1     
WATER LAW - APPLICATION REVISIONS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: V. Lowry Snow

5     
Senate Sponsor: Margaret Dayton

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 modifies the procedure for a change application.
13     Highlighted Provisions:
14          This bill:
15          ▸     defines terms;
16          ▸     authorizes a person who is proposing a change application to request a meeting with
17     the state engineer, or the state engineer's designee, to discuss potential issues with
18     the change;
19          ▸     authorizes the state engineer, upon receiving a change application, to determine
20     whether a proposed change would result in quantity impairment of another water
21     right;
22          ▸     describes the burden of proof on a person who applies for a change application; and
23          ▸     makes technical changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:
30          73-2-27, as enacted by Laws of Utah 2005, Chapter 215
31          73-3-3, as last amended by Laws of Utah 2012, Chapter 229
32          73-3-8, as last amended by Laws of Utah 2007, Chapter 136
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 73-2-27 is amended to read:
36          73-2-27. Criminal penalties.
37          (1) This section applies to offenses committed under:
38          (a) Section 73-1-14;
39          (b) Section 73-1-15;
40          (c) Section 73-2-20;
41          (d) [Subsection 73-3-3(9)] Section 73-3-3;
42          (e) Section 73-3-26;
43          (f) Section 73-3-29;
44          (g) Section 73-5-9;
45          (h) Section 76-10-201;
46          (i) Section 76-10-202; and
47          (j) Section 76-10-203.
48          (2) Under circumstances not amounting to an offense with a greater penalty under
49     Subsection 76-6-106(2)(b)(ii) or Section 76-6-404, violation of a provision listed in Subsection
50     (1) is punishable:
51          (a) as a felony of the third degree if:
52          (i) the value of the water diverted or property damaged or taken is $2,500 or greater;
53     and
54          (ii) the person violating the provision has previously been convicted of violating the
55     same provision;
56          (b) as a class A misdemeanor if:
57          (i) the value of the water diverted or property damaged or taken is $2,500 or greater; or
58          (ii) the person violating the provision has previously been convicted of violating the
59     same provision; or
60          (c) as a class B misdemeanor if Subsection (2)(a) or (b) does not apply.
61          Section 2. Section 73-3-3 is amended to read:
62          73-3-3. Permanent or temporary changes to a water right.
63          (1) For purposes of this section:
64          (a) "Permanent change" means a change, for an indefinite period of time [with an intent
65     to relinquish the original point of diversion, place of use, or purpose of use.], to the:
66          (i) point of diversion;
67          (ii) place of use;
68          (iii) period of use;
69          (iv) nature of use; or
70          (v) storage of water.
71          (b) (i) "Quantity impairment" means any reduction in the amount of water a person is
72     able to receive in order to satisfy an existing right to the use of water that would result from an
73     action proposed in a change application, including:
74          (A) diminishing the quantity of water in the source of supply for the existing right;
75          (B) a change in the timing of availability of water from the source of supply for the
76     existing right; or
77          (C) enlarging the quantity of water depleted by the nature of the proposed use when
78     compared with the nature of the currently approved use.
79          (ii) "Quantity impairment" does not mean a decrease in the static level of water in an
80     underground basin or aquifer that would result from an action proposed to be taken in a change
81     application, if the volume of water necessary to satisfy an existing right otherwise remains
82     reasonably available.
83          [(b)] (c) "Temporary change" means a change for a fixed period of time, not exceeding
84     one year[.], to the:
85          (i) point of diversion;
86          (ii) place of use;
87          (iii) period of use;
88          (iv) nature of use; or
89          (v) storage of water.
90          (2) (a) A person who proposes to file a permanent or temporary change application
91     may request consultation with the state engineer, or the state engineer's designee, before filing
92     the application in order to review the requirements of the change application process, discuss
93     potential issues related to the change, and provide the applicant with information.
94          (b) Statements made and information presented in the consultation are not binding on
95     the applicant or the state engineer.
