Chief Sponsor: Timothy D. Hawkes

Senate Sponsor: Jani Iwamoto


8     General Description:
9          This bill addresses regulation of the uses of water.
10     Highlighted Provisions:
11          This bill:
12          ▸     addresses fees;
13          ▸     modifies definition provisions;
14          ▸     addresses references to changes;
15          ▸     addresses the state engineer's actions related to split season or other potentially
16     complicated changes;
17          ▸     amends the exemption related to proof of appropriation or change;
18          ▸     addresses change application for instream flow; and
19          ▸     makes technical and conforming amendments.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          73-2-14, as last amended by Laws of Utah 2017, Chapter 76
27          73-3-3, as last amended by Laws of Utah 2015, Chapters 245, 249, 251, 298 and last
28     amended by Coordination Clause, Laws of Utah 2015, Chapter 249
29          73-3-5, as last amended by Laws of Utah 2001, Chapter 136

30          73-3-8, as last amended by Laws of Utah 2019, Chapter 366
31          73-3-16, as last amended by Laws of Utah 2013, Chapter 221
32          73-3-30, as last amended by Laws of Utah 2013, Chapter 379

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 73-2-14 is amended to read:
36          73-2-14. Fees of state engineer -- Deposited as a dedicated credit.
37          (1) The state engineer shall charge fees pursuant to Section 63J-1-504 for the
38     following:
39          (a) applications to appropriate water;
40          (b) applications to temporarily appropriate water;
41          (c) applications for [permanent or temporary] a change;
42          (d) applications for exchange;
43          (e) applications for nonuse of water;
44          (f) applications to appropriate water, or make a [permanent or temporary] change, for
45     use outside the state filed pursuant to Title 73, Chapter 3a, Water Exports;
46          (g) groundwater recovery permits;
47          (h) diligence claims for surface or underground water filed pursuant to Section
48     73-5-13;
49          (i) republication of notice to water users after amendment of application where
50     required by this title;
51          (j) applications to segregate;
52          (k) requests for an extension of time in which to submit proof of appropriation not to
53     exceed 14 years after the date of approval of the application;
54          (l) requests for an extension of time in which to submit proof of appropriation 14 years
55     or more after the date of approval of the application;
56          (m) groundwater recharge permits;
57          (n) applications for a well driller's license, annual renewal of a well driller's license,

58     and late annual renewal of a well driller's license;
59          (o) certification of copies;
60          (p) preparing copies of documents;
61          (q) reports of water right conveyance; and
62          (r) requests for a livestock water use certificate under Section 73-3-31.
63          (2) Fees for the services specified in Subsections (1)(a) through (i) shall be based upon
64     the rate of flow or volume of water. If it is proposed to appropriate by both direct flow and
65     storage, the fee shall be based upon either the rate of flow or annual volume of water stored,
66     whichever fee is greater.
67          (3) Fees collected under this section:
68          (a) shall be deposited in the General Fund as a dedicated credit to be used by the
69     Division of Water Rights; and
70          (b) may only be used by the Division of Water Rights to:
71          (i) meet the publication of notice requirements under this title;
72          (ii) process reports of water right conveyance;
73          (iii) process a request for a livestock water use certificate; and
74          (iv) hire an employee to assist with processing an application.
75          Section 2. Section 73-3-3 is amended to read:
76          73-3-3. Changes to a water right.
77          (1) For purposes of this section:
78          (a) "Change" means a change to the:
79          (i) point of diversion;
80          (ii) place of use;
81          (iii) period of use;
82          (iv) nature of use; or
83          (v) storage of water.
84          (b) "Fixed time change" means a change for a fixed period of time exceeding one year
85     and not exceeding 10 years.

