73-3-30 - Change application for an instream flow.
73-3-30. Change application for an instream flow.
(1) As used in this section:
(a) "Division" means the Division of Wildlife Resources, created in Section 23-14-1, orthe Division of Parks and Recreation, created in Section 79-4-201.
(b) "Fishing group" means an organization that:
(i) is exempt from taxation under Section 501(c)(3), Internal Revenue Code; and
(ii) promotes fishing opportunities in the state.
(c) "Fixed time change" means a change in a water right's point of diversion, place ofuse, or purpose of use for a fixed period of time longer than one year but not longer than 10years.
(2) (a) A division may file a permanent or temporary change application, as provided bySection 73-3-3, for the purpose of providing water for an instream flow, within a specifiedsection of a natural or altered stream channel, necessary within the state for:
(i) the propagation of fish;
(ii) public recreation; or
(iii) the reasonable preservation or enhancement of the natural stream environment.
(b) A division may file a change application on:
(i) a perfected water right:
(A) presently owned by the division;
(B) purchased by the division for the purpose of providing water for an instream flow,through funding provided for that purpose by legislative appropriation; or
(C) acquired by lease, agreement, gift, exchange, or contribution; or
(ii) an appurtenant water right acquired with the acquisition of real property by thedivision.
(c) A division may:
(i) purchase a water right for the purposes provided in Subsection (2)(a) only with fundsspecifically appropriated by the Legislature for water rights purchases; or
(ii) accept a donated water right without legislative approval.
(d) A division may not acquire water rights by eminent domain for an instream flow orfor any other purpose.
(3) (a) A fishing group may file a fixed time change application on a perfected,consumptive water right for the purpose of providing water for an instream flow, within aspecified section of a natural or altered stream channel, to protect or restore habitat for threenative trout:
(i) the Bonneville cutthroat;
(ii) the Colorado River cutthroat; or
(iii) the Yellowstone cutthroat.
(b) Before filing an application authorized by Subsection (3)(a) to change a shareholder'sproportionate share of water, the water company shall submit the decision to approve or deny thechange request required by Subsection 73-3-3.5(3) to a vote of the shareholders:
(i) in a manner outlined in the water company's articles of incorporation or bylaws;
(ii) at an annual or regular meeting described in Section 16-6a-701; or
(iii) at a special meeting convened under Section 16-6a-702.
(c) The specified section of the natural or altered stream channel for the instream flowmay not be further upstream than the water right's original point of diversion nor extend further
downstream than the next physical point of diversion made by another person.
(d) (i) The fishing group shall receive the Division of Wildlife Resources' director'sapproval of the proposed change before filing the fixed time change application with the stateengineer.
(ii) The director may approve the proposed change if:
(A) the specified section of the stream channel is historic or current habitat for a specielisted in Subsections (3)(a)(i) through (iii);
(B) the proposed purpose of use is consistent with an existing state management orrecovery plan for that specie; and
(C) the water right owner has received a certificate of inclusion from a person who has:
(I) entered into a programmatic Candidate Conservation Agreement with Assuranceswith the United States Fish and Wildlife Service, as authorized by 16 U.S.C. Sec. 1531(a)(5) and1536(a)(1); and
(II) obtained an enhancement of survival permit, as authorized by 16 U.S.C. Sec.1539(a)(1)(A).
(iii) The director may disapprove the proposed change if the proposed change would notbe in the public's interest.
(e) (i) In considering a fixed time change application, the state engineer shall follow thesame procedures as provided in this title for an application to appropriate water.
(ii) The rights and the duties of a fixed time change applicant are the same as provided inthis title for an applicant to appropriate water.
(f) A fishing group may refile a fixed time change application by filing a written requestwith the state engineer no later than 60 days before the application expires.
(g) (i) The water right for which the state engineer has approved a fixed time changeapplication will automatically revert to the point of diversion and place and purpose of use thatexisted before the approved fixed time change application when the fixed time changeapplication expires or is terminated.
(ii) The applicant shall give written notice to the state engineer and the lessor, ifapplicable, if the applicant wishes to terminate a fixed time change application before the fixedtime change application expires.
(4) In addition to the requirements of Subsection 73-3-3(4)(b), an application authorizedby this section shall:
(a) set forth the legal description of the points on the stream channel between which theinstream flow will be provided by the change application; and
(b) include appropriate studies, reports, or other information required by the stateengineer demonstrating the necessity for the instream flow in the specified section of the streamand the projected benefits to the public resulting from the change.
(5) (a) For a permanent change application or a fixed time change application filedaccording to this section, 60 days before the date on which proof of change for an instream flowis due, the state engineer shall notify the applicant by mail or by any form of communicationthrough which receipt is verifiable of the date when proof of change is due.
(b) Before the date when proof of change is due, the applicant must either:
(i) file a verified statement with the state engineer that the instream flow uses have beenperfected, setting forth:
(A) the legal description of the points on the stream channel between which the instream
flow is provided;
(B) detailed measurements of the flow of water in second-feet changed;
(C) the period of use; and
(D) any additional information required by the state engineer; or
(ii) apply for a further extension of time as provided for in Section 73-3-12.
(c) (i) Upon acceptance of the verified statement required under Subsection (5)(b)(i), thestate engineer shall issue a certificate of change for instream flow use in accordance with Section73-3-17.
(ii) The certificate expires at the same time the fixed time change application expires.
(6) No person may appropriate unappropriated water under Section 73-3-2 for thepurpose of providing an instream flow.
(7) Water used in accordance with this section is considered to be beneficially used, asrequired by Section 73-3-1.
(8) A physical structure or physical diversion from the stream is not required toimplement a change for instream flow use.
(9) This section does not allow enlargement of the water right that the applicant seeks tochange.
(10) A change application authorized by this section may not impair a vested water right,including a water right used to generate hydroelectric power.
(11) The state engineer or the water commissioner shall distribute water under anapproved or a certificated instream flow change application according to the change application'spriority date relative to the other water rights located within the stream section specified in thechange application for instream flow.
(12) An approved fixed time change application does not create a right of access acrossprivate property or allow any infringement of a private property right.
Amended by Chapter 344, 2009 General Session