7 LONG TITLE
8 General Description:
9 This bill modifies Title 73, Water and Irrigation, by amending the requirements for a
10 change application.
11 Highlighted Provisions:
12 This bill:
13 ▸ amends definitions;
14 ▸ modifies the procedure for filing a change application;
15 ▸ provides an option for court resolution of legal issues not within the purview of the
16 state engineer;
17 ▸ allows recovery of attorney fees under certain circumstances; and
18 ▸ makes technical changes.
19 Money Appropriated in this Bill:
21 Other Special Clauses:
22 This bill provides a coordination clause to reconcile conflicts between this bill and
23 other legislation.
24 Utah Code Sections Affected:
26 73-1-4, as last amended by Laws of Utah 2013, Chapters 221 and 380
27 73-2-27, as enacted by Laws of Utah 2005, Chapter 215
28 73-3-3, as last amended by Laws of Utah 2012, Chapter 229
29 73-3-3.5, as last amended by Laws of Utah 2008, Chapter 3
30 Utah Code Sections Affected by Coordination Clause:
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
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 73-1-4 is amended to read:
36 73-1-4. Reversion to the public by abandonment or forfeiture for nonuse within
37 seven years -- Nonuse application.
38 (1) As used in this section:
39 (a) "Public entity" means:
40 (i) the United States;
41 (ii) an agency of the United States;
42 (iii) the state;
43 (iv) a state agency;
44 (v) a political subdivision of the state; or
45 (vi) an agency of a political subdivision of the state.
46 (b) "Public water supplier" means an entity that:
47 (i) supplies water, directly or indirectly, to the public for municipal, domestic, or
48 industrial use; and
49 (ii) is:
50 (A) a public entity;
51 (B) a water corporation, as defined in Section 54-2-1, that is regulated by the Public
52 Service Commission;
53 (C) a community water system:
54 (I) that:
55 (Aa) supplies water to at least 100 service connections used by year-round residents; or
56 (Bb) regularly serves at least 200 year-round residents; and
57 (II) whose voting members:
58 (Aa) own a share in the community water system;
59 (Bb) receive water from the community water system in proportion to the member's
60 share in the community water system; and
61 (Cc) pay the rate set by the community water system based on the water the member
62 receives; or
63 (D) a water users association:
64 (I) in which one or more public entities own at least 70% of the outstanding shares; and
65 (II) that is a local sponsor of a water project constructed by the United States Bureau of
67 (c) "Shareholder" [
68 (d) "Water company" [
70 (e) "Water supply entity" means an entity that supplies water as a utility service or for
71 irrigation purposes and is also:
72 (i) a municipality, water conservancy district, metropolitan water district, irrigation
73 district, or other public agency;
74 (ii) a water company regulated by the Public Service Commission; or
75 (iii) any other owner of a community water system.
76 (2) (a) Except as provided in Subsection (2)(b) or (e), when an appropriator or the
77 appropriator's successor in interest abandons or ceases to use all or a portion of a water right for
78 a period of seven years, the water right or the unused portion of that water right is subject to
79 forfeiture in accordance with Subsection (2)(c).
80 (b) (i) An appropriator or the appropriator's successor in interest may file an
81 application for nonuse with the state engineer.
82 (ii) If a person described in Subsection (2)(b)(i) files and receives approval on a nonuse
83 application, nonuse of the water right subject to the application is not counted toward a
84 seven-year period described in Subsection (2)(a) during the period of time beginning on the day
85 on which the person files the application and ending on the day on which the application
86 expires without being renewed.
87 (iii) If a person described in Subsection (2)(b)(i) files and receives approval on
88 successive, overlapping nonuse applications, nonuse of the water right subject to the
89 applications is not counted toward a seven-year period described in Subsection (2)(a) during
90 the period of time beginning on the day on which the person files the first application and
91 ending on the day on which the last application expires without being renewed.
92 (iv) Approval of a nonuse application does not protect a water right that is already
93 subject to forfeiture under Subsection (2)(a) for full or partial nonuse of the water right.
94 (v) A nonuse application may be filed on all or a portion of the water right, including
95 water rights held by a water company.
