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 Chapter 63G-4 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 Declaration 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 Declaration or refuses to sign the Declaration. 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 Declaration. In this case the applicant must document why the Declaration 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 Declaration.

(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 Chapter 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 applicant's effort to complete a Declaration 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 Declaration, the State Engineer shall return the application to the applicant without further action with an explanation of the inadequacies. Returning an incomplete or inadequate application is not a final agency action; it is an intermediate step instructing the applicant regarding further steps that must be taken before the application can be accepted for filing.

(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 Declaration 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 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 information relevant to the water rights in the Water Use Group , including the State Engineer's water right records (such as, relative priority and water flow limitations, distribution records, etc.).

(d) Based upon a review of the information described in (c), the State Engineer shall make a preliminary apportionment. The State Engineer may determine whether to make a preliminary apportionment of the Beneficial Use Amount for each of the water rights in the Water Use Group or an apportionment of only the Beneficial Use Amount of the water right involved in the administrative action.

(7) The State Engineer shall notify all parties by regular mail of the preliminary apportionment of the Beneficial Use Amounts apportioned. This notification is an intermediate rather than a final agency action.

(a) The parties shall be advised of their right to protest the preliminary 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 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 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 Beneficial Use Amount of each water right apportioned consistent with the apportionment.

(11) Orders of the State Engineer regarding the apportionment of Beneficial Use shall be subject to the applicable law including provisions of Rule R655-6-17 of the Division of Water Rights and to Sections 63G-4-302, 63G-4-401, 63G-4-402, and 73-3-14 which provide for filing either a Request for Reconsideration with the State Engineer or de novo review in 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 for de novo review. De novo review must be sought 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 or deemed denied. A Request for Reconsideration is deemed 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 apportioned consistent with the State Engineer's Order, or the court order if one has been issued. With the update, a memo documenting the Beneficial Use apportionment shall be placed on the file of each affected water right.