Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 53 First Substitute (2023GS)

Sponsor

Sen. Vickers, E.

Final action

Governor Signed 3/14/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• corrects punctuation related to storage as a beneficial use;
• modifies provisions related to recharge of an aquifer; and
• makes technical changes.

Every vote on this bill

Bill text

GROUNDWATER USE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Evan J. Vickers
House Sponsor: 
Carl R. Albrecht
LONG TITLE
General Description:
This bill addresses water uses related to groundwater.
Highlighted Provisions:
This bill:
▸ corrects punctuation related to storage as a beneficial use;
▸ modifies provisions related to recharge of an aquifer; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
73-1-4
, as last amended by Laws of Utah 2020, Chapters 60, 342
73-5-15
, as last amended by Laws of Utah 2012, Chapter 97
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
73-1-4
 is amended to read:
73-1-4.
Reversion to the public by abandonment or forfeiture for nonuse within
seven years -- Nonuse application.
(1) As used in this section:
(a) "Public entity" means:
(i) the United States;
(ii) an agency of the United States;
(iii) the state;
(iv) a state agency;
(v) a political subdivision of the state; or
(vi) an agency of a political subdivision of the state.
(b) "Public water supplier" means an entity that:
(i) supplies water, directly or indirectly, to the public for municipal, domestic, or
industrial use; and
(ii) is:
(A) a public entity;
(B) a water corporation, as defined in Section 
54-2-1
, that is regulated by the Public
Service Commission;
(C) a community water system:
(I) that:
(Aa) supplies water to at least 100 service connections used by year-round residents; or
(Bb) regularly serves at least 200 year-round residents; and
(II) whose voting members:
(Aa) own a share in the community water system;
(Bb) receive water from the community water system in proportion to the member's
share in the community water system; and
(Cc) pay the rate set by the community water system based on the water the member
receives; or
(D) a water users association:
(I) in which one or more public entities own at least 70% of the outstanding shares; and
(II) that is a local sponsor of a water project constructed by the United States Bureau of
Reclamation.
(c) "Shareholder" means the same as that term is defined in Section 
73-3-3.5
.
(d) "Water company" means the same as that term is defined in Section 
73-3-3.5
.
(e) "Water supply entity" means an entity that supplies water as a utility service or for
irrigation purposes and is also:
(i) a municipality, water conservancy district, metropolitan water district, irrigation
district, or other public agency;
(ii) a water company regulated by the Public Service Commission; or
(iii) any other owner of a community water system.
(2) (a) Except as provided in Subsection (2)(b) or (e), when an appropriator or the
appropriator's successor in interest abandons or ceases to beneficially use all or a portion of a
water right for a period of at least seven years, the water right or the unused portion of that
water right is subject to forfeiture in accordance with Subsection (2)(c).
(b) (i) An appropriator or the appropriator's successor in interest may file an
application for nonuse with the state engineer.
(ii) A nonuse application may be filed on all or a portion of the water right, including
water rights held by a water company.
(iii) After giving written notice to the water company, a shareholder may file a nonuse
application with the state engineer on the water represented by the stock.
(iv) (A) The approval of a nonuse application excuses the requirement of beneficial use
of water from the date of filing.
(B) The time during which an approved nonuse application is in effect does not count
toward the seven-year period described in Subsection (2)(a).
(v) The filing or approval of a nonuse application or a series of nonuse applications
under Subsection (3) does not:
(A) constitute beneficial use of a water right;
(B) protect a water right that is already subject to forfeiture under this section; or
(C) bar a water right owner from:
(I) using the water under the water right as permitted under the water right; or
(II) claiming the benefit of Subsection (2)(e) or any other forfeiture defense provided
by law.
(c) (i) Except as provided in Subsection (2)(c)(ii), a water right or a portion of the
water right may not be forfeited unless a judicial action to declare the right forfeited is
commenced:
(A) within 15 years from the end of the latest period of nonuse of at least seven years;
or
(B) within the combined time of 15 years from the end of the most recent period of
nonuse of at least seven years and the time the water right was subject to one or more nonuse
applications.
(ii) (A) The state engineer, in a proposed determination of rights filed with the court
and prepared in accordance with Section 
73-4-11
, may not assert that a water right was
forfeited unless the most recent period of nonuse of seven years ends or occurs:
(I) during the 15 years immediately preceding the day on which the state engineer files
the proposed determination of rights with the court; or
(II) during the combined time immediately preceding the day on which the state
engineer files the proposed determination of rights consisting of 15 years and the time the
water right was subject to one or more approved nonuse applications.
