H.B. 29

1

ADJUDICATION OF WATER RIGHTS
2 2013 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Joel K. Briscoe
5 Senate Sponsor: Ralph Okerlund
6
7 LONG TITLE
8 Committee Note:
9 The Natural Resources, Agriculture, and Environment Interim Committee
10 recommended this bill.
11 General Description:
12 This bill makes changes to the procedure for a general adjudication of water rights
13 under Title 73, Water and Irrigation.
14 Highlighted Provisions:
15 This bill:
16 . permits the state engineer, in a general adjudication of water rights under Title 73,
17 Water and Irrigation, to divide a general adjudication area into divisions and
18 subdivisions and proceed with the general adjudication action individually for each
19 division or subdivision;
20 . describes requirements, in a general adjudication of water rights under Title 73,
21 Water and Irrigation, for the state engineer to:
22 . file proof of the publication of notice of commencement of the general
23 adjudication with the district court;
24 . search and update the records of the state engineer's office to locate claimants to
25 the general adjudication;
26 . serve summons to an individual known claimant, general unknown claimants,
27 and the United States as a claimant;

28 . give notice of further proceedings;
29 . give notice of completion of the state engineer's survey of the general
30 adjudication area, division, or subdivision for a claimant's water right;
31 . compile submitted statements of claim and file them with the district court; and
32 . give notice of completion of the state engineer's report and proposed
33 determination;
34 . describes requirements, in a general adjudication of water rights under Title 73,
35 Water and Irrigation, for a claimant to:
36 . file a written statement of claim to claim a water right in the general
37 adjudication; and
38 . file an objection to the state engineer's report and proposed determination; and
39 . makes technical changes.
40 Money Appropriated in this Bill:
41 None
42 Other Special Clauses:
43 None
44 Utah Code Sections Affected:
45 AMENDS:
46 73-4-1, as last amended by Laws of Utah 2001, Chapter 107
47 73-4-3, as last amended by Laws of Utah 2009, Chapters 365 and 388
48 73-4-4, as last amended by Laws of Utah 2009, Chapter 388
49 73-4-5, Utah Code Annotated 1953
50 73-4-9, as last amended by Laws of Utah 2009, Chapter 388
51 73-4-11, as last amended by Laws of Utah 2010, Chapter 320
52 73-4-22, Utah Code Annotated 1953
53
54 Be it enacted by the Legislature of the state of Utah:
55 Section 1. Section 73-4-1 is amended to read:
56 73-4-1. Action for a general adjudication of water rights -- Requirements for state
57 engineer to file -- Adjudication area divisions.
58 [(1) Upon a verified petition to the state engineer, signed by five or more or a majority

59 of water users upon any stream or water source, requesting the investigation of the relative
60 rights of the various claimants to the waters of such stream or water source, it shall be the duty
61 of the state engineer, if upon such investigation he finds the facts and conditions are such as to
62 justify a determination of said rights, to file in the district court an action to determine the
63 various rights.]
64 (1) (a) Five or more, or a majority of, water users of a water source may submit a
65 signed, verified petition to the state engineer requesting an investigation of the rights of all
66 claimants to the water of the water source.
67 (b) Upon receipt of a petition described in Subsection (1)(a), the state engineer shall:
68 (i) investigate whether the facts and circumstances of the water source and its
69 claimants justify a general determination of water rights; and
70 (ii) if justified, file an action in the district court for a general adjudication of water
71 rights.
72 (c) In any suit involving water rights the court may order an investigation and survey
73 by the state engineer of all the water rights on the source or system involved.
74 [(2) (a) As used in this section, "executive director" means the executive director of the
75 Department of Environmental Quality.]
76 [(b)] (2) (a) The executive director of the Department of Environmental Quality, with
77 the concurrence of the governor, may request that the state engineer file in the district court an
78 action to determine the various water rights in the stream, water source, or basin for an area
79 within the exterior boundaries of the state for which any person or organization or the federal
80 government is actively pursuing or processing a license application for a storage facility or
81 transfer facility for high-level nuclear waste or greater than class C radioactive waste.
82 [(c)] (b) Upon receipt of a request made under Subsection (2)[(b)](a), the state engineer
83 shall file [the] an action in the district court for a general adjudication of water rights.
84 [(d)] (c) If a general adjudication [has been] is filed in the state district court regarding
85 the area requested pursuant to Subsection (2)[(b)](a), the state engineer and the state attorney
86 general shall join the United States as a party to the action.
87 (3) When an action for a general adjudication of water rights for a certain area is filed
88 in district court, the state engineer may divide the general adjudication area into divisions and
89 subdivisions if the state engineer:

