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S.B. 85
1
WATER RIGHTS BOARD
2
2008 GENERAL SESSION
3
STATE OF UTAH
4
Chief Sponsor: Dennis E. Stowell
5
House Sponsor:
____________
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LONG TITLE
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General Description:
9
This bill creates the Water Rights Board.
10
Highlighted Provisions:
11
This bill:
12
. 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;
16
. make rules;
17
. review a final order of the state engineer or the Division of Water Rights;
18
. recommend to the governor the suspension or restoration of the appropriation of
19
surplus water;
20
. 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;
22
. requires the governor to appoint the state engineer from names submitted by the
23
Water Rights Board;
24
. 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
28
surplus water; and
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. recommend to the Legislature amendments to or enactments of water law;
30
. 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
34
order of the state engineer or the Division of Water Rights.
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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:
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73-1-10, as last amended by Laws of Utah 2003, Chapter 298
42
73-2-1, as last amended by Laws of Utah 2007, Chapter 329
43
73-2-1.5, as last amended by Laws of Utah 2005, Chapter 33
44
73-2-10, as last amended by Laws of Utah 1983, Chapter 201
45
73-2-14, as last amended by Laws of Utah 2007, Chapter 314
46
73-2-25, as last amended by Laws of Utah 2007, Chapter 136
47
73-2-26, as enacted by Laws of Utah 2005, Chapter 33
48
73-3-5.6, as enacted by Laws of Utah 1995, Chapter 121
49
73-3-14, as last amended by Laws of Utah 1987, Chapter 161
50
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
53
73-3a-104, as enacted by Laws of Utah 1991, Chapter 234
54
73-3b-104, as enacted by Laws of Utah 1991, Chapter 146
55
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
57
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
63
73-5a-203, as enacted by Laws of Utah 1990, Chapter 319
64
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
66
73-5a-403, as enacted by Laws of Utah 1990, Chapter 319
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73-5a-502, as last amended by Laws of Utah 1996, Chapter 264
68
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
74
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.
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(2) The right to the use of water evidenced by shares of stock in a corporation shall be
92
transferred in accordance with the procedures applicable to securities set forth in Title 70A,
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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
95
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
97
engineer.
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(c) The report shall be prepared by:
99
(i) or prepared under the direction of and certified by, any of the following persons
100
licensed in Utah:
101
(A) an attorney;
102
(B) a professional engineer;
103
(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
106
Board.
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(d) The filing and processing of a report of water right conveyance with the state
108
engineer is neither an adjudication of water right ownership nor an opinion as to title or validity
109
of the water right.
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(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.
115
(1) There shall be a state engineer.
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(2) (a) The state engineer shall:
117
[(a)] (i) be appointed by the governor with the consent of the Senate;
118
[(b)] (ii) hold office for the term of four years and until a successor is appointed; and
119
[(c)] (iii) have five years experience as a practical engineer or the theoretical
120
knowledge, practical experience, and skill necessary for the position.
121
(b) The governor shall appoint the state engineer from a list of nominees submitted by
122
the Water Rights Board.
123
(3) (a) The state engineer shall be responsible for the general administrative
124
supervision of the waters of the state and the measurement, appropriation, apportionment, and
125
distribution of those waters.
126
(b) The state engineer may secure the equitable apportionment and distribution of the
127
water according to the respective rights of appropriators.
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[(4) The state engineer shall make rules, in accordance with Title 63, Chapter 46a,
129
Utah Administrative Rulemaking Act, consistent with the purposes and provisions of this title,
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regarding:]
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[(a) reports of water right conveyances;]
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[(b) the construction of water wells and the licensing of water well drillers;]
133
[(c) dam construction and safety;]
134
[(d) the alteration of natural streams;]
135
[(e) sewage effluent reuse;]
136
[(f) geothermal resource conservation; and]
137
[(g) enforcement orders and the imposition of fines and penalties.]
138
[(5) The state engineer may make rules, in accordance with Title 63, Chapter 46a, Utah
139
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;]
142
[(b) water measurement and reporting;]
143
[(c) ground-water recharge and recovery;]
144
[(d) the determination of water rights; and]
145
[(e) the form and content of applications and related documents, maps, and reports.]
146
[(6)] (4) The state engineer may bring suit in courts of competent jurisdiction to:
147
(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;
149
(b) prevent theft, waste, loss, or pollution of those waters;
150
(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
157
system, cause a water survey to be made of all lands proposed to be annexed to the district in
158
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
160
separate ownership; and
161
(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
164
their boundaries.
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(b) The water distribution systems shall be formed in a manner that:
166
(i) secures the best protection to the water claimants; and
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(ii) is the most economical for the state to supervise.
168
Section 3.
Section
73-2-1.5
is amended to read:
169
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
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engineer, and the Division of Water Rights shall comply with the procedures and requirements
172
of Title 63, Chapter 46b, Administrative Procedures Act, in their adjudicative proceedings.
173
Section 4.
Section
73-2-10
is amended to read:
174
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.
182
(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;
187
(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
190
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.
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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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(3) Fees 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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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
241
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
249
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:
253
(i) the person to whom the initial order is issued fails to respond to the order or abate
254
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:
264
(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
269
engineer's final order issued under this section within 20 days from the day on which the final
270
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:
276
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
283
(iii) be liable for any expense incurred by the state engineer or division in investigating
284
and stopping the violation.
285
(b) The definition of "knowingly" under Subsection
76-2-103
(2) shall apply to
286
determinations under Subsection (1)(a)(i).
287
(c) The penalties described in Subsection (1)(a) shall be in addition to:
288
(i) any criminal penalty established for a violation described in Subsection (1); and
289
(ii) any private right of action.
290
(d) (i) Each day of a continuing violation of the provisions described in Subsection
291
73-2-25
(2)(a) or an initial or final order issued under Section
73-2-25
is a separate violation.
292
(ii) A penalty may not be imposed for a violation of the provisions listed in Subsection
293
73-2-25
(2)(a) or an initial or a final order issued under Section
73-2-25
for a violation
294
occurring more than 12 months before the day on which a notice of violation is issued.
295
(e) Separate violations under Subsection (1)(d) may be consolidated for resolution in
296
one enforcement proceeding under Section
73-2-25
.
297
(f) The state engineer has discretion to pursue an administrative fine, order requiring
298
replacement, or both.
299
(2) Before imposing a fine or ordering replacement under Subsection (1), the state
300
engineer shall consider:
301
(a) the value or quantity of water unlawfully taken, including the cost or difficulty of
302
replacing the water;
303
(b) the gravity of the violation, including the economic injury or impact to others;
304
(c) whether the person subject to fine or replacement attempted to comply with the
305
state engineer's orders; and
306
(d) the violator's economic benefit from the violation.
307
(3) (a) The state engineer may require that the water unlawfully taken be replaced after:
308
(i) a person fails to request administrative or judicial review of a final order issued
309
under Section
73-2-25
; or
310
(ii) the completion of administrative or judicial review, including any appeals.
311
(b) The state engineer's order shall require that replacement of water begin within one
312
year of the day on which:
313
(i) the time period for requesting administrative or judicial review of a final order
314
issued under Section
73-2-25
expires without a person requesting administrative or judicial
315
review of the final order; or
316
(ii) the completion of administrative or judicial review, including any appeals.
