Water Rights Amendments

9
73-3-1
73-3-7
73-3-8
73-3-14
73-3d-102
1
Water Rights Amendments
2026 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: David Shallenberger
Senate Sponsor: Keven J. Stratton
LONG TITLE
General Description:
This bill addresses water rights and the state engineer's actions related to water rights.
Highlighted Provisions:
This bill:
addresses actions related to an application to appropriate public water;
modifies the extent to which the state engineer may consider a protest;
addresses temporary applications;
modifies the grounds that the state engineer may consider in approving or rejecting an
application, including what the state engineer may consider related to public welfare;
clarifies who is an aggrieved person for purposes of seeking judicial review; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
73-3-1
, as last amended by Laws of Utah 2010, Chapter 19
73-3-7
, as last amended by Laws of Utah 1995, Chapter 19
73-3-8
, as last amended by Laws of Utah 2024, Chapter 233
73-3-14
, as last amended by Laws of Utah 2008, Chapters 165, 382
73-3d-102
, as enacted by Laws of Utah 2023, Chapter 126
Be it enacted by the Legislature of the state of Utah:
Section 1. Section
73-3-1
is amended to read:
73-3-1
. Appropriation -- Manner of acquiring water rights.
(1)
A person may acquire a right to the use of the unappropriated public waters in this state
only as provided for in this title.
(2)
The appropriation of public waters in the state shall comply with the requirements of
this title.
(3)
Except as provided in Subsection
(7)
, a person obtaining, initiating the use of, or
providing notice of intent to appropriate a water right shall comply with the
requirements of this chapter.
(4)
An appropriation may be made only for a useful and beneficial purpose.
(5)
(a)
Between appropriators, the one first in time is first in rights.
(b)
A use designated by an application to appropriate any of the unappropriated waters
of the state that would materially interfere with a more beneficial use of the water
shall be dealt with as provided in Section
73-3-8
.
(6)
A person may not acquire a right to the use of water either appropriated or
unappropriated by adverse use or adverse possession.
(7)
Notwithstanding Section
73-3-2
, a person may directly capture and store precipitation as
provided in Section
73-3-1.5
.
Section 2. Section
73-3-7
is amended to read:
73-3-7
. Protests.
(1)
Any
Subject to Subsection
(2)
, a
person interested may file a protest with the state
engineer:
(a)
within 20 days after the notice is published, if the adjudicative proceeding is
informal; and
(b)
within 30 days after the notice is published, if the adjudicative proceeding is formal.
(2)
The state engineer shall
:
(a)
consider
the
a
protest
only to the extent the protest addresses a basis for which the
state engineer may approve or reject the application;
and
shall

(b)
approve or reject the application.
Section 3. Section
73-3-8
is amended to read:
73-3-8
. Approval or rejection of application -- Requirements for approval --
Application for specified period of time -- Filing of royalty contract for removal of salt or
minerals -- Request for agency action.
(1)
(a)
It shall be the duty of the
The
state engineer
to
shall
approve an application if
there is reason to believe that:
(i)
for an application to appropriate, there is unappropriated water in the proposed
source;
(ii)
the proposed use will not impair existing rights
or interfere with the more
beneficial use of the water
;
(iii)
the proposed plan:
(A)
is physically and economically feasible, unless the application is filed by the
United States Bureau of Reclamation; and
(B)
would not prove detrimental to the public welfare;
(iv)
the applicant has the financial ability to complete the proposed works;
(v)
the application was filed in good faith and not for purposes of speculation or
monopoly; and
(vi)
if applicable, the application complies with a groundwater management plan
adopted under Section
73-5-15
.
(b)
If the state engineer, because of information in the state engineer's possession
obtained either by the state engineer's own investigation or otherwise, has reason to
believe that an application will interfere with the water's more beneficial use for
irrigation, municipal and industrial, domestic or culinary, stock watering, power or
mining development, or manufacturing, or will unreasonably affect public recreation
or the natural stream environment, or will prove detrimental to the public welfare, the
state engineer shall withhold approval or rejection of the application until the state
engineer has investigated the matter.
(c)
(b)
If an application does not meet the requirements of this section,
it shall be
rejected
the state engineer shall reject the application
.
(2)
(a)
An
The state engineer may approve an
application to appropriate water for
industrial, power, mining development, manufacturing purposes, agriculture, or
municipal purposes
may be approved
for a specific and certain period from the time
the water is placed to beneficial use under the application, but in no event may
the
state engineer grant
an application
be granted
for a period of time less than that
ordinarily needed to satisfy the essential and primary purpose of the application or
until the water is no longer available as determined by the state engineer.
(b)
At the expiration of the period fixed by the state engineer the water shall revert to the
public and is subject to appropriation as provided by this title.
(c)
No later than 60 calendar days before the expiration date of the fixed time period, the
state engineer shall send notice by mail or by any form of electronic communication
through which receipt is verifiable, to the applicant of record.
(d)
Except as provided by Subsection
(2)(e)
, the state engineer may extend
any
a

limited water right upon a showing that:
(i)
the essential purpose of the original application has not been satisfied;
(ii)
the need for an extension is not the result of any default or neglect by the
applicant; and
(iii)
the water is still available.
(e)
An extension
under Subsection
(2)(d)

