Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 25 (2015GS)

Sponsor

Rep. Snow, V. L.

Final action

Governor Signed 3/27/2015

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• authorizes a person who is proposing a change application to request a meeting with the state engineer, or the state engineer's designee, to discuss potential issues with the change;
• authorizes the state engineer, upon receiving a change application, to determine whether a proposed change would result in quantity impairment of another water right;
• describes the burden of proof on a person who applies for a change application; and
• makes technical changes.

Every vote on this bill

Bill text

WATER LAW - APPLICATION REVISIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: V. Lowry Snow
Senate Sponsor: 
Margaret Dayton
LONG TITLE
General Description:
This bill modifies the procedure for a change application.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ authorizes a person who is proposing a change application to request a meeting with
the state engineer, or the state engineer's designee, to discuss potential issues with
the change;
▸ authorizes the state engineer, upon receiving a change application, to determine
whether a proposed change would result in quantity impairment of another water
right;
▸ describes the burden of proof on a person who applies for a change application; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
73-2-27
, as enacted by Laws of Utah 2005, Chapter 215
73-3-3
, as last amended by Laws of Utah 2012, Chapter 229
73-3-8
, as last amended by Laws of Utah 2007, Chapter 136
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
73-2-27
 is amended to read:
73-2-27.
Criminal penalties.
(1) This section applies to offenses committed under:
(a) Section 
73-1-14
;
(b) Section 
73-1-15
;
(c) Section 
73-2-20
;
(d) [
Subsection 
73-3-3
(9)
] 
Section 
73-3-3
;
(e) Section 
73-3-26
;
(f) Section 
73-3-29
;
(g) Section 
73-5-9
;
(h) Section 
76-10-201
;
(i) Section 
76-10-202
; and
(j) Section 
76-10-203
.
(2) Under circumstances not amounting to an offense with a greater penalty under
Subsection 
76-6-106
(2)(b)(ii) or Section 
76-6-404
, violation of a provision listed in Subsection
(1) is punishable:
(a) as a felony of the third degree if:
(i) the value of the water diverted or property damaged or taken is $2,500 or greater;
and
(ii) the person violating the provision has previously been convicted of violating the
same provision;
(b) as a class A misdemeanor if:
(i) the value of the water diverted or property damaged or taken is $2,500 or greater; or
(ii) the person violating the provision has previously been convicted of violating the
same provision; or
(c) as a class B misdemeanor if Subsection (2)(a) or (b) does not apply.
Section 2. Section 
73-3-3
 is amended to read:
73-3-3.
Permanent or temporary changes to a water right.
(1) For purposes of this section:
(a) "Permanent change" means a change
,
 for an indefinite period of time [
with an intent
to relinquish the original point of diversion, place of use, or purpose of use.
]
, to the:
(i) point of diversion;
(ii) place of use;
(iii) period of use;
(iv) nature of use; or
(v) storage of water.
(b) (i) "Quantity impairment" means any reduction in the amount of water a person is
able to receive in order to satisfy an existing right to the use of water that would result from an
action proposed in a change application, including:
(A) diminishing the quantity of water in the source of supply for the existing right;
(B) a change in the timing of availability of water from the source of supply for the
existing right; or
(C) enlarging the quantity of water depleted by the nature of the proposed use when
compared with the nature of the currently approved use.
(ii) "Quantity impairment" does not mean a decrease in the static level of water in an
underground basin or aquifer that would result from an action proposed to be taken in a change
application, if the volume of water necessary to satisfy an existing right otherwise remains
reasonably available.
[
(b)
] 
(c)
 "Temporary change" means a change for a fixed period of time
,
 not exceeding
one year[
.
]
, to the:
(i) point of diversion;
(ii) place of use;
(iii) period of use;
(iv) nature of use; or
(v) storage of water.
(2) (a) A person who proposes to file a permanent or temporary change application
may request consultation with the state engineer, or the state engineer's designee, before filing
the application in order to review the requirements of the change application process, discuss
potential issues related to the change, and provide the applicant with information.
