Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 61 First Substitute (2018GS)

Sponsor

Sen. Dayton, M.

Final action

Governor Signed 3/20/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• modifies the summons for a general adjudication of a water right;
• states that if the state engineer receives an untimely statement of claim, the state engineer shall return the claim to the claimant without further action;
• authorizes the state engineer to prepare and file an addendum to a proposed determination, under certain circumstances; and
• makes technical changes.

Every vote on this bill

Bill text

WATER RIGHTS ADJUDICATION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Margaret Dayton
House Sponsor: 
Scott D. Sandall
LONG TITLE
General Description:
This bill deals with the procedure for filing a claim for the right to use water.
Highlighted Provisions:
This bill:
▸ modifies the summons for a general adjudication of a water right;
▸ states that if the state engineer receives an untimely statement of claim, the state
engineer shall return the claim to the claimant without further action;
▸ authorizes the state engineer to prepare and file an addendum to a proposed
determination, under certain circumstances; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
73-4-4
, as last amended by Laws of Utah 2016, Chapter 72
73-4-9
, as last amended by Laws of Utah 2016, Chapter 72
73-4-11
, as last amended by Laws of Utah 2016, Chapter 72
73-5-13
, as last amended by Laws of Utah 2013, Chapters 221, 343, 429 and last
amended by Coordination Clause, Laws of Utah 2013, Chapter 429
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
73-4-4
 is amended to read:
73-4-4.
Summons for general adjudication of water rights -- Requirements to
serve summons individually and generally -- Statement of claim requirement.
(1) (a) The state engineer shall, by mail, serve a summons to a claimant of record in the
state engineer's office within a general adjudication area, division, or subdivision.
(b) (i) The state engineer may serve, by publication, a general summons to claimants in
a general adjudication area, division, or subdivision, who are not of record in the state
engineer's office, if the state engineer files an affidavit with the district court, verifying that the
state engineer has, in accordance with Section 
73-4-3
, searched the records of the state
engineer's office for claimants in the general adjudication area, division, or subdivision.
(ii) The state engineer shall publish, in accordance with the Utah Rules of Civil
Procedure, a general summons described in Subsection (1)(b)(i):
(A) once a week for five successive weeks in one or more newspapers, determined by
the judge of the district court as most likely to give notice to the claimants served; and
(B) for five weeks, in accordance with Section 
45-1-101
.
(iii) Service of a general summons is completed upon the last required date of
publication.
(c) The summons shall be substantially in the following form:
"In the District Court of .......... County, State of Utah, in the matter of the general
adjudication of water rights in the described water source.
SUMMONS
The State of Utah to the said defendant:
You are hereby summoned [
to appear and defend
] 
in
 the above entitled action which is
brought for the purpose of making a general determination of the water rights of the described
water source. Upon the service of this summons upon you, you will thereafter be subject to the
jurisdiction of the entitled court and
, if you have or intend to claim a water right,
 it shall be
your duty to follow further proceedings in the above entitled action and to 
defend and
 protect
your 
water
 rights therein. The state engineer will give a further notice sent to your last-known
address, that you must file a statement of claim in this action setting forth the nature of your
claim, and said notice will specify the date upon which your statement of claim is due and
thereafter you must file said claim within the time set and your failure so to do will constitute a
default in the premises and a judgment may be entered against you declaring that you have no
right to the use of water not claimed."
(2) If the state engineer is required, under this section, to serve a summons on the
United States, the state engineer shall serve the summons in accordance with federal law.
Section 2. Section 
73-4-9
 is amended to read:
73-4-9.
Failure to file a statement of claim.
(1) The filing of each statement of claim shall be considered notice to all persons of the
claim of the party making the same, and failing to make and deliver such statement of claim to
the state engineer or the district court within the time prescribed by Section 
73-4-5
, or as
extended pursuant to Section 
73-4-10
, shall be considered evidence of an intent to abandon the
right.
(2) If a claimant fails to timely file a statement of claim, as provided in this chapter, for
a right not of record in the state engineer's office, the claimant is forever barred and estopped
from subsequently asserting the unclaimed right.