317
(4) Water replaced under Subsection (3) shall be taken from water that the person
318
subject to the order requiring replacement would be entitled to use during the replacement
319
period.
320
(5) (a) If the state engineer issues an order requiring replacement, a copy of the order
321
shall be placed in the Division of Water Rights' water rights records.
322
(b) The order requiring replacement shall constitute a lien upon the water right affected
323
if the state engineer files a notice of lien in the office of the county recorder in the county
324
where the place of use of the water right is located.
325
(c) A notice of lien under Subsection (5)(b) shall include a legal description of the
326
place of use of the water right.
327
(6) Any monies collected under this section shall be deposited into the General Fund.
328
Section 8.
Section
73-2-29
is enacted to read:
329
73-2-29. Water Rights Board created.
330
(1) As used in this section, "board" means the Water Rights Board.
331
(2) There is created the Water Rights Board that is the policymaking board for the state
332
engineer and the Division of Water Rights.
333
(3) (a) The governor, with the consent of the Senate, shall appoint the following seven
334
members to the board:
335
(i) one member who:
336
(A) represents an agricultural or livestock interest;
337
(B) owns a surface water right; and
338
(C) is nominated by an organization that promotes agriculture;
339
(ii) one member who:
340
(A) represents an agricultural or livestock interest;
341
(B) owns a groundwater right; and
342
(C) is nominated by an organization that promotes agriculture;
343
(iii) one member who:
344
(A) represents a municipality; and
345
(B) is nominated by an organization that promotes municipal interests;
346
(iv) one member who:
347
(A) represents a county; and
348
(B) is nominated by an organization that promotes county interests;
349
(v) one member who:
350
(A) represents an industrial interest; and
351
(B) is nominated by an organization that promotes industrial uses of water;
352
(vi) one member who:
353
(A) represents a hydroelectric or geothermal energy interest; and
354
(B) is nominated by an organization that promotes alternative energy; and
355
(vii) one member who:
356
(A) represents a fish, wildlife, or recreational interest; and
357
(B) is nominated by an organization that promotes the instream flow of water.
358
(b) In appointing a member listed in Subsection (3)(a), the governor shall:
359
(i) consider geographical distribution; and
360
(ii) select at least one member who:
361
(A) is licensed to practice law in the state; and
362
(B) is knowledgeable about water law.
363
(c) (i) A nominating organization shall nominate at least three people.
364
(ii) If the governor rejects all nominations submitted for a member, the nominating
365
organization shall submit additional names.
366
(d) If no organization submits a nomination, the governor shall appoint a member that
367
represents the interest listed in Subsection (3)(a).
368
(4) (a) Except as provided by Subsection (4)(b), a member shall serve a four year term.
369
(b) The governor shall, at the time of appointment or reappointment, adjust the length
370
of terms to ensure that the terms of no more than half of the members expire in a fiscal year.
371
(c) When a vacancy occurs on the board for any reason, the governor shall appoint a
372
replacement for the unexpired term with the consent of the Senate.
373
(5) (a) A board member may not receive compensation or benefits for the member's
374
services, but may receive per diem and expenses incurred in the performance of the member's
375
official duties at the rates established by the Division of Finance under Sections
63A-3-106
and
376
63A-3-107
.
377
(b) A member may decline to receive per diem and expenses for the member's service.
378
(6) (a) The board shall elect one of its members to serve as chair for a term of two
379
years.
380
(b) All members on the board have equal voting rights on a board matter when present
381
at a board meeting.
382
(c) Four board members is a quorum for conducting board business.
383
(d) A majority vote of the quorum present is required for an action to be taken by the
384
board.
385
(7) The board shall meet at each of the Division of Water Rights' regional offices at
386
least once a year, but may hold other meetings at times and places as scheduled by:
387
(a) the chair; or
388
(b) three members, upon filing a written request for a meeting with the chair.
389
(8) The attorney general shall provide the Water Rights Board with:
390
(a) legal advice; and
391
(b) legal services in the prosecution or defense of an action resulting from the
392
performance of the board's duties.
393
(9) The Division of Water Rights shall provide necessary administrative and staff
394
support services to the Water Rights Board.
395
Section 9.
Section
73-2-30
is enacted to read:
396
73-2-30. Water Rights Board -- Powers -- Duties.
397
(1) The Water Rights Board shall:
398
(a) set policy consistent with this title for the state engineer and the Division of Water
399
Rights by making rules in accordance with Title 63, Chapter 46a, Utah Administrative
400
Rulemaking Act, and as provided in this title;
401
(b) adopt a fee authorized by this title;
402
(c) in accordance with Section
73-2-31
, review an order by the state engineer or the
403
Division of Water Rights;
404
(d) nominate at least three people for the appointment of the state engineer in
405
accordance with Section
73-2-1
; and
406
(e) perform other duties assigned to the Water Rights Board in this title.
407
(2) A rule made by the state engineer or the Division of Water Rights that is in effect
408
on May 4, 2008 is considered a rule made by the board on May 5, 2008.
409
Section 10.
Section
73-2-31
is enacted to read:
410
73-2-31. Administrative Review by the Water Rights Board.
411
(1) A person aggrieved by a final order of the state engineer or the Division of Water
412
Rights:
413
(a) may seek administrative review of the order by the Water Rights Board in
414
accordance with Section
63-46b-12
; and
415
(b) is not required to seek a review by the Water Rights Board before seeking judicial
416
review of the order in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
417
(2) (a) For purposes of Section
63-46b-12
, the Water Rights Board is a superior agency
418
that may review a final order of the state engineer or the Division of Water Rights.
419
(b) After review of a state engineer's or Division of Water Rights' final order in
420
accordance with Title 63, Chapter 46b, Administrative Procedures Act, the Water Rights Board
421
may:
422
(i) take no action;
423
(ii) vacate or remand the order; or
424
(iii) amend the order.
425
(c) The chair of the Water Rights Board shall sign a written order on review as required
426
by Section
63-46b-12
.
427
(3) A person aggrieved by a final order of the Water Rights Board may seek judicial
428
review of the order in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
429
(4) An order by the state engineer or the Division of Water Rights is final 30 days after
430
the day on which the order is issued unless stayed, amended, or overturned by:
431
(a) the Water Rights Board under Section
63-46b-12
;
432
(b) a district court under Section
63-46b-15
; or
433
(c) the Supreme Court under Section
63-46b-16
.
434
Section 11.
Section
73-3-5.6
is amended to read:
435
73-3-5.6. Applications to appropriate or permanently change a small amount of
436
water.
437
(1) The state engineer may approve an application to appropriate or permanently
438
change a small amount of water necessary to meet the requirements of one residence, 1/4 acre
439
of irrigable land, and ten cattle or the equivalent amount of water for livestock purposes, if:
440
(a) the state engineer undertakes a thorough investigation of the proposed appropriation
441
or permanent change;
442
(b) notice is provided in accordance with Subsection (2); and
443
(c) the application complies with [the state engineer's]:
444
(i) the Water Rights Board's regional policies and restrictions made by rule; and
445
(ii) Section
73-3-3
or
73-3-8
, as applicable.
446
(2) (a) Advertising of an application to appropriate or permanently change a small
447
amount of water as specified in Subsection (1) shall be at the discretion of the state engineer.
448
(b) If the state engineer finds that the uses proposed by the application may impair
449
other rights, before approving the application, the state engineer shall give notice of the
450
application according to Section
73-3-6
.