96 (vi) After giving written notice to the water company, a shareholder may file a nonuse
97 application with the state engineer on the water represented by the stock.
98 (c) (i) Except as provided in Subsection (2)(c)(ii), a water right or a portion of the water
99 right may not be forfeited unless a judicial action to declare the right forfeited is commenced
100 within 15 years from the end of the latest period of nonuse of at least seven years.
101 (ii) (A) The state engineer, in a proposed determination of rights prepared in
102 accordance with Section 73-4-11, may not assert that a water right was forfeited unless a period
103 of nonuse of seven years ends or occurs during the 15 years immediately preceding the day on
104 which the state engineer files the proposed determination of rights with the court.
105 (B) After the day on which a proposed determination of rights is filed with the court a
106 person may not assert that a water right subject to that determination was forfeited during the
107 15-year period described in Subsection (2)(c)(ii)(A), unless the state engineer asserts forfeiture
108 in the proposed determination, or a person makes, in accordance with Section 73-4-11, an
109 objection to the proposed determination that asserts forfeiture.
110 (iii) A water right, found to be valid in a decree entered in an action for general
111 determination of rights under Chapter 4, Determination of Water Rights, is subject to a claim
112 of forfeiture based on a seven-year period of nonuse that begins after the day on which the state
113 engineer filed the related proposed determination of rights with the court, unless the decree
114 provides otherwise.
115 (iv) If in a judicial action a court declares a water right forfeited, on the date on which
116 the water right is forfeited:
117 (A) the right to use the water reverts to the public; and
118 (B) the water made available by the forfeiture:
119 (I) first, satisfies other water rights in the hydrologic system in order of priority date;
121 (II) second, may be appropriated as provided in this title.
122 (d) [
123 unused or abandoned water or a portion of the water is:
124 (i) permitted to run to waste; or
125 (ii) used by others without right with the knowledge of the water right holder.
126 (e) This section does not apply to:
127 (i) the use of water according to a lease or other agreement with the appropriator or the
128 appropriator's successor in interest;
129 (ii) a water right if its place of use is contracted under an approved state agreement or
130 federal conservation fallowing program;
131 (iii) those periods of time when a surface water or groundwater source fails to yield
132 sufficient water to satisfy the water right;
133 (iv) a water right when water is unavailable because of the water right's priority date;
134 (v) a water right to store water in a surface reservoir or an aquifer, in accordance with
135 Title 73, Chapter 3b, Groundwater Recharge and Recovery Act, if:
136 (A) the water is stored for present or future use; or
137 (B) storage is limited by a safety, regulatory, or engineering restraint that the
138 appropriator or the appropriator's successor in interest cannot reasonably correct;
139 (vi) a water right if a water user has beneficially used substantially all of the water right
140 within a seven-year period, provided that this exemption does not apply to the adjudication of a
141 water right in a general determination of water rights under Chapter 4, Determination of Water
143 (vii) except as provided by Subsection (2)(g), a water right:
144 (A) (I) owned by a public water supplier;
145 (II) represented by a public water supplier's ownership interest in a water company; or
146 (III) to which a public water supplier owns the right of use; and
147 (B) conserved or held for the reasonable future water requirement of the public, which
148 is determined according to Subsection (2)(f);
149 (viii) a supplemental water right during a period of time when another water right
150 available to the appropriator or the appropriator's successor in interest provides sufficient water
151 so as to not require use of the supplemental water right; or
152 (ix) a water right subject to an approved change application where the applicant is
153 diligently pursuing certification.
154 (f) (i) The reasonable future water requirement of the public is the amount of water
155 needed in the next 40 years by:
156 (A) the persons within the public water supplier's [
157 service area based on [
158 (B) other water use demand.
159 (ii) For purposes of Subsection (2)(f)(i), a community water system's [
160 reasonably anticipated service area:
161 (A) is the area served by the community water system's distribution facilities; and
162 (B) expands as the community water system expands the distribution facilities in
163 accordance with Title 19, Chapter 4, Safe Drinking Water Act.
164 (g) For a water right acquired by a public water supplier on or after May 5, 2008,
165 Subsection (2)(e)(vii) applies if:
166 (i) the public water supplier submits a change application under Section 73-3-3; and
167 (ii) the state engineer approves the change application.
