7 LONG TITLE
8 Committee Note:
9 The Legislative Water Development Commission recommended this bill.
10 Membership: 13 legislators 11 non-legislators
11 Total Vote: 8 voting for 1 voting against 4 absent
12 Legislative Vote: 8 voting for 1 voting against 4 absent
13 General Description:
14 This bill makes changes related to change applications for certain uses of water.
15 Highlighted Provisions:
16 This bill:
17 ▸ defines terms;
18 ▸ provides that certain entities or individuals may file a change application to provide
19 water for an instream flow or for use on sovereign lands;
20 ▸ amends the process by which a change application for instream flow or use on
21 sovereign lands is considered; and
22 ▸ makes technical and conforming changes.
23 Money Appropriated in this Bill:
25 Other Special Clauses:
27 Utah Code Sections Affected:
29 73-3-3, as last amended by Laws of Utah 2020, Chapter 421
30 73-3-8, as last amended by Laws of Utah 2020, Chapter 421
31 73-3-30, as last amended by Laws of Utah 2021, Chapter 280
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 73-3-3 is amended to read:
35 73-3-3. Changes to a water right.
36 (1) [
37 (a) "Change" means a change to the:
38 (i) point of diversion;
39 (ii) place of use;
40 (iii) period of use;
41 (iv) nature of use; or
42 (v) storage of water.
43 (b) "Fixed time change" means a change for a fixed period of time exceeding one year
44 and not exceeding 10 years, including a fixed time change described in Section 73-3-30.
45 (c) "Permanent change" means a change, for an indefinite period of time, including a
46 permanent change described in Section 73-3-30.
47 (d) "Person entitled to the use of water" means:
48 (i) the holder of an approved but unperfected application to appropriate water;
49 (ii) the record owner of a perfected water right;
50 (iii) a person who has written authorization from a person described in Subsection
51 (1)(d)(i) or (ii) to file a change application on that person's behalf; or
52 (iv) a shareholder in a water company who is authorized to file a change application in
53 accordance with Section 73-3-3.5.
54 (e) (i) "Quantity impairment" means any reduction in the amount of water a person is
55 able to receive in order to satisfy an existing right to the use of water that would result from an
56 action proposed in a change application, including:
57 (A) diminishing the quantity of water in the source of supply for the existing right;
58 (B) a change in the timing of availability of water from the source of supply for the
59 existing right; or
60 (C) enlarging the quantity of water depleted by the nature of the proposed use when
61 compared with the nature of the currently approved use.
62 (ii) "Quantity impairment" does not mean a decrease in the static level of water in an
63 underground basin or aquifer that would result from an action proposed to be taken in a change
64 application, if the volume of water necessary to satisfy an existing right otherwise remains
65 reasonably available.
66 (f) "Split season change" means a change when the holder of a perfected right grants to
67 a water user the right to make sequential use of a portion of the water right.
68 (g) "Temporary change" means a change for a period of time, not exceeding one year,
69 including a temporary change described in Section 73-3-30.
70 (2) (a) A person who proposes to file a change application may request consultation
71 with the state engineer, or the state engineer's designee, before filing the application to review
72 the requirements of the change application process, discuss potential issues related to the
73 change, and provide the applicant with information.
74 (b) Statements made and information presented in the consultation are not binding on
75 the applicant or the state engineer.
76 (c) The consultation described in Subsection (2)(a) may occur in the state engineer's
77 regional office for the region where the proposed change would occur.
78 (3) (a) A person entitled to the use of water may make a change to an existing right to
79 use water, including a right involved in a general determination of rights or other suit, if:
80 (i) the person makes the change in accordance with this section;
81 (ii) except as provided by Section 73-3-30, the change does not impair an existing right
82 without just compensation or adequate mitigation; and
83 (iii) the state engineer approves the change application, consistent with Section 73-3-8.
84 (b) A change application on a federal reclamation project water right shall be signed
86 (i) the local water users organization that is contractually responsible for:
87 (A) the operation and maintenance of the project; or
88 (B) the repayment of project costs; and
89 (ii) the record owner of the water right.
