Enrolled Copy S.B. 18
1 WATER MODIFICATIONS
2024 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Scott D. Sandall House Sponsor: Casey Snider
2
3 LONG TITLE
4 General Description:
5 This bill addresses regulation of water.
6 Highlighted Provisions:
7 This bill:
8 ▸ modifies forfeiture provisions in relation to saved water;
9 ▸ grants rulemaking authority related to saved water;
10 ▸ defines terms;
11 ▸ addresses changes to a water right in relation to saved water;
12 ▸ provides for proofs related to saved water;
13 ▸ addresses certificates of appropriation in relation to saved water;
14 ▸ modifies provisions related to segregation and saved water;
15 ▸ clarifies language related to agricultural water optimization and saved water;
16 ▸ modifies requirements for grants for agicultural water optimization;
17 ▸ repeals certain language related to agricultural water optimization; and
18 ▸ makes technical changes.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 73-1-4, as last amended by Laws of Utah 2023, Chapter 230
26 73-2-1, as last amended by Laws of Utah 2023, Chapter 16
27 73-3-3, as last amended by Laws of Utah 2022, Chapter 43
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28 73-3-8, as last amended by Laws of Utah 2023, Chapter 253
29 73-3-16, as last amended by Laws of Utah 2021, Chapter 81
30 73-3-17, as last amended by Laws of Utah 2020, Chapter 278
31 73-3-27, as last amended by Laws of Utah 2009, Chapter 247
32 73-10g-203.5, as enacted by Laws of Utah 2023, Chapter 261
33 73-10g-205, as enacted by Laws of Utah 2023, Chapter 261
34 73-10g-206, as enacted by Laws of Utah 2023, Chapter 261
35 REPEALS:
36 73-10g-208, as enacted by Laws of Utah 2023, Chapter 261
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 73-1-4 is amended to read:
40 73-1-4 . Reversion to the public by abandonment or forfeiture for nonuse within
41 seven years -- Saved water -- Nonuse application.
42 (1) As used in this section:
43 (a) "Public entity" means:
44 (i) the United States;
45 (ii) an agency of the United States;
46 (iii) the state;
47 (iv) a state agency;
48 (v) a political subdivision of the state; or
49 (vi) an agency of a political subdivision of the state.
50 (b) "Public water supplier" means an entity that:
51 (i) supplies water, directly or indirectly, to the public for municipal, domestic, or
52 industrial use; and
53 (ii) is:
54 (A) a public entity;
55 (B) a water corporation, as defined in Section 54-2-1, that is regulated by the
56 Public Service Commission;
57 (C) a community water system:
58 (I) that:
59 (Aa) supplies water to at least 100 service connections used by year-round
60 residents; or
61 (Bb) regularly serves at least 200 year-round residents; and
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62 (II) whose voting members:
63 (Aa) own a share in the community water system;
64 (Bb) receive water from the community water system in proportion to the
65 member's share in the community water system; and
66 (Cc) pay the rate set by the community water system based on the water the
67 member receives; or
68 (D) a water users association:
69 (I) in which one or more public entities own at least 70% of the outstanding
70 shares; and
71 (II) that is a local sponsor of a water project constructed by the United States
72 Bureau of Reclamation.
73 (c) "Saved water" means the same as that term is defined in Section 73-3-3.
74 [(c)] (d) "Shareholder" means the same as that term is defined in Section 73-3-3.5.
75 [(d)] (e) "Water company" means the same as that term is defined in Section 73-3-3.5.
76 [(e)] (f) "Water supply entity" means an entity that supplies water as a utility service or
77 for irrigation purposes and is also:
78 (i) a municipality, water conservancy district, metropolitan water district, irrigation
79 district, or other public agency;
80 (ii) a water company regulated by the Public Service Commission; or
81 (iii) any other owner of a community water system.
82 (2) (a) Except as provided in Subsection (2)(b) or (e), when an appropriator or the
83 appropriator's successor in interest abandons or ceases to beneficially use all or a
84 portion of a water right for a period of at least seven years, the water right or the
85 unused portion of that water right is subject to forfeiture in accordance with
86 Subsection (2)(c).
87 (b) (i) An appropriator or the appropriator's successor in interest may file an
88 application for nonuse with the state engineer.