168 (3) (a) The state engineer shall furnish a nonuse application form requiring the
169 following information:
170 (i) the name and address of the applicant;
171 (ii) a description of the water right or a portion of the water right, including the point of
172 diversion, place of use, and priority;
173 (iii) the quantity of water;
174 (iv) the period of use;
175 (v) the extension of time applied for;
176 (vi) a statement of the reason for the nonuse of the water; and
177 (vii) any other information that the state engineer requires.
178 (b) (i) Upon receipt of the application, the state engineer shall publish a notice of the
179 application once a week for two successive weeks:
180 (A) in a newspaper of general circulation in the county in which the source of the water
181 supply is located and where the water is to be used; and
182 (B) as required in Section 45-1-101.
183 (ii) The notice shall:
184 (A) state that an application has been made; and
185 (B) specify where the interested party may obtain additional information relating to the
187 (c) Any interested person may file a written protest with the state engineer against the
188 granting of the application:
189 (i) within 20 days after the notice is published, if the adjudicative proceeding is
190 informal; and
191 (ii) within 30 days after the notice is published, if the adjudicative proceeding is
193 (d) In any proceedings to determine whether the nonuse application should be
194 approved or rejected, the state engineer shall follow the procedures and requirements of Title
195 63G, Chapter 4, Administrative Procedures Act.
196 (e) After further investigation, the state engineer may approve or reject the application.
197 (4) (a) The state engineer shall grant a nonuse application on all or a portion of a water
198 right for a period of time not exceeding seven years if the applicant shows a reasonable cause
199 for nonuse.
200 (b) A reasonable cause for nonuse includes:
201 (i) a demonstrable financial hardship or economic depression;
202 (ii) physical causes or changes that render use beyond the reasonable control of the
203 water right owner so long as the water right owner acts with reasonable diligence to resume or
204 restore the use;
206 a groundwater recharge recovery program approved by the state engineer;
209 by any water supply entity to meet the reasonable future requirements of the public;
211 in implementing an existing, approved water management plan; or
213 equipment if the applicant submits, with the application, a specific plan to resume full use of
214 the water right by replacing, restoring, or improving the equipment.
215 (5) (a) Sixty days before the expiration of a nonuse application, the state engineer shall
216 notify the applicant by mail or by any form of electronic communication through which receipt
217 is verifiable, of the date when the nonuse application will expire.
218 (b) An applicant may file a subsequent nonuse application in accordance with this
220 Section 2. Section 73-2-27 is amended to read:
221 73-2-27. Criminal penalties.
222 (1) This section applies to offenses committed under:
223 (a) Section 73-1-14;
224 (b) Section 73-1-15;
225 (c) Section 73-2-20;
226 (d) [
227 (e) Section 73-3-26;
228 (f) Section 73-3-29;
229 (g) Section 73-5-9;
230 (h) Section 76-10-201;
231 (i) Section 76-10-202; and
232 (j) Section 76-10-203.
233 (2) Under circumstances not amounting to an offense with a greater penalty under
234 Subsection 76-6-106(2)(b)(ii) or Section 76-6-404, violation of a provision listed in Subsection
235 (1) is punishable:
236 (a) as a felony of the third degree if:
237 (i) the value of the water diverted or property damaged or taken is $2,500 or greater;
239 (ii) the person violating the provision has previously been convicted of violating the
240 same provision;
241 (b) as a class A misdemeanor if:
242 (i) the value of the water diverted or property damaged or taken is $2,500 or greater; or
243 (ii) the person violating the provision has previously been convicted of violating the
244 same provision; or
245 (c) as a class B misdemeanor if Subsection (2)(a) or (b) does not apply.
246 Section 3. Section 73-3-3 is amended to read:
247 73-3-3. Permanent or temporary changes in point of diversion, place of use, or
248 purpose of use.
249 (1) For purposes of this section:
250 (a) "Permanent change" means a change for an indefinite period of time with an intent
251 to relinquish the original point of diversion, place of use, or purpose of use.
