H.B. 38 Enrolled

WATER LAW - CRIMINAL PENALTIES
AMENDMENTS
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ben C. Ferry
Senate Sponsor: Beverly Ann Evans

LONG TITLE
General Description:
This bill modifies the criminal penalties for violations of various provisions of Title 73,
Water and Irrigation, and Title 76, Chapter 10, Offenses against Public Health, Safety,
Welfare, and Morals.
Highlighted Provisions:
This bill:
. removes criminal penalties from certain provisions requiring reports to the state
engineer;
. clarifies applicable standards of criminal intent for violations;
. provides for graduated criminal penalties for violations of various criminal
provisions pertaining to the regulation and distribution of water; and
. makes technical changes.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
73-1-14, Utah Code Annotated 1953
73-1-15, as last amended by Chapter 156, Laws of Utah 1965
73-2-20, Utah Code Annotated 1953

73-3-3, as last amended by Chapter 136, Laws of Utah 2001
73-3-22, as last amended by Chapter 25, Laws of Utah 1987
73-3-26, as last amended by Chapter 178, Laws of Utah 1986
73-3-29, as last amended by Chapter 61, Laws of Utah 1992
73-5-8, Utah Code Annotated 1953
73-5-9, Utah Code Annotated 1953
76-10-201, as enacted by Chapter 196, Laws of Utah 1973
76-10-202, as enacted by Chapter 196, Laws of Utah 1973
76-10-203, as enacted by Chapter 196, Laws of Utah 1973
ENACTS:
73-2-27, Utah Code Annotated 1953

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 73-1-14 is amended to read:
73-1-14. Interfering with waterworks or with apportioning official -- Penalty and
liability.
(1) Any person, who in any way unlawfully interferes with, injures, destroys or removes
any dam, head gate, weir, casing, valve, cap or other appliance for the diversion, apportionment,
measurement or regulation of water, or who interferes with any person authorized to apportion
water while in the discharge of his duties, is guilty of a [misdemeanor, and] crime punishable
under Section 73-2-27 .
(2) Any person who commits an act defined as a crime under this section is also liable
[in] in a civil action for damages or other relief to any person injured by [such unlawful act] that
act.
(3) (a) A civil action under this section may be brought independent of a criminal action.
(b) Proof of the elements of a civil action under this section need only be made by a
preponderance of the evidence.
Section 2. Section 73-1-15 is amended to read:

73-1-15. Obstructing canals or other watercourses -- Penalties.
(1) Whenever any person[, partnership, company or corporation] has a right-of-way of
any established type or title for any canal or other watercourse it shall be unlawful for any
person[, persons or governmental agencies] to place or maintain in place any obstruction, or
change of the water flow by fence or otherwise, along or across or in such canal or watercourse,
except as where said watercourse inflicts damage to private property, without first receiving
written permission for the change and providing gates sufficient for the passage of the owner or
owners of such canal or watercourse. That the vested rights in the established canals and
watercourse shall be protected against all encroachments. That indemnifying agreements may be
entered as may be just and proper by governmental agencies.
(2) Any person[, partnership, company or corporation] violating [the provisions of] this
section is guilty of a [misdemeanor and is subject to damages and costs] crime punishable under
Section 73-2-27 .
(3) Any person who commits an act defined as a crime under this section is also liable
for damages or other relief and costs in a civil action to any person injured by that act.
(4) (a) A civil action under this section may be brought independent of a criminal action.
(b) Proof of the elements of a civil action under this section need only be made by a
preponderance of the evidence.
Section 3. Section 73-2-20 is amended to read:
73-2-20. Employees authorized to enter and cross lands -- Injuring monuments a
crime.
(1) In order to carry out the purposes of this [act] title any person [or persons] properly
employed hereunder [are] is authorized to enter and cross all lands within the state[; provided,
that in so doing] if no damage is done to private property.
(2) It [shall be] is a [misdemeanor] crime punishable under Section 73-2-27 for any
person [or persons willfully and maliciously] to knowingly or intentionally remove or injure any
equipment, permanent marks, or monuments made or installed [for the purpose of carrying on
these investigations] by any person properly employed under this title.

