1     
WATER LAW - FORFEITURE EXEMPTIONS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Margaret Dayton

5     
House Sponsor: Michael E. Noel

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to the abandonment or forfeiture of water.
10     Highlighted Provisions:
11          This bill:
12          ▸     clarifies that abandonment and forfeiture of water provisions do not apply to a water
13     right for nonuse during the period of time in which the water right is subject to an
14     approved change application where the applicant is diligently pursuing certification;
15     and
16          ▸     makes technical corrections.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          73-1-4, as last amended by Laws of Utah 2013, Chapters 221 and 380
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 73-1-4 is amended to read:
27          73-1-4. Reversion to the public by abandonment or forfeiture for nonuse within
28     seven years -- Nonuse application.
29          (1) As used in this section:

30          (a) "Public entity" means:
31          (i) the United States;
32          (ii) an agency of the United States;
33          (iii) the state;
34          (iv) a state agency;
35          (v) a political subdivision of the state; or
36          (vi) an agency of a political subdivision of the state.
37          (b) "Public water supplier" means an entity that:
38          (i) supplies water, directly or indirectly, to the public for municipal, domestic, or
39     industrial use; and
40          (ii) is:
41          (A) a public entity;
42          (B) a water corporation, as defined in Section 54-2-1, that is regulated by the Public
43     Service Commission;
44          (C) a community water system:
45          (I) that:
46          (Aa) supplies water to at least 100 service connections used by year-round residents; or
47          (Bb) regularly serves at least 200 year-round residents; and
48          (II) whose voting members:
49          (Aa) own a share in the community water system;
50          (Bb) receive water from the community water system in proportion to the member's
51     share in the community water system; and
52          (Cc) pay the rate set by the community water system based on the water the member
53     receives; or
54          (D) a water users association:
55          (I) in which one or more public entities own at least 70% of the outstanding shares; and
56          (II) that is a local sponsor of a water project constructed by the United States Bureau of
57     Reclamation.

58          (c) "Shareholder" is as defined in Section 73-3-3.5.
59          (d) "Water company" is as defined in Section 73-3-3.5.
60          (e) "Water supply entity" means an entity that supplies water as a utility service or for
61     irrigation purposes and is also:
62          (i) a municipality, water conservancy district, metropolitan water district, irrigation
63     district, or other public agency;
64          (ii) a water company regulated by the Public Service Commission; or
65          (iii) any other owner of a community water system.
66          (2) (a) Except as provided in Subsection (2)(b) or (e), when an appropriator or the
67     appropriator's successor in interest abandons or ceases to use all or a portion of a water right
68     for a period of seven years, the water right or the unused portion of that water right is subject to
69     forfeiture in accordance with Subsection (2)(c).
70          (b) (i) An appropriator or the appropriator's successor in interest may file an
71     application for nonuse with the state engineer.
72          (ii) If a person described in Subsection (2)(b)(i) files and receives approval on a nonuse
73     application, nonuse of the water right subject to the application is not counted toward a
74     seven-year period described in Subsection (2)(a) during the period of time beginning on the day
75     on which the person files the application and ending on the day on which the application
76     expires without being renewed.
77          (iii) If a person described in Subsection (2)(b)(i) files and receives approval on
78     successive, overlapping nonuse applications, nonuse of the water right subject to the
79     applications is not counted toward a seven-year period described in Subsection (2)(a) during
80     the period of time beginning on the day on which the person files the first application and
81     ending on the day on which the last application expires without being renewed.
82          (iv) Approval of a nonuse application does not protect a water right that is already
83     subject to forfeiture under Subsection (2)(a) for full or partial nonuse of the water right.
84          (v) A nonuse application may be filed on all or a portion of the water right, including
85     water rights held by a water company.

86          (vi) After giving written notice to the water company, a shareholder may file a nonuse
87     application with the state engineer on the water represented by the stock.
88          (c) (i) Except as provided in Subsection (2)(c)(ii), a water right or a portion of the water
89     right may not be forfeited unless a judicial action to declare the right forfeited is commenced
90     within 15 years from the end of the latest period of nonuse of at least seven years.
91          (ii) (A) The state engineer, in a proposed determination of rights prepared in
92     accordance with Section 73-4-11, may not assert that a water right was forfeited unless a period
93     of nonuse of seven years ends or occurs during the 15 years immediately preceding the day on
94     which the state engineer files the proposed determination of rights with the court.
95          (B) After the day on which a proposed determination of rights is filed with the court a
96     person may not assert that a water right subject to that determination was forfeited during the
97     15-year period described in Subsection (2)(c)(ii)(A), unless the state engineer asserts forfeiture
98     in the proposed determination, or a person makes, in accordance with Section 73-4-11, an
99     objection to the proposed determination that asserts forfeiture.
100          (iii) A water right, found to be valid in a decree entered in an action for general
101     determination of rights under Chapter 4, Determination of Water Rights, is subject to a claim
102     of forfeiture based on a seven-year period of nonuse that begins after the day on which the state
103     engineer filed the related proposed determination of rights with the court, unless the decree
104     provides otherwise.
105          (iv) If in a judicial action a court declares a water right forfeited, on the date on which
106     the water right is forfeited:
107          (A) the right to use the water reverts to the public; and
108          (B) the water made available by the forfeiture:
109          (I) first, satisfies other water rights in the hydrologic system in order of priority date;
110     and
111          (II) second, may be appropriated as provided in this title.
112          (d) This section applies whether the unused or abandoned water or a portion of the
113     water is:

114          (i) permitted to run to waste; or
115          (ii) used by others without right with the knowledge of the water right holder.
116          (e) This section does not apply to:
117          (i) the use of water according to a lease or other agreement with the appropriator or the
118     appropriator's successor in interest;
119          (ii) a water right if its place of use is contracted under an approved state agreement or
120     federal conservation fallowing program;
121          (iii) those periods of time when a surface water or groundwater source fails to yield
122     sufficient water to satisfy the water right;
123          (iv) a water right when water is unavailable because of the water right's priority date;
124          (v) a water right to store water in a surface reservoir or an aquifer, in accordance with
125     Title 73, Chapter 3b, Groundwater Recharge and Recovery Act, if:
126          (A) the water is stored for present or future use; or
127          (B) storage is limited by a safety, regulatory, or engineering restraint that the
128     appropriator or the appropriator's successor in interest cannot reasonably correct;
129          (vi) a water right if a water user has beneficially used substantially all of the water right
130     within a seven-year period, provided that this exemption does not apply to the adjudication of a
131     water right in a general determination of water rights under Chapter 4, Determination of Water
132     Rights;
133          (vii) except as provided by Subsection (2)(g), a water right:
134          (A) (I) owned by a public water supplier;
135          (II) represented by a public water supplier's ownership interest in a water company; or
136          (III) to which a public water supplier owns the right of use; and
137          (B) conserved or held for the reasonable future water requirement of the public, which
138     is determined according to Subsection (2)(f);
139          (viii) a supplemental water right during a period of time when another water right
140     available to the appropriator or the appropriator's successor in interest provides sufficient water
141     so as to not require use of the supplemental water right; or

142          (ix) a period of nonuse of a water right during the time the water right is subject to an
143     approved change application where the applicant is diligently pursuing certification.
144          (f) (i) The reasonable future water requirement of the public is the amount of water
145     needed in the next 40 years by the persons within the public water supplier's projected service
146     area based on projected population growth or other water use demand.
147          (ii) For purposes of Subsection (2)(f)(i), a community water system's projected service
148     area:
149          (A) is the area served by the community water system's distribution facilities; and
150          (B) expands as the community water system expands the distribution facilities in
151     accordance with Title 19, Chapter 4, Safe Drinking Water Act.
152          (g) For a water right acquired by a public water supplier on or after May 5, 2008,
153     Subsection (2)(e)(vii) applies if:
154          (i) the public water supplier submits a change application under Section 73-3-3; and
155          (ii) the state engineer approves the change application.
156          (3) (a) The state engineer shall furnish a nonuse application form requiring the
157     following information:
158          (i) the name and address of the applicant;
159          (ii) a description of the water right or a portion of the water right, including the point of
160     diversion, place of use, and priority;
161          (iii) the quantity of water;
162          (iv) the period of use;
163          (v) the extension of time applied for;
164          (vi) a statement of the reason for the nonuse of the water; and
165          (vii) any other information that the state engineer requires.
166          (b) (i) Upon receipt of the application, the state engineer shall publish a notice of the
167     application once a week for two successive weeks:
168          (A) in a newspaper of general circulation in the county in which the source of the water
169     supply is located and where the water is to be used; and

170          (B) as required in Section 45-1-101.
171          (ii) The notice shall:
172          (A) state that an application has been made; and
173          (B) specify where the interested party may obtain additional information relating to the
174     application.
175          (c) Any interested person may file a written protest with the state engineer against the
176     granting of the application:
177          (i) within 20 days after the notice is published, if the adjudicative proceeding is
178     informal; and
179          (ii) within 30 days after the notice is published, if the adjudicative proceeding is
180     formal.
181          (d) In any proceedings to determine whether the nonuse application should be
182     approved or rejected, the state engineer shall follow the procedures and requirements of Title
183     63G, Chapter 4, Administrative Procedures Act.
184          (e) After further investigation, the state engineer may approve or reject the application.
185          (4) (a) The state engineer shall grant a nonuse application on all or a portion of a water
186     right for a period of time not exceeding seven years if the applicant shows a reasonable cause
187     for nonuse.
188          (b) A reasonable cause for nonuse includes:
189          (i) a demonstrable financial hardship or economic depression;
190          (ii) the initiation of water conservation or efficiency practices, or the operation of a
191     groundwater recharge recovery program approved by the state engineer;
192          (iii) operation of legal proceedings;
193          (iv) the holding of a water right or stock in a mutual water company without use by any
194     water supply entity to meet the reasonable future requirements of the public;
195          (v) situations where, in the opinion of the state engineer, the nonuse would assist in
196     implementing an existing, approved water management plan; or
197          (vi) the loss of capacity caused by deterioration of the water supply or delivery

198     equipment if the applicant submits, with the application, a specific plan to resume full use of
199     the water right by replacing, restoring, or improving the equipment.
200          (5) (a) Sixty days before the expiration of a nonuse application, the state engineer shall
201     notify the applicant by mail or by any form of electronic communication through which receipt
202     is verifiable, of the date when the nonuse application will expire.
203          (b) An applicant may file a subsequent nonuse application in accordance with this
204     section.