86          [(a)] (c) "Permanent change" means a change, for an indefinite period of time[, to the:]
87          [(i) point of diversion;]
88          [(ii) place of use;]
89          [(iii) period of use;]
90          [(iv) nature of use; or]
91          [(v) storage of water].
92          [(b)] (d) "Person entitled to the use of water" means:
93          (i) the holder of an approved but unperfected application to appropriate water;
94          (ii) the record owner of a perfected water right;
95          (iii) a person who has written authorization from a person described in Subsection
96     (1)[(b)](d)(i) or (ii) to file a change application on that person's behalf; or
97          (iv) a shareholder in a water company who is authorized to file a change application in
98     accordance with Section 73-3-3.5.
99          [(c)] (e) (i) "Quantity impairment" means any reduction in the amount of water a
100     person is able to receive in order to satisfy an existing right to the use of water that would result
101     from an action proposed in a change application, including:
102          (A) diminishing the quantity of water in the source of supply for the existing right;
103          (B) a change in the timing of availability of water from the source of supply for the
104     existing right; or
105          (C) enlarging the quantity of water depleted by the nature of the proposed use when
106     compared with the nature of the currently approved use.
107          (ii) "Quantity impairment" does not mean a decrease in the static level of water in an
108     underground basin or aquifer that would result from an action proposed to be taken in a change
109     application, if the volume of water necessary to satisfy an existing right otherwise remains
110     reasonably available.
111          (f) "Split season change" means a change when the holder of a perfected right grants to
112     a water user the right to make sequential use of a portion of the water right.
113          [(d)] (g) "Temporary change" means a change for a [fixed] period of time, not

114     exceeding one year[, to the:]
115          [(i) point of diversion;]
116          [(ii) place of use;]
117          [(iii) period of use;]
118          [(iv) nature of use; or]
119          [(v) storage of water].
120          (2) (a) A person who proposes to file a [permanent or temporary] change application
121     may request consultation with the state engineer, or the state engineer's designee, before filing
122     the application [in order] to review the requirements of the change application process, discuss
123     potential issues related to the change, and provide the applicant with information.
124          (b) Statements made and information presented in the consultation are not binding on
125     the applicant or the state engineer.
126          (c) The consultation described in Subsection (2)(a) may occur in the state engineer's
127     regional office for the region where the proposed change would occur.
128          (3) (a) A person entitled to the use of water may make a [permanent or temporary]
129     change to an existing right to use water, including a right involved in a general determination
130     of rights or other suit, if:
131          (i) the person makes the change in accordance with this section;
132          (ii) except as provided by Section 73-3-30, the change does not impair an existing right
133     without just compensation or adequate mitigation; and
134          (iii) the state engineer approves the change application, consistent with [the
135     requirements of] Section 73-3-8.
136          (b) A change application on a federal reclamation project water right shall be signed
137     by:
138          (i) the local water users organization that is contractually responsible for:
139          (A) the operation and maintenance of the project; or
140          (B) the repayment of project costs; and
141          (ii) the record owner of the water right.

142          (c) A change application on a United States Indian Irrigation Service water right that is
143     serving the needs of a township or municipality shall be signed by:
144          (i) the local public water supplier that is responsible for the operation and maintenance
145     of the public water supply system; and
146          (ii) the record owner of the water right.
147          (4) (a) Before making a [permanent or temporary] change, a person entitled to the use
148     of water shall submit a change application upon forms furnished by the state engineer.
149          (b) The application described in Subsection (4)(a) shall include:
150          (i) the applicant's name;
151          (ii) the water right description, including the water right number;
152          (iii) the water quantity;
153          (iv) the stream or water source;
154          (v) if applicable, the point on the stream or water source where the water is diverted;
155          (vi) if applicable, the point to which it is proposed to change the diversion of the water;
156          (vii) the place, nature, period, and extent of the currently approved use;
157          (viii) the place, nature, period, and extent of the proposed use;
158          (ix) if the change applicant is submitting a change application in accordance with
159     Section 73-3-3.5, the information required by Section 73-3-3.5;
160          (x) any proposed change to the storage of water; and
161          (xi) any other information that the state engineer requires.
162          (c) A shareholder in a water company who seeks to make a [permanent or temporary]
163     change to a water right to which the water company is the record owner shall file a change
164     application in accordance with Section 73-3-3.5.
165          (5) In a proceeding before the state engineer, the applicant has the burden of producing
166     evidence sufficient to support a reasonable belief that the change can be made in compliance
167     with this section and Section 73-3-8, including evidence:
168          (a) that the change will not cause a specific existing right to experience quantity
169     impairment; or

