No. 33066 (New Rule): Rule R655-16. Administrative Procedures for Declaring Beneficial Use Limitations for Supplemental Water Rights

(New Rule)

DAR File No.: 33066
Filed: 10/15/2009 02:31:32 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to define procedures for resolving supplemental water right beneficial use quantification issues by agreement among the water right owners. The rule also defines state engineer assistance in apportioning beneficial use among water rights in a water use group.

Summary of the rule or change:

This rule provides for a "Declaration of Individual Beneficial Use Amounts" form to enable water right holders to declare beneficial use information and document agreement with that declaration by those with supplemental water rights. The rule provides conditions under which a water user may petition the state engineer for assistance in apportioning beneficial use among water rights in a water use group. The rule formalizes the procedure the state engineer will follow in the apportioning beneficial use among water rights in a water use group.

State statutory or constitutional authorization for this rule:

• Section 73-1-3
• Subsection 73-2-1(3)
• Subsection 73-2-1(5)(e)
• Subsection 73-3-3(4)(b)(vii)
• Section 73-5-8

Anticipated cost or savings to:

the state budget:

The state engineer currently assists the public with issues and questions related to the apportionment of beneficial use. This rule will formalize and standardize that process. The rule will require more effort on the part of the water user before state engineer assistance can be requested, so the water user may provide more of the information needed for an apportionment and also there may be fewer requests for assistance. However, in those cases where the state engineer is not requested to apportion the beneficial uses, the state engineer will still be required to review all of the beneficial use information submitted by water users to determine if it is in agreement with the water right record. Overall there probably will not be a reduction in effort required and no increased costs incurred or savings made.

local governments:

Local government will not be affected unless the government entity is an owner of water right involved in a water use group that required quantification of the beneficial uses. In this case, the effect will be as described under "other persons" below.

small businesses:

Small business in general will not be affected unless the business is an owner of water right involved in a water use group that required quantification of the beneficial uses. In this case, the effect will be as described under "other persons" below.

persons other than small businesses, businesses, or local governmental entities:

This rule will provide a defined process to assure all impacted parties have an opportunity to participate in the quantification of supplemental water right beneficial use. It also creates an obligation for individual water right holders to participate.

Compliance costs for affected persons:

There will be a cost if the water users choose to hire professional help in completing a Declaration of Individual Beneficial Use Amounts. The cost will vary depending upon the complexity of the water right involved.

Comments by the department head on the fiscal impact the rule may have on businesses:

No impact on businesses.

Michael R. Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Water Rights
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Kaelyn Anfinsen at the above address, by phone at 801-538-7370, by FAX at 801-538-7442, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/01/2009

Interested persons may attend a public hearing regarding this rule:

• 11/17/2009 10:00 AM, DNR Auditorium, 1594 W North Temple, SLC, UT

This rule may become effective on:

12/08/2009

Authorized by:

Kent Jones, State Engineer/Director

RULE TEXT

R655. Natural Resources, Water Rights.

R655-16. Administrative Procedures for Declaring Beneficial Use Limitations for Supplemental Water Rights.

R655-16-1. Authority.

Section 73-1-3 declares, "Beneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state."

Subsection 73-2-1(3) declares, "The State Engineer shall be responsible for the general administrative supervision of the waters of the state and the measurement, appropriation, apportionment, and distribution of those waters."

Subsection 73-2-1(5)(e) authorizes the State Engineer to make rules governing the form and content of applications and related documents, maps and reports.

Subsection 73-3-3(4)(b)(vii) requires the State Engineer to supply an application form for the permanent or temporary change of a water right which shall set forth, among other information, "the place, purpose, and extent of the present use."

Section 73-5-8 states, "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 it is used; (3) the kind of crops grown; and (4) water elevations on wells or tunnels and quantity of underground water used."

 

R655-16-2. Justification.

Proper water right administration requires a quantification of the beneficial use(s) to which the holder of a water right is entitled. To facilitate record keeping, each unique beneficial use or set of beneficial uses is assigned a water use group number in the State Engineer's records. Some such records indicate the beneficial uses in a water use group are authorized under two or more water rights (supplemental rights), but do not quantify the amount of beneficial use authorized under each individual right. Administrative activities requiring an evaluation of the beneficial use of a water right may necessitate the quantification of the beneficial use allowed under each supplemental water right in a water use group.

This rule provides for a "Declaration of Individual Beneficial Use Amounts" form to enable water right holders to declare beneficial use information and document agreement with that declaration by those with supplemental water rights.

 

R655-16-3. Purpose.