(3) If the state engineer receives an untimely statement of claim, the state engineer
shall return the claim to the claimant without further action.
(4) If an untimely statement of claim is filed with the court, the state engineer shall take
no further action unless a claimant's failure to file a timely claim is excused pursuant to
Subsection 
73-4-9.5
(3).
(5) Subsections (3) and (4) apply whether the untimely claim is asserted pursuant to
Section 73-4-5 or 73-5-13.
Section 3. Section 
73-4-11
 is amended to read:
73-4-11.
Proposed determination by engineer to court -- Hydrographic survey
map -- Notice -- Public meeting.
(1) After full consideration of the statements of claims, records, and files, and after an
examination of the river system or water source involved, the state engineer shall for the
general adjudication area, division, or subdivision:
(a) complete a hydrographic survey map;
(b) prepare a proposed determination of all rights to the use of the water and file it with
the district court;
(c) serve notice of completion of the proposed determination by publication and by
mail, in accordance with Subsection 
73-4-3
(5), to each claimant of record in the state
engineer's office within the general adjudication area, division, or subdivision, that includes:
(i) (A) a copy of the proposed determination; or
(B) instructions on how to obtain or access an electronic copy of the proposed
determination; and
(ii) a statement describing the claimant's right to file an objection to the proposed
determination within 90 days after the day on which the notice of completion of the proposed
determination is served; and
(d) hold a public meeting in the area, division, or subdivision covered by the proposed
determination to explain the proposed determination to the claimants.
(2) A claimant who desires to object to the state engineer's proposed determination
shall, within 90 days after the day on which the state engineer served the claimant with notice
of completion of the proposed determination, file a written objection to the proposed
determination with the district court.
(3) The state engineer shall distribute the waters from the natural streams or other
natural sources:
(a) in accordance with the proposed determination or modification to the proposed
determination by court order until a final decree is rendered by the court; or
(b) if the right to the use of the waters has been decreed or adjudicated, in accordance
with the decree until the decree is reversed, modified, vacated, or otherwise legally set aside.
(4) Following the proposed determination, the state engineer may prepare and file one
or more addenda to one or more proposed determinations, provided the state engineer:
(a) files the addendum with the court;
(b) in the preamble, provides an explanation of the issues addressed in the addendum;
(c) serves the addendum, in the same manner as provided in Subsection (1)(c), on each
owner of record, according to the state engineer's records, of a perfected water right authorizing
the diversion of water from within the area, division, or subdivision covered by the addendum;
and
(d) holds a public meeting in the same manner as provided in Subsection (1)(d).
Section 4. Section 
73-5-13
 is amended to read:
73-5-13.
Claim to surface or underground water not otherwise represented --
Information required -- Corrections -- Filing -- Investigation -- Publication -- Judicial
action to determine validity -- Rules.
(1) (a) A claimant to the right to the use of water, including both surface and
underground water, whose right is not represented by a certificate of appropriation issued by
the state engineer, by an application filed with the state engineer, by a court decree, or by a
notice of claim filed pursuant to law, shall submit the claim to the state engineer in accordance
with this section.
(b) Subsections (2) through (7) only apply to claims or corrected claims submitted to
the state engineer in accordance with this section on or after May 14, 2013.
(2) (a) A claim submitted under this section shall be verified under oath by the claimant
or the claimant's duly appointed representative and submitted on forms provided by the state
engineer setting forth any information the state engineer requires, including:
(i) the name and mailing address of the person making the claim;
(ii) the quantity of water claimed in acre-feet or rate of flow in second-feet, or both,
where appropriate;
(iii) the source of supply;
(iv) the priority date of the right;
(v) the location of the point of diversion with reference to a United States land survey
corner;
(vi) the place of use;
(vii) the nature and extent of use;
(viii) the time during which the water has been used each year; and
(ix) the date when the water was first used.
(b) The claim shall also include the following information, prepared by a Utah licensed
engineer or a Utah licensed land surveyor:
(i) measurements of the amount of water diverted;
(ii) a statement that the quantity of water claimed either in acre-feet or cubic feet per