90 (a) fulfills the requirements of this chapter individually for each division or
91 subdivision; and
92 (b) petitions the court to incorporate the decrees for all the divisions and subdivisions
93 within a general adjudication area into a final decree for the entire general adjudication area.
94 Section 2. Section 73-4-3 is amended to read:
95 73-4-3. Notice and procedure for general adjudication of water rights -- Survey of
96 water source -- Statements of claim -- Incomplete records.
97 (1) Upon the filing of any action by the state engineer as provided in Section 73-4-1 , or
98 by any person claiming the right to use the waters of any river system, lake, underground water
99 basin, or other natural source of supply that involves a determination of the rights to the major
100 part of the water of the source of supply or the rights of 10 or more of the claimants of the
101 source of supply, the clerk of the district court shall notify the state engineer that a suit has
102 been filed.
103 (2) (a) The state engineer then shall, for each general adjudication area, division, or
104 subdivision, give notice of commencement of action to the claimants by publishing notice:
105 (i) once a week for two consecutive weeks in a newspaper designated by the court as
106 most likely to give notice to such claimants; and
107 (ii) in accordance with Section 45-1-101 for two weeks.
108 (b) The notice of commencement of action shall state:
109 (i) an action has been filed;
110 (ii) the name of the action;
111 (iii) the name and location of the court in which the action is pending; and
112 (iv) the name or description of the water source involved.
113 [(c) Claimants to the use of water shall notify the state engineer within 90 days from
114 the date notice is given of their names and addresses.]
115 [(d) After the expiration of 90 days, the state engineer shall prepare a list that shall
116 include the names and addresses of all claimants then of record in the state engineer's office
117 and all claimants who have notified the state engineer of their addresses, and this list shall be
118 certified by the state engineer as complete and filed with the clerk of the court.]
119 [(e) At any time during the action:]
120 [(i) the court upon petition may by order permit the addition of names and addresses to

121 the list prepared under Subsection (2)(d);]
122 [(ii) the court upon petition by the state engineer may by order permit amendment or
123 substitution of the list prepared under Subsection (2)(d); and]
124 [(iii) the clerk of the court may, without court order, upon notice from the claimant and
125 upon amendment of the state engineer's records note any change of address.]
126 [(f) If any claimant appears in this action by an attorney, the clerk shall note on the list
127 the address of the attorney.]
128 [(g) After the list is filed by the state engineer, notice of further proceedings, after
129 service of summons, may be given without court order by mailing a copy thereof to the persons
130 listed at the addresses listed and by mailing a copy thereof to any attorney of record for any
131 such person, and notice may be given to the listed persons and to all other claimants by
132 publication in the manner and for the time prescribed by order of the district court and in
133 accordance with Subsection (2)(a).]
134 (c) The state engineer shall file proof of the publication of notice of commencement of
135 action with the district court.
136 (3) The state engineer shall, for each general adjudication area, division, or
137 subdivision, search the records of the state engineer's office to locate all possible claimants, and
138 continue to update the records during the adjudication and search for additional claimants.
139 (4) In accordance with Section 73-4-4 , the state engineer shall serve a summons to each
140 claimant of record in the state engineer's office within a general adjudication area, division, or
141 subdivision.
142 (5) (a) After serving summons to a claimant, the state engineer shall give notice of
143 further proceedings to:
144 (i) the claimant; and
145 (ii) an attorney who enters an appearance in court for the claimant.
146 (b) A court order is not required as a prerequisite for giving notice under Subsection
147 (5)(a).
148 (c) The state engineer shall give the notice described in Subsection (5)(a):
149 (i) electronically, if the state engineer can verify the claimant's receipt;
150 (ii) by mail;
151 (iii) by personal service; or