The purpose of this rule is to allow water right holders to declare the amount of beneficial use that each water right contributes to the total beneficial use of a water use group. To accomplish this, a Declaration of Individual Beneficial Use Amounts form may be completed and submitted to the State Engineer. To complete the form, the water right holders must quantify, by agreement, the amount of beneficial use that each supplemental water right contributes to the water use group within which it is listed.

 

R655-16-4. Application of Rule.

This rule applies to all water use groups defined in the State Engineer's water right records for which no individual beneficial use amounts have been established.

 

R655-16-5. Definitions.

(1) Terms used in this rule are defined as follows:

(a) "Application for Apportionment of Beneficial Use Amounts" means an application requesting that the State Engineer apportion the beneficial uses of a water use group among the supplemental water rights that make up the water use group.

(b) "Beneficial use" means the purpose to which water diverted under a water right is applied and the amount of that beneficial use. Examples include irrigation (amounts measured in acres); stock watering (amounts measured in numbers of animals); domestic (indoor residential - amounts measured in numbers of families); commercial, industrial, municipal (amounts measured in acre-feet); power generation (amounts measured in cubic-feet-per-second diversion rate); and fish culture (amounts measured in acre-feet or cubic-feet-per-second flow rate). By statute, the established and continued beneficial use of a water right will define the basis, measure and limit of that right.

(c) "Change application" means an application for permanent or temporary change of a water right as defined in Section 73-3-3.

(d) "Declaration of Individual Beneficial Use Amounts" (DIBUA) means either a form provided by the State Engineer, or an alternative document containing the same information, for use by water right holders to declare the individual beneficial use amount of each of the individual water rights to a water use group.

(e) "Individual Beneficial Use Amount" means the amount of beneficial use a water right contributes to a water use group that includes the subject water right.

(f) "Party" means only the applicant and other water right holders within the water use group.

(g) "Proof" means proof of beneficial use for an appropriation or permanent change as described in Section 73-3-16 or as may be required by the State Engineer under 73-3-20(2).

(h) "Sole supply" means the amount of beneficial use allowed under a particular water right when used alone and separate from all supplemental rights. If a water right has been assigned to more than one water use group, the sole supply of the water right is the sum of its individual beneficial use amounts.

(i) "Supplemental right" means a water right that is used together with one or more other water rights for a common beneficial use.

(j) "Water right holder" means the entity, person, or persons documented as owning a water right in the records of the State Engineer.

(k) "Water use group" means one or more water rights listed and assigned a unique number in the records of the State Engineer as being applied to a common beneficial use.

 

R655-16-6. Declaration of Individual Beneficial Use Amounts.

(1) A DIBUA shall be prepared by water right holders using either a form provided by the State Engineer or an alternative document containing the same information.

(a) To be considered acceptably complete, a DIBUA must:

(i) declare the individual beneficial use amount of each and every water right in the water use group; and

(ii) be signed by all water right holders in the water use group; and

(iii) include documentation supporting the individual beneficial use amounts declared.

(b) A DIBUA shall apportion the individual beneficial use amount of a water right in the water use group according to the average annual individual beneficial use of each water right in the water use group on a long-term basis or by any other evaluation method consistent with the information contained in the State Engineer's records.

(c) The DIBUA form shall include a statement acknowledged by those signing the form and recognizing that the individual beneficial use amounts declared by the DIBUA is not a general adjudication of the water rights involved under Section 73-4.

(d) The State Engineer may require additional documentation to support the individual beneficial use amounts declared in a DIBUA.

(e) The State Engineer will review and evaluate a DIBUA as described in Section R655-16-7 of this rule.

(2) A DIBUA filed in connection with a change application

(a) shall be required in situations where:

(i) the change application is filed on fewer than all of the water rights in a water use group;

(ii) the change application seeks to remove a water right from a water use group;

(iii) the individual beneficial use amount of a water right to be removed from the water use group has not been quantified; and

(iv) the nature of the change requires a quantification of the sole supply of the water right being changed.

(b) shall be prepared for each water use group to which the water right or the portion of the water right to be changed has been assigned.

(c) must, together with any other DIBUAs required by the change application, declare the sole supply of the water right or the portion of the water right to be changed.

(3) A DIBUA to declare the individual beneficial use amount of a water right for which proof has been filed:

(a) may be required in situations where:

(i) the individual beneficial use amount has not been quantified for the water right in the water use group for which proof has been filed; and

(ii) the proof is filed on fewer than all of the water rights in the water use group; or

(iii) the water right holder who has filed proof does not hold all the water rights in the water use group.