96          (c) The consultation described in Subsection (2)(a) may occur in the state engineer's
97     regional office for the region where the proposed change would occur.
98          [(2)] (3) (a) [Subject to Subsection (2)(c), a] A person entitled to the use of water may
99     make a permanent or temporary [changes in the:] change to an existing right to use water,
100     including a right involved in a general determination of rights or other suit, if:
101          [(i) point of diversion;]
102          [(ii) place of use; or]
103          [(iii) purpose of use for which the water was originally appropriated.]
104          (i) the person makes the change in accordance with this section;
105          [(b) Except] (ii) except as provided by Section 73-3-30, [a] the change [may not be
106     made if it impairs a vested water] does not impair an existing right without just
107     compensation[.] or adequate mitigation; and
108          (iii) the state engineer approves the change application, consistent with the
109     requirements of Section 73-3-8.
110          [(c)] (b) A change application on a federal reclamation project water right shall be
111     signed by:
112          (i) the local water users organization that is contractually responsible for:
113          (A) the operation and maintenance of the project; or
114          (B) the repayment of project costs; and
115          (ii) the record owner of the water right.
116          [(3) A person entitled to use water shall change a point of diversion, place of use, or
117     purpose of water use, including water involved in a general adjudication or other suit, in the
118     manner provided in this section.]
119          [(4) (a) A person entitled to use water may not make a change unless the state engineer
120     approves the change application.]
121          [(b) A] (4) (a) Before making a permanent or temporary change, a person entitled to
122     the use of water shall submit a change application upon forms furnished by the state engineer
123     [and shall set forth:].
124          (b) The application described in Subsection (4)(a) shall set forth:
125          (i) the applicant's name;
126          (ii) the water right description, including the water right number;
127          (iii) the water quantity;
128          (iv) the stream or water source;
129          (v) if applicable, the point on the stream or water source where the water is diverted;
130          (vi) if applicable, the point to which it is proposed to change the diversion of the water;
131          (vii) the place, [purpose,] nature, period, and extent of the [present] currently approved
132     use;
133          (viii) the place, [purpose,] nature, period, and extent of the proposed use; and
134          (ix) any other information that the state engineer requires.
135          [(5) (a) The state engineer shall follow the same procedures, and the rights and duties
136     of the applicants with respect to applications for permanent changes of point of diversion, place
137     of use, or purpose of use shall be the same, as provided in this title for applications to
138     appropriate water.]
139          [(b) The state engineer may waive notice for a permanent change application involving
140     only a change in point of diversion of 660 feet or less.]
141          [(6) (a) The state engineer shall investigate all temporary change applications.]
142          [(b) If the state engineer finds that the temporary change will not impair a vested water
143     right, the state engineer shall issue an order authorizing the change.]
144          [(c) If the state engineer finds that the change sought might impair a vested water right,
145     before authorizing the change, the state engineer shall give notice of the application to any
146     person whose right may be affected by the change.]
147          [(d) Before making an investigation or giving notice, the state engineer may require the
148     applicant to deposit a sum of money sufficient to pay the expenses of the investigation and
149     publication of notice.]
150          [(7) (a) Except as provided by Section 73-3-30, the state engineer may not reject a
151     permanent or temporary change application for the sole reason that the change would impair a
152     vested water right.]
153          [(b) If otherwise proper, the state engineer may approve a permanent or temporary
154     change application for part of the water involved or upon the condition that the applicant
155     acquire the conflicting water right.]
156          [(8) (a) A person holding an approved application for the appropriation of water may
157     change the point of diversion, place of use, or purpose of use.]
158          (5) In a proceeding before the state engineer, the applicant has the burden of producing
159     evidence sufficient to support a reasonable belief that the change can be made in compliance
160     with this section and Section 73-3-8, including evidence:
161          (a) that the change will not cause a specific existing right to experience quantity
162     impairment; or
163          (b) if applicable, rebutting the presumption of quantity impairment described in
164     Subsection 73-3-8(6)(c).
165          [(b)] (6) A change of an approved application to appropriate water does not:
166          [(i)] (a) affect the priority of the original application to appropriate water; or
167          [(ii)] (b) extend the time period within which the construction of work is to begin or be
168     completed.