451
(3) An applicant receiving approval under this section shall be responsible for the time
452
limit of construction and submitting proof of appropriation or permanent change as required
453
under this chapter.
454
Section 12.
Section
73-3-14
is amended to read:
455
73-3-14. Judicial and administrative review.
456
(1) (a) Any person aggrieved by an order of the state engineer may obtain:
457
(i) administrative review by the Water Rights Board in accordance with Section
458
73-2-31
; or
459
(ii) judicial review by following the procedures and requirements of Title 63, Chapter
460
46b, Administrative Procedures Act.
461
(b) Venue for judicial review of informal adjudicative proceedings shall be in the
462
county in which the stream or water source, or some part of it, is located.
463
(2) The state engineer shall be joined as a defendant in all suits to review [his] the state
464
engineer's decisions, but no judgment for costs or expenses of the litigation may be rendered
465
against [him] the state engineer.
466
Section 13.
Section
73-3-16
is amended to read:
467
73-3-16. Proof of appropriation or permanent change -- Notice -- Manner of
468
proof -- Statements -- Maps, profiles, and drawings -- Verification -- Waiver of filing --
469
Statement in lieu of proof of appropriation or change.
470
(1) Sixty days before the date set for the proof of appropriation or proof of change to be
471
made, the state engineer shall notify the applicant by mail when proof of completion of the
472
works and application of the water to a beneficial use will be due.
473
(2) On or before the date set for completing the proof in accordance with the
474
application, the applicant shall file proof with the state engineer on forms furnished by the state
475
engineer.
476
(3) Except as provided in Subsection (4), the applicant shall submit the following
477
information:
478
(a) a description of the works constructed;
479
(b) the quantity of water in acre-feet or the flow in second-feet diverted, or both;
480
(c) the method of applying the water to beneficial use; and
481
(d) (i) detailed measurements of water put to beneficial use;
482
(ii) the date the measurements were made; and
483
(iii) the name of the person making the measurements.
484
(4) (a) On applications filed for appropriation or permanent change of use of water to
485
provide a water supply for state projects constructed pursuant to Title 73, Chapter 10, Board of
486
Water Resources - Division of Water Resources, or for federal projects constructed by the
487
United States Bureau of Reclamation for the use and benefit of the state, any of its agencies, its
488
political subdivisions, public and quasi-municipal corporations, or water users' associations of
489
which the state, its agencies, political subdivisions, or public and quasi-municipal corporations
490
are stockholders, the proof shall include:
491
(i) a statement indicating construction of the project works has been completed;
492
(ii) a description of the major features with appropriate maps, profiles, drawings, and
493
reservoir area-capacity curves;
494
(iii) a description of the point or points of diversion and rediversion;
495
(iv) project operation data;
496
(v) a map showing the place of use of water and a statement of the purpose and method
497
of use;
498
(vi) the project plan for beneficial use of water under the applications and the quantity
499
of water required; and
500
(vii) a statement indicating what type of measuring devices have been installed.
501
(b) The director of the Division of Water Resources shall sign proofs for the state
502
projects and an authorized official of the Bureau of Reclamation shall sign proofs for the
503
federal projects specified in Subsection (4)(a).
504
(5) The proof on all applications shall be sworn to by the applicant or the applicant's
505
appointed representative and proof engineer.
506
(6) (a) Except as provided in Subsection (6)(b), when filing proof, the applicant shall
507
submit maps, profiles, and drawings made by a Utah licensed land surveyor or Utah licensed
508
professional engineer that show:
509
(i) the location of the completed works;
510
(ii) the nature and extent of the completed works;
511
(iii) the natural stream or source from which and the point where the water is diverted
512
and, in the case of a nonconsumptive use, the point where the water is returned; and
513
(iv) the place of use.
514
(b) The state engineer may waive the filing of maps, profiles, and drawings if in the
515
state engineer's opinion the written proof adequately describes the works and the nature and
516
extent of beneficial use.
517
(7) The completed proof shall conform to rules [and standards] established by the [state
518
engineer] Water Rights Board.
519
(8) In those areas in which general determination proceedings are pending, or have
520
been concluded, under Title 73, Chapter 4, Determination of Water Rights, the state engineer
521
may petition the district court for permission to:
522
(a) waive the requirements of this section and Section
73-3-17
; and
523
(b) permit each owner of an application to file a verified statement to the effect that the
524
applicant has completed the appropriation or change and elects to file a statement of water
525
users claim in the proposed determination of water rights or any supplement to it in accordance
526
with Title 73, Chapter 4, Determination of Water Rights, in lieu of proof of appropriation or
527
proof of change.
528
Section 14.
Section
73-3-23
is amended to read:
529
73-3-23. Replacement of water.
530
(1) In all cases of appropriations of underground water the right of replacement is
531
hereby granted to any junior appropriator whose appropriation may diminish the quantity or
532
injuriously affect the quality of appropriated underground water in which the right to the use
533
thereof has been established as provided by law.
534
(2) No replacement may be made until application in writing has been made to and
535
approved by the state engineer.
536
(3) In all cases replacement shall be at the sole cost and expense of the applicant and
537
subject to [such] rules [and regulations as the state engineer may prescribe] made by the Water
538
Rights Board.
539
(4) The right of eminent domain is hereby granted to any applicant for the purpose of
540
replacement as provided herein.
541
Section 15.
Section
73-3-25
is amended to read:
542
73-3-25. Well driller's license -- Bond -- Revocation or suspension for
543
noncompliance.
544
(1) (a) Every person that constructs a well in the state shall obtain a license from the
545
state engineer.
546
(b) [The state engineer] In accordance with Title 63, Chapter 46a, Utah Administrative
547
Rulemaking Act, the Water Rights Board shall enact rules:
548
(i) defining the form, the expiration date, and the renewal cycle of the application for a
549
license[.]; and
550
(ii) regulating well construction.
551
(c) Well drillers' licenses are not transferable. [The state engineer shall enact rules for
552
well construction according to the procedures and requirements of Title 63, Chapter 46a, Utah
553
Administrative Rulemaking Act.]
554
(2) (a) (i) A person who constructs a well in this state must first obtain a license as
555
provided in this section.
556
(ii) Before a well driller's license will be issued, the applicant must file a well driller
557
bond with the state engineer.
558
(iii) The bond shall be made payable to the Office of the State Engineer.
559
(iv) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
560
the [state engineer] Water Rights Board may make rules to set the amount, form, and general
561
administrative requirements of a well driller bond. Proper compliance with the provisions of
562
this section and the rules enacted under the authority of this section are required to obtain or
563
renew a license.
564
(b) (i) Well drillers shall comply with the rules [enacted by the state engineer] made by
565
the Water Rights Board under this chapter.
566
(ii) If the state engineer determines, following an investigation, that the licensee has
567
failed to comply with these rules, the state engineer may revoke or suspend the license, and
568
exact the bond and deposit the money as a nonlapsing dedicated credit.
569
(iii) The state engineer may expend the funds to investigate or correct any deficiencies
570
which could adversely affect the public interest resulting from noncompliance with the rules
571
promulgated under this chapter by any well driller.
572
(iv) The state engineer may refuse to issue a license to a well driller if it appears that
573
there has been a violation of the rules or a failure to comply with Section
73-3-22
.