(b) Statements made and information presented in the consultation are not binding on
the applicant or the state engineer.
(c) The consultation described in Subsection (2)(a) may occur in the state engineer's
regional office for the region where the proposed change would occur.
[
(2)
] 
(3)
 (a) [
Subject to Subsection (2)(c), a
] 
A
 person entitled to the use of water may
make 
a
 permanent or temporary [
changes in the:
] 
change to an existing right to use water,
including a right involved in a general determination of rights or other suit, if:
[
(i) point of diversion;
]
[
(ii) place of use; or
]
[
(iii) purpose of use for which the water was originally appropriated.
]
(i) the person makes the change in accordance with this section;
[
(b) Except
] 
(ii) except
 as provided by Section 
73-3-30
, [
a
] 
the
 change [
may not be
made if it impairs a vested water
] 
does not impair an existing
 right without just
compensation[
.
] 
or adequate mitigation; and
(iii) the state engineer approves the change application, consistent with the
requirements of Section 
73-3-8
.
[
(c)
] 
(b)
 A change application on a federal reclamation project water right shall be
signed by:
(i) the local water users organization that is contractually responsible for:
(A) the operation and maintenance of the project; or
(B) the repayment of project costs; and
(ii) the record owner of the water right.
[
(3) A person entitled to use water shall change a point of diversion, place of use, or
purpose of water use, including water involved in a general adjudication or other suit, in the
manner provided in this section.
]
[
(4) (a) A person entitled to use water may not make a change unless the state engineer
approves the change application.
]
[
(b) A
] 
(4) (a) Before making a permanent or temporary change, a
 person entitled to
the
 use 
of
 water shall submit a change application upon forms furnished by the state engineer
[
and shall set forth:
]
.
(b) The application described in Subsection (4)(a) shall set forth:
(i) the applicant's name;
(ii) the water right description
, including the water right number
;
(iii) the water quantity;
(iv) the stream or water source;
(v) if applicable, the point on the stream or water source where the water is diverted;
(vi) if applicable, the point to which it is proposed to change the diversion of the water;
(vii) the place, [
purpose,
] 
nature, period,
 and extent of the [
present
] 
currently approved
use;
(viii) the place, [
purpose,
] 
nature, period,
 and extent of the proposed use; and
(ix) any other information that the state engineer requires.
[
(5) (a) The state engineer shall follow the same procedures, and the rights and duties
of the applicants with respect to applications for permanent changes of point of diversion, place
of use, or purpose of use shall be the same, as provided in this title for applications to
appropriate water.
]
[
(b) The state engineer may waive notice for a permanent change application involving
only a change in point of diversion of 660 feet or less.
]
[
(6) (a) The state engineer shall investigate all temporary change applications.
]
[
(b) If the state engineer finds that the temporary change will not impair a vested water
right, the state engineer shall issue an order authorizing the change.
]
[
(c) If the state engineer finds that the change sought might impair a vested water right,
before authorizing the change, the state engineer shall give notice of the application to any
person whose right may be affected by the change.
]
[
(d) Before making an investigation or giving notice, the state engineer may require the
applicant to deposit a sum of money sufficient to pay the expenses of the investigation and
publication of notice.
]
[
(7) (a) Except as provided by Section 
73-3-30
, the state engineer may not reject a
permanent or temporary change application for the sole reason that the change would impair a
vested water right.
]
[
(b) If otherwise proper, the state engineer may approve a permanent or temporary
change application for part of the water involved or upon the condition that the applicant
acquire the conflicting water right.
]
[
(8) (a) A person holding an approved application for the appropriation of water may
change the point of diversion, place of use, or purpose of use.
]
(5) In a proceeding before the state engineer, the applicant has the burden of producing
evidence sufficient to support a reasonable belief that the change can be made in compliance
with this section and Section 
73-3-8
, including evidence:
(a) that the change will not cause a specific existing right to experience quantity