252 (b) "Temporary change" means a change for a fixed period of time not, exceeding one
254 (2) (a) Subject to Subsection (2)(c), a person entitled to the use of water may make
255 permanent or temporary changes in the:
256 (i) point of diversion;
257 (ii) place of use; [
259 (iii) period of use;
260 (iv) nature of use; or
261 (v) storage.
262 (b) Except as provided by Section 73-3-30, a change may not be made if it impairs a
263 vested water right without just compensation.
264 (c) A change application on a federal reclamation project water right shall be signed
266 (i) the local water users organization that is contractually responsible for:
267 (A) the operation and maintenance of the project; or
268 (B) the repayment of project costs; and
269 (ii) the record owner of the water right.
270 (3) A person entitled to use water shall change a point of diversion, place of use, or
272 in the manner provided in this section.
273 (4) (a) A person entitled to use water may not make a change unless the state engineer
274 approves the change application.
275 (b) A shareholder in a water company who seeks to make a permanent or temporary
276 change to a water right to which the water company is the record owner shall file a change
277 application in accordance with Section 73-3-3.5.
279 furnished by the state engineer [
290 (i) if the change applicant is submitting a change application in accordance with
291 Section 73-3-3.5, the information required by Section 73-3-3.5;
292 (j) any proposed change to the storage of water; and
298 (6) (a) With respect to a change application for a permanent change:
299 (i) the state engineer shall follow the same procedures provided in this title for
300 approving an application to appropriate water; and
301 (ii) the rights and duties of a change applicant are the same as the rights and duties of a
302 person who applies to appropriate water under this title.
303 (b) The state engineer may waive notice for a permanent change application involving
304 only a change in point of diversion of 660 feet or less.
306 (b) If the state engineer finds that the temporary change will not impair a vested water
307 right, the state engineer shall issue an order authorizing the change.
308 (c) If the state engineer finds that the change sought might impair a vested water right,
309 before authorizing the change, the state engineer shall give notice of the application to any
310 person whose right may be affected by the change.
311 (d) Before making an investigation or giving notice, the state engineer may require the
312 applicant to deposit a sum of money sufficient to pay the expenses of the investigation and
313 publication of notice.
315 permanent or temporary change application for the sole reason that the change would impair a
316 vested water right.
317 (b) If otherwise proper, the state engineer may approve a permanent or temporary
318 change application for part of the water involved or upon the condition that the applicant
319 acquire the conflicting water right or otherwise mitigate the impairment.
327 place of use, or purpose of use, either permanently or temporarily, without first applying to the
328 state engineer in the manner provided in this section[
330 made knowingly or intentionally[
332 (11) A person who makes a permanent or temporary change before obtaining an
333 approved change application under this section obtains no additional water right by the change
334 and shall comply with the change application process.
336 new well drilled within a radius of 150 feet from the point of diversion of the existing well.
337 (b) Any replacement well must be drilled in accordance with the requirements of
338 Section 73-3-28.
339 Section 4. Section 73-3-3.5 is amended to read:
340 73-3-3.5. Application for a change of point of diversion, place of use, or purpose
341 of use of water in a water company made by a shareholder.
342 (1) As used in this section:
343 (a) "Shareholder" means the owner of a share of stock, or other evidence of stock
344 ownership, that entitles the person to a proportionate share of water in a water company.
345 (b) "Water company" means, except as described in Subsection (1)(c), any company,
346 operating for profit or not for profit, [
347 proportionate share, based on that shareholder's ownership interest, of water delivered by the
349 (c) "Water company" does not include a public water supplier, as defined in Section
358 (2) (a) A shareholder who seeks to file a change application under Section 73-3-3 to
359 make a change to some or all of the water rights represented by the shareholder's shares in a
360 water company shall:
361 (i) prepare a proposed change application on forms furnished by the state engineer; and
362 (ii) provide the proposed change application to the water company by personal delivery
363 with a signed receipt, certified mail, or electronic mail with confirmation of receipt.
364 (b) The water company and the shareholder shall cooperate in supplying information
365 relevant to preparation or correction of the shareholder's change application.