574
Section 16.
Section
73-3a-104
is amended to read:
575
73-3a-104. Rulemaking power of Water Rights Board.
576
In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
577
[state engineer] Water Rights Board may make rules necessary to administer this chapter.
578
Section 17.
Section
73-3b-104
is amended to read:
579
73-3b-104. Rulemaking power of Water Rights Board.
580
The [state engineer] Water Rights Board may make rules to administer this chapter in
581
accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
582
Section 18.
Section
73-3b-201
is amended to read:
583
73-3b-201. Application for a recharge permit -- Required information -- Filing
584
fee.
585
(1) The application for obtaining a groundwater recharge permit shall include the
586
following information:
587
(a) the name and mailing address of the applicant;
588
(b) the name of the groundwater basin or groundwater sub-basin in which the applicant
589
proposes to operate the project;
590
(c) the name and mailing address of the owner of the land on which the applicant
591
proposes to operate the project;
592
(d) a legal description of the location of the proposed project;
593
(e) the source and annual quantity of water proposed to be stored underground;
594
(f) evidence of a water right or an agreement to use the water proposed to be stored
595
underground;
596
(g) the quality of the water proposed to be stored underground and the water quality of
597
the receiving groundwater aquifer;
598
(h) evidence that the applicant has applied for all applicable water quality permits;
599
(i) a plan of operation for the proposed recharge and recovery project which shall
600
include:
601
(i) a description of the proposed project;
602
(ii) its design capacity;
603
(iii) a detailed monitoring program; and
604
(iv) the proposed duration of the project;
605
(j) a copy of a study demonstrating[;]:
606
(i) the area of hydrologic impact of the project;
607
(ii) that the project is hydrologically feasible;
608
(iii) that the project will not:
609
(A) cause unreasonable harm to land; or
610
(B) impair any existing water right within the area of hydrologic impact; and
611
(iv) the percentage of anticipated recoverable water;
612
(k) evidence of financial and technical capability; and
613
(l) any other information that the state engineer requires.
614
(2) (a) A filing fee must be submitted with the application.
615
(b) The [state engineer] Water Rights Board shall establish the filing fee in accordance
616
with Section
63-38-3.2
.
617
Section 19.
Section
73-3b-204
is amended to read:
618
73-3b-204. Application for a recovery permit -- Required information.
619
(1) If a person intends to recharge and recover water, the recovery application and
620
permit may be filed and processed with the groundwater recharge application and permit.
621
(2) The application for obtaining a recovery permit shall include the following
622
information:
623
(a) the name and mailing address of the applicant;
624
(b) a legal description of the location of the existing well or proposed new well from
625
which the applicant intends to recover stored water;
626
(c) a written consent from the owner of the recharge permit;
627
(d) the name and mailing address of the owner of the land from which the applicant
628
proposes to recover stored water;
629
(e) the name or description of the artificially recharged groundwater aquifer which is
630
the source of supply;
631
(f) the purpose for which the stored water will be recovered;
632
(g) the depth and diameter of the existing well or proposed new well;
633
(h) a legal description of the area where the stored water is proposed to be used;
634
(i) the design pumping capacity of the existing well or proposed new well; and
635
(j) any other information including maps, drawings, and data that the state engineer
636
requires.
637
(3) (a) A filing fee must be submitted with the application.
638
(b) The [state engineer] Water Rights Board shall establish the filing fee in accordance
639
with Section
63-38-3.2
.
640
Section 20.
Section
73-3b-302
is amended to read:
641
73-3b-302. Fee.
642
(1) The [state engineer] Water Rights Board shall assess an annual fee, in accordance
643
with Section
63-38-3.2
, on each person who holds a groundwater recharge or recovery permit.
644
(2) The fee shall reflect the division's costs to administer and monitor groundwater
645
recharge and recovery projects.
646
Section 21.
Section
73-3c-302
is amended to read:
647
73-3c-302. Application to the state engineer.
648
(1) A public agency proposing water reuse shall apply to the state engineer.
649
(2) An application for water reuse under Subsection (1) shall be made upon forms
650
furnished by the state engineer and shall include:
651
(a) the name of the applicant;
652
(b) a description of the underlying water right;
653
(c) an evaluation of the underlying water right's diversion, depletion, and return flow
654
requirements;
655
(d) the estimated quantity of water to be reused;
656
(e) the location of the POTW;
657
(f) the place, purpose, and extent of the proposed water reuse;
658
(g) an evaluation of depletion from the hydrologic system caused by the water reuse;
659
and
660
(h) any other information consistent with this chapter that is requested by the state
661
engineer.
662
(3) An application under Subsection (1) shall include a copy of a reuse authorization
663
contract for water reuse proposed by a public agency for any underlying water right not owned
664
by the public agency.
665
(4) In considering an application for water reuse, the state engineer shall comply with:
666
(a) Section
73-3-6
;
667
(b) Section
73-3-7
;
668
(c) Section
73-3-10
; and
669
(d) Section
73-3-14
.
670
(5) In determining whether a proposed water reuse is consistent with the underlying
671
water right, the state engineer shall conclude that a proposed water reuse is consistent with the
672
underlying water right if:
673
(a) the use of the reuse water does not enlarge the underlying water right; and
674
(b) any return flow requirement of the underlying water right is satisfied.
675
(6) (a) The state engineer shall approve a water reuse application if the state engineer
676
concludes that the proposed water reuse is consistent with the underlying water right.
677
(b) The state engineer may:
678
(i) deny an application for water reuse if the proposed water reuse is inconsistent with
679
the underlying water right; or
680
(ii) approve the application in part or with conditions to assure consistency with the
681
underlying water right.
682
(7) A public agency with an approved reuse application shall submit a report, as
683
directed by the state engineer, concerning the ongoing water reuse operation.
684
(8) The [state engineer] Water Rights Board may make rules in accordance with Title
685
63, Chapter 46a, Utah Administrative Rulemaking Act, to implement the provisions of this
686
chapter.
687
Section 22.
Section
73-5-13
is amended to read:
688
73-5-13. Claim to surface or underground water not otherwise represented --
689
Information required -- Corrections -- Filing -- Investigation -- Publication -- Judicial
690
action to determine validity -- Rules.
691
(1) (a) All claimants to the right to the use of water, including both surface and
692
underground, whose rights are not represented by certificates of appropriation issued by the
693
state engineer, by applications filed with the state engineer, by court decrees, or by notice of
694
claim filed pursuant to law, shall submit the claim to the state engineer.
695
(b) Subsections (2) through (7) shall only apply to claims submitted to the state
696
engineer pursuant to this section after May 4, 1997.
697
(2) (a) Each claim submitted under this section shall be verified under oath by the
698
claimant or the claimant's duly appointed representative and submitted on forms furnished by
699
the state engineer setting forth any information the state engineer requires, including:
700
(i) the name and post office address of the person making the claim;
701
(ii) the quantity of water claimed in acre-feet or rate of flow in second-feet, or both,
702
where appropriate;
703
(iii) the source of supply;
704
(iv) the priority date of the right;
705
(v) the location of the point of diversion with reference to a United States land survey
706
corner;
707
(vi) the place of use;
708
(vii) the nature and extent of use;
709
(viii) the time during which the water has been used each year; and
710
(ix) the date when the water was first used.
