Chief Sponsor: David P. Hinkins

House Sponsor: Scott H. Chew


8     General Description:
9          This bill modifies provisions related to instream flow.
10     Highlighted Provisions:
11          This bill:
12          ▸     allows for certain change applications related to delivery of water to reservoirs; and
13          ▸     makes technical changes.
14     Money Appropriated in this Bill:
15          None
16     Other Special Clauses:
17          None
18     Utah Code Sections Affected:
19     AMENDS:
20          73-3-8, as last amended by Laws of Utah 2022, Chapter 43
21          73-3-30, as last amended by Laws of Utah 2022, Chapter 43

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 73-3-8 is amended to read:
25          73-3-8. Approval or rejection of application -- Requirements for approval --
26     Application for specified period of time -- Filing of royalty contract for removal of salt or
27     minerals -- Request for agency action.
28          (1) (a) It shall be the duty of the state engineer to approve an application if there is
29     reason to believe that:

30          (i) for an application to appropriate, there is unappropriated water in the proposed
31     source;
32          (ii) the proposed use will not impair existing rights or interfere with the more
33     beneficial use of the water;
34          (iii) the proposed plan:
35          (A) is physically and economically feasible, unless the application is filed by the
36     United States Bureau of Reclamation; and
37          (B) would not prove detrimental to the public welfare;
38          (iv) the applicant has the financial ability to complete the proposed works;
39          (v) the application was filed in good faith and not for purposes of speculation or
40     monopoly; and
41          (vi) if applicable, the application complies with a groundwater management plan
42     adopted under Section 73-5-15.
43          (b) If the state engineer, because of information in the state engineer's possession
44     obtained either by the state engineer's own investigation or otherwise, has reason to believe that
45     an application will interfere with the water's more beneficial use for irrigation, municipal and
46     industrial, domestic or culinary, stock watering, power or mining development, or
47     manufacturing, or will unreasonably affect public recreation or the natural stream environment,
48     or will prove detrimental to the public welfare, the state engineer shall withhold approval or
49     rejection of the application until the state engineer has investigated the matter.
50          (c) If an application does not meet the requirements of this section, it shall be rejected.
51          (2) (a) An application to appropriate water for industrial, power, mining development,
52     manufacturing purposes, agriculture, or municipal purposes may be approved for a specific and
53     certain period from the time the water is placed to beneficial use under the application, but in
54     no event may an application be granted for a period of time less than that ordinarily needed to
55     satisfy the essential and primary purpose of the application or until the water is no longer
56     available as determined by the state engineer.
57          (b) At the expiration of the period fixed by the state engineer the water shall revert to

58     the public and is subject to appropriation as provided by this title.
59          (c) No later than 60 calendar days before the expiration date of the fixed time period,
60     the state engineer shall send notice by mail or by any form of electronic communication
61     through which receipt is verifiable, to the applicant of record.
62          (d) Except as provided by Subsection (2)(e), the state engineer may extend any limited
63     water right upon a showing that:
64          (i) the essential purpose of the original application has not been satisfied;
65          (ii) the need for an extension is not the result of any default or neglect by the applicant;
66     and
67          (iii) the water is still available.
68          (e) An extension may not exceed the time necessary to satisfy the primary purpose of
69     the original application.
70          (f) A request for extension of the fixed time period must be filed in writing in the
71     office of the state engineer on or before the expiration date of the application.
72          (3) (a) Before the approval of any application for the appropriation of water from
73     navigable lakes or streams of the state that contemplates the recovery of salts and other
74     minerals therefrom by precipitation or otherwise, the applicant shall file with the state engineer
75     a copy of a contract for the payment of royalties to the state.
76          (b) The approval of an application shall be revoked if the applicant fails to comply with
77     terms of the royalty contract.
78          (4) (a) The state engineer shall investigate all temporary change applications.
79          (b) The state engineer shall:
80          (i) approve the temporary change if the state engineer finds there is reason to believe
81     that the temporary change will not impair an existing right; and
82          (ii) deny the temporary change if the state engineer finds there is reason to believe the
83     temporary change would impair an existing right.
84          (5) (a) With respect to a change application for a permanent or fixed time change:
85          (i) the state engineer shall follow the same procedures provided in this title for