90 (c) A change application on a United States Indian Irrigation Service water right that is
91 serving the needs of a township or municipality shall be signed by:
92 (i) the local public water supplier that is responsible for the operation and maintenance
93 of the public water supply system; and
94 (ii) the record owner of the water right.
95 (4) (a) Before making a change, a person entitled to the use of water shall submit a
96 change application upon forms furnished by the state engineer.
97 (b) The application described in Subsection (4)(a) shall include:
98 (i) the applicant's name;
99 (ii) the water right description, including the water right number;
100 (iii) the water quantity;
101 (iv) the stream or water source;
102 (v) if applicable, the point on the stream or water source where the water is diverted;
103 (vi) if applicable, the point to which it is proposed to change the diversion of the water;
104 (vii) the place, nature, period, and extent of the currently approved use;
105 (viii) the place, nature, period, and extent of the proposed use;
106 (ix) if the change applicant is submitting a change application in accordance with
107 Section 73-3-3.5, the information required by Section 73-3-3.5;
108 (x) any proposed change to the storage of water; and
109 (xi) any other information that the state engineer requires.
110 (c) A shareholder in a water company who seeks to make a change to a water right to
111 which the water company is the record owner shall file a change application in accordance with
112 Section 73-3-3.5.
113 (5) In a proceeding before the state engineer, the applicant has the burden of producing
114 evidence sufficient to support a reasonable belief that the change can be made in compliance
115 with this section and Section 73-3-8, including evidence:
116 (a) that the change will not cause a specific existing right to experience quantity
117 impairment; or
118 (b) if applicable, rebutting the presumption of quantity impairment described in
119 Subsection 73-3-8(6)(c).
120 (6) A change of an approved application to appropriate water does not:
121 (a) affect the priority of the original application to appropriate water; or
122 (b) extend the time period within which the construction of work is to begin or be
124 (7) Any person who makes a change without first filing and obtaining approval of a
125 change application providing for the change:
126 (a) obtains no right by the change;
127 (b) is guilty of an offense punishable under Section 73-2-27 if the change is made
128 knowingly or intentionally; and
129 (c) shall comply with the change application process.
130 (8) (a) This section does not apply to the replacement of an existing well by a new well
131 drilled within a radius of 150 feet from the point of diversion of the existing well.
132 (b) A replacement well must be drilled in accordance with the requirements of Section
134 Section 2. Section 73-3-8 is amended to read:
135 73-3-8. Approval or rejection of application -- Requirements for approval --
136 Application for specified period of time -- Filing of royalty contract for removal of salt or
137 minerals -- Request for agency action.
138 (1) (a) It shall be the duty of the state engineer to approve an application if there is
139 reason to believe that:
140 (i) for an application to appropriate, there is unappropriated water in the proposed
142 (ii) the proposed use will not impair existing rights or interfere with the more
143 beneficial use of the water;
144 (iii) the proposed plan:
145 (A) is physically and economically feasible, unless the application is filed by the
146 United States Bureau of Reclamation; and
147 (B) would not prove detrimental to the public welfare;
148 (iv) the applicant has the financial ability to complete the proposed works;
149 (v) the application was filed in good faith and not for purposes of speculation or
150 monopoly; and
151 (vi) if applicable, the application complies with a groundwater management plan
152 adopted under Section 73-5-15.
153 (b) If the state engineer, because of information in the state engineer's possession
154 obtained either by the state engineer's own investigation or otherwise, has reason to believe that
155 an application will interfere with the water's more beneficial use for irrigation, municipal and
156 industrial, domestic or culinary, stock watering, power or mining development, or
157 manufacturing, or will unreasonably affect public recreation or the natural stream environment,
158 or will prove detrimental to the public welfare, the state engineer shall withhold approval or
159 rejection of the application until the state engineer has investigated the matter.
160 (c) If an application does not meet the requirements of this section, it shall be rejected.