Section 4. Section 73-2-27 is enacted to read:
73-2-27. Criminal penalties.
(1) This section applies to offenses committed under:
(a) Section 73-1-14 ;
(b) Section 73-1-15 ;
(c) Section 73-2-20 ;
(d) Subsection 73-3-3 (9);
(e) Section 73-3-26 ;
(f) Section 73-3-29 ;
(g) Section 73-5-9 ;
(h) Section 76-10-201 ;
(i) Section 76-10-202 ; and
(j) Section 76-10-203 .
(2) Under circumstances not amounting to an offense with a greater penalty under
Subsection 76-6-106 (2)(b)(ii) or Section 76-6-404 , violation of a provision listed in Subsection
(1) is punishable:
(a) as a felony of the third degree if:
(i) the value of the water diverted or property damaged or taken is $2,500 or greater; and
(ii) the person violating the provision has previously been convicted of violating the
same provision;
(b) as a class A misdemeanor if:
(i) the value of the water diverted or property damaged or taken is $2,500 or greater; or
(ii) the person violating the provision has previously been convicted of violating the
same provision; or
(c) as a class B misdemeanor if Subsection (2)(a) or (b) do not apply.
Section 5. Section 73-3-3 is amended to read:
73-3-3. Permanent or temporary changes in point of diversion, place of use, or
purpose of use.

(1) For purposes of this section:
(a) "Permanent changes" means changes for an indefinite length of time with an intent to
relinquish the original point of diversion, place of use, or purpose of use.
(b) "Temporary changes" means changes for fixed periods not exceeding one year.
(2) (a) Any person entitled to the use of water may make permanent or temporary
changes in the:
(i) point of diversion;
(ii) place of use; or
(iii) purpose of use for which the water was originally appropriated.
(b) A change may not be made if it impairs any vested right without just compensation.
(3) Both permanent and temporary changes of point of diversion, place of use, or purpose
of use of water, including water involved in general adjudication or other suits, shall be made in
the manner provided in this section.
(4) (a) A change may not be made unless the change application is approved by the state
engineer.
(b) Applications shall be made upon forms furnished by the state engineer and shall set
forth:
(i) the name of the applicant;
(ii) a description of the water right;
(iii) the quantity of water;
(iv) the stream or source;
(v) the point on the stream or source where the water is diverted;
(vi) the point to which it is proposed to change the diversion of the water;
(vii) the place, purpose, and extent of the present use;
(viii) the place, purpose, and extent of the proposed use; and
(ix) any other information that the state engineer requires.
(5) (a) The state engineer shall follow the same procedures, and the rights and duties of
the applicants with respect to applications for permanent changes of point of diversion, place of

use, or purpose of use shall be the same, as provided in this title for applications to appropriate
water.
(b) The state engineer may, in connection with applications for permanent change
involving only a change in point of diversion of 660 feet or less, waive the necessity for
publishing a notice of application.
(6) (a) The state engineer shall investigate all temporary change applications.
(b) If the state engineer finds that the temporary change will not impair any vested rights
of others, he shall issue an order authorizing the change.
(c) If the state engineer finds that the change sought might impair vested rights, before
authorizing the change, he shall give notice of the application to any person whose rights may be
affected by the change.
(d) Before making an investigation or giving notice, the state engineer may require the
applicant to deposit a sum of money sufficient to pay the expenses of the investigation and
publication of notice.
(7) (a) The state engineer may not reject applications for either permanent or temporary
changes for the sole reason that the change would impair the vested rights of others.
(b) If otherwise proper, permanent or temporary changes may be approved for part of the
water involved or upon the condition that conflicting rights are acquired.
(8) (a) Any person holding an approved application for the appropriation of water may
either permanently or temporarily change the point of diversion, place of use, or purpose of use.
(b) A change of an approved application does not:
(i) affect the priority of the original application; or
(ii) extend the time period within which the construction of work is to begin or be
completed.
(9) Any person who changes or who attempts to change a point of diversion, place of
use, or purpose of use, either permanently or temporarily, without first applying to the state
engineer in the manner provided in this section:
(a) obtains no right; [and]