86     approving an application to appropriate water; and
87          (ii) the rights and duties of a change applicant are the same as the rights and duties of a
88     person who applies to appropriate water under this title.
89          (b) The state engineer may waive notice for a permanent or fixed time change
90     application if the application only involves a change in point of diversion of 660 feet or less.
91          (c) The state engineer may condition approval of a change application to prevent an
92     enlargement of the quantity of water depleted by the nature of the proposed use when compared
93     with the nature of the currently approved use of water proposed to be changed.
94          (d) A condition described in Subsection (5)(c) may not include a reduction in the
95     currently approved diversion rate of water under the water right identified in the change
96     application solely to account for the difference in depletion under the nature of the proposed
97     use when compared with the nature of the currently approved use.
98          (6) (a) Except as provided in Subsection (6)(b), the state engineer shall reject a
99     permanent or fixed time change application if the person proposing to make the change is
100     unable to meet the burden described in Subsection 73-3-3(5).
101          (b) If otherwise proper, the state engineer may approve a change application upon one
102     or more of the following conditions:
103          (i) for part of the water involved;
104          (ii) that the applicant acquire a conflicting right; or
105          (iii) that the applicant provide and implement a plan approved by the state engineer to
106     mitigate impairment of an existing right.
107          (c) (i) There is a rebuttable presumption of quantity impairment, as defined in Section
108     73-3-3, to the extent that, for a period of at least seven consecutive years, a portion of the right
109     identified in a change application has not been:
110          (A) diverted from the approved point of diversion; or
111          (B) beneficially used at the approved place of use.
112          (ii) The rebuttable presumption described in Subsection (6)(c)(i) does not apply if the
113     beneficial use requirement is excused by:

114          (A) Subsection 73-1-4(2)(e);
115          (B) an approved nonuse application under Subsection 73-1-4(2)(b);
116          (C) Subsection [73-3-30(6)] 73-3-30(7); or
117          (D) the passage of time under Subsection 73-1-4(2)(c)(i).
118          (d) The state engineer may not consider quantity impairment based on the conditions
119     described in Subsection (6)(c) unless the issue is raised in a:
120          (i) timely protest that identifies which of the protestant's existing rights the protestant
121     reasonably believes will experience quantity impairment; or
122          (ii) written notice provided by the state engineer to the applicant within 90 days after
123     the change application is filed.
124          (e) The written notice described in Subsection (6)(d)(ii) shall:
125          (i) specifically identify an existing right the state engineer reasonably believes may
126     experience quantity impairment; and
127          (ii) be mailed to the owner of an identified right, as shown by the state engineer's
128     records, if the owner has not protested the change application.
129          (f) The state engineer is not required to include all rights the state engineer believes
130     may be impaired by the proposed change in the written notice described in Subsection
131     (6)(d)(ii).
132          (g) The owner of a right who receives the written notice described in Subsection
133     (6)(d)(ii) may not become a party to the administrative proceeding if the owner has not filed a
134     timely protest.
135          (h) If a change applicant, the protestants, and the persons identified by the state
136     engineer under Subsection (6)(d)(ii) come to a written agreement regarding how the issue of
137     quantity impairment shall be mitigated, the state engineer may incorporate the terms of the
138     agreement into a change application approval.
139          Section 2. Section 73-3-30 is amended to read:
140          73-3-30. Change application for an instream flow -- Change application for
141     delivery to a reservoir.

