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H.B. 29 Enrolled
7 LONG TITLE
8 General Description:
9 This bill makes changes to the procedure for a general adjudication of water rights
10 under Title 73, Water and Irrigation.
11 Highlighted Provisions:
12 This bill:
13 . permits the state engineer, in a general adjudication of water rights under Title 73,
14 Water and Irrigation, to divide a general adjudication area into divisions and
15 subdivisions and proceed with the general adjudication action individually for each
16 division or subdivision;
17 . describes requirements, in a general adjudication of water rights under Title 73,
18 Water and Irrigation, for the state engineer to:
19 . file proof of the publication of notice of commencement of the general
20 adjudication with the district court;
21 . search and update the records of the state engineer's office to locate claimants to
22 the general adjudication;
23 . serve summons to an individual known claimant, general unknown claimants,
24 and the United States as a claimant;
25 . give notice of further proceedings;
26 . give notice of completion of the state engineer's survey of the general
27 adjudication area, division, or subdivision for a claimant's water right;
28 . compile submitted statements of claim and file them with the district court; and
29 . give notice of completion of the state engineer's report and proposed
31 . describes requirements, in a general adjudication of water rights under Title 73,
32 Water and Irrigation, for a claimant to:
33 . file a written statement of claim to claim a water right in the general
34 adjudication; and
35 . file an objection to the state engineer's report and proposed determination; and
36 . makes technical changes.
37 Money Appropriated in this Bill:
39 Other Special Clauses:
41 Utah Code Sections Affected:
43 73-4-1, as last amended by Laws of Utah 2001, Chapter 107
44 73-4-3, as last amended by Laws of Utah 2009, Chapters 365 and 388
45 73-4-4, as last amended by Laws of Utah 2009, Chapter 388
46 73-4-5, Utah Code Annotated 1953
47 73-4-9, as last amended by Laws of Utah 2009, Chapter 388
48 73-4-11, as last amended by Laws of Utah 2010, Chapter 320
49 73-4-22, Utah Code Annotated 1953
51 Be it enacted by the Legislature of the state of Utah:
52 Section 1. Section 73-4-1 is amended to read:
53 73-4-1. Action for a general adjudication of water rights -- Requirements for state
54 engineer to file -- Adjudication area divisions.
61 (1) (a) Five or more, or a majority of, water users of a water source may submit a
62 signed, verified petition to the state engineer requesting an investigation of the rights of all
63 claimants to the water of the water source.
64 (b) Upon receipt of a petition described in Subsection (1)(a), the state engineer shall:
65 (i) investigate whether the facts and circumstances of the water source and its
66 claimants justify a general determination of water rights; and
67 (ii) if justified, file an action in the district court for a general adjudication of water
69 (c) In any suit involving water rights the court may order an investigation and survey
70 by the state engineer of all the water rights on the source or system involved.
74 the concurrence of the governor, may request that the state engineer file in the district court an
75 action to determine the various water rights in the stream, water source, or basin for an area
76 within the exterior boundaries of the state for which any person or organization or the federal
77 government is actively pursuing or processing a license application for a storage facility or
78 transfer facility for high-level nuclear waste or greater than class C radioactive waste.
80 shall file [
82 the area requested pursuant to Subsection (2)[
83 general shall join the United States as a party to the action.
84 (3) When an action for a general adjudication of water rights for a certain area is filed
85 in district court, the state engineer may divide the general adjudication area into divisions and
86 subdivisions if the state engineer:
87 (a) fulfills the requirements of this chapter individually for each division or
88 subdivision; and
89 (b) petitions the court to incorporate the decrees for all the divisions and subdivisions
90 within a general adjudication area into a final decree for the entire general adjudication area.
91 Section 2. Section 73-4-3 is amended to read:
92 73-4-3. Notice and procedure for general adjudication of water rights -- Survey of
93 water source -- Statements of claim -- Incomplete records.
94 (1) Upon the filing of any action by the state engineer as provided in Section 73-4-1 , or
95 by any person claiming the right to use the waters of any river system, lake, underground water
96 basin, or other natural source of supply that involves a determination of the rights to the major
97 part of the water of the source of supply or the rights of 10 or more of the claimants of the
98 source of supply, the clerk of the district court shall notify the state engineer that a suit has
99 been filed.
100 (2) (a) The state engineer then shall, for each general adjudication area, division, or
101 subdivision, give notice of commencement of action to the claimants by publishing notice:
102 (i) once a week for two consecutive weeks in a newspaper designated by the court as
103 most likely to give notice to such claimants; and
104 (ii) in accordance with Section 45-1-101 for two weeks.
105 (b) The notice of commencement of action shall state:
106 (i) an action has been filed;
107 (ii) the name of the action;
108 (iii) the name and location of the court in which the action is pending; and
109 (iv) the name or description of the water source involved.
131 (c) The state engineer shall file proof of the publication of notice of commencement of
132 action with the district court.
133 (3) The state engineer shall, for each general adjudication area, division, or
134 subdivision, search the records of the state engineer's office to locate all possible claimants, and
135 continue to update the records during the adjudication and search for additional claimants.