second is consistent with the beneficial use claimed and the supply that the source is capable of
producing; and
(iii) a map showing the original diversion and conveyance works and where the water
was placed to beneficial use, including irrigated lands, if irrigation is the claimed beneficial
use.
(c) The state engineer may require additional information as necessary to evaluate any
claim including:
(i) affidavits setting forth facts of which the affiant has personal knowledge;
(ii) authenticated or historic photographs, plat or survey maps, or surveyors' notes;
(iii) authenticated copies of original diaries, personal histories, or other historical
documents that document the claimed use of water; and
(iv) other relevant records on file with any county recorder's, surveyor's, or assessor's
office.
(3) (a) A claimant, or a claimant's successor in interest, as shown in the records of the
state engineer may file a corrected claim that:
(i) is designated as a corrected claim;
(ii) includes the information described in Subsection (2); and
(iii) bears the same number as the original claim.
(b) If a corrected claim that meets the requirements described in Subsection (3)(a) is
filed before the state engineer publishes the original claim in accordance with Subsection
(4)(a)(iv), the state engineer may not charge an additional fee for filing the corrected claim.
(c) The state engineer shall treat a corrected claim that is filed in accordance with
Subsection (3)(a) as if the corrected claim were the original claim.
(4) (a) When a claimant submits a claim that is acceptably complete under Subsection
(2) and deposits money with the state engineer sufficient to pay the expenses of conducting a
field investigation and publishing a notice of the claim, the state engineer shall:
(i) file the claim;
(ii) endorse the date of its receipt;
(iii) assign the claim a water right number;
(iv) publish a notice of the claim following the same procedures as provided in Section
73-3-6
; and
(v) if the claimant is the federal government or a federal agency, provide a copy of the
claim to the members of the Natural Resources, Agriculture, and Environment Interim
Committee.
(b) Any claim not acceptably complete under Subsection (2) shall be returned to the
claimant.
(c) The acceptance of any claim filed under this section by the state engineer may not
be considered to be an adjudication by the state engineer of the validity of the claimed water
right.
(5) (a) The state engineer shall:
(i) conduct a field investigation of each claim filed; and
(ii) prepare a report of the investigation.
(b) The report of the investigation shall:
(i) become part of the file on the claim; and
(ii) be admissible in any administrative or judicial proceeding regarding the validity of
the claim.
(6) (a) Any person who may be damaged by a diversion and use of water as described
in a claim submitted pursuant to this section may file an action in district court to determine the
validity of the claim, regardless of whether the state engineer has filed the claim in accordance
with Subsection (4)(a).
(b) Venue for an action brought under Subsection (6)(a) shall be in the county where
the point of diversion listed in the claim is located, or in a county where the place of use, or
some part of it, is located.
(c) The action shall be brought against the claimant to the use of water or the claimant's
successor in interest.
(d) In any action brought to determine the validity of a claim to the use of water under
this section, the claimant shall have the initial burden of proof as to the validity of the claimed
right.
(e) (i) A person filing an action challenging the validity of a claim to the use of water
under this section shall notify the state engineer of the pendency of the action in accordance
with state engineer rules.
(ii) Upon receipt of the notice, the state engineer may take no action on any change or
exchange applications founded on the claim that is the subject of the pending litigation until the
court adjudicates the matter.
(f) Upon the entering of any final order or decree in a judicial action to determine the
validity of a claim under this section, the prevailing party shall file a certified copy of the order
or decree with the state engineer, who shall incorporate the order into the state engineer's file
on the claim.
(7) (a) In a general adjudication of water rights under Title 73, Chapter 4,
Determination of Water Rights, after completion of final summons in accordance with Section
73-4-22
, a district court may, by decree, prohibit future claims from being filed under this
section in the general adjudication area, division, or subdivision.
[
(b) If the state engineer receives a claim for an area where a court has prohibited filing
under Subsection (7)(a), the state engineer shall return the claim to the claimant without further
action.
]
(b) If the state engineer receives a claim for an area where a court has prohibited filing
under Subsection (7)(a) or Section 73-4-9.5, or the claim is untimely as provided in Section
73-4-5, the state engineer shall return the claim to the claimant without further action.