711
(b) The claim shall also include the following information verified under oath by a
712
registered engineer or land surveyor:
713
(i) measurements of the amount of water diverted;
714
(ii) a statement that the quantity of water claimed either in acre-feet or cubic feet per
715
second is consistent with the beneficial use claimed and the supply which the source is capable
716
of producing; and
717
(iii) a map showing the original diversion and conveyance works and where the water
718
was placed to beneficial use, including irrigated lands, if irrigation is the claimed beneficial
719
use.
720
(c) The state engineer may require additional information as necessary to evaluate any
721
claim including:
722
(i) affidavits setting forth facts of which the affiant has personal knowledge;
723
(ii) authenticated or historic photographs, plat or survey maps, or surveyors' notes;
724
(iii) authenticated copies of original diaries, personal histories, or other historical
725
documents which document the claimed use of water; and
726
(iv) other relevant records on file with any county recorder's, surveyor's, or assessor's
727
office.
728
(3) (a) A claim may be corrected by submitting to the state engineer a verified
729
corrected claim designated as such and bearing the same number as the original claim.
730
(b) No fee shall be charged for submitting a corrected claim.
731
(4) (a) Upon submission by a claimant of a claim that is acceptably complete under
732
Subsection (2) and the deposit of money by a claimant with the state engineer sufficient to pay
733
the expenses of conducting a field investigation and publishing a notice of the claim, the state
734
engineer shall:
735
(i) file the claim;
736
(ii) endorse the date of its receipt;
737
(iii) assign the claim a water right number; and
738
(iv) publish a notice of the claim following the same procedures as provided in Section
739
73-3-6
.
740
(b) Any claim not acceptably complete under Subsection (2) shall be returned to the
741
claimant.
742
(c) The acceptance of any claim filed under this section by the state engineer may not
743
be considered to be an adjudication by the state engineer of the validity of the claimed water
744
right.
745
(5) (a) The state engineer shall:
746
(i) conduct a field investigation of each claim filed; and
747
(ii) prepare a report of the investigation.
748
(b) The report of the investigation shall:
749
(i) become part of the file on the claim; and
750
(ii) be admissible in any administrative or judicial proceeding on the validity of the
751
claim.
752
(6) (a) Any person who may be damaged by a diversion and use of water as described
753
in a claim submitted pursuant to this section may file an action in district court to determine the
754
validity of the claim, whether or not the claim has been accepted for filing by the state
755
engineer.
756
(b) Venue for the action shall be in the county in which the point of diversion listed in
757
the claim is located, or in a county where the place of use, or some part of it, is located.
758
(c) The action shall be brought against the claimant to the use of water or the claimant's
759
successor in interest.
760
(d) In any action brought to determine the validity of a claim to the use of water under
761
this section, the claimant shall have the initial burden of proof as to the validity of the claimed
762
right.
763
(e) Any person filing an action challenging the validity of a claim to the use of water
764
under this section shall notify the state engineer of the pendency of the action in a manner
765
prescribed by the state engineer. Upon receipt of the notice, the state engineer may take no
766
action on any change or exchange applications founded on the claim that is the subject of the
767
pending litigation, until the court adjudicates the matter.
768
(f) Upon the entering of any final order or decree in any judicial action to determine the
769
validity of a claim under this section, the prevailing party shall file a certified copy of the order
770
or decree with the state engineer, which shall become part of the state engineer's file on the
771
claim.
772
(7) The [state engineer] Water Rights Board may make rules consistent with this
773
section specifying information required to be included in a claim and claim procedures.
774
Section 23.
Section
73-5-15
is amended to read:
775
73-5-15. Groundwater management plan.
776
(1) As used in this section:
777
(a) "Critical management area" means a groundwater basin in which the groundwater
778
withdrawals consistently exceed the safe yield.
779
(b) "Safe yield" means the amount of groundwater that can be withdrawn from a
780
groundwater basin over a period of time without exceeding the long-term recharge of the basin
781
or unreasonably affecting the basin's physical and chemical integrity.
782
(2) (a) The state engineer may regulate groundwater withdrawals within a specific
783
groundwater basin by adopting a groundwater management plan in accordance with this section
784
for any groundwater basin or aquifer or combination of hydrologically connected groundwater
785
basins or aquifers.
786
(b) The objectives of a groundwater management plan are to:
787
(i) limit groundwater withdrawals to safe yield;
788
(ii) protect the physical integrity of the aquifer; and
789
(iii) protect water quality.
790
(c) The state engineer shall adopt a groundwater management plan for a groundwater
791
basin if more than 1/3 of the water right owners in the groundwater basin request that the state
792
engineer adopt a groundwater management plan.
793
(3) (a) In developing a groundwater management plan, the state engineer may consider:
794
(i) the hydrology of the groundwater basin;
795
(ii) the physical characteristics of the groundwater basin;
796
(iii) the relationship between surface water and groundwater, including whether the
797
groundwater should be managed in conjunction with hydrologically connected surface waters;
798
(iv) the geographic spacing and location of groundwater withdrawals;
799
(v) water quality;
800
(vi) local well interference; and
801
(vii) other relevant factors.
802
(b) The state engineer shall base the provisions of a groundwater management plan on
803
the principles of prior appropriation.
804
(c) (i) The state engineer shall use the best available scientific method to determine
805
safe yield.
806
(ii) As hydrologic conditions change or additional information becomes available, safe
807
yield determinations made by the state engineer may be revised by following the procedures
808
listed in Subsection (5).
809
(4) (a) (i) Except as provided in Subsection (4)(b), the withdrawal of water from a
810
groundwater basin shall be limited to the basin's safe yield.
811
(ii) Before limiting withdrawals in a groundwater basin to safe yield, the state engineer
812
shall:
813
(A) determine the groundwater basin's safe yield; and
814
(B) adopt a groundwater management plan for the groundwater basin.
815
(iii) If the state engineer determines that groundwater withdrawals in a groundwater
816
basin exceed the safe yield, the state engineer shall regulate groundwater rights in that
817
groundwater basin based on the priority date of the water rights under the groundwater
818
management plan, unless a voluntary arrangement exists under Subsection (4)(c) that requires a
819
different distribution.
820
(b) When adopting a groundwater management plan for a critical management area, the
821
state engineer shall, based on economic and other impacts to an individual water user or a local
822
community caused by the implementation of safe yield limits on withdrawals, allow gradual
823
implementation of the groundwater management plan.
824
(c) (i) In consultation with the state engineer, water users in a groundwater basin may
825
agree to participate in a voluntary arrangement for managing withdrawals at any time, either
826
before or after a determination that groundwater withdrawals exceed the groundwater basin's
827
safe yield.
828
(ii) A voluntary arrangement under Subsection (4)(c)(i) shall be consistent with other
829
law.
830
(iii) The adoption of a voluntary arrangement under this Subsection (4)(c) by less than
831
all of the water users in a groundwater basin does not affect the rights of water users who do
832
not agree to the voluntary arrangement.