(B) After the day on which a proposed determination of rights is filed with the court a
person may not assert that a water right subject to that determination was forfeited before the
issuance of the proposed determination, unless the state engineer asserts forfeiture in the
proposed determination, or a person, in accordance with Section 
73-4-11
, makes an objection
to the proposed determination that asserts forfeiture.
(iii) A water right, found to be valid in a decree entered in an action for general
determination of rights under Chapter 4, Determination of Water Rights, is subject to a claim
of forfeiture based on a seven-year period of nonuse that begins after the day on which the state
engineer filed the related proposed determination of rights with the court, unless the decree
provides otherwise.
(iv) If in a judicial action a court declares a water right forfeited, on the date on which
the water right is forfeited:
(A) the right to beneficially use the water reverts to the public; and
(B) the water made available by the forfeiture:
(I) first, satisfies other water rights in the hydrologic system in order of priority date;
and
(II) second, may be appropriated as provided in this title.
(d) Except as provided in Subsection (2)(e), this section applies whether the unused or
abandoned water or a portion of the water is:
(i) permitted to run to waste; or
(ii) beneficially used by others without right with the knowledge of the water right
holder.
(e) This section does not apply to:
(i) the beneficial use of water according to a written, terminable lease or other
agreement with the appropriator or the appropriator's successor in interest;
(ii) a water right if its place of use is contracted under an approved state agreement or
federal conservation fallowing program;
(iii) those periods of time when a surface water or groundwater source fails to yield
sufficient water to satisfy the water right;
(iv) a water right when water is unavailable because of the water right's priority date;
(v) a water right to store water in a surface reservoir
,
 or an aquifer[
,
] in accordance
with Title 73, Chapter 3b, Groundwater Recharge and Recovery Act, if the water is stored for
present or future beneficial use;
(vi) a water right if a water user has beneficially used substantially all of the water right
within a seven-year period, provided that this exemption does not apply to the adjudication of a
water right in a general determination of water rights under Chapter 4, Determination of Water
Rights;
(vii) except as provided by Subsection (2)(g), a water right:
(A) (I) owned by a public water supplier;
(II) represented by a public water supplier's ownership interest in a water company; or
(III) to which a public water supplier owns the right of beneficial use; and
(B) conserved or held for the reasonable future water requirement of the public, which
is determined according to Subsection (2)(f);
(viii) a supplemental water right during a period of time when another water right
available to the appropriator or the appropriator's successor in interest provides sufficient water
so as to not require beneficial use of the supplemental water right;
(ix) a period of nonuse of a water right during the time the water right is subject to an
approved change application where the applicant is diligently pursuing certification;
(x) a water right to store water in a surface reservoir if:
(A) storage is limited by a safety, regulatory, or engineering restraint that the
appropriator or the appropriator's successor in interest cannot reasonably correct; and
(B) not longer than seven years have elapsed since the limitation described in
Subsection (2)(e)(x)(A) is imposed; or
(xi) a water right subject to an approved change application for use within a water bank
that has been authorized but not dissolved under Chapter 31, Water Banking Act, during the
period of time the state engineer authorizes the water right to be used within the water bank.
(f) (i) The reasonable future water requirement of the public is the amount of water
needed in the next 40 years by:
(A) the persons within the public water supplier's reasonably anticipated service area
based on reasonably anticipated population growth; or
(B) other water use demand.
(ii) For purposes of Subsection (2)(f)(i), a community water system's reasonably
anticipated service area:
(A) is the area served by the community water system's distribution facilities; and
(B) expands as the community water system expands the distribution facilities in
accordance with Title 19, Chapter 4, Safe Drinking Water Act.
(iii) The state engineer shall by rule made in accordance with Subsection 
73-2-1
(4)
establish standards for a written plan that may be presented as evidence in conformance with
this Subsection (2)(f), except that before a rule establishing standards for a written plan under
this Subsection (2)(f) takes effect, in addition to complying with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, the state engineer shall present the rule to:
(A) if the Legislature is not in session, the Natural Resources, Agriculture, and
Environment Interim Committee; or
(B) if the Legislature is in session, the House of Representatives and Senate Natural
Resources, Agriculture, and Environment standing committees.