366 (c) In addition to the information required under Section 73-3-3, the proposed change
367 application shall include:
370 accordance with Section 73-3-3, if the proposed change in place or nature of use of the water
371 involves a situation where the water was previously used for irrigation;
373 assessments on the share affected by the change; and
375 evaluate the [
392 (3) (a) The water company shall respond to the proposed change application described
393 in Subsection (2) within 120 days after the day on which the water company receives the
394 proposed change application.
395 (b) The water company's response to the proposed change application shall be in
396 writing and shall:
397 (i) consent to the proposed change;
398 (ii) consent to the proposed change, subject to certain conditions described by the water
399 company; or
400 (iii) decline to consent to the proposed change, describing the reasons for declining to
402 (c) If the water company fails to timely respond, as described in Subsection (3)(a), the
403 failure to respond shall be considered the water company's consent to the proposed change
404 application and the shareholder may file the change application with the state engineer.
405 (4) (a) In reviewing a shareholder's proposed change application, a water company may
407 (i) [
408 from the proposed change;
409 (ii) [
410 ability to manage and distribute water for the benefit of all shareholders;
411 (iii) whether the proposed change represents more water than the shareholder's [
414 (iv) whether the proposed change would create preferential access to use of particular
415 company water rights to the detriment of other shareholders;
416 (v) whether the proposed change will impair the quantity or quality of water delivered
417 to other shareholders under the existing water rights of the water company, including rights to
418 carrier water;
420 statute, ordinance, regulation, or order of a court or [
422 use of water to be retired from irrigation within the water company's service area under the
423 proposed change; [
425 have on other shareholders or water company operations.
428 (b) The water company may not withhold consent if any potential damage, liability, or
429 impairment to the water company, or its shareholders, can be reasonably mitigated without cost
430 to the water company.
431 (c) The water company may require the shareholder to pay all reasonable and necessary
432 costs associated with the change application, but may not impose unreasonable exactions.
433 (5) (a) If the water company declines to consent to the proposed change application,
434 stating its reasons, the shareholder may file an action in district court, seeking court review of
435 the reasonableness of the conditions imposed for giving consent or the reasons stated for
436 declining consent and a final order allowing the shareholder to file the proposed change
437 application with the state engineer.
438 (b) If the water company consents to the proposed change application subject to
439 conditions to which the shareholder does not agree, the shareholder may file the change
440 application with the state engineer as provided in Subsection (6), without waiving the
441 shareholder's right to contest conditions set by the water company under Subsection (3)(b)(ii).
442 (c) During or after the completion of the proceeding before the state engineer
443 commenced under Subsection (6), the shareholder may file an action in district court seeking
444 court review of the reasonableness of the conditions imposed by the water company for giving
446 (d) In an action brought under Subsection (5)(a), (b), or (c), the court:
447 (i) shall refer the parties to mediation under Title 78B, Chapter 6, Part 2, Alternative
448 Dispute Resolution Act, unless one or both parties decline mediation; and
449 (ii) may award costs and reasonable attorney fees to the prevailing party if mediation
450 does not occur because the other party declined to participate in mediation.
451 (6) If the water company consents to the proposed change, the water company fails to
452 respond as required by Subsection (3)(a), the court has entered an order described in
453 Subsection (5)(a), or the water company consents to the proposed change subject to conditions
454 to which the shareholder does not agree, as described in Subsection (5)(b), the shareholder may
455 commence an administrative proceeding by filing the change application with the state
456 engineer in accordance with Section 73-3-3 and this section.
457 (7) The shareholder shall include as part of the change application filed with the state
458 engineer under Subsection (5)(b) or (6):
459 (a) the water company's response to the shareholder's proposed change application;
460 (b) if applicable, an affidavit signed by the shareholder documenting the water
461 company's failure to respond in the time period described in Subsection (3)(a); or
462 (c) if applicable, the court order described in Subsection (5)(a).
463 (8) (a) The state engineer shall evaluate a shareholder's change application in the same
464 manner used to evaluate a change application submitted under Section 73-3-3, using the criteria
465 described in Section 73-3-8.
466 (b) Nothing in this section limits the authority of the state engineer in evaluating and
467 processing a change application, including the authority to require or allow a shareholder or
468 water company to submit additional relevant information, if the state engineer finds an absence
469 of prejudice and allows adequate time and opportunity for the other party to respond.