833
(5) To adopt a groundwater management plan, the state engineer shall:
834
(a) give notice as specified in Subsection (7) at least 30 days before the first public
835
meeting held in accordance with Subsection (5)(b):
836
(i) that the state engineer proposes to adopt a groundwater management plan;
837
(ii) describing generally the land area proposed to be included in the groundwater
838
management plan; and
839
(iii) stating the location, date, and time of each public meeting to be held in accordance
840
with Subsection (5)(b);
841
(b) hold one or more public meetings in the geographic area proposed to be included
842
within the groundwater management plan to:
843
(i) address the need for a groundwater management plan;
844
(ii) present any data, studies, or reports that the state engineer intends to consider in
845
preparing the groundwater management plan;
846
(iii) address safe yield and any other subject that may be included in the groundwater
847
management plan;
848
(iv) outline the estimated administrative costs, if any, that groundwater users are likely
849
to incur if the plan is adopted; and
850
(v) receive any public comments and other information presented at the public
851
meeting, including comments from any of the entities listed in Subsection (7)(a)(iii);
852
(c) receive and consider written comments concerning the proposed groundwater
853
management plan from any person for a period determined by the state engineer of not less
854
than 60 days after the day on which the notice required by Subsection (5)(a) is given;
855
(d) (i) at least 60 days prior to final adoption of the groundwater management plan,
856
publish notice:
857
(A) that a draft of the groundwater management plan has been proposed; and
858
(B) specifying where a copy of the draft plan may be reviewed; and
859
(ii) promptly provide a copy of the draft plan in printed or electronic form to each of
860
the entities listed in Subsection (7)(a)(iii) that makes written request for a copy; and
861
(e) provide notice of the adoption of the groundwater management plan.
862
(6) A groundwater management plan shall become effective on the date notice of
863
adoption is completed under Subsection (7), or on a later date if specified in the plan.
864
(7) (a) A notice required by this section shall be:
865
(i) published once a week for two successive weeks in a newspaper of general
866
circulation in each county that encompasses a portion of the land area proposed to be included
867
within the groundwater management plan;
868
(ii) published conspicuously on the state engineer's Internet website; and
869
(iii) mailed to each of the following that has within its boundaries a portion of the land
870
area to be included within the proposed groundwater management plan:
871
(A) county;
872
(B) incorporated city or town;
873
(C) improvement district under Title 17B, Chapter 2a, Part 4, Improvement District
874
Act;
875
(D) service area, under Title 17B, Chapter 2a, Part 9, Service Area Act;
876
(E) drainage district, under Title 17B, Chapter 2a, Part 2, Drainage District Act;
877
(F) irrigation district, under Title 17B, Chapter 2a, Part 5, Irrigation District Act;
878
(G) metropolitan water district, under Title 17B, Chapter 2a, Part 6, Metropolitan
879
Water District Act;
880
(H) special service district providing water, sewer, drainage, or flood control services,
881
under Title 17A, Chapter 2, Part 13, Utah Special Service District Act;
882
(I) water conservancy district, under Title 17B, Chapter 2a, Part 10, Water
883
Conservancy District Act; and
884
(J) conservation district, under Title 17A, Chapter 3, Part 8, Conservation Districts.
885
(b) A notice required by this section is effective upon substantial compliance with
886
Subsections (7)(a)(i) through (iii).
887
(8) A groundwater management plan may be amended in the same manner as a
888
groundwater management plan may be adopted under this section.
889
(9) The existence of a groundwater management plan does not preclude any otherwise
890
eligible person from filing any application or challenging any decision made by the state
891
engineer within the affected groundwater basin.
892
(10) (a) A person aggrieved by a groundwater management plan may challenge any
893
aspect of the groundwater management plan by:
894
(i) requesting administrative review by the Water Rights Board in accordance with
895
Section
73-2-31
; or
896
(ii) filing a complaint within 60 days after the adoption of the groundwater
897
management plan in the district court for any county in which the groundwater basin is found.
898
(b) Notwithstanding Subsection (9), a person may challenge the components of a
899
groundwater management plan only in the manner provided by Subsection (10)(a).
900
(c) An action brought under [this] Subsection (10)(a)(ii) is reviewed de novo by the
901
district court.
902
(d) A person challenging a groundwater management plan under [this] Subsection
903
(10)(a)(ii) shall join the state engineer as a defendant in the action challenging the groundwater
904
management plan.
905
(e) (i) Within 30 days after the day on which a person files an action challenging any
906
aspect of a groundwater management plan under Subsection (10)(a), the person filing the action
907
shall publish notice of the action in a newspaper of general circulation in the county in which
908
the district court is located.
909
(ii) The notice required by Subsection (10)(e)(i) shall be published once a week for two
910
consecutive weeks.
911
(iii) The notice required by Subsection (10)(e)(i) shall:
912
(A) identify the groundwater management plan the person is challenging;
913
(B) identify the case number assigned by the district court;
914
(C) state that a person affected by the groundwater management plan may petition the
915
district court to intervene in the action challenging the groundwater management plan; and
916
(D) list the address for the clerk of the district court in which the action is filed.
917
(iv) (A) Any person affected by the groundwater management plan may petition to
918
intervene in the action within 60 days after the day on which notice is last published under
919
Subsections (10)(e)(i) and (ii).
920
(B) The district court's treatment of a petition to intervene under this Subsection
921
(10)(e)(iv) is governed by the Utah Rules of Civil Procedure.
922
(v) A district court in which an action is brought under Subsection (10)(a) shall
923
consolidate all actions brought under that Subsection and include in the consolidated action any
924
person whose petition to intervene is granted.
925
(11) A groundwater management plan adopted or amended in accordance with this
926
section is exempt from the requirements in Title 63, Chapter 46a, Utah Administrative
927
Rulemaking Act.
928
(12) Recharge and recovery projects permitted under Chapter 3b, Groundwater
929
Recharge and Recovery Act, are exempted from this section.
930
(13) Nothing in this section may be interpreted to require the development,
931
implementation, or consideration of a groundwater management plan as a prerequisite or
932
condition to the exercise of the state engineer's enforcement powers under other law, including
933
powers granted under Section
73-2-25
.
934
(14) A groundwater management plan adopted in accordance with this section may not
935
apply to the dewatering of a mine.
936
(15) (a) A groundwater management plan adopted by the state engineer before May 1,
937
2006, remains in force and has the same legal effect as it had on the day on which it was
938
adopted by the state engineer.
939
(b) If a groundwater management plan that existed before May 1, 2006, is amended on
940
or after May 1, 2006, the amendment is subject to this section's provisions.
941
Section 24.
Section
73-5a-101
is amended to read:
942
73-5a-101. Power of state engineer to regulate dams -- Water Rights Board rules.
943
(1) The state engineer has the authority to regulate dams for the purpose of protecting
944
public safety.
945
(2) To protect life and property, the [state engineer] Water Rights Board may make
946
rules controlling the construction and operation of dams, including rules controlling:
947
(a) design;
948
(b) maintenance;
949
(c) repair;
950
(d) removal; and
951
(e) abandonment.
952
(3) The [state engineer] Water Rights Board may by rule exempt from this chapter any
953
dam that:
954
(a) impounds less than 20 acre-feet of water and does not constitute a threat to human
955
life if it fails; or
956
(b) does not constitute a threat to human life and would result in only minor damage to
957
property of the owner if it fails.
958
Section 25.
Section
73-5a-105
is amended to read:
959
73-5a-105. Independent consultants -- Owner to pay costs.
960
(1) The state engineer may require the owner of a dam or proposed dam to obtain the
961
services of an independent consultant or team of consultants approved by the state engineer to
962
consult regarding the adequacy of the design, construction, or operation of the dam if safety
963
considerations pertaining to the design, construction, or operation of the dam warrant an
964
independent review.