170          (b) if applicable, rebutting the presumption of quantity impairment described in
171     Subsection 73-3-8(6)(c).
172          (6) A change of an approved application to appropriate water does not:
173          (a) affect the priority of the original application to appropriate water; or
174          (b) extend the time period within which the construction of work is to begin or be
175     completed.
176          (7) Any person who makes a [permanent or temporary] change without first filing and
177     obtaining approval of a change application providing for [such] the change:
178          (a) obtains no right by the change;
179          (b) is guilty of an offense punishable under Section 73-2-27 if the change is made
180     knowingly or intentionally; and
181          (c) shall comply with the change application process.
182          (8) (a) This section does not apply to the replacement of an existing well by a new well
183     drilled within a radius of 150 feet from the point of diversion of the existing well.
184          (b) [Any] A replacement well must be drilled in accordance with the requirements of
185     Section 73-3-28.
186          Section 3. Section 73-3-5 is amended to read:
187          73-3-5. Action by engineer on applications.
188          (1) On receipt of [each] an application containing the information required by Section
189     73-3-2, and payment of the filing fee, [it shall be the duty of] the state engineer [to make an
190     endorsement thereon of] shall endorse the application with the date of its receipt[, and] to make
191     a record of [such] the receipt for that purpose.
192          (2) [It shall be the duty of the] The state engineer [to] shall examine the application and
193     determine whether any corrections, amendments or changes are required for clarity and if so,
194     see that such changes are made before further processing. The state engineer may not construe
195     an application for a split season change or other potentially complicated change as incomplete
196     or unacceptable if the application satisfies the filing requirements under Section 73-3-3 and
197     payment of the respective filing fee is made.

198          (3) [All applications which shall comply] An application that complies with [the
199     provisions of] this chapter and with the regulations of the state engineer shall be filed and
200     recorded.
201          (4) The state engineer may issue a temporary receipt to drill a well at any time after the
202     filing of an application to appropriate water [therefrom] from the well, as provided by this
203     section if [all] the fees be advanced and if in [his] the state engineer's judgment there is
204     unappropriated water available in the proposed source and there is no likelihood of impairment
205     of existing rights[; provided, however,], except that the issuance of [such] a temporary [permits
206     shall] receipt does not dispense with the publishing of notice and the final approval or rejection
207     of [such] the application by the state engineer, as provided by this chapter.
208          (5) The state engineer may send the necessary notices and address [all] correspondence
209     relating to [each] an application to the owner thereof as shown by the state engineer's records,
210     or to [his] the owner's attorney in fact provided a written power of attorney is filed in the state
211     engineer's office.
212          Section 4. Section 73-3-8 is amended to read:
213          73-3-8. Approval or rejection of application -- Requirements for approval --
214     Application for specified period of time -- Filing of royalty contract for removal of salt or
215     minerals -- Request for agency action.
216          (1) (a) It shall be the duty of the state engineer to approve an application if there is
217     reason to believe that:
218          (i) for an application to appropriate, there is unappropriated water in the proposed
219     source;
220          (ii) the proposed use will not impair existing rights or interfere with the more
221     beneficial use of the water;
222          (iii) the proposed plan:
223          (A) is physically and economically feasible, unless the application is filed by the
224     United States Bureau of Reclamation; and
225          (B) would not prove detrimental to the public welfare;

226          (iv) the applicant has the financial ability to complete the proposed works;
227          (v) the application was filed in good faith and not for purposes of speculation or
228     monopoly; and
229          (vi) if applicable, the application complies with a groundwater management plan
230     adopted under Section 73-5-15.
231          (b) If the state engineer, because of information in the state engineer's possession
232     obtained either by the state engineer's own investigation or otherwise, has reason to believe that
233     an application will interfere with the water's more beneficial use for irrigation, municipal and
234     industrial, domestic or culinary, stock watering, power or mining development, or
235     manufacturing, or will unreasonably affect public recreation or the natural stream environment,
236     or will prove detrimental to the public welfare, the state engineer shall withhold approval or
237     rejection of the application until the state engineer has investigated the matter.
238          (c) If an application does not meet the requirements of this section, it shall be rejected.
239          (2) (a) An application to appropriate water for industrial, power, mining development,
240     manufacturing purposes, agriculture, or municipal purposes may be approved for a specific and
241     certain period from the time the water is placed to beneficial use under the application, but in
242     no event may an application be granted for a period of time less than that ordinarily needed to
243     satisfy the essential and primary purpose of the application or until the water is no longer
244     available as determined by the state engineer.
245          (b) At the expiration of the period fixed by the state engineer the water shall revert to
246     the public and is subject to appropriation as provided by this title.
247          (c) No later than 60 calendar days before the expiration date of the fixed time period,
248     the state engineer shall send notice by mail or by any form of electronic communication
249     through which receipt is verifiable, to the applicant of record.
250          (d) Except as provided by Subsection (2)(e), the state engineer may extend any limited
251     water right upon a showing that:
252          (i) the essential purpose of the original application has not been satisfied;
253          (ii) the need for an extension is not the result of any default or neglect by the applicant;