(g) For a water right acquired by a public water supplier on or after May 5, 2008,
Subsection (2)(e)(vii) applies if:
(i) the public water supplier submits a change application under Section 
73-3-3
; and
(ii) the state engineer approves the change application.
(3) (a) The state engineer shall furnish a nonuse application form requiring the
following information:
(i) the name and address of the applicant;
(ii) a description of the water right or a portion of the water right, including the point of
diversion, place of use, and priority;
(iii) the quantity of water;
(iv) the period of use;
(v) the extension of time applied for;
(vi) a statement of the reason for the nonuse of the water; and
(vii) any other information that the state engineer requires.
(b) (i) Upon receipt of the application, the state engineer shall publish a notice of the
application once a week for two successive weeks:
(A) in a newspaper of general circulation in the county in which the source of the water
supply is located and where the water is to be beneficially used; and
(B) as required in Section 
45-1-101
.
(ii) The notice shall:
(A) state that an application has been made; and
(B) specify where the interested party may obtain additional information relating to the
application.
(c) An interested person may file a written protest with the state engineer against the
granting of the application:
(i) within 20 days after the notice is published, if the adjudicative proceeding is
informal; and
(ii) within 30 days after the notice is published, if the adjudicative proceeding is
formal.
(d) In a proceeding to determine whether the nonuse application should be approved or
rejected, the state engineer shall follow Title 63G, Chapter 4, Administrative Procedures Act.
(e) After further investigation, the state engineer may approve or reject the application.
(4) (a) The state engineer shall grant a nonuse application on all or a portion of a water
right for a period of time not exceeding seven years if the applicant shows a reasonable cause
for nonuse.
(b) A reasonable cause for nonuse includes:
(i) a demonstrable financial hardship or economic depression;
(ii) a physical cause or change that renders use beyond the reasonable control of the
water right owner so long as the water right owner acts with reasonable diligence to resume or
restore the use;
(iii) the initiation of water conservation or an efficiency practice, or the operation of a
groundwater recharge recovery program approved by the state engineer;
(iv) operation of a legal proceeding;
(v) the holding of a water right or stock in a mutual water company without use by a
water supply entity to meet the reasonable future requirements of the public;
(vi) situations where, in the opinion of the state engineer, the nonuse would assist in
implementing an existing, approved water management plan; or
(vii) the loss of capacity caused by deterioration of the water supply or delivery
equipment if the applicant submits, with the application, a specific plan to resume full use of
the water right by replacing, restoring, or improving the equipment.
(5) (a) Sixty days before the expiration of a nonuse application, the state engineer shall
notify the applicant by mail or by a form of electronic communication through which receipt is
verifiable, of the date when the nonuse application will expire.
(b) An applicant may file a subsequent nonuse application in accordance with this
section.
Section 2. Section 
73-5-15
 is amended to read:
73-5-15.
Groundwater management plan.
(1) As used in this section:
(a) "Critical management area" means a groundwater basin in which the groundwater
withdrawals consistently exceed the safe yield.
(b) "Safe yield" means the amount of groundwater that can be withdrawn from a
groundwater basin over a period of time without exceeding the long-term recharge of the basin
or unreasonably affecting the basin's physical and chemical integrity.
(2) (a) The state engineer may regulate groundwater withdrawals within a specific
groundwater basin by adopting a groundwater management plan in accordance with this section
for any groundwater basin or aquifer or combination of hydrologically connected groundwater
basins or aquifers.
(b) The objectives of a groundwater management plan are to:
(i) limit groundwater withdrawals to safe yield;
(ii) protect the physical integrity of the aquifer; and
(iii) protect water quality.
(c) The state engineer shall adopt a groundwater management plan for a groundwater
basin if more than one-third of the water right owners in the groundwater basin request that the
state engineer adopt a groundwater management plan.
(3) (a) In developing a groundwater management plan, the state engineer may consider:
(i) the hydrology of the groundwater basin;
(ii) the physical characteristics of the groundwater basin;
(iii) the relationship between surface water and groundwater, including whether the
groundwater should be managed in conjunction with hydrologically connected surface waters;
(iv) the conjunctive management of water rights to facilitate and coordinate the lease,
purchase, or voluntary use of water rights subject to the groundwater management plan;
(v) the geographic spacing and location of groundwater withdrawals;
(vi) water quality;
(vii) local well interference; and
(viii) other relevant factors.
(b) The state engineer shall base the provisions of a groundwater management plan on
the principles of prior appropriation.