965
(2) The [state engineer] Water Rights Board shall make rules specifying:
966
(a) the safety considerations that will be considered in determining if an independent
967
review is required;
968
(b) the requisite qualifications and experience of the independent consultants; and
969
(c) the timing of the consultants' review so that their recommendations are made in a
970
timely manner.
971
(3) (a) The independent consultants shall be considered to be the agents of the owner of
972
the dam.
973
(b) The costs of the independent consultants' services shall be paid by the owner of the
974
dam.
975
(c) The owner of the dam may require the independent consultants to consider other
976
issues, in addition to safety considerations, such as:
977
(i) design selections or alternatives;
978
(ii) site selection;
979
(iii) cost effectiveness; or
980
(iv) other tasks as defined by the contract.
981
Section 26.
Section
73-5a-203
is amended to read:
982
73-5a-203. Review of plans.
983
(1) The state engineer shall establish a formal written procedure for the review of plans
984
submitted pursuant to Section
73-5a-202
. Plans shall be reviewed according to:
985
(a) design criteria which the [state engineer] Water Rights Board shall specify in rules;
986
and
987
(b) data or criteria generally accepted by the general dam design community.
988
(2) Upon review of the plans, the state engineer will:
989
(a) approve them with appropriate conditions;
990
(b) reject them; or
991
(c) return them for correction.
992
(3) The state engineer shall document each review indicating:
993
(a) how the plans were reviewed; and
994
(b) his evaluation of the plans.
995
Section 27.
Section
73-5a-304
is amended to read:
996
73-5a-304. Final inspection.
997
(1) Following construction and prior to impounding any water, the state engineer shall
998
undertake a final inspection of the project.
999
(2) A written final approval of the project shall be issued if:
1000
(a) the state engineer determines that:
1001
(i) the project was constructed in accordance with plans approved by the state engineer
1002
under Sections
73-5a-203
and
73-5a-303
; and
1003
(ii) during construction, inspections and tests were conducted as required by Section
1004
73-5a-301
; and
1005
(b) the emergency action plan and standard operating plan meet the requirements set
1006
forth in rules adopted by the [state engineer] Water Rights Board.
1007
(3) (a) The state engineer may require the owner to:
1008
(i) submit a formal operating plan for the initial filling of the reservoir; or
1009
(ii) follow certain procedures during the initial filling of the reservoir.
1010
(b) Failure to submit the operating plan or follow the specified procedures shall result
1011
in revocation of the final approval.
1012
Section 28.
Section
73-5a-401
is amended to read:
1013
73-5a-401. Records and reports.
1014
The [state engineer] Water Rights Board may make rules requiring the owner of any
1015
dam to:
1016
(1) maintain records pertaining to the construction, operation, or maintenance of the
1017
dam; or
1018
(2) submit:
1019
(a) reports to the state engineer regarding maintenance, operation, or instrumentation
1020
readings; or
1021
(b) any other data considered necessary by the state engineer.
1022
Section 29.
Section
73-5a-403
is amended to read:
1023
73-5a-403. Contents of standard operating plans.
1024
[By May 1, 1991, the state engineer] The Water Rights Board shall adopt rules
1025
specifying the contents of standard operating plans.
1026
Section 30.
Section
73-5a-502
is amended to read:
1027
73-5a-502. Legislative findings -- Immunity from suit -- Minimum standards for
1028
existing high hazard dams -- Exceptions -- Investigations and plans for compliance with
1029
minimum standards.
1030
(1) The Legislature finds that:
1031
(a) it is in the interest of the people of the state to improve the safety of existing dams;
1032
(b) mutual irrigation companies and water users associations cannot afford to bring
1033
dams into conformance with the state's current minimum safety standards without financial
1034
assistance from the state;
1035
(c) due to limited financial, physical, and human resources, it is necessary to establish
1036
priorities for the upgrade of dams; and
1037
(d) the state and its officers and employees are immune from suit for any injury or
1038
damage resulting from the exercise or performance or the failure to exercise or perform any
1039
function pursuant to this chapter.
1040
(2) The [state engineer] Water Rights Board shall establish minimum standards for
1041
existing high hazard dams by rule. The standards for existing high hazard dams may differ
1042
from the design criteria established for new construction.
1043
(3) No seismic standards shall be established for existing high hazard dams within the
1044
flood control use classification.
1045
(4) (a) In implementing this section, the state engineer will develop a priority list of
1046
high hazard dams. The list will be determined by calculating the relative anticipated breach
1047
flows in the event of a dam failure. The dams will be ranked from the largest breach flow to
1048
the smallest for all high hazard dams.
1049
(b) The state engineer shall investigate annually 25 dams on the priority list in order of
1050
their ranking to determine in what areas they are deficient or do not meet minimum standards.
1051
(c) Once a determination is made, the owner will be notified that the owner will be
1052
required to undertake investigations to determine requirements necessary to bring the dam into
1053
compliance with minimum standards.
1054
(d) Once the owner has been informed of the deficiencies of the dam, the owner will be
1055
given 90 days to respond, in writing, as to what steps the owner is taking to investigate the
1056
deficiencies and the time required to complete the investigations.
1057
(e) The state engineer will review the proposal, and if it appears reasonable, will
1058
approve it.
1059
(5) The state engineer may not require any mutual irrigation company or water users
1060
association to upgrade a dam in conformance with minimum standards, unless a grant to pay
1061
for 80% of the costs is made available from the Board of Water Resources.
1062
Section 31.
Section
73-5a-602
is amended to read:
1063
73-5a-602. Contents of emergency action plans.
1064
[By May 1, 1991, the state engineer] The Water Rights Board shall adopt rules
1065
specifying the contents of an emergency action plan.
1066
Section 32.
Section
73-6-1
is amended to read:
1067
73-6-1. Suspension of right to appropriate -- By proclamation of governor.
1068
For the purpose of preserving the surplus and unappropriated waters of any stream or
1069
other source of water supply for use by irrigation districts and organized agricultural water
1070
users, or for any use whatsoever, when in the judgment of the governor and the [state engineer]
1071
Water Rights Board the welfare of the state demands it, the governor by proclamation may,
1072
upon the recommendation of the [state engineer] Water Rights Board, suspend the right of the
1073
public to appropriate such surplus or unappropriated waters.
1074
Section 33.
Section
73-6-2
is amended to read:
1075
73-6-2. Restoration by proclamation -- Priority of applications.
1076
Waters withdrawn from appropriation under this chapter may be restored by
1077
proclamation of the governor upon the recommendation of the [state engineer] Water Rights
1078
Board. Such proclamation shall not become effective until notice thereof has been published at
1079
least once a week for three successive weeks in a newspaper of general circulation within the
1080
boundaries of the river system or water source within which the waters so to be restored are
1081
situated. Applications for appropriations shall not be filed during the time such waters are
1082
withdrawn from appropriation; provided, that after the first publication of notice aforesaid
1083
applications may be deposited with the state engineer and at the time such proclamation
1084
becomes effective the engineer shall hold public hearings, giving all applicants notice, to
1085
determine which applications so filed during the period of publication of such notice are most
1086
conducive to the public good, and shall file such applications in order of priority according to
1087
such determination.
1088
Section 34.