254     and
255          (iii) the water is still available.
256          (e) [No extension shall] An extension may not exceed the time necessary to satisfy the
257     primary purpose of the original application.
258          (f) A request for extension of the fixed time period must be filed in writing in the
259     office of the state engineer on or before the expiration date of the application.
260          (3) (a) Before the approval of any application for the appropriation of water from
261     navigable lakes or streams of the state that contemplates the recovery of salts and other
262     minerals therefrom by precipitation or otherwise, the applicant shall file with the state engineer
263     a copy of a contract for the payment of royalties to the state.
264          (b) The approval of an application shall be revoked [in the event of the failure of the] if
265     the applicant fails to comply with terms of the royalty contract.
266          (4) (a) The state engineer shall investigate all temporary change applications.
267          (b) The state engineer shall:
268          (i) approve the temporary change if the state engineer finds there is reason to believe
269     that [it] the temporary change will not impair an existing right; and
270          (ii) deny the temporary change if the state engineer finds there is reason to believe [it]
271     the temporary change would impair an existing right.
272          (5) (a) With respect to a change application for a permanent or fixed time change:
273          (i) the state engineer shall follow the same procedures provided in this title for
274     approving an application to appropriate water; and
275          (ii) the rights and duties of a change applicant are the same as the rights and duties of a
276     person who applies to appropriate water under this title.
277          (b) The state engineer may waive notice for a permanent or fixed time change
278     application if the application only involves a change in point of diversion of 660 feet or less.
279          (c) The state engineer may condition approval of a change application to prevent an
280     enlargement of the quantity of water depleted by the nature of the proposed use when compared
281     with the nature of the currently approved use of water proposed to be changed.

282          (d) A condition described in Subsection (5)(c) may not include a reduction in the
283     currently approved diversion rate of water under the water right identified in the change
284     application solely to account for the difference in depletion under the nature of the proposed
285     use when compared with the nature of the currently approved use.
286          (6) (a) Except as provided in Subsection (6)(b), the state engineer shall reject a
287     permanent or fixed time change application if the person proposing to make the change is
288     unable to meet the burden described in Subsection 73-3-3(5).
289          (b) If otherwise proper, the state engineer may approve a [permanent or temporary]
290     change application upon one or more of the following conditions:
291          (i) for part of the water involved;
292          (ii) that the applicant acquire a conflicting right; or
293          (iii) that the applicant provide and implement a plan approved by the state engineer to
294     mitigate impairment of an existing right.
295          (c) (i) There is a rebuttable presumption of quantity impairment, as defined in
296     [Subsection 73-3-3(1)] Section 73-3-3, to the extent that, for a period of at least seven
297     consecutive years, a portion of the right identified in a change application has not been:
298          (A) diverted from the approved point of diversion; or
299          (B) beneficially used at the approved place of use.
300          (ii) The rebuttable presumption described in Subsection (6)(c)(i) does not apply if the
301     beneficial use requirement is excused by:
302          (A) Subsection 73-1-4(2)(e);
303          (B) an approved nonuse application under Subsection 73-1-4(2)(b);
304          (C) Subsection 73-3-30(7); or
305          (D) the passage of time under Subsection 73-1-4(2)(c)(i).
306          (d) The state engineer may not consider quantity impairment based on the conditions
307     described in Subsection (6)(c) unless the issue is raised in a:
308          (i) timely protest that identifies which of the protestant's existing rights the protestant
309     reasonably believes will experience quantity impairment; or

