§ 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) (1)(a) It shall be the duty of the state engineer to approve an application if there is reason to believe that:
(1)(a)(i) for an application to appropriate, there is unappropriated water in the proposed source;
(1)(a)(ii) the proposed use will not impair existing rights or interfere with the more beneficial use of the water;
(1)(a)(iii) the proposed plan:
(1)(a)(iii)(A) is physically and economically feasible, unless the application is filed by the United States Bureau of Reclamation; and
(1)(a)(iii)(B) would not prove detrimental to the public welfare;
(1)(a)(iv) the applicant has the financial ability to complete the proposed works;
(1)(a)(v) the application was filed in good faith and not for purposes of speculation or monopoly; and
(1)(a)(vi) if applicable, the application complies with a groundwater management plan adopted under Section 73-5-15.
(1)(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.
(1)(c) If an application does not meet the requirements of this section, it shall be rejected.
(2) (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.
(2)(b) At the expiration of the period fixed by the state engineer the water shall revert to the public and is subject to appropriation as provided by this title.
(2)(c) No later than 60 calendar days before the expiration date of the fixed time period, the state engineer shall send notice by mail or by any form of electronic communication through which receipt is verifiable, to the applicant of record.
(2)(d) Except as provided by Subsection (2)(e), the state engineer may extend any limited water right upon a showing that:
(2)(d)(i) the essential purpose of the original application has not been satisfied;
(2)(d)(ii) the need for an extension is not the result of any default or neglect by the applicant; and
(2)(d)(iii) the water is still available.
(2)(e) An extension may not exceed the time necessary to satisfy the primary purpose of the original application.
(2)(f) A request for extension of the fixed time period must be filed in writing in the office of the state engineer on or before the expiration date of the application.
(3) (3)(a) Before the approval of any application to divert water from navigable lakes or streams of the state that contemplates the recovery of salts and other minerals or elements, as defined in Section 65A-17-101, therefrom by precipitation or otherwise, the applicant shall file with the state engineer a copy of:
(3)(a)(i) a contract for the payment of royalties to the state; and
(3)(a)(ii) any mineral lease.
(3)(b) The approval of an application shall be reversed if the applicant fails to comply with terms of the royalty contract or mineral lease.
(4) (4)(a) The state engineer shall investigate all temporary change applications.
(4)(b) The state engineer shall:
(4)(b)(i) approve the temporary change if the state engineer finds there is reason to believe that the temporary change will not impair an existing right; and
(4)(b)(ii) deny the temporary change if the state engineer finds there is reason to believe the temporary change would impair an existing right.
(5) (5)(a) With respect to a change application for a permanent or fixed time change:
(5)(a)(i) the state engineer shall follow the same procedures provided in this title for approving an application to appropriate water; and
(5)(a)(ii) the rights and duties of a change applicant are the same as the rights and duties of a person who applies to appropriate water under this title.
(5)(b) The state engineer may waive notice for a permanent or fixed time change application if the application only involves a change in point of diversion of 660 feet or less.
(5)(c) The state engineer may condition approval of a change application, including to:
(5)(c)(i) prevent an enlargement of the quantity of water depleted by the nature of the proposed use when compared with the nature of the currently approved use of water proposed to be changed; and
(5)(c)(ii) ensure that the recognition and subsequent use of saved water, as defined in Section 73-3-3:
(5)(c)(ii)(A) is quantified, reported, and verified;
(5)(c)(ii)(B) does not lead to an enlargement of the depletion or diversion amounts in the underlying water right that serves as the basis of the saved water, or an increase in the authorized number of irrigated acres unless depletion is accounted for and regulated in the condition;
(5)(c)(ii)(C) is limited to the net decrease in depletion and net reduction in diversion of the underlying water right that serves as the basis of the saved water;
(5)(c)(ii)(D) is limited to the volume of water that will be sustained over time from the net decrease in depletion or net reduction in diversion of the underlying water right that serves as the basis of the saved water;
(5)(c)(ii)(E) does not violate an existing water agreement; and
(5)(c)(ii)(F) when based solely on a net reduction in diversion, the subsequent use is limited to nonconsumptive beneficial uses and does not increase the depletion allowed by the underlying water right that serves as the basis of the saved water or otherwise cause quantity impairment to an existing water right when the saved water is beneficially used separate from the underlying water right.
(5)(d) Except for an application proposing to quantify saved water, a condition described in Subsection (5)(c) may not include a reduction in the currently approved diversion rate of water under the water right identified in the change application solely to account for the difference in depletion under the nature of the proposed use when compared with the nature of the currently approved use.
(6) (6)(a) Except as provided in Subsection (6)(b), the state engineer shall reject a permanent or fixed time change application if the person proposing to make the change is unable to meet the burden described in Subsection 73-3-3(5).
(6)(b) If otherwise proper, the state engineer may approve a change application upon one or more of the following conditions:
(6)(b)(i) for part of the water involved;
(6)(b)(ii) that the applicant acquire a conflicting right; or
(6)(b)(iii) that the applicant provide and implement a plan approved by the state engineer to mitigate impairment of an existing right.
(6)(c) (6)(c)(i) There is a rebuttable presumption of quantity impairment, as defined in Section 73-3-3, to the extent that, for a period of at least seven consecutive years, a portion of the right identified in a change application has not been:
(6)(c)(i)(A) diverted from the approved point of diversion; or
(6)(c)(i)(B) beneficially used at the approved place of use.
(6)(c)(ii) The rebuttable presumption described in Subsection (6)(c)(i) does not apply if the beneficial use requirement is excused by:
(6)(c)(ii)(A) Subsection 73-1-4(2)(e);
(6)(c)(ii)(B) an approved nonuse application under Subsection 73-1-4(2)(b);
(6)(c)(ii)(C) Subsection 73-3-30(7); or
(6)(c)(ii)(D) the passage of time under Subsection 73-1-4(2)(c)(i).
(6)(d) The state engineer may not consider quantity impairment based on the conditions described in Subsection (6)(c) unless the issue is raised in a:
(6)(d)(i) timely protest that identifies which of the protestant's existing rights the protestant reasonably believes will experience quantity impairment; or
(6)(d)(ii) written notice provided by the state engineer to the applicant within 90 days after the change application is filed.
(6)(e) The written notice described in Subsection (6)(d)(ii) shall:
(6)(e)(i) specifically identify an existing right the state engineer reasonably believes may experience quantity impairment; and
(6)(e)(ii) be mailed to the owner of an identified right, as shown by the state engineer's records, if the owner has not protested the change application.
(6)(f) The state engineer is not required to include all rights the state engineer believes may be impaired by the proposed change in the written notice described in Subsection (6)(d)(ii).
(6)(g) The owner of a right who receives the written notice described in Subsection (6)(d)(ii) may not become a party to the administrative proceeding if the owner has not filed a timely protest.
(6)(h) If a change applicant, the protestants, and the persons identified by the state engineer under Subsection (6)(d)(ii) come to a written agreement regarding how the issue of quantity impairment shall be mitigated, the state engineer may incorporate the terms of the agreement into a change application approval.

Legislative History

Amended by Chapter 233, 2024 General Session