89 (ii) A nonuse application may be filed on all or a portion of the water right, including
90 water rights held by a water company.
91 (iii) After giving written notice to the water company, a shareholder may file a
92 nonuse application with the state engineer on the water represented by the stock.
93 (iv) (A) The approval of a nonuse application excuses the requirement of
94 beneficial use of water from the date of filing.
95 (B) The time during which an approved nonuse application is in effect does not
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96 count toward the seven-year period described in Subsection (2)(a).
97 (v) The filing or approval of a nonuse application or a series of nonuse applications
98 under Subsection (3) does not:
99 (A) constitute beneficial use of a water right;
100 (B) protect a water right that is already subject to forfeiture under this section; or
101 (C) bar a water right owner from:
102 (I) using the water under the water right as permitted under the water right; or
103 (II) claiming the benefit of Subsection (2)(e) or any other forfeiture defense
104 provided by law.
105 (c) (i) Except as provided in Subsection (2)(c)(ii), a water right or a portion of the
106 water right may not be forfeited unless a judicial action to declare the right
107 forfeited is commenced:
108 (A) within 15 years from the end of the latest period of nonuse of at least seven
109 years; or
110 (B) within the combined time of 15 years from the end of the most recent period
111 of nonuse of at least seven years and the time the water right was subject to one
112 or more nonuse applications.
113 (ii) (A) The state engineer, in a proposed determination of rights filed with the
114 court and prepared in accordance with Section 73-4-11, may not assert that a
115 water right was forfeited unless the most recent period of nonuse of seven
116 years ends or occurs:
117 (I) during the 15 years immediately preceding the day on which the state
118 engineer files the proposed determination of rights with the court; or
119 (II) during the combined time immediately preceding the day on which the
120 state engineer files the proposed determination of rights consisting of 15
121 years and the time the water right was subject to one or more approved
122 nonuse applications.
123 (B) After the day on which a proposed determination of rights is filed with the
124 court a person may not assert that a water right subject to that determination
125 was forfeited before the issuance of the proposed determination, unless the
126 state engineer asserts forfeiture in the proposed determination, or a person, in
127 accordance with Section 73-4-11, makes an objection to the proposed
128 determination that asserts forfeiture.
129 (iii) A water right, found to be valid in a decree entered in an action for general
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130 determination of rights under Chapter 4, Determination of Water Rights, is subject
131 to a claim of forfeiture based on a seven-year period of nonuse that begins after
132 the day on which the state engineer filed the related proposed determination of
133 rights with the court, unless the decree provides otherwise.
134 (iv) If in a judicial action a court declares a water right forfeited, on the date on which
135 the water right is forfeited:
136 (A) the right to beneficially use the water reverts to the public; and
137 (B) the water made available by the forfeiture:
138 (I) first, satisfies other water rights in the hydrologic system in order of priority
139 date; and
140 (II) second, may be appropriated as provided in this title.
141 (d) Except as provided in Subsection (2)(e), this section applies whether the unused or
142 abandoned water or a portion of the water is:
143 (i) permitted to run to waste; or
144 (ii) beneficially used by others without right with the knowledge of the water right
145 holder.
