Bill Summary – FastDemocracy

Enrolled Copy                                                                         H.B. 130
                                WATER USE AMENDMENTS
                                     2020 GENERAL SESSION
                                         STATE OF UTAH
                            Chief Sponsor: Timothy D. Hawkes
                                Senate Sponsor: Jani Iwamoto
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 LONG TITLE
 General Description:
       This bill addresses regulation of the uses of water.
 Highlighted Provisions:
       This bill:
       < addresses fees;
       < modifies definition provisions;
       < addresses references to changes;
       < addresses the state engineer's actions related to split season or other potentially
 complicated changes;
       < amends the exemption related to proof of appropriation or change;
       < addresses change application for instream flow; and
       < makes technical and conforming amendments.
 Money Appropriated in this Bill:
       None
 Other Special Clauses:
       None
 Utah Code Sections Affected:
 AMENDS:
       73-2-14, as last amended by Laws of Utah 2017, Chapter 76
       73-3-3, as last amended by Laws of Utah 2015, Chapters 245, 249, 251, 298 and last
 amended by Coordination Clause, Laws of Utah 2015, Chapter 249
       73-3-5, as last amended by Laws of Utah 2001, Chapter 136
       H.B. 130                                                                          Enrolled Copy
         73-3-8, as last amended by Laws of Utah 2019, Chapter 366
         73-3-16, as last amended by Laws of Utah 2013, Chapter 221
         73-3-30, as last amended by Laws of Utah 2013, Chapter 379
33
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 73-2-14 is amended to read:
         73-2-14. Fees of state engineer -- Deposited as a dedicated credit.
         (1) The state engineer shall charge fees pursuant to Section 63J-1-504 for the
 following:
         (a) applications to appropriate water;
         (b) applications to temporarily appropriate water;
         (c) applications for [permanent or temporary] a change;
         (d) applications for exchange;
         (e) applications for nonuse of water;
         (f) applications to appropriate water, or make a [permanent or temporary] change, for
 use outside the state filed pursuant to Title 73, Chapter 3a, Water Exports;
         (g) groundwater recovery permits;
         (h) diligence claims for surface or underground water filed pursuant to Section
 73-5-13;
         (i) republication of notice to water users after amendment of application where
 required by this title;
         (j) applications to segregate;
         (k) requests for an extension of time in which to submit proof of appropriation not to
 exceed 14 years after the date of approval of the application;
         (l) requests for an extension of time in which to submit proof of appropriation 14 years
 or more after the date of approval of the application;
         (m) groundwater recharge permits;
         (n) applications for a well driller's license, annual renewal of a well driller's license,
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       Enrolled Copy                                                                         H.B. 130
 and late annual renewal of a well driller's license;
        (o) certification of copies;
        (p) preparing copies of documents;
        (q) reports of water right conveyance; and
        (r) requests for a livestock water use certificate under Section 73-3-31.
        (2) Fees for the services specified in Subsections (1)(a) through (i) shall be based upon
 the rate of flow or volume of water. If it is proposed to appropriate by both direct flow and
 storage, the fee shall be based upon either the rate of flow or annual volume of water stored,
 whichever fee is greater.
        (3) Fees collected under this section:
        (a) shall be deposited in the General Fund as a dedicated credit to be used by the
 Division of Water Rights; and
        (b) may only be used by the Division of Water Rights to:
        (i) meet the publication of notice requirements under this title;
        (ii) process reports of water right conveyance;
        (iii) process a request for a livestock water use certificate; and
        (iv) hire an employee to assist with processing an application.
        Section 2. Section 73-3-3 is amended to read:
        73-3-3. Changes to a water right.
        (1) For purposes of this section:
        (a) "Change" means a change to the:
        (i) point of diversion;
        (ii) place of use;
        (iii) period of use;
        (iv) nature of use; or
        (v) storage of water.
        (b) "Fixed time change" means a change for a fixed period of time exceeding one year
 and not exceeding 10 years.
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        H.B. 130                                                                         Enrolled Copy
         [(a)] (c) "Permanent change" means a change, for an indefinite period of time[, to the:]
         [(i) point of diversion;]
         [(ii) place of use;]
         [(iii) period of use;]
         [(iv) nature of use; or]
         [(v) storage of water].
         [(b)] (d) "Person entitled to the use of water" means:
         (i) the holder of an approved but unperfected application to appropriate water;
         (ii) the record owner of a perfected water right;
         (iii) a person who has written authorization from a person described in Subsection
 (1)[(b)](d)(i) or (ii) to file a change application on that person's behalf; or
         (iv) a shareholder in a water company who is authorized to file a change application in
 accordance with Section 73-3-3.5.