169          [(9)] (7) Any person who [changes or who attempts to change a point of diversion,
170     place of use, or purpose of use, either permanently or temporarily, without first applying to the
171     state engineer in the manner provided in this section] makes a permanent or temporary change
172     without first filing and obtaining approval of a change application providing for such change:
173          (a) obtains no right;
174          (b) is guilty of [a crime] an offense punishable under Section 73-2-27 if the change [or
175     attempted change] is made knowingly or intentionally; and
176          (c) is guilty of a separately punishable offense for each day of the unlawful change.
177          [(10)] (8) (a) This section does not apply to the replacement of an existing well by a
178     new well drilled within a radius of 150 feet from the point of diversion of the existing well.
179          (b) Any replacement well must be drilled in accordance with the requirements of
180     Section 73-3-28.
181          Section 3. Section 73-3-8 is amended to read:
182          73-3-8. Approval or rejection of application -- Requirements for approval --
183     Application for specified period of time -- Filing of royalty contract for removal of salt or
184     minerals.
185          (1) (a) It shall be the duty of the state engineer to approve an application if there is
186     reason to believe that:
187          (i) for an application to appropriate, there is unappropriated water in the proposed
188     source;
189          (ii) the proposed use will not impair existing rights or interfere with the more
190     beneficial use of the water;
191          (iii) the proposed plan:
192          (A) is physically and economically feasible, unless the application is filed by the
193     United States Bureau of Reclamation[,]; and
194          (B) would not prove detrimental to the public welfare;
195          (iv) the applicant has the financial ability to complete the proposed works; [and]
196          (v) the application was filed in good faith and not for purposes of speculation or
197     monopoly[.]; and
198          (vi) if applicable, the application complies with a groundwater management plan
199     adopted under Section 73-5-15.
200          (b) [(i)] If the state engineer, because of information in the state engineer's possession
201     obtained either by the state engineer's own investigation or otherwise, has reason to believe that
202     an application [to appropriate water] will interfere with [its] the water's more beneficial use for
203     irrigation, municipal and industrial, domestic or culinary, stock watering, power or mining
204     development, or manufacturing, or will unreasonably affect public recreation or the natural
205     stream environment, or will prove detrimental to the public welfare, [it is the state engineer's
206     duty to] the state engineer shall withhold approval or rejection of the application until the state
207     engineer has investigated the matter.
208          [(ii)] (c) If an application does not meet the requirements of this section, it shall be
209     rejected.
210          (2) (a) An application to appropriate water for industrial, power, mining development,
211     manufacturing purposes, agriculture, or municipal purposes may be approved for a specific and
212     certain period from the time the water is placed to beneficial use under the application, but in
213     no event may an application be granted for a period of time less than that ordinarily needed to
214     satisfy the essential and primary purpose of the application or until the water is no longer
215     available as determined by the state engineer.
216          (b) At the expiration of the period fixed by the state engineer the water shall revert to
217     the public and is subject to appropriation as provided by this title.
218          (c) No later than 60 calendar days before the expiration date of the fixed time period,
219     the state engineer shall send notice by mail or by any form of electronic communication
220     through which receipt is verifiable, to the applicant of record.
221          (d) Except as provided by Subsection (2)(e), the state engineer may extend any limited
222     water right upon a showing that:
223          (i) the essential purpose of the original application has not been satisfied;
224          (ii) the need for an extension is not the result of any default or neglect by the applicant;
225     and
226          (iii) the water is still available.
227          (e) No extension shall exceed the time necessary to satisfy the primary purpose of the
228     original application.
229          (f) A request for extension of the fixed time period must be filed in writing in the
230     office of the state engineer on or before the expiration date of the application.