152 (iv) if the notice is for the benefit of the claimants generally, by publishing the notice.
153 (d) Notice given by mail is complete when the notice is mailed.
154 (6) Except as provided in Subsection (8)(d)(ii), if the state engineer serves a notice
155 required by this chapter, the state engineer shall, before the day on which the final decree for
156 the general adjudication area, division, or subdivision is filed, file with the clerk of the district
157 court a certificate of service that contains the name and address of the claimant served with the
158 notice.
159 [(3)] (7) After [the statement or list is filed] publishing notice of commencement of an
160 action, the state engineer shall:
161 (a) begin the survey of the water source and the ditches, canals, wells, tunnels, or other
162 works diverting water from the water source; and
163 (b) hold a public meeting in the survey area to inform a water right claimant of the
164 survey.
165 [(4) (a) As soon as the survey is complete, the state engineer shall file notice of
166 completion with the clerk and give notice by mail or by personal service to all claimants whose
167 names appear on the list that:]
168 [(i) the survey is complete;]
169 [(ii) their claims are due within 90 days from the date of notice; and]
170 [(iii) within 90 days after service of the notice, each claimant must file a written
171 statement with the clerk of the court setting forth the claimant's respective claim to the use of
172 the water.]
173 [(b) Notice given by mail is complete when the notice is mailed.]
174 (8) (a) After the survey described in Subsection (7) is complete for a claimant, the state
175 engineer shall give notice, in accordance with Subsection (5), of completion of survey to the
176 claimant.
177 (b) Notice of completion of survey shall include:
178 (i) a statement that:
179 (A) the state engineer has investigated the claimant's water right; and
180 (B) a claimant who desires to claim a water right in the action shall, in accordance with
181 Section 73-4-5 , submit a written statement of claim within 90 days after the day on which the
182 notice is issued; and

183 (ii) a statement of claim form that the claimant must complete in order to comply with
184 the provisions of Section 73-4-5 .
185 (c) A claimant served with a notice of completion of survey who desires to claim a
186 water right in the action shall file a written statement of claim in accordance with Section
187 73-4-5 .
188 (d) (i) The state engineer shall compile the statements of claim described in Subsection
189 (8)(c) and file them with the clerk of the district court.
190 (ii) If the state engineer files a claimant's statement of claim with the district court in
191 accordance with Subsection (8)(d)(i), the state engineer is not required to file a certificate of
192 service that relates to the notice of completion of survey for that claimant.
193 [(5)] (9) When a suit has been filed by the state engineer as provided by Section
194 73-4-1 , or by any person involving the major part of the waters of any river system, lake,
195 underground water basin, or other source of supply, or the rights of 10 or more of the water
196 claimants of the source of supply, whether the suit is filed prior to or after the enactment
197 hereof, the state engineer, upon receiving notice, shall examine the records of the state
198 engineer's office with respect to the water source involved, and if they are incomplete to make
199 such further investigation and survey as may be necessary for the preparation of the report and
200 recommendation as required by Section 73-4-11 .
201 [(6)] (10) In all such cases the court shall proceed to determine the water rights
202 involved in the manner provided by this chapter, and not otherwise.
203 Section 3. Section 73-4-4 is amended to read:
204 73-4-4. Summons for general adjudication of water rights -- Requirements to
205 serve summons individually and generally -- Statement of claim requirement.
206 [(1) (a) Claimants whose names appear on the list prescribed by Section 73-4-3 at the
207 time the list is filed by the state engineer with the clerk of the court shall be served with a
208 summons issued out of the district court and served as a summons is served in other civil
209 cases.]
210 [(b) Upon the filing by the state engineer of an affidavit that the state engineer has
211 searched the records of the state engineer's office and has listed all names as required by
212 Section 73-4-3 , and upon proof of publication of notice to all claimants to notify the state
213 engineer of their names and addresses, summons may be served on all other persons and

