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[Utah Code Table of Contents]
[TITLE 73. Table of Contents]
73-5-1 Appointment of water commissioners - Procedure.
(1) (a) If, in the judgment of the state engineer or the district court, it is necessary to appoint a water commissioner for the distribution of water from any river system or water source, the commissioner shall be appointed for a four-year term by the state engineer.
(b) The state engineer shall determine whether all or a part of a river system or other water source shall be served by a commissioner, and if only a part is to be served, the state engineer shall determine the boundaries of that part.
(c) The state engineer may appoint:
(i) more than one commissioner to distribute water from all or a part of a water source; or
(ii) a single commissioner to distribute water from several separate and distinct water sources.
(2) (a) The state engineer shall consult with the water users before appointing a commissioner. The form of consultation and notice to be given shall be determined by the state engineer so as to best suit local conditions, while providing for full expression of majority opinion.
(b) If a majority of the water users agree upon a qualified person to be appointed as water commissioner, the duties the person shall perform, and the compensation the person shall receive, and they make recommendations to the state engineer on the appointment, duties, and compensation, the state engineer shall act in accordance with their recommendations.
(c) If a majority of water users do not agree on the appointment, duties, or compensation, the state engineer shall make a determination for them.
(3) (a) (i) The salary and expenses of the commissioner and all other expenses of distribution, including printing, postage, equipment, water users' expenses, and any other expenses considered necessary by the state engineer, shall be borne pro rata by the users of water from the river system or water source in accordance with a schedule to be fixed by the state engineer.
(ii) The schedule shall be based on the established rights of each water user, and the pro rata share shall be paid by each water user to the state engineer on or before May 1 of each year.
(b) The payments shall be deposited in the Water Commissioner Fund created in Section 73-5-1.5 .
(c) If a water user fails to pay the assessment as provided by Subsection (3)(a), the state engineer may do any or all of the following:
(i) create a lien upon the water right affected by filing a notice of lien in the office of the county recorder in the county where the water is diverted and bring an action to enforce the lien;
(ii) forbid the use of water by the delinquent water user or the delinquent water user's successors or assignees, while the default continues; or
(iii) bring an action in the district court for the unpaid expense and salary.
(d) In any action brought to collect any unpaid assessment or to enforce any lien under this section, the delinquent water user shall be liable for the amount of the assessment, interest, any penalty, and for all costs of collection, including all court costs and a reasonable attorney fee.
(4) (a) A commissioner may be removed by the state engineer for cause.
(b) The users of water from any river system or water
source may petition the district court for the removal of
a commissioner and after notice and hearing, the court may
order the removal of the commissioner and direct the state
engineer to appoint a successor.
2006
73-5-1.5 Water Commissioner Fund.
(1) There is created a private-purpose trust fund known as the "Water Commissioner Fund."
(2) The fund consists of assessments paid to the state engineer by water users pursuant to Subsection 73-5-1 (3).
(3) (a) The fund shall earn interest.
(b) Interest earned on fund monies shall be deposited into the fund.
(4) The state engineer shall use fund monies to pay for
salary and expenses of water commissioners and other expenses
related to the distribution of water specified in Subsection
73-5-1
(3).
2002
73-5-3 Control by engineer of division and distribution under judgments.
The state engineer and his duly authorized assistants
shall carry into effect the judgments of the courts in relation
to the division, distribution or use of water under the provisions
of this title. The state engineer shall divide, or cause
to be divided, the water within any district created under
the provisions of this title among the several appropriators
entitled thereto in accordance with the right of each respectively,
and shall regulate and control, or cause to be regulated
and controlled, the use of such water by such closing or
partial closing of the head gates, caps, valves or other
controlling works of any ditch, canal, pipe, flume, well
or tunnel or other means of diversion as will prevent the
waste of water or its use in excess of the quantity to which
any appropriator is lawfully entitled, and shall regulate,
or cause to be regulated, the controlling works of reservoirs
in accordance with the provisions of this title. Whenever
in pursuance of his duties the state engineer regulates or
causes to be regulated any head gate, cap, valve or other
controlling works of any ditch, canal, pipe, flume, well
or tunnel or other means of diversion or the controlling
works of any reservoir, he may attach to such controlling
works a written notice, properly dated and signed, setting
forth that such controlling works have been properly regulated
and are wholly under his control, and such notice shall be
a legal notice as to the facts therein contained to all parties
interested in the division and distribution of the water
of such ditch, canal, pipe, flume, well or tunnel or other
means of diversion or reservoir. Whenever the state engineer
is required to enter upon private property in order to carry
out the provisions of this title and is refused by the owner
or possessor of such property such right of entry, he may
petition the district court for an order granting such right,
and after notice and hearing the court may grant such permission,
on security being given to pay all damage caused thereby
to the owner of such property.
1953
73-5-4 Head gates and measuring devices.
Every person using water in this state shall construct
or install and maintain a substantial head gate, cap, valve
or other controlling works, weir flume and measuring device
at each point where water is diverted or turned out, for
the purpose of regulating and measuring the quantity of water
that may be used. Such controlling works or measuring device
shall be of such design as the state engineer may approve
and so that the same can be locked and kept set by him or
his assistants; and such owner shall construct and maintain,
when required by the state engineer, flumes or other measuring
devices at such points along his ditch as may be necessary
for the purpose of assisting the state engineer or his assistants
in determining the amount of water that is to be diverted
into his ditch from the stream or water source, or taken
from it by the various users. Every owner or manager of a
reservoir located across or upon the bed of a natural stream
shall construct and maintain, when required by the state
engineer, a flume or other measuring device of a plan to
be approved by the state engineer, below such reservoir at
a point approved by him, and a flume or measuring device
above such reservoir on each stream or source of supply discharging
into such reservoir, for the purpose of assisting the state
engineer in determining the amount of water to which prior
appropriators are entitled, and thereafter diverting it for
such prior appropriators' use. If the owner of irrigation
works, canals, reservoirs, wells, pumps or tunnels shall
refuse or neglect to construct or install such head gates,
caps, valves, flumes or measuring devices after thirty days'
notice to do so by the state engineer, the state engineer
may forbid the use of water until the user thereof shall
comply with his requirement, or the state engineer may proceed
to construct or install or cause to be constructed or installed
such controlling works or measuring devices, and the cost
of the same shall be a lien against the lands and water rights
served thereby, and the state engineer is authorized to bring
action in the name of the state to foreclose such lien.