470 (9) If the state engineer approves a shareholder's change application, the state engineer
471 may, for shares included in the approval, require that the shareholder requesting the change
473 reasonably applicable future assessments[
476 from the change.
500 (10) By mutual agreement only, and when the shares will rely upon a different
501 diversion and delivery system, the water company and the shareholder may negotiate a buyout
502 from the water company that may include a pro rata share of the water company's existing
503 indebtedness assignable to the shares.
504 (11) After an application has been approved by the state engineer, the shareholder may
505 file requests for extensions of time to submit proof of beneficial use under the change
506 application without further involvement of the water company.
507 (12) If, after a proposed change has been approved and gone into effect, a shareholder
508 fails to substantially comply with a condition described in Subsection (9), or any condition
509 reasonably imposed by the company and agreed to by the shareholder, and neglects to remedy
510 the failure after written notice from the water company that allows the shareholder a reasonable
511 opportunity to remedy the failure, no less than 90 days after the day on which the water
512 company gives notice, the water company may petition the state engineer to order a reversal of
513 the change application approval.
515 including an award of actual damages incurred, against the water company if the water
517 (i) unreasonably withholds approval of a requested change;
518 (ii) imposes unreasonable conditions in its approval; or
519 (iii) withdraws approval of a change application in a manner other than as provided in
520 Subsection [
524 (b) The court may award costs and reasonable attorney fees:
525 (i) to the shareholder if the court finds that the water company acted in bad faith when
526 it declined to consent to the proposed change or conditioned its consent on excessive exactions
527 or unreasonable conditions; or
528 (ii) to the water company if it finds that the shareholder acted in bad faith in refusing to
529 accept conditions reasonably necessary to protect other shareholders if the shareholder's change
530 application is approved.
533 Section 5. Coordinating H.B. 43 with H.B. 25 -- Technical amendments.
534 If this H.B. 43 and H.B. 25, Water Law - Application Revisions, both pass and become
535 law, it is the intent of the Legislature that the Office of Legislative Research and General
536 Counsel, in preparing the Utah Code database for publication:
537 (1) modify Section 73-3-3 to read:
538 "73-3-3. Permanent or temporary changes to a water right.
539 (1) For purposes of this section:
540 (a) "Permanent change" means a change, for an indefinite period of time [
542 (i) point of diversion;
543 (ii) place of use;
544 (iii) period of use;
545 (iv) nature of use; or
546 (v) storage of water.
547 (b) (i) "Quantity impairment" means any reduction in the amount of water a person is
548 able to receive in order to satisfy an existing right to the use of water that would result from an
549 action proposed in a change application, including:
550 (A) diminishing the quantity of water in the source of supply for the existing right;
551 (B) a change in the timing of availability of water from the source of supply for the
552 existing right; or
553 (C) enlarging the quantity of water depleted by the nature of the proposed use when
554 compared with the nature of the currently approved use.
555 (ii) "Quantity impairment" does not mean a decrease in the static level of water in an
556 underground basin or aquifer that would result from an action proposed to be taken in a change
557 application, if the volume of water necessary to satisfy an existing right otherwise remains
558 reasonably available.
560 one year[
561 (i) point of diversion;
562 (ii) place of use;
563 (iii) period of use;
564 (iv) nature of use; or
565 (v) storage of water.
566 (2) (a) A person who proposes to file a permanent or temporary change application
567 may request consultation with the state engineer, or the state engineer's designee, before filing
568 the application in order to review the requirements of the change application process, discuss
569 potential issues related to the change, and provide the applicant with information.
570 (b) Statements made and information presented in the consultation are not binding on
571 the applicant or the state engineer.
572 (c) The consultation described in Subsection (2)(a) may occur in the state engineer's
573 regional office for the region where the proposed change would occur.
575 make a permanent or temporary [
576 including a right involved in a general determination of rights or other suit, if:
580 (i) the person makes the change in accordance with this section;
584 (iii) the state engineer approves the change application, consistent with the
585 requirements of Section 73-3-8.