231          (3) (a) Before the approval of any application for the appropriation of water from
232     navigable lakes or streams of the state that contemplates the recovery of salts and other
233     minerals therefrom by precipitation or otherwise, the applicant shall file with the state engineer
234     a copy of a contract for the payment of royalties to the state.
235          (b) The approval of an application shall be revoked in the event of the failure of the
236     applicant to comply with terms of the royalty contract.
237          (4) (a) The state engineer shall investigate all temporary change applications.
238          (b) The state engineer shall:
239          (i) approve the temporary change if the state engineer finds there is reason to believe
240     that it will not impair an existing right; and
241          (ii) deny the temporary change if the state engineer finds there is reason to believe it
242     would impair an existing right.
243          (5) (a) The state engineer shall follow the same procedures, and the rights and duties of
244     applicants with respect to permanent change applications shall be the same as provided in this
245     title for applications to appropriate water.
246          (b) The state engineer may waive notice for a permanent change application if it only
247     involves a change in point of diversion of 660 feet or less.
248          (c) The state engineer may condition approval of a change application to prevent an
249     enlargement of the quantity of water depleted by the nature of the proposed use when compared
250     with the nature of the currently approved use of water proposed to be changed.
251          (d) A condition described in Subsection (5)(c) may not include a reduction in the
252     currently approved diversion rate of water under the water right identified in the change
253     application solely to account for the difference in depletion under the nature of the proposed
254     use when compared with the nature of the currently approved use.
255          (6) (a) Except as provided in Subsection (6)(b), the state engineer shall reject a
256     permanent change application if the person proposing to make the change is unable to meet the
257     burden described in Subsection 73-3-3(5).
258          (b) If otherwise proper, the state engineer may approve a permanent or temporary
259     change application upon one or more of the following conditions:
260          (i) for part of the water involved;
261          (ii) that the applicant acquire a conflicting right; or
262          (iii) that the applicant provide and implement a plan approved by the state engineer to
263     mitigate impairment of an existing right.
264          (c) (i) There is a rebuttable presumption of quantity impairment, as defined in
265     Subsection 73-3-3(1), to the extent that, for a period of at least seven consecutive years, a
266     portion of the right identified in a change application has not been:
267          (A) diverted from the approved point of diversion; and
268          (B) beneficially used at the approved place of use.
269          (ii) The rebuttable presumption described in Subsection (6)(c)(i) does not apply if the
270     beneficial use requirement is excused by:
271          (A) Subsection 73-1-4(2)(e);
272          (B) an approved nonuse application under Subsection 73-1-4(2)(b);
273          (C) Subsection 73-3-30(7); or
274          (D) the passage of time under Subsection 73-1-4(2)(c)(i).
275          (d) The state engineer may not consider quantity impairment based on the conditions
276     described in Subsection (6)(c) unless the issue is raised in a:
277          (i) timely protest that identifies which of the protestant's existing rights the protestant
278     reasonably believes will experience quantity impairment; or
279          (ii) written notice provided by the state engineer to the applicant within 90 days after
280     the change application is filed.
281          (e) The written notice described in Subsection (6)(d)(ii) shall:
282          (i) specifically identify an existing right the state engineer reasonably believes may
283     experience quantity impairment; and
284          (ii) be mailed to the owner of an identified right, as shown by the state engineer's
285     records, if the owner has not protested the change application.
286          (f) The state engineer is not required to include all rights the state engineer believes
287     may be impaired by the proposed change in the written notice described in Subsection
288     (6)(d)(ii).
289          (g) The owner of a right who receives the written notice described in Subsection
290     (6)(e)(ii) may not become a party to the administrative proceeding if the owner has not filed a
291     timely protest.
292          (h) If a change applicant, all protestants, and all persons identified by the state engineer
293     under Subsection (6)(d)(ii) come to a written agreement regarding how the issue of quantity
294     impairment shall be mitigated, the state engineer may incorporate the terms of the agreement
295     into a change application approval.




Legislative Review Note
     as of 11-21-14 11:59 AM

Office of Legislative Research and General Counsel