73-5-13 - Claim to surface or underground water not otherwise represented -- Information required -- Corrections -- Filing -- Investigation -- Publication -- Judicial action to determine validity -- R
73-5-13. Claim to surface or underground water not otherwise represented --Information required -- Corrections -- Filing -- Investigation -- Publication -- Judicialaction to determine validity -- Rules.
(1) (a) All claimants to the right to the use of water, including both surface andunderground, whose rights are not represented by certificates of appropriation issued by the stateengineer, by applications filed with the state engineer, by court decrees, or by notice of claimfiled pursuant to law, shall submit the claim to the state engineer.
(b) Subsections (2) through (7) shall only apply to claims submitted to the state engineerpursuant to this section after May 4, 1997.
(2) (a) Each claim submitted under this section shall be verified under oath by theclaimant or the claimant's duly appointed representative and submitted on forms furnished by thestate engineer setting forth any information the state engineer requires, including:
(i) the name and post office address of the person making the claim;
(ii) the quantity of water claimed in acre-feet or rate of flow in second-feet, or both,where appropriate;
(iii) the source of supply;
(iv) the priority date of the right;
(v) the location of the point of diversion with reference to a United States land surveycorner;
(vi) the place of use;
(vii) the nature and extent of use;
(viii) the time during which the water has been used each year; and
(ix) the date when the water was first used.
(b) The claim shall also include the following information verified under oath by aregistered engineer or land surveyor:
(i) measurements of the amount of water diverted;
(ii) a statement that the quantity of water claimed either in acre-feet or cubic feet persecond is consistent with the beneficial use claimed and the supply which the source is capable ofproducing; and
(iii) a map showing the original diversion and conveyance works and where the waterwas placed to beneficial use, including irrigated lands, if irrigation is the claimed beneficial use.
(c) The state engineer may require additional information as necessary to evaluate anyclaim including:
(i) affidavits setting forth facts of which the affiant has personal knowledge;
(ii) authenticated or historic photographs, plat or survey maps, or surveyors' notes;
(iii) authenticated copies of original diaries, personal histories, or other historicaldocuments which document the claimed use of water; and
(iv) other relevant records on file with any county recorder's, surveyor's, or assessor'soffice.
(3) (a) A claim may be corrected by submitting to the state engineer a verified correctedclaim designated as such and bearing the same number as the original claim.
(b) No fee shall be charged for submitting a corrected claim.
(4) (a) Upon submission by a claimant of a claim that is acceptably complete underSubsection (2) and the deposit of money by a claimant with the state engineer sufficient to pay theexpenses of conducting a field investigation and publishing a notice of the claim, the state
engineer shall:
(i) file the claim;
(ii) endorse the date of its receipt;
(iii) assign the claim a water right number; and
(iv) publish a notice of the claim following the same procedures as provided in Section73-3-6.
(b) Any claim not acceptably complete under Subsection (2) shall be returned to theclaimant.
(c) The acceptance of any claim filed under this section by the state engineer may not beconsidered to be an adjudication by the state engineer of the validity of the claimed water right.
(5) (a) The state engineer shall:
(i) conduct a field investigation of each claim filed; and
(ii) prepare a report of the investigation.
(b) The report of the investigation shall:
(i) become part of the file on the claim; and
(ii) be admissible in any administrative or judicial proceeding on the validity of the claim.
(6) (a) Any person who may be damaged by a diversion and use of water as described ina claim submitted pursuant to this section may file an action in district court to determine thevalidity of the claim, whether or not the claim has been accepted for filing by the state engineer.
(b) Venue for the action shall be in the county in which the point of diversion listed in theclaim is located, or in a county where the place of use, or some part of it, is located.
(c) The action shall be brought against the claimant to the use of water or the claimant'ssuccessor in interest.
(d) In any action brought to determine the validity of a claim to the use of water underthis section, the claimant shall have the initial burden of proof as to the validity of the claimedright.
(e) Any person filing an action challenging the validity of a claim to the use of waterunder this section shall notify the state engineer of the pendency of the action in a mannerprescribed by the state engineer. Upon receipt of the notice, the state engineer may take no actionon any change or exchange applications founded on the claim that is the subject of the pendinglitigation, until the court adjudicates the matter.
(f) Upon the entering of any final order or decree in any judicial action to determine thevalidity of a claim under this section, the prevailing party shall file a certified copy of the order ordecree with the state engineer, which shall become part of the state engineer's file on the claim.
(7) The state engineer may make rules consistent with this section specifying informationrequired to be included in a claim and claim procedures.
Amended by Chapter 136, 2001 General Session