impairment; or
(b) if applicable, rebutting the presumption of quantity impairment described in
Subsection 
73-3-8
(6)(c).
[
(b)
] 
(6)
 A change of an approved application 
to appropriate water
 does not:
[
(i)
] 
(a)
 affect the priority of the original application 
to appropriate water
; or
[
(ii)
] 
(b)
 extend the time period within which the construction of work is to begin or be
completed.
[
(9)
] 
(7)
 Any person who [
changes or who attempts to change a point of diversion,
place of use, or purpose of use, either permanently or temporarily, without first applying to the
state engineer in the manner provided in this section
] 
makes a permanent or temporary change
without first filing and obtaining approval of a change application providing for such change
:
(a) obtains no right;
(b) is guilty of [
a crime
] 
an offense
 punishable under Section 
73-2-27
 if the change [
or
attempted change
] is made knowingly or intentionally; and
(c) is guilty of a separately punishable offense for each day of the unlawful change.
[
(10)
] 
(8)
 (a) This section does not apply to the replacement of an existing well by a
new well drilled within a radius of 150 feet from the point of diversion of the existing well.
(b) Any replacement well must be drilled in accordance with the requirements of
Section 
73-3-28
.
Section 3. Section 
73-3-8
 is amended to read:
73-3-8.
Approval or rejection of application -- Requirements for approval --
Application for specified period of time -- Filing of royalty contract for removal of salt or
minerals.
(1) (a) It shall be the duty of the state engineer to approve an application if 
there is
reason to believe that
:
(i) 
for an application to appropriate,
 there is unappropriated water in the proposed
source;
(ii) the proposed use will not impair existing rights or interfere with the more
beneficial use of the water;
(iii) the proposed plan
:
(A)
 is physically and economically feasible, unless the application is filed by the
United States Bureau of Reclamation[
,
]
;
 and
(B)
 would not prove detrimental to the public welfare;
(iv) the applicant has the financial ability to complete the proposed works; [
and
]
(v) the application was filed in good faith and not for purposes of speculation or
monopoly[
.
]
; and
(vi) if applicable, the application complies with a groundwater management plan
adopted under Section 
73-5-15
.
(b) [
(i)
] If the state engineer, because of information in the state engineer's possession
obtained either by the state engineer's own investigation or otherwise, has reason to believe that
an application [
to appropriate water
] will interfere with [
its
] 
the water's
 more beneficial use for
irrigation, 
municipal and industrial,
 domestic or culinary, stock watering, power or mining
development, or manufacturing, or will unreasonably affect public recreation or the natural
stream environment, or will prove detrimental to the public welfare, [
it is the state engineer's
duty to
] 
the state engineer shall
 withhold approval or rejection of the application until the state
engineer has investigated the matter.
[
(ii)
] 
(c)
 If an application does not meet the requirements of this section, it shall be
rejected.
(2) (a) An application to appropriate water for industrial, power, mining development,
manufacturing purposes, agriculture, or municipal purposes may be approved for a specific and
certain period from the time the water is placed to beneficial use under the application, but in
no event may an application be granted for a period of time less than that ordinarily needed to
satisfy the essential and primary purpose of the application or until the water is no longer
available as determined by the state engineer.
(b) At the expiration of the period fixed by the state engineer the water shall revert to
the public and is subject to appropriation as provided by this title.
(c) No later than 60 calendar days before the expiration date of the fixed time period,
the state engineer shall send notice by mail or by any form of electronic communication
through which receipt is verifiable, to the applicant of record.
(d) Except as provided by Subsection (2)(e), the state engineer may extend any limited
water right upon a showing that:
(i) the essential purpose of the original application has not been satisfied;
(ii) the need for an extension is not the result of any default or neglect by the applicant;
and
(iii) the water is still available.
(e) No extension shall exceed the time necessary to satisfy the primary purpose of the
original application.
(f) A request for extension of the fixed time period must be filed in writing in the
