H.B. 91

1

ENFORCEMENT PROCEDURE AMENDMENTS OF
2 h WATER h WELL DRILLERS
3 2003 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Darin G. Peterson
6 This act modifies the Administrative Procedures Act to exempt state agency actions, or
7 judicial review of those actions, relating to h WATER h well driller licenses, permits,
7a registration, and
8 construction standards from the Administrative Procedures Act.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 63-46b-1, as last amended by Chapter 8, Laws of Utah 2002, Fifth Special Session
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 63-46b-1 is amended to read:
14 63-46b-1. Scope and applicability of chapter.
15 (1) Except as set forth in Subsection (2), and except as otherwise provided by a statute
16 superseding provisions of this chapter by explicit reference to this chapter, the provisions of
17 this chapter apply to every agency of the state and govern:
18 (a) all state agency actions that determine the legal rights, duties, privileges,
19 immunities, or other legal interests of one or more identifiable persons, including all agency
20 actions to grant, deny, revoke, suspend, modify, annul, withdraw, or amend an authority, right,
21 or license; and
22 (b) judicial review of these actions.
23 (2) This chapter does not govern:
24 (a) the procedures for making agency rules, or the judicial review of those procedures
25 or rules;
26 (b) the issuance of any notice of a deficiency in the payment of a tax, the decision to

27 waive penalties or interest on taxes, the imposition of and penalties or interest on taxes, or the

28 issuance of any tax assessment, except that this chapter governs any agency action commenced
29 by a taxpayer or by another person authorized by law to contest the validity or correctness of
30 those actions;
31 (c) state agency actions relating to extradition, to the granting of pardons or parole,
32 commutations or terminations of sentences, or to the rescission, termination, or revocation of
33 parole or probation, to the discipline of, resolution of grievances of, supervision of,
34 confinement of, or the treatment of inmates or residents of any correctional facility, the Utah
35 State Hospital, the Utah State Developmental Center, or persons in the custody or jurisdiction
36 of the Division of Substance Abuse and Mental Health, or persons on probation or parole, or
37 judicial review of those actions;
38 (d) state agency actions to evaluate, discipline, employ, transfer, reassign, or promote
39 students or teachers in any school or educational institution, or judicial review of those actions;
40 (e) applications for employment and internal personnel actions within an agency
41 concerning its own employees, or judicial review of those actions;
42 (f) the issuance of any citation or assessment under Title 34A, Chapter 6, Utah
43 Occupational Safety and Health Act, and Title 58, Chapter 55, Utah Construction Trades
44 Licensing Act, except that this chapter governs any agency action commenced by the employer,
45 licensee, or other person authorized by law to contest the validity or correctness of the citation
46 or assessment;
47 (g) state agency actions relating to management of state funds, the management and
48 disposal of school and institutional trust land assets, and contracts for the purchase or sale of
49 products, real property, supplies, goods, or services by or for the state, or by or for an agency of
50 the state, except as provided in those contracts, or judicial review of those actions;
51 (h) state agency actions under Title 7, Chapter 1, Article 3, Powers and Duties of
52 Commissioner of Financial Institutions; and Title 7, Chapter 2, Possession of Depository
53 Institution by Commissioner; Title 7, Chapter 19, Acquisition of Failing Depository Institutions
54 or Holding Companies; and Title 63, Chapter 30, Utah Governmental Immunity Act, or judicial
55 review of those actions;
56 (i) the initial determination of any person's eligibility for unemployment benefits, the
57 initial determination of any person's eligibility for benefits under Title 34A, Chapter 2,
58 Workers' Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the

59 initial determination of a person's unemployment tax liability;
60 (j) state agency actions relating to the distribution or award of monetary grants to or
61 between governmental units, or for research, development, or the arts, or judicial review of
62 those actions;
63 (k) the issuance of any notice of violation or order under Title 26, Chapter 8a, Utah
64 Emergency Medical Services System Act; Title 19, Chapter 2, Air Conservation Act; Title 19,
65 Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act; Title 19,
66 Chapter 5, Water Quality Act; Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act;
67 Title 19, Chapter 6, Part 4, Underground Storage Tank Act; or Title 19, Chapter 6, Part 7, Used
68 Oil Management Act, except that this chapter governs any agency action commenced by any
69 person authorized by law to contest the validity or correctness of the notice or order;
70 (l) state agency actions, to the extent required by federal statute or regulation to be
71 conducted according to federal procedures;
72 (m) the initial determination of any person's eligibility for government or public
73 assistance benefits;
74 (n) state agency actions relating to wildlife licenses, permits, tags, and certificates of
75 registration;
76 (o) licenses for use of state recreational facilities;
77 (p) state agency actions under Title 63, Chapter 2, Government Records Access and
78 Management Act, except as provided in Section 63-2-603 ;
79 (q) state agency actions relating to the collection of water commissioner fees and
80 delinquency penalties, or judicial review of those actions; [and]
81 (r) state agency actions relating to the installation, maintenance, and repair of
82 headgates, caps, values, or other water controlling works and weirs, flumes, meters, or other
83 water measuring devices, or judicial review of those actions[.]; and
84 (s) state agency actions relating to h WATER h well driller licenses, h WATER h well
84a drilling permits, h WATER h well
85 driller registration, or h WATER h well drilling construction standards, or judicial review of those
85a actions.
86 (3) This chapter does not affect any legal remedies otherwise available to:
87 (a) compel an agency to take action; or
88 (b) challenge an agency's rule.

89 (4) This chapter does not preclude an agency, prior to the beginning of an adjudicative

90 proceeding, or the presiding officer during an adjudicative proceeding from:
91 (a) requesting or ordering conferences with parties and interested persons to:
92 (i) encourage settlement;
93 (ii) clarify the issues;
94 (iii) simplify the evidence;
95 (iv) facilitate discovery; or
96 (v) expedite the proceedings; or
97 (b) granting a timely motion to dismiss or for summary judgment if the requirements of
98 Rule 12(b) or Rule 56, respectively, of the Utah Rules of Civil Procedure are met by the
99 moving party, except to the extent that the requirements of those rules are modified by this
100 chapter.
101 (5) (a) Declaratory proceedings authorized by Section 63-46b-21 are not governed by
102 this chapter, except as explicitly provided in that section.
103 (b) Judicial review of declaratory proceedings authorized by Section 63-46b-21 are
104 governed by this chapter.
105 (6) This chapter does not preclude an agency from enacting rules affecting or
106 governing adjudicative proceedings or from following any of those rules, if the rules are
107 enacted according to the procedures outlined in Title 63, Chapter 46a, Utah Administrative
108 Rulemaking Act, and if the rules conform to the requirements of this chapter.
109 (7) (a) If the attorney general issues a written determination that any provision of this
110 chapter would result in the denial of funds or services to an agency of the state from the federal
111 government, the applicability of those provisions to that agency shall be suspended to the
112 extent necessary to prevent the denial.
113 (b) The attorney general shall report the suspension to the Legislature at its next
114 session.
115 (8) Nothing in this chapter may be interpreted to provide an independent basis for
116 jurisdiction to review final agency action.
117 (9) Nothing in this chapter may be interpreted to restrict a presiding officer, for good
118 cause shown, from lengthening or shortening any time period prescribed in this chapter, except
119 those time periods established for judicial review.

Legislative Review Note
as of 1-14-03 9:18 AM

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

Office of Legislative Research and General Counsel