587 signed by:
588 (i) the local water users organization that is contractually responsible for:
589 (A) the operation and maintenance of the project; or
590 (B) the repayment of project costs; and
591 (ii) the record owner of the water right.
598 the use of water shall submit a change application upon forms furnished by the state engineer
600 (b) The application described in Subsection (4)(a) shall include:
601 (i) the applicant's name;
602 (ii) the water right description, including the water right number;
603 (iii) the water quantity;
604 (iv) the stream or water source;
605 (v) if applicable, the point on the stream or water source where the water is diverted;
606 (vi) if applicable, the point to which it is proposed to change the diversion of the water;
607 (vii) the place, [
609 (viii) the place, [
610 (ix) if the change applicant is submitting a change application in accordance with
611 Section 73-3-3.5, the information required by Section 73-3-3.5;
612 (x) any proposed change to the storage of water; and
614 (c) A shareholder in a water company who seeks to make a permanent or temporary
615 change to a water right to which the water company is the record owner shall file a change
616 application in accordance with Section 73-3-3.5.
640 (5) In a proceeding before the state engineer, the applicant has the burden of producing
641 evidence sufficient to support a reasonable belief that the change can be made in compliance
642 with this section and Section 73-3-8, including evidence:
643 (a) that the change will not cause a specific existing right to experience quantity
644 impairment; or
645 (b) if applicable, rebutting the presumption of quantity impairment described in
646 Subsection 73-3-8(6)(c).
654 without first filing and obtaining approval of a change application providing for such change:
655 (a) obtains no additional water right by the change;
656 (b) is guilty of [
659 (c) shall comply with the change application process.
661 new well drilled within a radius of 150 feet from the point of diversion of the existing well.
662 (b) Any replacement well must be drilled in accordance with the requirements of
663 Section 73-3-28."; and
664 (2) modify Section 73-3-8 to read:
665 "73-3-8 Approval or rejection of application -- Requirements for approval --
666 Application for specified period of time -- Filing of royalty contract for removal of salt or
668 (1) (a) It shall be the duty of the state engineer to approve an application if there is
669 reason to believe that:
670 (i) for an application to appropriate, there is unappropriated water in the proposed
672 (ii) the proposed use will not impair existing rights or interfere with the more
673 beneficial use of the water;
674 (iii) the proposed plan:
675 (A) is physically and economically feasible, unless the application is filed by the
676 United States Bureau of Reclamation[
677 (B) would not prove detrimental to the public welfare;
678 (iv) the applicant has the financial ability to complete the proposed works; [
679 (v) the application was filed in good faith and not for purposes of speculation or
681 (vi) if applicable, the application complies with a groundwater management plan
682 adopted under Section 73-5-15.
683 (b) [
684 obtained either by the state engineer's own investigation or otherwise, has reason to believe that
685 an application [
686 irrigation, municipal and industrial, domestic or culinary, stock watering, power or mining
687 development, or manufacturing, or will unreasonably affect public recreation or the natural
688 stream environment, or will prove detrimental to the public welfare, [
690 engineer has investigated the matter.
693 (2) (a) An application to appropriate water for industrial, power, mining development,
694 manufacturing purposes, agriculture, or municipal purposes may be approved for a specific and
695 certain period from the time the water is placed to beneficial use under the application, but in
696 no event may an application be granted for a period of time less than that ordinarily needed to
697 satisfy the essential and primary purpose of the application or until the water is no longer
698 available as determined by the state engineer.
699 (b) At the expiration of the period fixed by the state engineer the water shall revert to
700 the public and is subject to appropriation as provided by this title.
701 (c) No later than 60 calendar days before the expiration date of the fixed time period,
702 the state engineer shall send notice by mail or by any form of electronic communication
703 through which receipt is verifiable, to the applicant of record.
704 (d) Except as provided by Subsection (2)(e), the state engineer may extend any limited
705 water right upon a showing that:
706 (i) the essential purpose of the original application has not been satisfied;
707 (ii) the need for an extension is not the result of any default or neglect by the applicant;
709 (iii) the water is still available.
710 (e) No extension shall exceed the time necessary to satisfy the primary purpose of the
711 original application.