136 (4) In accordance with Section 73-4-4 , the state engineer shall serve a summons to each
137 claimant of record in the state engineer's office within a general adjudication area, division, or
139 (5) (a) After serving summons to a claimant, the state engineer shall give notice of
140 further proceedings to:
141 (i) the claimant; and
142 (ii) an attorney who enters an appearance in court for the claimant.
143 (b) A court order is not required as a prerequisite for giving notice under Subsection
145 (c) The state engineer shall give the notice described in Subsection (5)(a):
146 (i) electronically, if the state engineer can verify the claimant's receipt;
147 (ii) by mail;
148 (iii) by personal service; or
149 (iv) if the notice is for the benefit of the claimants generally, by publishing the notice.
150 (d) Notice given by mail is complete when the notice is mailed.
151 (6) Except as provided in Subsection (8)(d)(ii), if the state engineer serves a notice
152 required by this chapter, the state engineer shall, before the day on which the final decree for
153 the general adjudication area, division, or subdivision is filed, file with the clerk of the district
154 court a certificate of service that contains the name and address of the claimant served with the
157 action, the state engineer shall:
158 (a) begin the survey of the water source and the ditches, canals, wells, tunnels, or other
159 works diverting water from the water source; and
160 (b) hold a public meeting in the survey area to inform a water right claimant of the
171 (8) (a) After the survey described in Subsection (7) is complete for a claimant, the state
172 engineer shall give notice, in accordance with Subsection (5), of completion of survey to the
174 (b) Notice of completion of survey shall include:
175 (i) a statement that:
176 (A) the state engineer has investigated the claimant's water right; and
177 (B) a claimant who desires to claim a water right in the action shall, in accordance with
178 Section 73-4-5 , submit a written statement of claim within 90 days after the day on which the
179 notice is issued; and
180 (ii) a statement of claim form that the claimant must complete in order to comply with
181 the provisions of Section 73-4-5 .
182 (c) A claimant served with a notice of completion of survey who desires to claim a
183 water right in the action shall file a written statement of claim in accordance with Section
184 73-4-5 .
185 (d) (i) The state engineer shall compile the statements of claim described in Subsection
186 (8)(c) and file them with the clerk of the district court.
187 (ii) If the state engineer files a claimant's statement of claim with the district court in
188 accordance with Subsection (8)(d)(i), the state engineer is not required to file a certificate of
189 service that relates to the notice of completion of survey for that claimant.
191 73-4-1 , or by any person involving the major part of the waters of any river system, lake,
192 underground water basin, or other source of supply, or the rights of 10 or more of the water
193 claimants of the source of supply, whether the suit is filed prior to or after the enactment
194 hereof, the state engineer, upon receiving notice, shall examine the records of the state
195 engineer's office with respect to the water source involved, and if they are incomplete to make
196 such further investigation and survey as may be necessary for the preparation of the report and
197 recommendation as required by Section 73-4-11 .
199 involved in the manner provided by this chapter, and not otherwise.
200 Section 3. Section 73-4-4 is amended to read:
201 73-4-4. Summons for general adjudication of water rights -- Requirements to
202 serve summons individually and generally -- Statement of claim requirement.
215 (1) (a) The state engineer shall, by mail, serve a summons to a claimant of record in the
216 state engineer's office within a general adjudication area, division, or subdivision.
217 (b) (i) The state engineer may serve, by publication, a general summons to claimants in
218 a general adjudication area, division, or subdivision, who are not of record in the state
219 engineer's office, if the state engineer files an affidavit with the district court, verifying that the
220 state engineer has, in accordance with Section 73-4-3 , searched the records of the state
221 engineer's office for claimants in the general adjudication area, division, or subdivision.
222 (ii) The state engineer shall publish, in accordance with the Utah Rules of Civil
223 Procedure, a general summons described in Subsection (1)(b)(i):
224 (A) once a week for five successive weeks in one or more newspapers, determined by
225 the judge of the district court as most likely to give notice to the claimants served; and
226 (B) for five weeks, in accordance with Section 45-1-101 .
230 "In the District Court of .......... County, State of Utah, in the matter of the general
231 adjudication of water rights in the described water source.
233 The State of Utah to the said defendant:
234 You are hereby summoned to appear and defend the above entitled action which is
235 brought for the purpose of making a general determination of the water rights of the described
236 water source. Upon the service of this summons upon you, you will thereafter be subject to the
237 jurisdiction of the entitled court and it shall be your duty to follow further proceedings in the
238 above entitled action and to protect your rights therein. When the state engineer has completed
239 the survey you will be given a further written notice, either in person or by mail, sent to your
240 last-known address, that you must file a water users claim in this action setting forth the nature
241 of your claim, and said notice will specify the date upon which your water users claim is due
242 and thereafter you must file said claim within the time set and your failure so to do will
243 constitute a default in the premises and a judgment may be entered against you declaring and
244 adjudging that you have no right in or to the waters of described water source."