(b) is guilty of a [class B misdemeanor,] crime punishable under Section 73-2-27 if the
change or attempted change is made knowingly or intentionally; and
(c) is guilty of a separately punishable offense for each day of the unlawful change
[constituting a separate offense, separately punishable].
(10) (a) This section does not apply to the replacement of an existing well by a new well
drilled within a radius of 150 feet from the point of diversion of the existing well.
(b) Any replacement well must be drilled in accordance with the requirements of Section
73-3-28 .
(11) (a) In accordance with the requirements of this section, the Division of Wildlife
Resources or Division of Parks and Recreation may file applications for permanent or temporary
changes for the purpose of providing water for instream flows, within a designated section of a
natural stream channel or altered natural stream channel, necessary within the state [of Utah] for:
(i) the propagation of fish;
(ii) public recreation; or
(iii) the reasonable preservation or enhancement of the natural stream environment.
(b) Applications may be filed for changes on:
(i) perfected water rights presently owned by the respective division;
(ii) perfected water rights purchased by the respective division for the purpose of
providing water for instream flows, through funding provided for that purpose by legislative
appropriation or acquired by lease, agreement, gift, exchange, or contribution; or
(iii) appurtenant water rights acquired with the acquisition of real property by either
division.
(c) A physical structure or physical diversion from the stream is not required to
implement a change for instream flow use.
(d) This Subsection (11) does not allow enlargement of the water right sought to be
changed nor may the change impair any vested water right.
(e) In addition to the other requirements of this section, an application filed by either
division shall:

(i) set forth the legal description of the points on the stream between which the
necessary instream flows will be provided by the change; and
(ii) include appropriate studies, reports, or other information required by the state
engineer that demonstrate the necessity for the instream flows in the specified section of the
stream and the projected benefits to the public that will result from the change.
(f) The Division of Wildlife Resources and Division of Parks and Recreation may:
(i) purchase water rights for the purposes provided in Subsection (11)(a) only with funds
specifically appropriated by the Legislature for water rights purchases; or
(ii) accept a donated water right without legislative approval.
(g) This Subsection (11) does not authorize either division to:
(i) appropriate unappropriated water under Section 73-3-2 for the purpose of providing
instream flows; or
(ii) acquire water rights by eminent domain for instream flows or for any other purpose.
(h) This Subsection (11) applies only to change applications filed on or after April 28,
1986.
(12) (a) Sixty days before the date on which proof of change for instream flows under
Subsection (11) is due, the state engineer shall notify the applicant by registered mail or by any
form of electronic communication through which receipt is verifiable of the date when proof of
change is due.
(b) Before the date when proof of change is due, the applicant must either:
(i) file a verified statement with the state engineer that the instream flow uses have been
perfected, which shall set forth:
(A) the legal description of the points on the natural stream channel or altered natural
stream channel between which the necessary instream flows have been provided;
(B) detailed measurements of the flow of water in second feet changed;
(C) the period of use; and
(D) any additional information required by the state engineer; or
(ii) apply for a further extension of time as provided for in Section 73-3-12 .

