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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


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