161 (2) (a) An application to appropriate water for industrial, power, mining development,
162 manufacturing purposes, agriculture, or municipal purposes may be approved for a specific and
163 certain period from the time the water is placed to beneficial use under the application, but in
164 no event may an application be granted for a period of time less than that ordinarily needed to
165 satisfy the essential and primary purpose of the application or until the water is no longer
166 available as determined by the state engineer.
167 (b) At the expiration of the period fixed by the state engineer the water shall revert to
168 the public and is subject to appropriation as provided by this title.
169 (c) No later than 60 calendar days before the expiration date of the fixed time period,
170 the state engineer shall send notice by mail or by any form of electronic communication
171 through which receipt is verifiable, to the applicant of record.
172 (d) Except as provided by Subsection (2)(e), the state engineer may extend any limited
173 water right upon a showing that:
174 (i) the essential purpose of the original application has not been satisfied;
175 (ii) the need for an extension is not the result of any default or neglect by the applicant;
177 (iii) the water is still available.
178 (e) An extension may not exceed the time necessary to satisfy the primary purpose of
179 the original application.
180 (f) A request for extension of the fixed time period must be filed in writing in the
181 office of the state engineer on or before the expiration date of the application.
182 (3) (a) Before the approval of any application for the appropriation of water from
183 navigable lakes or streams of the state that contemplates the recovery of salts and other
184 minerals therefrom by precipitation or otherwise, the applicant shall file with the state engineer
185 a copy of a contract for the payment of royalties to the state.
186 (b) The approval of an application shall be revoked if the applicant fails to comply with
187 terms of the royalty contract.
188 (4) (a) The state engineer shall investigate all temporary change applications.
189 (b) The state engineer shall:
190 (i) approve the temporary change if the state engineer finds there is reason to believe
191 that the temporary change will not impair an existing right; and
192 (ii) deny the temporary change if the state engineer finds there is reason to believe the
193 temporary change would impair an existing right.
194 (5) (a) With respect to a change application for a permanent or fixed time change:
195 (i) the state engineer shall follow the same procedures provided in this title for
196 approving an application to appropriate water; and
197 (ii) the rights and duties of a change applicant are the same as the rights and duties of a
198 person who applies to appropriate water under this title.
199 (b) The state engineer may waive notice for a permanent or fixed time change
200 application if the application only involves a change in point of diversion of 660 feet or less.
201 (c) The state engineer may condition approval of a change application to prevent an
202 enlargement of the quantity of water depleted by the nature of the proposed use when compared
203 with the nature of the currently approved use of water proposed to be changed.
204 (d) A condition described in Subsection (5)(c) may not include a reduction in the
205 currently approved diversion rate of water under the water right identified in the change
206 application solely to account for the difference in depletion under the nature of the proposed
207 use when compared with the nature of the currently approved use.
208 (6) (a) Except as provided in Subsection (6)(b), the state engineer shall reject a
209 permanent or fixed time change application if the person proposing to make the change is
210 unable to meet the burden described in Subsection 73-3-3(5).
211 (b) If otherwise proper, the state engineer may approve a change application upon one
212 or more of the following conditions:
213 (i) for part of the water involved;
214 (ii) that the applicant acquire a conflicting right; or
215 (iii) that the applicant provide and implement a plan approved by the state engineer to
216 mitigate impairment of an existing right.
217 (c) (i) There is a rebuttable presumption of quantity impairment, as defined in Section
218 73-3-3, to the extent that, for a period of at least seven consecutive years, a portion of the right
219 identified in a change application has not been:
220 (A) diverted from the approved point of diversion; or
221 (B) beneficially used at the approved place of use.
222 (ii) The rebuttable presumption described in Subsection (6)(c)(i) does not apply if the
223 beneficial use requirement is excused by:
224 (A) Subsection 73-1-4(2)(e);
225 (B) an approved nonuse application under Subsection 73-1-4(2)(b);
226 (C) Subsection 73-3-30[
227 (D) the passage of time under Subsection 73-1-4(2)(c)(i).