Section
73-22-5
is amended to read:
1089
73-22-5. Jurisdiction of division -- Hearings -- Subpoena power -- Restraining
1090
violations -- Actions for damages against violators unaffected.
1091
(1) (a) The division has jurisdiction and authority over all persons and property, public
1092
and private, necessary to enforce the provisions of this chapter [and may enact, issue, and
1093
enforce].
1094
(b) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
1095
Water Rights Board shall make rules necessary [rules and orders] to carry out the requirements
1096
of this chapter.
1097
(2) (a) Any affected person may apply for a hearing before the division, or the division
1098
may initiate proceedings upon any question relating to the administration of this chapter by
1099
following the procedures and requirements of Title 63, Chapter 46b, Administrative Procedures
1100
Act.
1101
(b) The Division of Water Rights shall comply with the procedures and requirements
1102
of Title 63, Chapter 46b, Administrative Procedures Act, in its adjudicative proceedings.
1103
(3) The division shall have the power to summon witnesses, to administer oaths, and to
1104
require the production of records, books, and documents for examination at any hearing or
1105
investigation conducted by it.
1106
(4) (a) If any person fails or refuses to comply with a subpoena issued by the division,
1107
or if any witness fails or refuses to testify about any matter regarding which he may be
1108
interrogated, the division may petition any district court in the state to issue an order
1109
compelling the person to:
1110
(i) comply with the subpoena and attend before the division;
1111
(ii) produce any records, books, and documents covered by the subpoena; or
1112
(iii) to give testimony.
1113
(b) The court may punish failure to comply with the order as contempt.
1114
(5) (a) Whenever it appears that any person is violating or threatening to violate any
1115
provision of this chapter, or any rule or order made under this chapter, the division may file suit
1116
in the name of the state to restrain that person from continuing the violation or from carrying
1117
out the threat of violation.
1118
(b) Venue for the action is in the district court in the county where any defendant
1119
resides or in the county where the violation is alleged to have occurred.
1120
(6) (a) Nothing in this chapter, no suit by or against the division, and no violation
1121
charged or asserted against any person under this chapter, or any rule or order issued under it,
1122
shall impair, abridge, or delay any cause of action for damages that any person may have or
1123
assert against any person violating this chapter, or any rule or order issued under it.
1124
(b) Any person so damaged by the violation may sue for and recover whatever damages
1125
that he is otherwise entitled to receive.
1126
Section 35.
Section
73-22-6
is amended to read:
1127
73-22-6. Information required concerning resource development --
1128
Confidentiality -- Regulation of wells -- Surety bonds -- Inspection.
1129
(1) The division shall have authority to require:
1130
(a) Identification of the location and ownership of all wells and producing geothermal
1131
leases.
1132
(b) Filing with the division of a notice of intent to drill, redrill, deepen, permanently
1133
alter the casing of, or abandon any well. Approval of the notice of intent must be obtained from
1134
the division prior to commencement of operations.
1135
(c) Keeping of well logs and filing true and correct copies with the division. These
1136
records are public records when filed with the division, unless the owner or operator requests,
1137
in writing, that the records be held confidential. The period of confidentiality shall be
1138
established by the division, not to exceed five years from the date of production or injection for
1139
other than testing purposes or five years from the date of abandonment, whichever occurs first,
1140
as determined by the division. Well records held confidential by the division are open to
1141
inspection by those persons authorized in writing by the owner or operator. Confidential status
1142
shall not restrict inspection by state officers charged with regulating well operations or by
1143
authorized officials of the Utah State Tax Commission for purposes of tax assessment.
1144
(d) The spacing, drilling, casing, testing, operating, producing, and abandonment of
1145
wells so as to prevent:
1146
(i) geothermal resources, water, gases, or other fluids from escaping into strata other
1147
than the strata in which they are found (unless in accordance with a subsurface injection
1148
program approved by the division);
1149
(ii) pollution of surface and groundwater;
1150
(iii) premature cooling of any geothermal system by water encroachment or otherwise
1151
which tends to reduce the ultimate economic recovery of the geothermal resources;
1152
(iv) blowouts, cave-ins, and seepage; and
1153
(v) unreasonable disturbance or injury to neighboring properties, prior water rights,
1154
human life, health, and the environment.
1155
(e) The operator to file cash or individual surety bonds with the division for each new
1156
well drilled and each abandoned well redrilled. The amount of surety required shall be
1157
determined by the [division] Water Rights Board. In lieu of bonds for separate wells, the
1158
operator may file a blanket cash or individual surety bond in an amount set by the division to
1159
cover all the operator's drilling, redrilling, deepening, maintenance, or abandonment activities
1160
for wells in the state. Bonds filed with the division shall be executed by the operator, as
1161
principal, conditioned on compliance with division regulations in drilling, redrilling,
1162
deepening, maintaining, or abandoning any well or wells covered by the bond and shall secure
1163
the state against all losses, charges, and expenses incurred by it to obtain such compliance by
1164
the principal named in the bond.
1165
(f) The geothermal owner or operator to measure geothermal production according to
1166
standards set by the division and maintain complete and accurate production records. The
1167
records, or certified copies of them, shall be preserved on file by the owner or operator for a
1168
period of five years and shall be available for examination by the division at all reasonable
1169
times.
1170
(g) Filing with the division any other reasonable reports which it prescribes regarding
1171
geothermal operations within the state.
1172
(2) Any bond filed with the division in conformance with this chapter may, with the
1173
consent of the division, be terminated and canceled and the surety be relieved of all obligations
1174
under it when the well or wells covered by the bond have been properly abandoned or another
1175
valid bond has been substituted for it.
1176
(3) The division may enter onto private or public land at any time to inspect any well or
1177
geothermal resource development project to determine if the well or project is being
1178
constructed, operated, or maintained according to any applicable permits or to determine if the
1179
construction, operation, or maintenance of the well or project may involve an unreasonable risk
1180
to life, health, property, the environment or subsurface, surface, or atmospheric resources.
1181
Section 36.
Section
73-22-10
is amended to read:
1182
73-22-10. Judicial and administrative review of division actions -- Falsification or
1183
omission of filings as misdemeanor -- Limitation of actions.
1184
(1) (a) Any person aggrieved by any order issued under this chapter may obtain:
1185
(i) administrative review by the Water Rights Board in accordance with Section
1186
73-2-31
; or
1187
(ii) judicial review.
1188
(b) Venue for judicial review of informal adjudicative proceedings is in the district
1189
court of Salt Lake County, or in the district court of the county in which the complaining
1190
person resides.
1191
(2) An action or appeal involving any provision of this chapter, or a rule or order
1192
issued under it shall be determined as expeditiously as possible.
1193
(3) Any person who, for the purpose of evading this chapter or any order of the
1194
division issued under it, makes or causes to be made any false entry in any report, record,
1195
account, or memorandum required by this chapter, or by any order issued under it, or omits or
1196
causes to be omitted from the report, record, account, or memorandum, full, true, and correct
1197
entries as required by this chapter, or by an order, or removes from this state or destroys,
1198
mutilates, alters, or falsifies the record, account, or memorandum, is guilty of a class A
1199
misdemeanor.
1200
(4) No suit, action, or other proceeding based upon a violation of this chapter or any
1201
order of the division issued under it may be begun or maintained unless the action is begun
1202
within two years from the date of the alleged violation.
Legislative Review Note
as of 1-23-08 11:32 AM