office of the state engineer on or before the expiration date of the application.
(3) (a) Before the approval of any application for the appropriation of water from
navigable lakes or streams of the state that contemplates the recovery of salts and other
minerals therefrom by precipitation or otherwise, the applicant shall file with the state engineer
a copy of a contract for the payment of royalties to the state.
(b) The approval of an application shall be revoked in the event of the failure of the
applicant to comply with terms of the royalty contract.
(4) (a) The state engineer shall investigate all temporary change applications.
(b) The state engineer shall:
(i) approve the temporary change if the state engineer finds there is reason to believe
that it will not impair an existing right; and
(ii) deny the temporary change if the state engineer finds there is reason to believe it
would impair an existing right.
(5) (a) The state engineer shall follow the same procedures, and the rights and duties of
applicants with respect to permanent change applications shall be the same as provided in this
title for applications to appropriate water.
(b) The state engineer may waive notice for a permanent change application if it only
involves a change in point of diversion of 660 feet or less.
(c) The state engineer may condition approval of a change application to prevent an
enlargement of the quantity of water depleted by the nature of the proposed use when compared
with the nature of the currently approved use of water proposed to be changed.
(d) A condition described in Subsection (5)(c) may not include a reduction in the
currently approved diversion rate of water under the water right identified in the change
application solely to account for the difference in depletion under the nature of the proposed
use when compared with the nature of the currently approved use.
(6) (a) Except as provided in Subsection (6)(b), the state engineer shall reject a
permanent change application if the person proposing to make the change is unable to meet the
burden described in Subsection 
73-3-3
(5).
(b) If otherwise proper, the state engineer may approve a permanent or temporary
change application upon one or more of the following conditions:
(i) for part of the water involved;
(ii) that the applicant acquire a conflicting right; or
(iii) that the applicant provide and implement a plan approved by the state engineer to
mitigate impairment of an existing right.
(c) (i) There is a rebuttable presumption of quantity impairment, as defined in
Subsection 
73-3-3
(1), to the extent that, for a period of at least seven consecutive years, a
portion of the right identified in a change application has not been:
(A) diverted from the approved point of diversion; and
(B) beneficially used at the approved place of use.
(ii) The rebuttable presumption described in Subsection (6)(c)(i) does not apply if the
beneficial use requirement is excused by:
(A) Subsection 
73-1-4
(2)(e);
(B) an approved nonuse application under Subsection 
73-1-4
(2)(b);
(C) Subsection 
73-3-30
(7); or
(D) the passage of time under Subsection 
73-1-4
(2)(c)(i).
(d) The state engineer may not consider quantity impairment based on the conditions
described in Subsection (6)(c) unless the issue is raised in a:
(i) timely protest that identifies which of the protestant's existing rights the protestant
reasonably believes will experience quantity impairment; or
(ii) written notice provided by the state engineer to the applicant within 90 days after
the change application is filed.
(e) The written notice described in Subsection (6)(d)(ii) shall:
(i) specifically identify an existing right the state engineer reasonably believes may
experience quantity impairment; and
(ii) be mailed to the owner of an identified right, as shown by the state engineer's
records, if the owner has not protested the change application.
(f) The state engineer is not required to include all rights the state engineer believes
may be impaired by the proposed change in the written notice described in Subsection
(6)(d)(ii).
(g) The owner of a right who receives the written notice described in Subsection
(6)(e)(ii) may not become a party to the administrative proceeding if the owner has not filed a
timely protest.
(h) If a change applicant, all protestants, and all persons identified by the state engineer
under Subsection (6)(d)(ii) come to a written agreement regarding how the issue of quantity
impairment shall be mitigated, the state engineer may incorporate the terms of the agreement
into a change application approval.