No. 31692 (New Rule): R655-16. Administrative Procedures for Defining Beneficial Uses for Supplemental Water Rights

DAR File No.: 31692
Filed: 07/08/2008, 11:52
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to set forth the conditions under which an applicant filing a permanent or temporary change application shall be required to file a Statement of Sole Supply with the State Engineer.

Summary of the rule or change:

This rule defines procedures for resolving supplemental water right beneficial use quantification issues by agreement among the water right owners when a water right is to be used by itself rather than with the water rights to which it is supplemental.

State statutory or constitutional authorization for this rule:

Subsections 73-3-2(1)(b)(viii) and 73-3-3(4)(b)(ix), and Section 73-3-27

Anticipated cost or savings to:

the state budget:

No costs or savings because this rule formalizes a process which at this point in inconsistent. Sometimes the applicant addresses the issue. Other times applications are submitted and the State Engineer investigates and ultimately proposes a solution as part of an order on the application. This rule formalizes a practice of having the water users involved address the issue as part of the application process consistent with statute.

local governments:

No costs or savings to local government except as local government entities act as water right holders requesting an action of the state engineer. There is no cost if the water rights under consideration continue to be used together, do not have supplemental water rights, or the supplemental nature of the rights has been previously quantified. If clarification of supplemental uses is required, there is a slight cost to complete one or more "group contribution statement forms" but this information is already required by statute to be part of the information provided the state engineer. There is no fee to obtain or submit a form and no specialized assistance is required in it's preparation. The only cost is in effort to complete required items on the form which consist of water use quantities which should be known by the applicant and a verified signature. It is estimated the form can be completed in under 60 seconds. Notary service is available at the Division of Water Rights at no charge for verification of signature.

small businesses and persons other than businesses:

No cost to small business or individuals except as they may be a water right holder requesting an action of the state engineer. There is no cost if the water rights under consideration continue to be used together, do not have supplemental water rights, or the supplemental nature of the rights has been previously quantified. If clarification of supplemental uses is required, there is a slight cost to complete one or more "group contribution statement forms" but this information is already required by statute to be part of the information provided the state engineer. There is no fee to obtain or submit a form and no specialized assistance is required in it's preparation. The only cost is in effort to complete required items on the form which consist of water use quantities which should be known by the applicant and a verified signature. It is estimated the form can be completed in under 60 seconds. Notary service is available at the Division of Water Rights at no charge for verification of signature.

Compliance costs for affected persons:

Notary Publics usually charge $5 per signature. County Recorders usually charge $10 for the first page and a lesser amount for subsequent pages.

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

No impact on businesses. Michael 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:

09/02/2008

This rule may become effective on:

09/09/2008

Authorized by:

Michael Styler, Executive Director

RULE TEXT

R655. Natural Resources, Water Rights.

R655-16. Administrative Procedures for Defining Beneficial Uses for Supplemental Water Rights.

R655-16-1. Authority.

Section 73-1-3. 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(5)(e), the State Engineer is authorized to make rules governing the form and content of applications and related documents, maps and reports.

Subsection 73-3-3(4)(b)(vii), the State Engineer is required to supply a 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."

 

R655-16-2. Justification.

Water right administration is based on the beneficial use to which the water right holder is entitled. To facilitate recordkeeping, each unique set of beneficial uses has been organized into a water use group. Some water right records in the State Engineer's office indicate the beneficial uses in a water use group are shared with other water rights (supplemental rights), but do not quantify the amount of beneficial use associated with each of those rights. Administrative activities requiring an evaluation of the beneficial use of a water right necessitate the quantification of each supplemental water right in a water use group. This rule provides for the utilization of a form, Statement of Group Contribution, to define this beneficial use information by agreement of those impacted by the quantification.

 

R655-16-3. Purpose.

The purpose of this rule is to allow for the quantification of a particular water right's beneficial use when it is used supplementally with other water rights. To accomplish this, a Statement of Group Contribution form must be completed and submitted to the State Engineer. To complete the form, water right holders are required to quantify, by agreement, the amount of beneficial use of water that a supplemental water right contributes to the water use group listed. This is required so that the State Engineer can administer the water right without enlargement of the individual right or the water use group.

 

R655-16-4. Application of Rule.

