1     
WATER AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Margaret Dayton

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the duties of the state engineer in regard to evaluating an application
10     to appropriate water or an application to change the use of water.
11     Highlighted Provisions:
12          This bill:
13          ▸     clarifies the duties of the state engineer when evaluating an application to
14     appropriate water or an application to change the use of water;
15          ▸     requires the state engineer to consider whether an application is detrimental to
16     public welfare;
17          ▸     describes factors the state engineer shall consider when evaluating the public
18     welfare; and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          73-3-8, as last amended by Laws of Utah 2007, Chapter 136
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 73-3-8 is amended to read:
30          73-3-8. Approval or rejection of application -- Requirements for approval --
31     Application for specified period of time -- Filing of royalty contract for removal of salt or
32     minerals.
33          (1) As used in this section, "application" means an application:
34          (a) to appropriate water, as described in Section 73-3-2; or
35          (b) to change the use of water, as described in Sections 73-3-3 and 73-3-3.5.
36          [(1)] (2) (a) [It shall be the duty of the] The state engineer [to] shall approve an
37     application if, after evaluation of the criteria in Subsections (2)(a) and (2)(b), the state engineer
38     finds there is reason to believe that:
39          (i) (A) there is unappropriated water in the proposed source; or
40          [(ii)] (B) the proposed use will not impair existing rights or interfere with the more
41     beneficial use of the water;
42          [(iii)] (ii) the proposed [plan] use is physically and economically feasible, unless the
43     application is filed by the United States Bureau of Reclamation[, and would not prove
44     detrimental to the public welfare];
45          (iii) the proposed use is not detrimental to the public welfare;
46          (iv) the applicant has the financial ability to complete the proposed works; and
47          (v) the application was filed in good faith and not for purposes of speculation or
48     monopoly.
49          (b) [(i) If] The state engineer shall withhold approval of an application if the state
50     engineer finds there is reason to believe, because of information in the state engineer's
51     possession obtained either by the state engineer's own investigation or otherwise, [has reason to
52     believe] that an application [to appropriate water will] may:
53          (i) interfere with [its] the more beneficial use of water for irrigation, domestic or
54     culinary, stock watering, power or mining development, or manufacturing[, or will
55     unreasonably affect public recreation or the natural stream environment, or will prove
56     detrimental to the public welfare, it is the state engineer's duty to withhold approval or rejection
57     of the application until the state engineer has investigated the matter.];
58          (ii) unreasonably affect public recreation;
59          (iii) unreasonably affect the natural stream environment; or
60          (iv) be detrimental to the public welfare.
61          (c) In evaluating whether an application may be detrimental to the public welfare, the
62     state engineer shall consider and balance the following factors:
63          (i) the relative benefit and the relative detriment to the public resulting from the
64     proposed use in the application;
65          (ii) the economic effect of the activity resulting from the proposed use;
66          (iii) the potential loss of alternate uses of water that might be made within a reasonable
67     time if not precluded or hindered by the proposed use; and
68          (iv) where the proposed use in the application will result in a transbasin diversion of
69     either surface or ground water, the state engineer shall consider and balance:
70          (A) the economic, environmental, and other benefits or detriments of leaving the water
71     in the basin of origin for current or future beneficial uses against the economic, environmental,
72     and other benefits or detriments that may accrue in the receiving basin;
73          (B) alternative sources of water supply available to the applicant in the receiving basin;
74     and
75          (C) alternative sources of water available to the basin of origin for future beneficial
76     uses.
77          (d) The state engineer shall include findings concerning the effect of the proposed use
78     on the public welfare in the order approving or rejecting an application.
79          (e) (i) It is presumed that the approval of an application in accordance with this section
80     is made by the state engineer with due regard to and in full compliance with the state's public
81     trust obligations.
82          (ii) The quantity of water approved for use may not be reduced solely by reason of the
83     state's public trust obligations.
84          [(ii)] (f) If an application does not meet the requirements of this section, it shall be
85     rejected.
86          [(2)] (3) (a) (i) An application to appropriate water for industrial, power, mining
87     development, manufacturing purposes, agriculture, or municipal purposes may be approved for
88     a specific and certain period from the time the water is placed to beneficial use under the
89     application[, but in no event may an].
90          (ii) An application may not be granted for a period of time less than that ordinarily
91     needed to satisfy the essential and primary purpose of the application or until the water is no
92     longer available as determined by the state engineer.
93          (b) At the expiration of the period fixed by the state engineer the water shall revert to
94     the public and is subject to appropriation as provided by this title.
95          (c) No later than 60 calendar days before the expiration date of the fixed time period,
96     the state engineer shall send notice by mail or by any form of electronic communication
97     through which receipt is verifiable, to the applicant of record.
98          (d) Except as provided by Subsection (2)(e), the state engineer may extend any limited
99     water right upon a showing that:
100          (i) the essential purpose of the original application has not been satisfied;
101          (ii) the need for an extension is not the result of any default or neglect by the applicant;
102     and
103          (iii) the water is still available.
104          (e) No extension shall exceed the time necessary to satisfy the primary purpose of the
105     original application.
106          (f) A request for extension of the fixed time period [must] shall be filed in writing in
107     the office of the state engineer on or before the expiration date of the application.
108          [(3)] (4) (a) Before the approval of any application for the appropriation of water from
109     navigable lakes or streams of the state that contemplates the recovery of salts and other
110     minerals therefrom by precipitation or otherwise, the applicant shall file with the state engineer
111     a copy of a contract for the payment of royalties to the state.
112          (b) The approval of an application shall be revoked in the event of the failure of the
113     applicant to comply with terms of the royalty contract.




Legislative Review Note
     as of 1-29-15 12:54 PM

Office of Legislative Research and General Counsel