(c) Upon approval of the verified statement required under Subsection (12)(b)(i), the
state engineer shall issue a certificate of change for instream flow use.
Section 6. Section 73-3-22 is amended to read:
73-3-22. Underground water -- Report of well and tunnel drillers.
[(1)] Any person constructing a well or tunnel for the purpose of utilizing or monitoring
underground waters shall, within 30 days after the completion or abandonment of the
construction, report to the state engineer data relating to each well or tunnel. The report shall be
made on forms furnished by the state engineer and shall contain information required by the state
engineer.
[(2) Any person who fails to comply with the provisions of this section is guilty of a class
B misdemeanor.]
Section 7. Section 73-3-26 is amended to read:
73-3-26. Violations -- Penalty.
(1) Any person[, firm, copartnership, association, or corporation] drilling a well or wells
in the state or who advertises or holds himself [or itself] out as a well driller, or who follows such
business, without first having obtained a [permit] license as provided by this act or who drills a
well or wells after revocation or expiration of his [permit] license theretofore issued, [or who
drills a well or wells in violation of the rules and regulations] is guilty of a [class B
misdemeanor] crime punishable under Section 73-2-27 .
(2) Each day that a violation under Subsection (1) continues is a separate offense.
Section 8. Section 73-3-29 is amended to read:
73-3-29. Relocation of natural streams -- Written permit required -- Emergency
work -- Violations.
(1) Except as provided in Subsection (2), a state agency, county, city, corporation, or
person may not relocate any natural stream channel or alter the beds and banks of any natural
stream without first obtaining the written approval of the state engineer.
(2) (a) The state engineer may issue an emergency permit or order to relocate a natural
stream channel or alter the beds and banks of a natural stream as provided by this Subsection (2)

and Section 63-46b-20 .
(b) If an emergency situation arises which involves immediate or actual flooding and
threatens injury or damage to persons or property, steps reasonably necessary to alleviate or
mitigate the threat may be taken before a written permit is issued subject to the requirements of
this section.
(c) (i) If the threat occurs during normal working hours, the state engineer or his
representative must be notified immediately of the threat. After receiving notification of the
threat, the state engineer or his representative may orally approve action to alleviate or mitigate
the threat.
(ii) If the threat does not occur during normal working hours, action may be taken to
alleviate or mitigate the threat and the state engineer or his representative shall be notified of the
action taken on the first working day following the work.
(d) A written application outlining the action taken or the action proposed to be taken to
alleviate or mitigate the threat shall be submitted to the state engineer within two working days
following notification of the threat to the state engineer or his representative.
(e) (i) The state engineer shall inspect in a timely manner the site where the emergency
action was taken.
(ii) After inspection, additional requirements, including mitigation measures, may be
imposed.
(f) Adjudicative proceedings following the emergency work shall be informal unless
otherwise designated by the state engineer.
(3) An application to relocate any natural stream channel or alter the beds and banks of
any natural stream shall be in writing and shall contain the following:
(a) the name and address of the applicant;
(b) a complete and detailed statement of the location, nature, and type of relocation or
alteration;
(c) the methods to be employed;
(d) the purposes of the application; and

(e) any additional information that the state engineer considers necessary, including, but
not limited to, plans and specifications of the proposed construction of works.
(4) (a) The state engineer shall, without undue delay, conduct investigations that may be
reasonably necessary to determine whether the proposed relocation or alteration will:
(i) impair vested water rights;
(ii) unreasonably or unnecessarily affect any recreational use or the natural stream
environment;
(iii) unreasonably or unnecessarily endanger aquatic wildlife; or
(iv) unreasonably or unnecessarily diminish the natural channel's ability to conduct high
flows.
(b) The application shall be approved unless the proposed relocation or alteration will:
(i) impair vested water rights;
(ii) unreasonably or unnecessarily adversely affect any public recreational use or the
natural stream environment;
(iii) unreasonably or unnecessarily endanger aquatic wildlife; or
(iv) unreasonably or unnecessarily diminish the natural channel's ability to conduct high
flows.
(c) The state engineer may approve the application, in whole or in part, with any
reasonable terms to protect vested water rights, any public recreational use, the natural stream
environment, or aquatic wildlife.
(5) No cost incurred by the applicant, including any cost incurred to comply with the
terms imposed by the state engineer, is reimbursable by the Division of Water Rights.
[(6) Any officer or employee of any state agency, county, city, or corporation, or any
other person who violates the provisions of this section is guilty of a class B misdemeanor.]
(6) Except as provided in Subsection (2), a person who knowingly or intentionally
relocates any natural stream channel, or alters the bed or bank of any natural stream channel
without first obtaining the written approval of the state engineer is guilty of a crime punishable
under Section 73-2-27 .