249 (2) If the state engineer is required, under this section, to serve a summons on the
250 United States, the state engineer shall serve the summons in accordance with federal law.
251 Section 4. Section 73-4-5 is amended to read:
252 73-4-5. Requirements for statement of claim in general adjudication of water
254 Each person claiming a right to use [
255 shall, within 90 days after the [
256 survey [
257 with the state engineer or the clerk of the district court a [
260 that includes:
261 (1) the name and [
262 (2) the nature of [
263 (3) the flow of water used in cubic feet per second, or the quantity of water stored in
264 acre-feet, and the time during which [
265 (4) the name of the stream or other source from which the water is diverted, the point
266 on [
267 the diverting works;
268 (5) the date when the first work for diverting the water [
269 description of the nature of [
270 (6) the date when the water was first used, the flow in cubic feet per second, or the
271 quantity of water stored in acre-feet, and the time [
272 first year; [
273 (7) the place and manner of [
274 (8) other facts [
275 claimed, or [
277 notice of completion of survey.
278 Section 5. Section 73-4-9 is amended to read:
279 73-4-9. Failure to file statement -- Relief.
280 The filing of each statement by a claimant shall be considered notice to all persons of
281 the claim of the party making the same, and any person failing to make and deliver such
282 statement of claim to the state engineer or the clerk of the court within the time prescribed by
283 law shall be forever barred and estopped from subsequently asserting any rights, and shall be
284 held to have forfeited all rights to the use of the water theretofore claimed by him; provided,
285 that any claimant, upon whom no other service of said notice shall have been made than by
286 publication in a newspaper and as required in Section 45-1-101 , may apply to the court for
287 permission to file a statement of claim after the time therefor has expired, and the court may
288 extend the time for filing such statement, not exceeding six months from the publication of said
289 notice; but, before said time is extended, the applicant shall give notice by publication in a
290 newspaper having general circulation and as required in Section 45-1-101 on such river system
291 or near the water source to all other persons interested in the water of such river system or
292 water source, and shall make it appear to the satisfaction of the court that during the pendency
293 of the proceedings he had no actual notice thereof in time to appear and file a statement and
294 make proof of his claim; and all parties interested may be heard as to the matter of his actual
295 notice of the pendency of such proceedings.
296 Section 6. Section 73-4-11 is amended to read:
297 73-4-11. Report and recommendation by engineer to court -- Notice -- Public
299 (1) Within 30 days after the [
301 73-4-5 , the state engineer shall begin to tabulate the facts contained in the statements filed and
302 to investigate, whenever the state engineer shall consider necessary, the facts set forth in the
303 statements by reference to the surveys already made or by further surveys, and shall as
304 expeditiously as possible report to the court a recommendation of how all rights involved shall
305 be determined.
306 (2) After full consideration of the statements of claims, and of the surveys, records, and
307 files, and after a personal examination of the river system or water source involved, if the
308 examination is considered necessary, the state engineer shall:
309 (a) formulate a report and a proposed determination of all rights to the use of the water
310 of the river system or water source;
315 (b) serve notice of completion of the report and proposed determination, in accordance
316 with Subsection 73-4-3 (5), to each claimant of record in the state engineer's office within the
317 general adjudication area, division, or subdivision, that includes:
318 (i) (A) a copy of the report and proposed determination; or
319 (B) instructions on how to obtain or access an electronic copy of the report and
320 proposed determination; and
321 (ii) a statement describing the claimant's right to file an objection to the report and
322 proposed determination within 90 days after the day on which the notice of completion of the
323 report and proposed determination is served; and
324 (c) hold a public meeting in the area covered by the report and proposed determination
325 to describe the report and proposed determination to the claimants.
326 (3) A claimant who desires to object to the state engineer's report and proposed
327 determination shall, within 90 days after the day on which the state engineer served the
328 claimant notice of completion of the report and proposed determination, file a written objection
329 to the report and proposed determination with the clerk of the district court.
331 natural sources:
332 (a) in accordance with the proposed determination or modification to the proposed
333 determination by court order until a final decree is rendered by the court; or
334 (b) if the right to the use of the waters has been decreed or adjudicated, in accordance
335 with the decree until the decree is reversed, modified, vacated, or otherwise legally set aside.
336 Section 7. Section 73-4-22 is amended to read:
337 73-4-22. State engineer's duty to search records for and serve summons on
338 claimants -- Filing of affidavit -- Publication of summons -- Binding on unknown
340 The state engineer, throughout the pendency of proceedings, shall serve summons in the
341 manner prescribed by Section 73-4-4 upon all claimants to the use of water in the described
342 source embraced by said action, whenever the names and addresses of said persons come to the
343 attention of the state engineer. [
345 proposed determination is given, in accordance with Section 73-4-11 hereof, the state engineer
346 shall diligently search for the names and addresses of any claimants to water in the source
347 covered by the proposed determination who have not been previously served with summons
348 other than by publication, and any such persons located shall forthwith be served with
349 summons, and after the state engineer has exhausted his search for other claimants he shall
350 make such fact known to the district court by affidavit and the clerk of the district court shall
351 again publish summons five times, once each week, for five successive weeks which said
352 service shall be binding upon all unknown claimants.
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