(c) (i) The state engineer shall use the best available scientific method to determine
safe yield.
(ii) As hydrologic conditions change or additional information becomes available, safe
yield determinations made by the state engineer may be revised by following the procedures
listed in Subsection (5).
(4) (a) (i) Except as provided in Subsection (4)(b), the withdrawal of water from a
groundwater basin shall be limited to the basin's safe yield.
(ii) Before limiting withdrawals in a groundwater basin to safe yield, the state engineer
shall:
(A) determine the groundwater basin's safe yield; and
(B) adopt a groundwater management plan for the groundwater basin.
(iii) If the state engineer determines that groundwater withdrawals in a groundwater
basin exceed the safe yield, the state engineer shall regulate groundwater rights in that
groundwater basin based on the priority date of the water rights under the groundwater
management plan, unless a voluntary arrangement exists under Subsection (4)(c) that requires a
different distribution.
(iv) A groundwater management plan shall include a list of each groundwater right in
the proposed groundwater management area known to the state engineer identifying the water
right holder, the land to which the groundwater right is appurtenant, and any identification
number the state engineer uses in the administration of water rights.
(b) When adopting a groundwater management plan for a critical management area, the
state engineer shall, based on economic and other impacts to an individual water user or a local
community caused by the implementation of safe yield limits on withdrawals, allow gradual
implementation of the groundwater management plan.
(c) (i) In consultation with the state engineer, water users in a groundwater basin may
agree to participate in a voluntary arrangement for managing withdrawals at any time, either
before or after a determination that groundwater withdrawals exceed the groundwater basin's
safe yield.
(ii) A voluntary arrangement under Subsection (4)(c)(i) shall be consistent with other
law.
(iii) The adoption of a voluntary arrangement under this Subsection (4)(c) by less than
all of the water users in a groundwater basin does not affect the rights of water users who do
not agree to the voluntary arrangement.
(5) To adopt a groundwater management plan, the state engineer shall:
(a) give notice as specified in Subsection (7) at least 30 days before the first public
meeting held in accordance with Subsection (5)(b):
(i) that the state engineer proposes to adopt a groundwater management plan;
(ii) describing generally the land area proposed to be included in the groundwater
management plan; and
(iii) stating the location, date, and time of each public meeting to be held in accordance
with Subsection (5)(b);
(b) hold one or more public meetings in the geographic area proposed to be included
within the groundwater management plan to:
(i) address the need for a groundwater management plan;
(ii) present any data, studies, or reports that the state engineer intends to consider in
preparing the groundwater management plan;
(iii) address safe yield and any other subject that may be included in the groundwater
management plan;
(iv) outline the estimated administrative costs, if any, that groundwater users are likely
to incur if the plan is adopted; and
(v) receive any public comments and other information presented at the public
meeting, including comments from any of the entities listed in Subsection (7)(a)(iii);
(c) receive and consider written comments concerning the proposed groundwater
management plan from any person for a period determined by the state engineer of not less
than 60 days after the day on which the notice required by Subsection (5)(a) is given;
(d) (i) at least 60 days prior to final adoption of the groundwater management plan,
publish notice:
(A) that a draft of the groundwater management plan has been proposed; and
(B) specifying where a copy of the draft plan may be reviewed; and
(ii) promptly provide a copy of the draft plan in printed or electronic form to each of
the entities listed in Subsection (7)(a)(iii) that makes written request for a copy; and
(e) provide notice of the adoption of the groundwater management plan.
(6) A groundwater management plan shall become effective on the date notice of
adoption is completed under Subsection (7), or on a later date if specified in the plan.
(7) (a) A notice required by this section shall be:
(i) published:
(A) once a week for two successive weeks in a newspaper of general circulation in
each county that encompasses a portion of the land area proposed to be included within the
groundwater management plan; and
(B) in accordance with Section 
45-1-101
 for two weeks;
(ii) published conspicuously on the state engineer's website; and
(iii) mailed to each of the following that has within its boundaries a portion of the land
area to be included within the proposed groundwater management plan:
(A) county;
(B) incorporated city or town;
(C) a local district created to acquire or assess a groundwater right under Title 17B,
Chapter 1, Provisions Applicable to All Local Districts;
(D) improvement district under Title 17B, Chapter 2a, Part 4, Improvement District
Act;
(E) service area, under Title 17B, Chapter 2a, Part 9, Service Area Act;
(F) drainage district, under Title 17B, Chapter 2a, Part 2, Drainage District Act;
(G) irrigation district, under Title 17B, Chapter 2a, Part 5, Irrigation District Act;
(H) metropolitan water district, under Title 17B, Chapter 2a, Part 6, Metropolitan
Water District Act;
(I) special service district providing water, sewer, drainage, or flood control services,
under Title 17D, Chapter 1, Special Service District Act;
(J) water conservancy district, under Title 17B, Chapter 2a, Part 10, Water
Conservancy District Act; and
(K) conservation district, under Title 17D, Chapter 3, Conservation District Act.