This rule shall apply when the State Engineer is requested to take administrative action with regard to an individual water right or group of water rights that are designated in the Division's records as part of a supplemental group and have no designated sole supply.

 

R655-16-5. Definitions.

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

(a) "Change application" means any application for permanent or temporary change of a water right as defined in Section 73-3-3 Utah Code Annotated.

(b) "Group contribution" means the amount of beneficial use each water right contributes to a particular water use group that includes the subject water right.

(c) "Sole supply" means a quantification of beneficial use of water associated with a particular water right. The sole supply is the maximum beneficial use of water associated with that water right when used alone and separate from all supplemental rights. The sole supply of a water right is the sum of its group contributions.

(d) "Statement of Group Contribution" means a form provided by the State Engineer for use by water right holders to clarify the group contribution of individual water rights to a water use group.

(e) "Supplemental right" means a water right that, according to the records of the State Engineer, is used together with one or more other water rights for a common beneficial use.

(f) "Water right holder" means an entity, person, or persons who is listed as an owner of a water right in the records of the State Engineer.

(g) "Water use group" means a water right listing in the records of the State Engineer intended to group together water rights that share a common beneficial use.

 

R655-16-6. Statement of Group Contribution.

(1) A Statement of Group Contribution shall be completed on a form provided by the State Engineer and:

(a) may be filed at any time, but is required in support of a water right administrative action as deemed necessary by the State Engineer for all water rights for which the group contribution has not been defined on the records of the State Engineer;

(b) shall be completed in conformance with instructions on the form and these rules;

(c) shall be sworn to by all water right holders having an interest in any unquantified water right in the water use group;

(d) may be filed only if all holders of unquantified rights in a water use group sign the form; and

(e) may clarify group contribution, but shall be consistent with water right information contained in the State Engineer's records.

(2) Once filed, a Statement of Group Contribution:

(a) becomes binding on all parties signatory to it;

(b) shall be used by the State Engineer to update water right records of all water rights referenced by the form, consistent with the group contribution information included on the form; and

(c) may be revised by filing a new form with the State Engineer signed by all water right holders of rights within a supplemental group affected by this revision. Revised forms may only address water rights that have not been affected through an administrative action subsequent to the filing of a Statement of Group Contribution.

(3) A Statement of Group Contribution does not constitute a legal conveyance of any water right or portion thereof;

(4) A water right change application will not be considered acceptably complete as described in Section 73-3-4, until the affected water right(s) sole supply has been properly defined on records of the State Engineer.

(5) A water right holder may request in writing to the State Engineer a review of supplemental water rights on a water right file.

(a) Such a review shall be to determine that the electronic records are consistent with official records. The State Engineer may modify the electronic records at any time to correct data entry errors and provide clarification.

(b) A request for a records review shall set forth a recommendation as to how the electronic record should be modified to be consistent with the official records of the Division of Water Rights.

(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 water right holder in writing when the review has been completed.

(6) Quantifications made pursuant to the filing of a Statement of Group Contribution:

(a) may reflect the average annual group contribution on a long-term basis or any other reasonable evaluation consistent with information contained in the State Engineer's records; and

(b) does not restrict the ability of water right holders to manage the use of their supplemental water rights while they continue to be used together.

 

R655-16-7. Exceptions.

(1) Water right holders who wish to clarify there is no contribution to a water use group by water rights they own, may file a Statement of Group Contribution signed only by that water right holder.

(2) The State Engineer may waive the filing of a Statement of Group Contribution for a temporary change application when he believes sufficient water and beneficial uses are available for the purposes of the temporary change.

(3) If the water right holder's group contribution has been quantified by a court order or other legal instrument which has not become a part of the State Engineer's records, such instrument may be submitted in lieu of a Statement of Group Contribution.

(4) The State Engineer reserves the right to eliminate water rights from water use groups if the uses are based upon shares in a mutual irrigation company, a contract with a water supplying entity, or a connection to a municipal water system.

(5) If a water right has been erroneously included in a water use group, the State Engineer shall correct the record to remove the water right from that water use group.

 

KEY: sole supply, statement of group contribution, water rights

Date of Enactment or Last Substantive Amendment: 2008

Authorizing, and Implemented or Interpreted Law: 73-3-2(1)(b)(viii); 73-3-3(4)(b)(ix); 73-3-27