214 claimants not listed on said list by publication of summons:]
215 [(i) in a newspaper or newspapers designated by the judge of the court as most likely to
216 give notice to the persons served, five times, once each week for five successive weeks; and]
217 [(ii) in accordance with Section 45-1-101 for five weeks.]
218 (1) (a) The state engineer shall, by mail, serve a summons to a claimant of record in the
219 state engineer's office within a general adjudication area, division, or subdivision.
220 (b) (i) The state engineer may serve, by publication, a general summons to claimants in
221 a general adjudication area, division, or subdivision, who are not of record in the state
222 engineer's office, if the state engineer files an affidavit with the district court, verifying that the
223 state engineer has, in accordance with Section 73-4-3 , searched the records of the state
224 engineer's office for claimants in the general adjudication area, division, or subdivision.
225 (ii) The state engineer shall publish, in accordance with the Utah Rules of Civil
226 Procedure, a general summons described in Subsection (1)(b)(i):
227 (A) once a week for five successive weeks in one or more newspapers, determined by
228 the judge of the district court as most likely to give notice to the claimants served; and
229 (B) for five weeks, in accordance with Section 45-1-101 .
230 [(c)] (iii) Service of a general summons is completed upon the last required date of
231 [the] publication.
232 [(d)] (c) The summons shall be substantially in the following form:
233 "In the District Court of .......... County, State of Utah, in the matter of the general
234 adjudication of water rights in the described water source.
235 SUMMONS
236 The State of Utah to the said defendant:
237 You are hereby summoned to appear and defend the above entitled action which is
238 brought for the purpose of making a general determination of the water rights of the described
239 water source. Upon the service of this summons upon you, you will thereafter be subject to the
240 jurisdiction of the entitled court and it shall be your duty to follow further proceedings in the
241 above entitled action and to protect your rights therein. When the state engineer has completed
242 the survey you will be given a further written notice, either in person or by mail, sent to your
243 last-known address, that you must file a water users claim in this action setting forth the nature
244 of your claim, and said notice will specify the date upon which your water users claim is due

245 and thereafter you must file said claim within the time set and your failure so to do will
246 constitute a default in the premises and a judgment may be entered against you declaring and
247 adjudging that you have no right in or to the waters of described water source."
248 [(2) At the time the said notice of completion of survey is given, the state engineer
249 must mail or otherwise deliver a form upon which the claimant shall present in writing, as
250 provided in the next succeeding section, all the particulars relating to the appropriation of the
251 water of said river system or water source to which the claimant lays claim.]
252 (2) If the state engineer is required, under this section, to serve a summons on the
253 United States, the state engineer shall serve the summons in accordance with federal law.
254 Section 4. Section 73-4-5 is amended to read:
255 73-4-5. Requirements for statement of claim in general adjudication of water
256 rights.
257 Each person claiming a right to use [any] water of [such] a river system or water source
258 shall, within 90 days after the [completed service of the] day on which notice of completion of
259 survey [prescribed by] described in Section 73-4-3 [hereof, file in the office of] is served, file
260 with the state engineer or the clerk of the district court a [statement in writing which shall be
261 signed and verified by the oath of the claimant, and shall include as near as may be the
262 following: The] written statement of claim, signed, and verified under oath, by the claimant,
263 that includes:
264 (1) the name and [post-office] address of the [person making the claim] claimant;
265 (2) the nature of [the] use on which the claim of appropriation is based;
266 (3) the flow of water used in cubic feet per second, or the quantity of water stored in
267 acre-feet, and the time during which [it] the flow or stored water has been used each year;
268 (4) the name of the stream or other source from which the water is diverted, the point
269 on [such] the stream or source where the water is diverted, and a description of the nature of
270 the diverting works;
271 (5) the date when the first work for diverting the water [was begun,] began, and a
272 description of the nature of [such] the work;
273 (6) the date when the water was first used, the flow in cubic feet per second, or the
274 quantity of water stored in acre-feet, and the time [during which] the water was used during the
275 first year; [and]