(b) A notice required by this section is effective upon substantial compliance with
Subsections (7)(a)(i) through (iii).
(8) A groundwater management plan may be amended in the same manner as a
groundwater management plan may be adopted under this section.
(9) The existence of a groundwater management plan does not preclude any otherwise
eligible person from filing any application or challenging any decision made by the state
engineer within the affected groundwater basin.
(10) (a) A person aggrieved by a groundwater management plan may challenge any
aspect of the groundwater management plan by filing a complaint within 60 days after the
adoption of the groundwater management plan in the district court for any county in which the
groundwater basin is found.
(b) Notwithstanding Subsection (9), a person may challenge the components of a
groundwater management plan only in the manner provided by Subsection (10)(a).
(c) An action brought under this Subsection (10) is reviewed de novo by the district
court.
(d) A person challenging a groundwater management plan under this Subsection (10)
shall join the state engineer as a defendant in the action challenging the groundwater
management plan.
(e) (i) Within 30 days after the day on which a person files an action challenging any
aspect of a groundwater management plan under Subsection (10)(a), the person filing the action
shall publish notice of the action:
(A) in a newspaper of general circulation in the county in which the district court is
located; and
(B) in accordance with Section 
45-1-101
 for two weeks.
(ii) The notice required by Subsection (10)(e)(i)(A) shall be published once a week for
two consecutive weeks.
(iii) The notice required by Subsection (10)(e)(i) shall:
(A) identify the groundwater management plan the person is challenging;
(B) identify the case number assigned by the district court;
(C) state that a person affected by the groundwater management plan may petition the
district court to intervene in the action challenging the groundwater management plan; and
(D) list the address for the clerk of the district court in which the action is filed.
(iv) (A) Any person affected by the groundwater management plan may petition to
intervene in the action within 60 days after the day on which notice is last published under
Subsections (10)(e)(i) and (ii).
(B) The district court's treatment of a petition to intervene under this Subsection
(10)(e)(iv) is governed by the Utah Rules of Civil Procedure.
(v) A district court in which an action is brought under Subsection (10)(a) shall
consolidate all actions brought under that subsection and include in the consolidated action any
person whose petition to intervene is granted.
(11) A groundwater management plan adopted or amended in accordance with this
section is exempt from the requirements in Title 63G, Chapter 3, Utah Administrative
Rulemaking Act.
(12) (a) [
Recharge
] 
Except as provided in Subsection (12)(b), recharge
 and recovery
projects permitted under Chapter 3b, Groundwater Recharge and Recovery Act, are exempted
from this section.
(b) In a critical management area, the artificial recharge of a groundwater basin that
uses surface water naturally tributary to the groundwater basin [
by a local district created under
Subsection 
17B-1-202
(1)(a)(xiii)
], in accordance with Chapter 3b, Groundwater Recharge and
Recovery Act, constitutes a beneficial use of the water under Section 
73-1-3
 if:
(i) the recharge is done during the time the area is designated as a critical management
area;
(ii) the recharge is done with a valid recharge permit;
(iii) the [
recharged water
] 
water placed in the aquifer
 is not recovered under a recovery
permit; and
(iv) the [
recharged water
] 
water placed in the aquifer
 is used to replenish the
groundwater basin.
(13) Nothing in this section may be interpreted to require the development,
implementation, or consideration of a groundwater management plan as a prerequisite or
condition to the exercise of the state engineer's enforcement powers under other law, including
powers granted under Section 
73-2-25
.
(14) A groundwater management plan adopted in accordance with this section may not
apply to the dewatering of a mine.
(15) (a) A groundwater management plan adopted by the state engineer before May 1,
2006, remains in force and has the same legal effect as it had on the day on which it was
adopted by the state engineer.
(b) If a groundwater management plan that existed before May 1, 2006, is amended on
or after May 1, 2006, the amendment is subject to this section's provisions.