Section 9. Section 73-5-8 is amended to read:
73-5-8. Reports by users to engineer.
Every person using water from any river system or water source, when requested by the
state engineer [for any season], shall within [thirty] 30 days after such request report to the state
engineer in writing:
(1) the nature of the use of any such water[,];
(2) the area on which used [and];
(3) the kind of crops to be grown; and [he shall likewise, upon such request, furnish
statements of]
(4) water elevations on wells or tunnels and quantity of underground water used.
[Failure to comply with the provisions of this section shall constitute a misdemeanor.]
Section 10. Section 73-5-9 is amended to read:
73-5-9. Powers of state engineer as to waste, pollution, or contamination of waters.
(1) To prevent waste, loss, pollution, or contamination of any waters whether above or
below the ground, the state engineer may require the repair or construction of head gates or other
devices on ditches or canals, and the repair or installation of caps, valves, or casings on any well
or tunnel or the plugging or filling thereof to accomplish the purposes of this section.
(2) Any requirement made by the state engineer in accordance with this section shall be
executed by and at the cost and expense of the owner, lessee or person having control of such
diverting works affected.
(3) If within ten days after notice of such requirement as provided in this section, the
owner, lessee or person having control of the water affected, has not commenced to carry out
such requirement, or if he has commenced to comply therewith but shall not thereafter proceed
diligently to complete the work, the state engineer may forbid the use of water from such source
until the user thereof shall comply with such requirement.
(4) Failure to comply with any requirement made by the state engineer [in accordance
with the provisions of] under this section [shall constitute a misdemeanor] is a crime punishable
under Section 73-2-27 if the failure to comply is knowing or intentional.

(5) Each day that such violation is permitted to continue shall constitute a separate
offense.
Section 11. Section 76-10-201 is amended to read:
76-10-201. Interference with water flow.
Every person who [in any way] knowingly or intentionally interferes with or alters the
flow of water in any stream, ditch, or lateral while under the control or management of any water
commissioner is guilty of a [class B misdemeanor] crime punishable under Section 73-2-27 .
Section 12. Section 76-10-202 is amended to read:
76-10-202. Taking water out of turn or excess amount -- Damaging facilities.
(1) [Every person who] No person may, in violation of any right of any other person[,
willfully turns or uses] knowingly or intentionally:
(a) turn or use the water, or any part thereof, of any canal, ditch, pipeline, or reservoir,
except at a time when the use of the water has been duly distributed to the person[, or willfully
uses];
(b) use any greater quantity of the water than has been duly distributed to him[, or];
(c) in any way [changes] change the flow of water when lawfully distributed for
irrigation or other useful purposes, except when duly authorized to make the change[,]; or
[willfully and maliciously breaks or injures]
(d) break or injure any dam, canal, pipeline, watergate, ditch, or other means of diverting
or conveying water for irrigation or other useful purposes[,].
(2) Subsection (1) applies to violations of any right to the use of water, including:
(a) a water right; or
(b) authorization of a person's use of water by:
(i) a water company, as defined in Subsection 73-3-3.5 (1)(b); or
(ii) an entity having a valid water right under Utah law.
(3) Any person who violates this section is guilty of a [class B misdemeanor] crime
punishable under Section 73-2-27 .
Section 13. Section 76-10-203 is amended to read:

76-10-203. Obstruction of watergates.
Every person who rafts or floats logs, timber, or wood down any river or stream and
allows the logs, timber, or wood to accumulate at or obstruct the watergates owned by any person
or irrigation company taking or diverting the water of the river or stream for irrigation or
manufacturing purposes is guilty of a [class B misdemeanor] crime punishable under Section
73-2-27 .