310          (ii) written notice provided by the state engineer to the applicant within 90 days after
311     the change application is filed.
312          (e) The written notice described in Subsection (6)(d)(ii) shall:
313          (i) specifically identify an existing right the state engineer reasonably believes may
314     experience quantity impairment; and
315          (ii) be mailed to the owner of an identified right, as shown by the state engineer's
316     records, if the owner has not protested the change application.
317          (f) The state engineer is not required to include all rights the state engineer believes
318     may be impaired by the proposed change in the written notice described in Subsection
319     (6)(d)(ii).
320          (g) The owner of a right who receives the written notice described in Subsection
321     (6)(d)(ii) may not become a party to the administrative proceeding if the owner has not filed a
322     timely protest.
323          (h) If a change applicant, [all] the protestants, and [all] the persons identified by the
324     state engineer under Subsection (6)(d)(ii) come to a written agreement regarding how the issue
325     of quantity impairment shall be mitigated, the state engineer may incorporate the terms of the
326     agreement into a change application approval.
327          Section 5. Section 73-3-16 is amended to read:
328          73-3-16. Proof of appropriation or change -- Notice -- Manner of proof --
329     Statements -- Maps, profiles, and drawings -- Verification -- Waiver of filing -- Statement
330     in lieu of proof of appropriation or change.
331          (1) Sixty days before the date set for the proof of appropriation or proof of change to be
332     made, the state engineer shall notify the applicant by mail when proof of completion of the
333     works and application of the water to a beneficial use is due.
334          (2) On or before the date set for completing the proof in accordance with the
335     application, the applicant shall file proof with the state engineer on forms furnished by the state
336     engineer.
337          (3) Except as provided in Subsection (4), the applicant shall submit the following

338     information:
339          (a) a description of the works constructed;
340          (b) the quantity of water in acre-feet or the flow in second-feet diverted, or both;
341          (c) the method of applying the water to beneficial use; and
342          (d) (i) detailed measurements of water put to beneficial use;
343          (ii) the date the measurements were made; and
344          (iii) the name of the person making the measurements.
345          (4) (a) (i) On applications filed for appropriation or permanent change of use of water
346     to provide a water supply for state projects constructed pursuant to Title 73, Chapter 10, Board
347     of Water Resources - Division of Water Resources, or for federal projects constructed by the
348     United States Bureau of Reclamation for the use and benefit of the state, any of its agencies, its
349     political subdivisions, public and quasi-municipal corporations, or water users' associations of
350     which the state, its agencies, political subdivisions, or public and quasi-municipal corporations
351     are stockholders, the proof shall include:
352          (A) a statement indicating construction of the project works has been completed;
353          (B) a description of the major features with appropriate maps, profiles, drawings, and
354     reservoir area-capacity curves;
355          (C) a description of the point or points of diversion and rediversion;
356          (D) project operation data;
357          (E) a map showing the place of use of water and a statement of the purpose and method
358     of use;
359          (F) the project plan for beneficial use of water under the applications and the quantity
360     of water required; and
361          (G) a statement indicating what type of measuring devices have been installed.
362          (ii) The director of the Division of Water Resources shall sign proofs for the state
363     projects and an authorized official of the Bureau of Reclamation shall sign proofs for the
364     federal projects specified in Subsection (4)(a)(i).
365          (b) Proof on an application for appropriation or permanent change for a surface storage

366     facility in excess of 1,000 acre-feet constructed by a public water supplier to provide a water
367     supply for the reasonable requirements of the public shall include:
368          (i) a description of the completed water storage facility;
369          (ii) a description of the major project features and appropriate maps, profiles, drawings,
370     and reservoir area-capacity curves as required by the state engineer;
371          (iii) the quantity of water stored in acre-feet;
372          (iv) a description of the water distribution facility for the delivery of the water; and
373          (v) the project plan for beneficial use of water including any existing contracts for
374     water delivery.
375          (5) The proof on all applications shall be sworn to by the applicant or the applicant's
376     appointed representative.
377          (6) (a) Except as provided in Subsection (6)(b), when filing proof, the applicant shall
378     submit maps, profiles, and drawings made by a Utah licensed land surveyor or Utah licensed
379     professional engineer that show:
380          (i) the location of the completed works;
381          (ii) the nature and extent of the completed works;
382          (iii) the natural stream or source from which and the point where the water is diverted
383     and, in the case of a nonconsumptive use, the point where the water is returned; and
384          (iv) the place of use.
385          (b) The state engineer may waive the filing of maps, profiles, and drawings if in the
386     state engineer's opinion the written proof adequately describes the works and the nature and
387     extent of beneficial use.
388          (7) In those areas in which general determination proceedings are pending, or have
389     been concluded, under Title 73, Chapter 4, Determination of Water Rights, the state engineer
390     may petition the district court for permission to:
391          (a) waive the requirements of this section and Section 73-3-17; and
392          (b) permit each owner of an application to file a verified statement to the effect that the
393     applicant has completed the appropriation or change and elects to file a statement of water

