Thursday, January 15, 2015

2015 Legislative Preview: Change Applications

Representative V. Lowry Snow has introduced House Bill 25 (HB 25), entitled "Water Law - Application Revisions." This bill is in response to the 2011 Utah Supreme Court ruling in the Jensen v. Jones case that concluded that the State Engineer did not have statutory authority to use the prior non-use of water as a reason to reject a change application or reduce the amount of water approved under a change application.  This bill seeks to give the State Engineer express statutory authority to do so, subject to certain procedures and limitations.  This bill is the product of a small group of stakeholders that got together after attempts to pass such legislation failed in 2012, 2013, and 2014 for a variety of different reasons.  The members of that group were the General Managers of Central Utah, Jordan Valley, Washington, and Weber Basin Water Conservancy Districts, along with representatives from the Farm Bureau and the League of Cities and Towns. 

The bill allows a person filing a change application to have a private, non-binding discussion with the State Engineer on any potential issue, including non-use, before filing the change application.  The bill then provides the State Engineer a 90-day window after a change application is filed to give the applicant notice of any concerns he may have regarding non-use and the resulting impact (defined in terms of “quantity impairment”) that the proposed change may have on one or more specifically identified water rights.  If the State Engineer gives such notice, or if a timely protest is filed alleging quantity impairment because of the unexcused non-use of water, then the applicant has the burden of proving that quantity impairment will not occur and the State Engineer may reject the change application or reduce the amount approved to the extent that such quantity impairment is likely to occur.  The bill also reorganizes the application to appropriate and change application statutes and makes some minor technical changes to the wording.
To read the full text of the bill as introduced, click here.

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