1953
73-5-7 Inspection of ditches and diverting works by engineer.
The state engineer shall have authority to examine and
inspect any ditch or other diverting works, and at the time
of such inspection he may order the owners thereof to make
any addition or alteration which he considers necessary for
the security of such works, the safety of persons, or the
protection of property. If any person, firm, copartnership,
association or corporation refuses or neglects to comply
with such requirements of the state engineer, he may bring
action in the name of the state in the district court to
enforce his order.
1953
73-5-8 Reports by users to engineer.
Every person using water from any river system or water source, when requested by the state engineer, shall within 30 days after such request report to the state engineer in writing:
(1) the nature of the use of any such water;
(2) the area on which used;
(3) the kind of crops to be grown; and
(4) water elevations on wells or tunnels and quantity
of underground water used.
2005
73-5-9 Powers of state engineer as to waste, pollution, or contamination of waters.
(1) To prevent waste, loss, pollution, or contamination of any waters whether above or below the ground, the state engineer may require the repair or construction of head gates or other devices on ditches or canals, and the repair or installation of caps, valves, or casings on any well or tunnel or the plugging or filling thereof to accomplish the purposes of this section.
(2) Any requirement made by the state engineer in accordance with this section shall be executed by and at the cost and expense of the owner, lessee or person having control of such diverting works affected.
(3) If within ten days after notice of such requirement as provided in this section, the owner, lessee or person having control of the water affected, has not commenced to carry out such requirement, or if he has commenced to comply therewith but shall not thereafter proceed diligently to complete the work, the state engineer may forbid the use of water from such source until the user thereof shall comply with such requirement.
(4) Failure to comply with any requirement made by the state engineer under this section is a crime punishable under Section 73-2-27 if the failure to comply is knowing or intentional.
(5) Each day that such violation is permitted to continue
shall constitute a separate offense.
2005
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) All claimants to the right to the use of water, including both surface and underground, whose rights are not represented by certificates of appropriation issued by the state engineer, by applications filed with the state engineer, by court decrees, or by notice of claim filed pursuant to law, shall submit the claim to the state engineer.
(b) Subsections (2) through (7) shall only apply to claims submitted to the state engineer pursuant to this section after May 4, 1997.
(2) (a) Each claim submitted under this section shall be verified under oath by the claimant or the claimant's duly appointed representative and submitted on forms furnished by the state engineer setting forth any information the state engineer requires, including:
(i) the name and post office 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 verified under oath by a registered engineer or 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 which 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 which 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 claim may be corrected by submitting to the state engineer a verified corrected claim designated as such and bearing the same number as the original claim.
(b) No fee shall be charged for submitting a corrected claim.
(4) (a) Upon submission by a claimant of a claim that is acceptably complete under Subsection (2) and the deposit of money by a claimant 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; and
(iv) publish a notice of the claim following the same procedures as provided in Section 73-3-6 .
(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 on 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, whether or not the claim has been accepted for filing by the state engineer.
(b) Venue for the action shall be in the county in which 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) Any 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 a manner prescribed by the state engineer. 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 any 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, which shall become part of the state engineer's file on the claim.
(7) The state engineer may make rules consistent with
this section specifying information required to be included
in a claim and claim procedures.
2001
73-5-14 Determination by the state engineer of watershed to which particular source is tributary - Publications of notice and result - Hearing - Judicial review.
The state engineer shall have the power to determine for
administrative and distribution purposes the watershed to
which any particular stream or source of water is tributary.
Said determination may be made only after publication of
notice to the water users. Said publication of notice shall
be made in a newspaper or newspapers having general circulation
in every county in this state in which any rights might be
affected. The publication is to be made once each week for
five consecutive weeks. It shall fix the date and place of
hearing and at said hearing any water user shall be given
an opportunity to appear and adduce evidence material to
the determination of the question involved. The result of
said determination by the state engineer shall likewise be
published in the manner set forth above and said notice of
the decision of the state engineer shall also notify the
public that any person aggrieved by said decision may appeal
from said decision as provided by Section
73-3-14
; and notice shall be deemed to have been given
so as to start the time for appeal upon completion of the
publication of notice.
1953
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 1/3 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 geographic spacing and location of groundwater withdrawals;
(v) water quality;
(vi) local well interference; and
(vii) 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.
(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 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;
(ii) published conspicuously on the state engineer's Internet 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) any of the following type of independent special districts operating under Title 17A, Special Districts:
(I) county improvement district providing water, sewerage, or flood control;
(II) county service area;
(III) drainage district;
(IV) irrigation district;
(V) metropolitan water district;
(VI) special service district providing water, sewer, drainage, or flood control services; and
(VII) water conservancy district; and
(D) soil conservation district.
(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 in a newspaper of general circulation in the county in which the district court is located.
(ii) The notice required by Subsection (10)(e)(i) 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 63, Chapter 46a, Utah Administrative Rulemaking Act.
(12) Recharge and recovery projects permitted under Chapter 3b, Groundwater Recharge and Recovery Act, are exempted from this section.
(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.
2006