712 (f) A request for extension of the fixed time period must be filed in writing in the
713 office of the state engineer on or before the expiration date of the application.
714 (3) (a) Before the approval of any application for the appropriation of water from
715 navigable lakes or streams of the state that contemplates the recovery of salts and other
716 minerals therefrom by precipitation or otherwise, the applicant shall file with the state engineer
717 a copy of a contract for the payment of royalties to the state.
718 (b) The approval of an application shall be revoked in the event of the failure of the
719 applicant to comply with terms of the royalty contract.
720 (4) (a) The state engineer shall investigate all temporary change applications.
721 (b) The state engineer shall:
722 (i) approve the temporary change if the state engineer finds there is reason to believe
723 that it will not impair an existing right; and
724 (ii) deny the temporary change if the state engineer finds there is reason to believe it
725 would impair an existing right.
726 (5) (a) With respect to a change application for a permanent change:
727 (i) the state engineer shall follow the same procedures provided in this title for
728 approving an application to appropriate water; and
729 (ii) the rights and duties of a change applicant are the same as the rights and duties of a
730 person who applies to appropriate water under this title.
731 (b) The state engineer may waive notice for a permanent change application if the
732 application only involves a change in point of diversion of 660 feet or less.
733 (c) The state engineer may condition approval of a change application to prevent an
734 enlargement of the quantity of water depleted by the nature of the proposed use when compared
735 with the nature of the currently approved use of water proposed to be changed.
736 (d) A condition described in Subsection (5)(c) may not include a reduction in the
737 currently approved diversion rate of water under the water right identified in the change
738 application solely to account for the difference in depletion under the nature of the proposed
739 use when compared with the nature of the currently approved use.
740 (6) (a) Except as provided in Subsection (6)(b), the state engineer shall reject a
741 permanent change application if the person proposing to make the change is unable to meet the
742 burden described in Subsection 73-3-3(5).
743 (b) If otherwise proper, the state engineer may approve a permanent or temporary
744 change application upon one or more of the following conditions:
745 (i) for part of the water involved;
746 (ii) that the applicant acquire a conflicting right; or
747 (iii) that the applicant provide and implement a plan approved by the state engineer to
748 mitigate impairment of an existing right.
749 (c) (i) There is a rebuttable presumption of quantity impairment, as defined in
750 Subsection 73-3-3(1), to the extent that, for a period of at least seven consecutive years, a
751 portion of the right identified in a change application has not been:
752 (A) diverted from the approved point of diversion; and
753 (B) beneficially used at the approved place of use.
754 (ii) The rebuttable presumption described in Subsection (6)(c)(i) does not apply if the
755 beneficial use requirement is excused by:
756 (A) Subsection 73-1-4(2)(e);
757 (B) an approved nonuse application under Subsection 73-1-4(2)(b);
758 (C) Subsection 73-3-30(7); or
759 (D) the passage of time under Subsection 73-1-4(2)(c)(i).
760 (d) The state engineer may not consider quantity impairment based on the conditions
761 described in Subsection (6)(c) unless the issue is raised in a:
762 (i) timely protest that identifies which of the protestant's existing rights the protestant
763 reasonably believes will experience quantity impairment; or
764 (ii) written notice provided by the state engineer to the applicant within 90 days after
765 the change application is filed.
766 (e) The written notice described in Subsection (6)(d)(ii) shall:
767 (i) specifically identify an existing right the state engineer reasonably believes may
768 experience quantity impairment; and
769 (ii) be mailed to the owner of an identified right, as shown by the state engineer's
770 records, if the owner has not protested the change application.
771 (f) The state engineer is not required to include all rights the state engineer believes
772 may be impaired by the proposed change in the written notice described in Subsection
774 (g) The owner of a right who receives the written notice described in Subsection
775 (6)(d)(ii) may not become a party to the administrative proceeding if the owner has not filed a
776 timely protest.
777 (h) If a change applicant, all protestants, and all persons identified by the state engineer
778 under Subsection (6)(e)(ii) come to a written agreement regarding how the issue of quantity
779 impairment shall be mitigated, the state engineer may incorporate the terms of the agreement
780 into a change application approval.".