(b) shall be prepared for each water use group to which the water right for which proof has been filed belongs.

(c) must, together with any other DIBUAs required for the proof, declare the sole supply of the water right for which proof has been filed.

(4) The filing of a DIBUA does not limit the ability of a water right holder to continue to use the water rights together supplementally as they have historically been used. Regardless of the individual beneficial use amounts declared in a DIBUA, the previous supplemental use of the water rights may continue, with the exclusion of any water right removed from the group through an approved change application; lapsed through a water right administrative process; or disallowed (the disallowance published and unprotested) through the water right adjudication process.

(5) Once accepted for filing, a DIBUA may only be revised by filing a new DIBUA:

(a) that is signed by at least all water right holders within the water use group affected by the revision and whose individual beneficial use amounts were previously declared by the filing of a DIBUA; and

(b) that addresses only water rights that have not been previously removed from the water use group through an approved change application or invalidated through other legal or administrative process.

 

R655-16-7. State Engineer Review and Evaluation.

(1) If a DIBUA is filed with the State Engineer:

(a) The State Engineer shall review the DIBUA for consistency with the water right information contained in the State Engineer's records.

(b) If the DIBUA is inconsistent with the water right information contained in the State Engineer's records, it will be returned without further action to the water right holder who submitted the DIBUA with an explanation of the inconsistencies.

(c) If there is reason to believe the DIBUA is consistent with the State Engineer's records, the State Engineer shall update the water right records of all water rights listed in the DIBUA, consistent with the individual beneficial use amounts included in the DIBUA.

(2) A water right holder may request, by writing to the State Engineer, a review of the database entries and the documentary records of a water use group.

(a) Such a review is not a request for agency action pursuant to Section 63G-4-101 et seq and shall be limited to a determination as to whether the database entries are consistent with official documentary records for the rights in the group.

(b) A request for a records review filed pursuant to this rule shall set forth a statement as to how the submitter believes the electronic record should be modified to be consistent with the official documentary records and shall include acceptable copies of any documentation believed to be absent from the current record.

(c) The State Engineer shall complete a review of the record within a reasonable time from receipt of the written request and shall notify the requester in writing when the review has been completed.

(d) A copy of the State Engineer's reply to the request for a records review shall be placed on the water right file for each water right in the water use group reviewed.

(3) The State Engineer may modify water use group records at any time to resolve errors, deficiencies, or ambiguities.

 

R655-16-8. Application to State Engineer for Apportionment of Beneficial Use Amounts.

(1) An applicant may submit an application to the State Engineer requesting an informal adjudicative proceeding pursuant to Section 63G-4-101, et seq, for the apportionment of the beneficial use amounts of the water rights in the water use group if:

(a) an apportionment is necessary for an administrative action on a change application or proof of beneficial use; and

(b) the applicant has exhausted all reasonable efforts and has been unable to produce a DIBUA because:

(i) It is impossible to identify and/or contact one or more of the parties or their successors in interest in the water use group. In this case the applicant must document:

(A) the attempts to identify and contact the parties or their successors in interest; and

(B) the reasons why the parties or their successors in interest cannot be identified or no contact can be made.

(ii) One or more of the parties or their successors in interest refuses to participate in completing the DIBUA or refuses to sign the DIBUA. In this case the applicant must document:

(A) the attempts to reach agreement with the parties or their successors in interest; and

(B) the reasons, in detail, why no agreement could be reached.

(iii) Any other reason or reasons the applicant cannot cure, which prevents the completion of the DIBUA. In this case the applicant must document why the DIBUA cannot be completed.

(2) An application for Apportionment of Beneficial Use Amounts shall be made on a form provided by the State Engineer and shall comply with Section 63G-4-201 as a request for agency action.

(a) The applicant shall provide all information requested on the form provided by the State Engineer including all affidavits and documentation gathered in the effort to prepare a DIBUA.

(b) The application form shall include a statement acknowledged by the applicant signing the form and recognizing that the State Engineer's apportionment of the beneficial use amounts of the water rights within the water use group is not a general adjudication of the water rights involved under Section 73-4.

(c) To the extent possible, the applicant shall provide notice to the other parties pursuant to Section 63G-4-201(3)(b).

(3) The State Engineer shall review the application for completeness and compliance with the criteria described in (1). As part of the review, the State Engineer shall determine whether the applicants effort to complete a DIBUA without success has been sufficient.

(4) If the application is incomplete or does not meet the criteria described in (1), or if the State Engineer believes the applicant should make additional effort to complete the DIBUA, the State Engineer shall return the application to the applicant without further action.