276 (7) the place and manner of [present] current use; and [such]
277 (8) other facts [as will] that clearly define the extent and nature of the appropriation
278 claimed, or [as may be] that are required by the [blank] written form [which shall be furnished
279 by the state engineer under the direction of the court] provided by the state engineer with the
280 notice of completion of survey.
281 Section 5. Section 73-4-9 is amended to read:
282 73-4-9. Failure to file statement -- Relief.
283 The filing of each statement by a claimant shall be considered notice to all persons of
284 the claim of the party making the same, and any person failing to make and deliver such
285 statement of claim to the state engineer or the clerk of the court within the time prescribed by
286 law shall be forever barred and estopped from subsequently asserting any rights, and shall be
287 held to have forfeited all rights to the use of the water theretofore claimed by him; provided,
288 that any claimant, upon whom no other service of said notice shall have been made than by
289 publication in a newspaper and as required in Section 45-1-101 , may apply to the court for
290 permission to file a statement of claim after the time therefor has expired, and the court may
291 extend the time for filing such statement, not exceeding six months from the publication of said
292 notice; but, before said time is extended, the applicant shall give notice by publication in a
293 newspaper having general circulation and as required in Section 45-1-101 on such river system
294 or near the water source to all other persons interested in the water of such river system or
295 water source, and shall make it appear to the satisfaction of the court that during the pendency
296 of the proceedings he had no actual notice thereof in time to appear and file a statement and
297 make proof of his claim; and all parties interested may be heard as to the matter of his actual
298 notice of the pendency of such proceedings.
299 Section 6. Section 73-4-11 is amended to read:
300 73-4-11. Report and recommendation by engineer to court -- Notice -- Public
301 meeting.
302 (1) Within 30 days after the [expiration of the 90 days allowed for filing statements of
303 claims] last day on which a claimant may file a statement of claim in accordance with Section
304 73-4-5 , the state engineer shall begin to tabulate the facts contained in the statements filed and
305 to investigate, whenever the state engineer shall consider necessary, the facts set forth in the
306 statements by reference to the surveys already made or by further surveys, and shall as

307 expeditiously as possible report to the court a recommendation of how all rights involved shall
308 be determined.
309 (2) After full consideration of the statements of claims, and of the surveys, records, and
310 files, and after a personal examination of the river system or water source involved, if the
311 examination is considered necessary, the state engineer shall:
312 (a) formulate a report and a proposed determination of all rights to the use of the water
313 of the river system or water source;
314 [(b) mail or deliver a copy of the report and proposed determination to each claimant
315 with notice that any claimant dissatisfied with the report and proposed determination may
316 within 90 days from the date of mailing or delivery file with the clerk of the district court a
317 written objection; and]
318 (b) serve notice of completion of the report and proposed determination, in accordance
319 with Subsection 73-4-3 (5), to each claimant of record in the state engineer's office within the
320 general adjudication area, division, or subdivision, that includes:
321 (i) (A) a copy of the report and proposed determination; or
322 (B) instructions on how to obtain or access an electronic copy of the report and
323 proposed determination; and
324 (ii) a statement describing the claimant's right to file an objection to the report and
325 proposed determination within 90 days after the day on which the notice of completion of the
326 report and proposed determination is served; and
327 (c) hold a public meeting in the area covered by the report and proposed determination
328 to describe the report and proposed determination to the claimants.
329 (3) A claimant who desires to object to the state engineer's report and proposed
330 determination shall, within 90 days after the day on which the state engineer served the
331 claimant notice of completion of the report and proposed determination, file a written objection
332 to the report and proposed determination with the clerk of the district court.
333 [(3)] (4) The state engineer shall distribute the waters from the natural streams or other
334 natural sources:
335 (a) in accordance with the proposed determination or modification to the proposed
336 determination by court order until a final decree is rendered by the court; or
337 (b) if the right to the use of the waters has been decreed or adjudicated, in accordance

338 with the decree until the decree is reversed, modified, vacated, or otherwise legally set aside.
339 Section 7. Section 73-4-22 is amended to read:
340 73-4-22. State engineer's duty to search records for and serve summons on
341 claimants -- Filing of affidavit -- Publication of summons -- Binding on unknown
342 claimants.
343 The state engineer, throughout the pendency of proceedings, shall serve summons in the
344 manner prescribed by Section 73-4-4 upon all claimants to the use of water in the described
345 source embraced by said action, whenever the names and addresses of said persons come to the
346 attention of the state engineer. [The names and addresses of such persons so served shall be
347 added to the list prescribed by Section 73-4-3 hereof.] Immediately after the notice of the
348 proposed determination is given, in accordance with Section 73-4-11 hereof, the state engineer
349 shall diligently search for the names and addresses of any claimants to water in the source
350 covered by the proposed determination who have not been previously served with summons
351 other than by publication, and any such persons located shall forthwith be served with
352 summons, and after the state engineer has exhausted his search for other claimants he shall
353 make such fact known to the district court by affidavit and the clerk of the district court shall
354 again publish summons five times, once each week, for five successive weeks which said
355 service shall be binding upon all unknown claimants.




Legislative Review Note
as of 11-14-12 1:22 PM

Office of Legislative Research and General Counsel

[Bill Documents]