394     users claim in the proposed determination of water rights or any supplement to it in accordance
395     with Title 73, Chapter 4, Determination of Water Rights, in lieu of proof of appropriation or
396     proof of change.
397          (8) This section does not apply to [an instream flow water right authorized by Section
398     73-3-30] a fixed time or temporary change application.
399          Section 6. Section 73-3-30 is amended to read:
400          73-3-30. Change application for an instream flow.
401          (1) As used in this section:
402          (a) "Division" means the Division of Wildlife Resources, created in Section 23-14-1,
403     or the Division of Parks and Recreation, created in Section 79-4-201.
404          (b) "Fishing group" means an organization that:
405          (i) is exempt from taxation under Section 501(c)(3), Internal Revenue Code; and
406          (ii) promotes fishing opportunities in the state.
407          [(c) "Fixed time change" means a change in a water right's point of diversion, place of
408     use, or purpose of use for a fixed period of time longer than one year but not longer than 10
409     years.]
410          (2) (a) A division may file a [permanent or temporary] change application, as provided
411     by Section 73-3-3, for the purpose of providing water for an instream flow, within a specified
412     section of a natural or altered stream channel, necessary within the state for:
413          (i) the propagation of fish;
414          (ii) public recreation; or
415          (iii) the reasonable preservation or enhancement of the natural stream environment.
416          (b) A division may file a change application on:
417          (i) a perfected water right:
418          (A) presently owned by the division;
419          (B) purchased by the division for the purpose of providing water for an instream flow,
420     through funding provided for that purpose by legislative appropriation; or
421          (C) acquired by lease, agreement, gift, exchange, or contribution; or

422          (ii) an appurtenant water right acquired with the acquisition of real property by the
423     division.
424          (c) A division may:
425          (i) purchase a water right for the purposes provided in Subsection (2)(a) only with
426     funds specifically appropriated by the Legislature for water rights purchases; or
427          (ii) accept a donated water right without legislative approval.
428          (d) A division may not acquire water rights by eminent domain for an instream flow or
429     for any other purpose.
430          (3) (a) A fishing group may file a fixed time change application on a perfected,
431     consumptive water right for the purpose of providing water for an instream flow, within a
432     specified section of a natural or altered stream channel, to protect or restore habitat for three
433     native trout:
434          (i) the Bonneville cutthroat;
435          (ii) the Colorado River cutthroat; or
436          (iii) the Yellowstone cutthroat.
437          (b) Before filing an application authorized by Subsection (3)(a) to change a
438     shareholder's proportionate share of water, the water company shall submit the decision to
439     approve or deny the change request required by Subsection 73-3-3.5(3) to a vote of the
440     shareholders:
441          (i) in a manner outlined in the water company's articles of incorporation or bylaws;
442          (ii) at an annual or regular meeting described in Section 16-6a-701; or
443          (iii) at a special meeting convened under Section 16-6a-702.
444          (c) The specified section of the natural or altered stream channel for the instream flow
445     may not be further upstream than the water right's original point of diversion nor extend further
446     downstream than the next physical point of diversion made by another person.
447          (d) The fishing group shall receive the Division of Wildlife Resources' director's
448     approval of the proposed change before filing the fixed time change application with the state
449     engineer.