142          (1) As used in this section:
143          (a) "Colorado River System" means the same as that term is defined in Sections
144     73-12a-2 and 73-13-10.
145          (b) "Division" means the Division of Wildlife Resources created in Section 23-14-1,
146     the Division of State Parks created in Section 79-4-201, or the Division of Forestry, Fire, and
147     State Lands created in Section 65A-1-4.
148          [(b)] (c) "Person entitled to the use of water" means the same as that term is defined in
149     Section 73-3-3.
150          [(c)] (d) "Sovereign lands" means the same as that term is defined in Section 65A-1-1.
151          [(d)] (e) "Wildlife" means species of animals, including mammals, birds, fish, reptiles,
152     amphibians, mollusks, and crustaceans, that are protected or regulated by a statute, law,
153     regulation, ordinance, or administrative rule.
154          (2) (a) Pursuant to Section 73-3-3, a division may file a permanent change application,
155     a fixed time change application, or a temporary change application, or a person entitled to the
156     use of water may file a fixed time change application or a temporary change application, to
157     provide water within the state for:
158          (i) an instream flow within a specified section of a natural or altered stream; or
159          (ii) use on sovereign lands.
160          (b) The state engineer may not approve a change application filed under this [section]
161     Subsection (2) unless the proposed instream flow or use on sovereign lands will contribute to:
162          (i) the propagation or maintenance of wildlife;
163          (ii) the management of state parks; or
164          (iii) the reasonable preservation or enhancement of the natural aquatic environment.
165          (c) A division may file a change application on:
166          (i) a perfected water right:
167          (A) presently owned by the division;
168          (B) purchased by the division for the purpose of providing water for an instream flow
169     or use on sovereign lands, through funding provided for that purpose by legislative

170     appropriation; or
171          (C) secured by lease, agreement, gift, exchange, or contribution; or
172          (ii) an appurtenant water right acquired with the acquisition of real property by the
173     division.
174          (d) A division may:
175          (i) purchase a water right for the purposes described in Subsection (2)(a) only with
176     funds specifically appropriated by the Legislature for water rights purchases; or
177          (ii) accept a donated water right without legislative approval.
178          (e) A division may not acquire water rights by eminent domain for an instream flow,
179     use on sovereign lands, or for any other purpose.
180          (3) (a) A person entitled to the use of water shall obtain a division director's approval
181     of the proposed change before filing a fixed time change application or a temporary change
182     application with the state engineer.
183          (b) By approving a proposed fixed time change application or temporary change
184     application, a division director attests that the water that is the subject of the application can be
185     used consistent with the statutory mandates of the director's division.
186          (4) (a) Pursuant to Section 73-3-3, a person entitled to the use of water may file a fixed
187     time change application or a temporary change application for a project to deliver water to a
188     reservoir located partially or entirely within the Colorado River System in the state in
189     accordance with:
190          (i) Colorado River Drought Contingency Plan Authorization Act, Public Law 116-14;
191          (ii) a water conservation program funded by the Bureau of Reclamation; or
192          (iii) a water conservation program authorized by the state.
193          (b) Before filing a change application under this Subsection (4), a person entitled to the
194     use of water shall obtain the approval from the executive director of the Colorado River
195     Authority of Utah, appointed under Section 63M-14-401.
196          (c) By approving a proposed fixed time change application or temporary change
197     application, the executive director of the Colorado River Authority of Utah attests that the

198     water that is the subject of the application can be used consistent with this section.
199          [(4)] (5) In addition to the requirements of Section 73-3-3, an application authorized by
200     this section shall include:
201          (a) a legal description of:
202          (i) the segment of the natural or altered stream that will be the place of use for an
203     instream flow; [or]
204          (ii) the location where the water will be used on sovereign lands; [and] or
205          (iii) the reservoir located partially or entirely within the Colorado River System in the
206     state that the water will be delivered to; and
207          (b) appropriate studies, reports, or other information required by the state engineer
208     demonstrating:
209          (i) the projected benefits to the public resulting from the change; and
210          (ii) the necessity for the proposed instream flow or use on sovereign lands.
211          [(5)] (6) A person may not appropriate unappropriated water under Section 73-3-2 for
212     the purpose of providing an instream flow or use on sovereign lands.
213          [(6)] (7) Water used in accordance with this section is considered to be beneficially
214     used, as required by Section 73-3-1.
215          [(7)] (8) A physical structure or physical diversion from the stream is not required to
216     implement a change under this section.
217          [(8)] (9) An approved change application described in this section does not create a
218     right of access across private property or allow any infringement of a private property right.