         [(c)] (e) (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.
         (f) "Split season change" means a change when the holder of a perfected right grants to
 a water user the right to make sequential use of a portion of the water right.
         [(d)] (g) "Temporary change" means a change for a [fixed] period of time, not
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        Enrolled Copy                                                                          H.B. 130
 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.
         (3) (a) A person entitled to the use of water may make a [permanent or temporary]
 change to an existing right to use water, including a right involved in a general determination
 of rights or other suit, if:
         (i) the person makes the change in accordance with this section;
         (ii) except as provided by Section 73-3-30, the change 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.
         (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.
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       H.B. 130                                                                        Enrolled Copy
        (c) A change application on a United States Indian Irrigation Service water right that is
 serving the needs of a township or municipality shall be signed by:
        (i) the local public water supplier that is responsible for the operation and maintenance
 of the public water supply system; and
        (ii) the record owner of the water right.
        (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.
        (b) The application described in Subsection (4)(a) shall include:
        (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, nature, period, and extent of the currently approved use;
        (viii) the place, nature, period, and extent of the proposed use;
        (ix) if the change applicant is submitting a change application in accordance with
 Section 73-3-3.5, the information required by Section 73-3-3.5;
        (x) any proposed change to the storage of water; and
        (xi) any other information that the state engineer requires.
        (c) A shareholder in a water company who seeks to make a [permanent or temporary]
 change to a water right to which the water company is the record owner shall file a change
 application in accordance with Section 73-3-3.5.
        (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
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        Enrolled Copy                                                                           H.B. 130
        (b) if applicable, rebutting the presumption of quantity impairment described in
 Subsection 73-3-8(6)(c).
        (6) A change of an approved application to appropriate water does not:
        (a) affect the priority of the original application to appropriate water; or
        (b) extend the time period within which the construction of work is to begin or be
 completed.
        (7) Any person who makes a [permanent or temporary] change without first filing and
 obtaining approval of a change application providing for [such] the change:
        (a) obtains no right by the change;
        (b) is guilty of an offense punishable under Section 73-2-27 if the change is made
 knowingly or intentionally; and
        (c) shall comply with the change application process.
        (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] A replacement well must be drilled in accordance with the requirements of
 Section 73-3-28.
        Section 3. Section 73-3-5 is amended to read:
        73-3-5. Action by engineer on applications.
        (1) On receipt of [each] an application containing the information required by Section
 73-3-2, and payment of the filing fee, [it shall be the duty of] the state engineer [to make an
 endorsement thereon of] shall endorse the application with the date of its receipt[, and] to make
 a record of [such] the receipt for that purpose.
        (2) [It shall be the duty of the] The state engineer [to] shall examine the application and
 determine whether any corrections, amendments or changes are required for clarity and if so,
 see that such changes are made before further processing. The state engineer may not construe
 an application for a split season change or other potentially complicated change as incomplete
 or unacceptable if the application satisfies the filing requirements under Section 73-3-3 and
 payment of the respective filing fee is made.
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        H.B. 130                                                                            Enrolled Copy
           (3) [All applications which shall comply] An application that complies with [the
 provisions of] this chapter and with the regulations of the state engineer shall be filed and
 recorded.
           (4) The state engineer may issue a temporary receipt to drill a well at any time after the
 filing of an application to appropriate water [therefrom] from the well, as provided by this
 section if [all] the fees be advanced and if in [his] the state engineer's judgment there is
 unappropriated water available in the proposed source and there is no likelihood of impairment
 of existing rights[; provided, however,], except that the issuance of [such] a temporary [permits
 shall] receipt does not dispense with the publishing of notice and the final approval or rejection
 of [such] the application by the state engineer, as provided by this chapter.
           (5) The state engineer may send the necessary notices and address [all] correspondence
 relating to [each] an application to the owner thereof as shown by the state engineer's records,
 or to [his] the owner's attorney in fact provided a written power of attorney is filed in the state
 engineer's office.
           Section 4. 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 -- Request for agency action.
           (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;
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        Enrolled Copy                                                                           H.B. 130
        (iv) the applicant has the financial ability to complete the proposed works;
        (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) 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 will interfere with 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, the state engineer shall withhold approval or
 rejection of the application until the state engineer has investigated the matter.
        (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 expi