, maintaining, or abandoning any well or wells covered by the bond and shall secure
1167
the state against all losses, charges, and expenses incurred by it to obtain such compliance by
1168
the principal named in the bond.
1169
(f) The geothermal owner or operator to measure geothermal production according to
1170
standards set by the division and maintain complete and accurate production records. The
1171
records, or certified copies of them, shall be preserved on file by the owner or operator for a
1172
period of five years and shall be available for examination by the division at all reasonable
Text Box
- 39 -
1173
times.
1174
(g) Filing with the division any other reasonable reports which it prescribes regarding
1175
geothermal operations within the state.
1176
(2) Any bond filed with the division in conformance with this chapter may, with the
1177
consent of the division, be terminated and canceled and the surety be relieved of all obligations
1178
under it when the well or wells covered by the bond have been properly abandoned or another
1179
valid bond has been substituted for it.
1180
(3) The division may enter onto private or public land at any time to inspect any well or
1181
geothermal resource development project to determine if the well or project is being
1182
constructed, operated, or maintained according to any applicable permits or to determine if the
1183
construction, operation, or maintenance of the well or project may involve an unreasonable risk
1184
to life, health, property, the environment or subsurface, surface, or atmospheric resources.
1185
Section 36.
Section
73-22-10
is amended to read:
1186
73-22-10. Judicial and administrative review of division actions -- Falsification or
1187
omission of filings as misdemeanor -- Limitation of actions.
1188
(1) (a) Any person aggrieved by any order issued under this chapter may obtain:
1189
(i) administrative review by the Water Rights Board in accordance with Section
1190
73-2-31
; or
1191
(ii) judicial review.
1192
(b) Venue for judicial review of informal adjudicative proceedings is in the district
1193
court of Salt Lake County, or in the district court of the county in which the complaining
1194
person resides.
1195
(2) An action or appeal involving any provision of this chapter, or a rule or order
1196
issued under it shall be determined as expeditiously as possible.
1197
(3) Any person who, for the purpose of evading this chapter or any order of the
1198
division issued under it, makes or causes to be made any false entry in any report, record,
1199
account, or memorandum required by this chapter, or by any order issued under it, or omits or
1200
causes to be omitted from the report, record, account, or memorandum, full, true, and correct
1201
entries as required by this chapter, or by an order, or removes from this state or destroys,
1202
mutilates, alters, or falsifies the record, account, or memorandum, is guilty of a class A
1203
misdemeanor.
Text Box
- 40 -
1204
(4) No suit, action, or other proceeding based upon a violation of this chapter or any
1205
order of the division issued under it may be begun or maintained unless the action is begun
1206
within two years from the date of the alleged violation.
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