73-2-25 - State engineer enforcement powers.
73-2-25. State engineer enforcement powers.
(1) For purposes of this section, "initial order" means one of the following issued by thestate engineer:
(a) a notice of violation; or
(b) a cease and desist order.
(2) (a) The state engineer may commence an enforcement action under this section if thestate engineer finds that a person:
(i) is diverting, impounding, or using water for which no water right has beenestablished;
(ii) is diverting, impounding, or using water in violation of an existing water right;
(iii) violates Section 73-5-4;
(iv) violates Section 73-5-9;
(v) violates a written distribution order from the state engineer;
(vi) violates an order issued under Section 73-3-29 regarding the alteration of the bed orbank of a natural stream channel;
(vii) violates a notice or order regarding dam safety issued under Chapter 5a, DamSafety;
(viii) fails to submit a report required by Section 73-3-25; or
(ix) engages in well drilling without a license required by Section 73-3-25.
(b) To commence an enforcement action under this section, the state engineer shall issuean initial order, which shall include:
(i) a description of the violation;
(ii) notice of any penalties to which a person may be subject under Section 73-2-26; and
(iii) notice that the state engineer may treat each day's violation of the provisions listed inSubsection (2)(a) as a separate violation under Subsection 73-2-26(1)(d).
(c) The state engineer's issuance and enforcement of an initial order is exempt from Title63G, Chapter 4, Administrative Procedures Act.
(3) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, thestate engineer shall make rules necessary to enforce an initial order, which shall include:
(a) provisions consistent with this section and Section 73-2-26 for enforcement of theinitial order if a person to whom an initial order is issued fails to respond to the order or abate theviolation;
(b) the right to a hearing, upon request by a person against whom an initial order isissued; and
(c) provisions for timely issuance of a final order after:
(i) the person to whom the initial order is issued fails to respond to the order or abate theviolation; or
(ii) a hearing held under Subsection (3)(b).
(4) A person may not intervene in an enforcement action commenced under this section.
(5) After issuance of a final order under rules made pursuant to Subsection (3)(c), thestate engineer shall serve a copy of the final order on the person against whom the order is issuedby:
(a) personal service under Utah Rules of Civil Procedure 5; or
(b) certified mail.
(6) (a) The state engineer's final order may be reviewed by trial de novo by the district
court in:
(i) Salt Lake County; or
(ii) the county where the violation occurred.
(b) A person shall file a petition for judicial review of the state engineer's final orderissued under this section within 20 days from the day on which the final order was served on thatperson.
(7) The state engineer may bring suit in a court of competent jurisdiction to enforce afinal order issued under this section.
(8) If the state engineer prevails in an action brought under Subsection (6)(b) or (7), thestate may recover all court costs and a reasonable attorney fee.
Amended by Chapter 282, 2008 General Session
Amended by Chapter 382, 2008 General Session