228 (d) The state engineer may not consider quantity impairment based on the conditions
229 described in Subsection (6)(c) unless the issue is raised in a:
230 (i) timely protest that identifies which of the protestant's existing rights the protestant
231 reasonably believes will experience quantity impairment; or
232 (ii) written notice provided by the state engineer to the applicant within 90 days after
233 the change application is filed.
234 (e) The written notice described in Subsection (6)(d)(ii) shall:
235 (i) specifically identify an existing right the state engineer reasonably believes may
236 experience quantity impairment; and
237 (ii) be mailed to the owner of an identified right, as shown by the state engineer's
238 records, if the owner has not protested the change application.
239 (f) The state engineer is not required to include all rights the state engineer believes
240 may be impaired by the proposed change in the written notice described in Subsection
242 (g) The owner of a right who receives the written notice described in Subsection
243 (6)(d)(ii) may not become a party to the administrative proceeding if the owner has not filed a
244 timely protest.
245 (h) If a change applicant, the protestants, and the persons identified by the state
246 engineer under Subsection (6)(d)(ii) come to a written agreement regarding how the issue of
247 quantity impairment shall be mitigated, the state engineer may incorporate the terms of the
248 agreement into a change application approval.
249 Section 3. Section 73-3-30 is amended to read:
250 73-3-30. Change application for an instream flow.
251 (1) As used in this section:
252 (a) "Division" means the Division of Wildlife Resources[
254 and State Lands created in Section 65A-1-4.
261 (b) "Person entitled to the use of water" means the same as that term is defined in
262 Section 73-3-3.
263 (c) "Sovereign lands" means the same as that term is defined in Section 65A-1-1.
264 (d) "Wildlife" means species of animals, including mammals, birds, fish, reptiles,
265 amphibians, mollusks, and crustaceans, that are protected or regulated by a statute, law,
266 regulation, ordinance, or administrative rule.
267 (2) (a) Pursuant to Section 73-3-3, a division may file a permanent change application,
268 a fixed time change application, or a temporary change application, or a person entitled to the
269 use of water may file a fixed time change application or a temporary change application, to
270 provide water within the state for:
271 (i) an instream flow within a specified section of a natural or altered stream channel; or
272 (ii) use on sovereign lands.
273 (b) The state engineer may not approve a change application filed under this section
274 unless the proposed instream flow or use on sovereign lands will contribute to:
275 (i) the propagation or maintenance of [
276 (ii) [
277 (iii) the reasonable preservation or enhancement of the natural [
280 (i) a perfected water right:
281 (A) presently owned by the division;
282 (B) purchased by the division for the purpose of providing water for an instream flow
283 or use on sovereign lands, through funding provided for that purpose by legislative
284 appropriation; or
285 (C) [
286 (ii) an appurtenant water right acquired with the acquisition of real property by the
289 (i) purchase a water right for the purposes [
290 only with funds specifically appropriated by the Legislature for water rights purchases; or
291 (ii) accept a donated water right without legislative approval.
293 flow, use on sovereign lands, or for any other purpose.
312 (3) (a) A person entitled to the use of water shall obtain a division director's approval
313 of the proposed change before filing [
314 change application with the state engineer.
315 (b) By approving a proposed fixed time change application or temporary change
316 application, a division director attests that the water that is the subject of the application can be
317 used consistent with the statutory mandates of the director's division.
351 (4) In addition to the requirements of Section 73-3-3, an application authorized by this
352 section shall include:
353 (a) [
355 (i) the segment of the natural or altered stream channel that will be the place of use for
356 an instream flow; or
357 (ii) the location where the water will be used on sovereign lands; and
358 (b) [
359 engineer demonstrating [
361 (i) the projected benefits to the public resulting from the change[
362 (ii) the necessity for the proposed instream flow or use on sovereign lands.
381 the purpose of providing an instream flow or use on sovereign lands.
383 used, as required by Section 73-3-1.
385 implement a change [
395 not create a right of access across private property or allow any infringement of a private
396 property right.