146 (e) This section does not apply to:
147 (i) the beneficial use of water according to a written, terminable lease or other
148 agreement with the appropriator or the appropriator's successor in interest;
149 (ii) a water right if its place of use is contracted under an approved state agreement or
150 federal conservation fallowing program;
151 (iii) those periods of time when a surface water or groundwater source fails to yield
152 sufficient water to satisfy the water right;
153 (iv) a water right when water is unavailable because of the water right's priority date;
154 (v) a water right to store water in a surface reservoir, or an aquifer in accordance with [
155 Title 73, Chapter 3b, Groundwater Recharge and Recovery Act] Chapter 3b,
156 Groundwater Recharge and Recovery Act, if the water is stored for present or
157 future beneficial use;
158 (vi) a water right if a water user has beneficially used substantially all of the water
159 right within a seven-year period, provided that this exemption does not apply to
160 the adjudication of a water right in a general determination of water rights under
161 Chapter 4, Determination of Water Rights;
162 (vii) except as provided by Subsection (2)(g), a water right:
163 (A) (I) owned by a public water supplier;
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164 (II) represented by a public water supplier's ownership interest in a water
165 company; or
166 (III) to which a public water supplier owns the right of beneficial use; and
167 (B) conserved or held for the reasonable future water requirement of the public,
168 which is determined according to Subsection (2)(f);
169 (viii) a supplemental water right during a period of time when another water right
170 available to the appropriator or the appropriator's successor in interest provides
171 sufficient water so as to not require beneficial use of the supplemental water right;
172 (ix) a period of nonuse of a water right during the time the water right is subject to an
173 approved change application where the applicant is diligently pursuing
174 certification;
175 (x) a water right to store water in a surface reservoir if:
176 (A) storage is limited by a safety, regulatory, or engineering restraint that the
177 appropriator or the appropriator's successor in interest cannot reasonably
178 correct; and
179 (B) not longer than seven years have elapsed since the limitation described in
180 Subsection (2)(e)(x)(A) is imposed; [or]
181 (xi) a water right subject to an approved change application for use within a water
182 bank that has been authorized but not dissolved under Chapter 31, Water Banking
183 Act, during the period of time the state engineer authorizes the water right to be
184 used within the water bank[.] ; or
185 (xii) subject to Subsection (2)(h), that portion of a water right that is quantified as
186 saved water in a final order from the state engineer approving a change
187 application, but not to exceed the amount subsequently verified by the state
188 engineer in a certificate issued under Section 73-3-17.
189 (f) (i) The reasonable future water requirement of the public is the amount of water
190 needed in the next 40 years by:
191 (A) the persons within the public water supplier's reasonably anticipated service
192 area based on reasonably anticipated population growth; or
193 (B) other water use demand.
194 (ii) For purposes of Subsection (2)(f)(i), a community water system's reasonably
195 anticipated service area:
196 (A) is the area served by the community water system's distribution facilities; and
197 (B) expands as the community water system expands the distribution facilities in
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198 accordance with Title 19, Chapter 4, Safe Drinking Water Act.
199 (iii) The state engineer shall by rule made in accordance with Subsection 73-2-1(4)
200 establish standards for a written plan that may be presented as evidence in
201 conformance with this Subsection (2)(f), except that before a rule establishing
202 standards for a written plan under this Subsection (2)(f) takes effect, in addition to
203 complying with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
204 state engineer shall present the rule to:
205 (A) if the Legislature is not in session, the Natural Resources, Agriculture, and
206 Environment Interim Committee; or
207 (B) if the Legislature is in session, the House of Representatives and Senate
208 Natural Resources, Agriculture, and Environment standing committees.
209 (g) For a water right acquired by a public water supplier on or after May 5, 2008,
210 Subsection (2)(e)(vii) applies if:
211 (i) the public water supplier submits a change application under Section 73-3-3; and
212 (ii) the state engineer approves the change application.
213 (h) Saved water does not retain the protection of Subsection (2)(e)(xii) and any period of
214 nonuse for saved water begins to run the day on which:
215 (i) the underlying water right that serves as the basis for the saved water is declared
216 by court decree to have been lost due to forfeiture under this section; or
217 (ii) the title of a right to saved water segregated under Section 73-3-27 is conveyed
218 independent of the underlying water right.
219 (3) (a) The state engineer shall furnish a nonuse application form requiring the following
220 information:
221 (i) the name and address of the applicant;
222 (ii) a description of the water right or a portion of the water right, including the point
223 of diversion, place of use, and priority;
224 (iii) the quantity of water;
225 (iv) the period of use;
226 (v) the extension of time applied for;
227 (vi) a statement of the reason for the nonuse of the water; and
228 (vii) any other information that the state engineer requires.
229 (b) (i) Upon receipt of the application, the state engineer shall publish a notice of the
230 application once a week for two successive weeks:
231 (A) in a newspaper of general circulation in the county in whi