(5) If the application is complete and does meet the criteria described in (1), and if the State Engineer believes the applicant has exerted all reasonable efforts to complete the DIBUA without success, the State Engineer shall accept the application for filing and apportion the beneficial uses of the water rights in the water use group accordingly.

(6) For the purposes of this rule, the State Engineer shall apportion the individual beneficial use amounts of the water rights in the water use group according to the following procedure:

(a) The State Engineer shall notify all parties in accordance with Section 63G-4-201(3)(d)(iii) and (e)(ii) and shall issue a request for information to each party as authorized in Section 73-5-8.

(b) The parties will be allowed at least thirty (30) days for submittal of the requested information.

(c) Upon expiration of the allotted response time, the State Engineer will review:

(i) all information received with the application: and

(ii) all information received pursuant to the State Engineer's request (including historical records of flows diverted, historical water use patterns, etc.); and

(iii) any other pertinent information from a reliable source, including the State Engineer's water right records (such as, relative priority and water flow limitations, distribution records, etc.) of the water rights in the water use group.

(d) Based upon a review of the information described in (c), the State Engineer shall make a preliminary apportionment of the individual beneficial use amount for each of the water rights in the water use group.

(7) The State Engineer shall notify all parties by regular mail of the preliminary apportionment of the individual beneficial use amounts apportioned to each of the water rights in the water use group. This notification is not a final agency action.

(a) The parties shall be advised of their right to protest the preliminary individual beneficial use amounts apportioned by the State Engineer.

(b) The parties will be allowed at least thirty (30) days for submittal of protests or other information.

(8) The State Engineer may hold a hearing if deemed necessary to obtain further information regarding the apportionment of the individual beneficial use amounts of the water rights within the water use group.

(9) The State Engineer shall review any further information obtained either through protest or the hearing process and may revise the preliminary apportionment of the individual beneficial use amounts if necessary to ensure a proper apportionment of the beneficial use among the water rights in the water use group.

(10) The State Engineer shall issue an Order, which shall be the agency's final action, setting forth the individual beneficial use amount of each water right in the water use group consistent with the apportionment.

(11) Orders of the State Engineer regarding the apportionment of beneficial use shall be subject to the provisions of Rule R655-6-17 of the Division of Water Rights and to Sections 63G-4-302, 63G-4-402, and 73-3-14 which provide for filing either a Request for Reconsideration with the State Engineer or an appeal with the appropriate District Court. A Request for Reconsideration must be filed with the State Engineer within 20 days of the date of the Order. However, a Request for Reconsideration is not a prerequisite to filing a court appeal. A court appeal must be filed within 30 days after the date of the Order, or if a Request for Reconsideration has been filed, within 30 days after the date the Request for Reconsideration is denied. A Request for Reconsideration is considered denied when no action is taken within 20 days after the request is filed.

(12) Once the time to seek de novo review of a State Engineer Order has passed, or if such review has been sought, once the courts have issued a final, non-appealable order, the State Engineer shall update the Division's documentary and electronic records for each of the water rights in the water use group consistent with the State Engineer's Order, or the court order if one has been issued.

 

R655-16-9. Exceptions.

(1) At any time during a change application or proof process, if it becomes apparent, through State Engineer review, protest, or otherwise, that a DIBUA is necessary to complete the administrative process, the State Engineer may require the water right holder to submit a DIBUA.

(2) A water right holder who wishes to declare that a water right contributes no individual beneficial use amount to a water use group, where the holder is the sole owner of the non-contributing water right, may make that declaration by filing a partial DIBUA signed only by that water right holder. The partial DIBUA may address only those rights declared to be non-contributing. Once accepted for filing, a partial DIBUA filed to declare no individual beneficial use amount may not be withdrawn or modified by the water right holder. No effort will be made to contact the other water right holders in the water use group concerning such filing.

(3) If the individual beneficial use amount of a water right has been quantified by a court order or other legal instrument of equivalent effect, and which instrument is not a part of the State Engineer's documentary records, such instrument may be submitted by any person for consideration by the State Engineer.

(4) The State Engineer may administratively cancel the assignment of a water right to a water use group if the water right is owned by a mutual irrigation company, a water-supplying entity, a municipal water system, or a federal agency and if such action provides for more efficient or proper water right administration.

 

KEY: beneficial use, supplemental water rights, water rights

Date of Enactment or Last Substantive Amendment: 2009

Authorizing, and Implemented or Interpreted Law: 73-1-3; 73-2-1(3); 73-2-1(5)(e); 73-3-3(4)(b)(vii); 73-5-8

 

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