450          (e) The director of the Division of Wildlife Resources may approve a proposed change
451     if:
452          (i) the specified section of the stream channel is historic or current habitat for a species
453     listed in Subsections (3)(a)(i) through (iii);
454          (ii) the proposed purpose of use is consistent with an existing state management or
455     recovery plan for that species; and
456          (iii) the fishing group has:
457          (A) entered into a programmatic Candidate Conservation Agreement with Assurances
458     with the United States Fish and Wildlife Service, as authorized by 16 U.S.C. Secs. 1531(a)(5)
459     and 1536(a)(1), that gives the water right holder the option to receive an enhancement of
460     survival permit, as authorized by 16 U.S.C. Sec. 1539(a)(1)(A), or a certificate of inclusion, for
461     a fixed time change application that benefits a candidate species of trout; or
462          (B) until a programmatic Candidate Conservation Agreement with Assurances
463     described in Subsection (3)(e)(iii)(A) becomes valid and enforceable, entered into a contract
464     with the water right holder agreeing to defend and indemnify the water right holder for liability
465     under Section 1538(a) of the Endangered Species Act, 16 U.S.C. Secs. 1531 through 1544, for
466     an action taken by the water right holder under the terms of the water right holder's agreement
467     with the fishing group for a fixed time change application.
468          (f) The director may deny a proposed change if the proposed change would not be in
469     the public's interest.
470          (g) (i) In considering a fixed time change application, the state engineer shall follow
471     the same procedures as provided in this title for an application to appropriate water.
472          (ii) The rights and the duties of a fixed time change applicant are the same as provided
473     in this title for an applicant to appropriate water.
474          (h) A fishing group may refile a fixed time change application by filing a written
475     request with the state engineer no later than 60 days before the application expires.
476          (i) (i) The water right for which the state engineer has approved a fixed time change
477     application will automatically revert to the point of diversion and place and purpose of use that

478     existed before the approved fixed time change application when the fixed time change
479     application expires or is terminated.
480          (ii) The applicant shall give written notice to the state engineer and the lessor, if
481     applicable, if the applicant wishes to terminate a fixed time change application before the fixed
482     time change application expires.
483          (4) In addition to the requirements of Section 73-3-3, an application authorized by this
484     section shall:
485          (a) set forth the legal description of the points on the stream channel between which the
486     instream flow will be provided by the change application; and
487          (b) include appropriate studies, reports, or other information required by the state
488     engineer demonstrating the necessity for the instream flow in the specified section of the
489     stream and the projected benefits to the public resulting from the change.
490          (5) (a) For a permanent change application or a fixed time change application filed
491     according to this section, 60 days before the date on which proof of change for an instream
492     flow is due, the state engineer shall notify the applicant by mail or by any form of
493     communication through which receipt is verifiable of the date when proof of change is due.
494          (b) Before the date when proof of change is due, the applicant must either:
495          (i) file a verified statement with the state engineer that the instream flow uses have
496     been perfected, setting forth:
497          (A) the legal description of the points on the stream channel between which the
498     instream flow is provided;
499          (B) detailed measurements of the flow of water in second-feet changed;
500          (C) the period of use; and
501          (D) any additional information required by the state engineer; or
502          (ii) apply for a further extension of time as provided for in Section 73-3-12.
503          (c) (i) Upon acceptance of the verified statement required under Subsection (5)(b)(i),
504     the state engineer shall issue a certificate of change for instream flow use in accordance with
505     Section 73-3-17.

506          (ii) The certificate expires at the same time the fixed time change application expires.
507          (6) [No] A person may not appropriate unappropriated water under Section 73-3-2 for
508     the purpose of providing an instream flow.
509          (7) Water used in accordance with this section is considered to be beneficially used, as
510     required by Section 73-3-1.
511          (8) A physical structure or physical diversion from the stream is not required to
512     implement a change for instream flow use.
513          (9) This section does not allow enlargement of the water right that the applicant seeks
514     to change.
515          (10) A change application authorized by this section may not impair a vested water
516     right, including a water right used to generate hydroelectric power.
517          (11) The state engineer or the water commissioner shall distribute water under an
518     approved or a certificated instream flow change application according to the change
519     application's priority date relative to the other water rights located within the stream section
520     specified in the change application for instream flow.
521          (12) An approved fixed time change application does not create a right of access across
522     private property or allow any infringement of a private property right.