may not exceed the time necessary to satisfy
the primary purpose of the original application.
(f)
A
An applicant shall file a
request for extension of
the
a
fixed time period
must be
filed
in writing in the office of the state engineer on or before the expiration date of
the application.
(3)
(a)
Before the approval of
any
an
application to divert water from
a
navigable
lakes
or streams
lake or stream
of the state that contemplates the recovery of salts and
other minerals or elements, as defined in Section
65A-17-101
,
therefrom
from the
navigable lake or stream
by precipitation or otherwise, the applicant shall file with
the state engineer a copy of:
(i)
a contract for the payment of royalties to the state; and
(ii)
any mineral lease.
(b)
The
state engineer shall reverse the
approval of an application
shall be reversed
if
the applicant fails to comply with terms of the royalty contract or mineral lease.
(4)
(a)
The state engineer shall investigate
all
a
temporary change
applications
application
.
(b)
The state engineer is not required to publish notice of a temporary change application
under Section
73-3-6
.
(b)
(c)
The state engineer shall:
(i)
approve the temporary change if the state engineer finds there is reason to believe
that the temporary change
will
does
not impair an existing right; and
(ii)
deny
reject
the temporary change if the state engineer finds there is reason to
believe the temporary change would impair an existing right.
(d)
If the state engineer rejects a temporary change application, the applicant may file a
permanent or fixed time change application.
(5)
(a)
With respect to a change application for a permanent or fixed time change:
(i)
the state engineer shall follow the same procedures provided in this title for
approving an application to appropriate water; and
(ii)
the rights and duties of a change applicant are the same as the rights and duties of
a person who applies to appropriate water under this title.
(b)
The state engineer may waive notice for a permanent or fixed time change
application if the application only involves a change in point of diversion of 660 feet
or less.
(c)
The state engineer may condition approval of a change application, including to:
(i)
prevent an enlargement of the quantity of water depleted by the nature of the
proposed use when compared with the nature of the currently approved use of
water proposed to be changed; and
(ii)
ensure that the recognition and subsequent use of saved water, as defined in
Section
73-3-3
:
(A)
is quantified, reported, and verified;
(B)
does not lead to an enlargement of the depletion or diversion amounts in the
underlying water right that serves as the basis of the saved water, or an increase
in the authorized number of irrigated acres unless depletion is accounted for
and regulated in the condition;
(C)
is limited to the net decrease in depletion and net reduction in diversion of the
underlying water right that serves as the basis of the saved water;
(D)
is limited to the volume of water that
will be
is
sustained over time from the
net decrease in depletion or net reduction in diversion of the underlying water
right that serves as the basis of the saved water;
(E)
does not violate an existing water agreement; and
(F)
when based solely on a net reduction in diversion, the subsequent use is
limited to nonconsumptive beneficial uses and does not increase the depletion
allowed by the underlying water right that serves as the basis of the saved
water or otherwise cause quantity impairment to an existing water right when
the saved water is beneficially used separate from the underlying water right.
(d)
Except for an application proposing to quantify saved water, a condition described in
Subsection
(5)(c)
may not include a reduction in the currently approved diversion
rate of water under the water right identified in the change application solely to
account for the difference in depletion under the nature of the proposed use when
compared with the nature of the currently approved use.
(6)
(a)
Except as provided in Subsection
(6)(b)
, the state engineer shall reject a
permanent or fixed time change application if the person proposing to make the
change is unable to meet the burden described in Subsection
73-3-3(5)
.
(b)
If otherwise proper, the state engineer may approve a change application upon one or
more of the following conditions:
(i)
for part of the water involved;
(ii)
that the applicant acquire a conflicting right; or
(iii)
that the applicant provide and implement a plan approved by the state engineer to
mitigate impairment of an existing right.
(c)
(i)
There is a rebuttable presumption of quantity impairment, as defined in Section
73-3-3
, to the extent that, for a period of at least seven consecutive years, a portion
of the right identified in a change application
has not been
is not
:
(A)
diverted from the approved point of diversion; or
(B)
beneficially used at the approved place of use.
(ii)
The rebuttable presumption described in Subsection
(6)(c)(i)
does not apply if the
beneficial use requirement is excused by:
(A)
Subsection
73-1-4(2)(e)
;
(B)
an approved nonuse application under Subsection
73-1-4(2)(b)
;
(C)
Subsection
73-3-30(7)
; or
(D)
the passage of time under Subsection
73-1-4(2)(c)(i)
.
(d)
The state engineer may not consider quantity impairment based on the conditions
described in Subsection
(6)(c)
unless the issue is raised in a:
(i)
timely protest that identifies which of the protestant's existing rights the protestant
reasonably believes will experience quantity impairment; or
(ii)
written notice provided by the state engineer to the applicant within 90 days after
the change application is filed.
(e)
The written notice described in Subsection
(6)(d)(ii)
shall:
(i)
specifically identify an existing right the state engineer reasonably believes may
experience quantity impairment; and
(ii)
be mailed to the owner of an identified right, as shown by the state engineer's
records, if the owner has not protested the change application.
(f)
The state engineer is not required to include all rights the state engineer believes may
be impaired by the proposed change in the written notice described in Subsection
(6)(d)(ii)
.
(g)
The owner of a right who receives the written notice described in Subsection
(6)(d)(ii)
may not become a party to the administrative proceeding if the owner has
not filed a timely protest.
(h)
If a change applicant, the protestants, and the persons identified by the state engineer
under Subsection
(6)(d)(ii)
come to a written agreement regarding how the issue of
quantity impairment shall be mitigated, the state engineer may incorporate the terms
of the agreement into a change application approval.
(7)
(a)
To determine whether a proposed plan would not prove detrimental to the public
welfare under Subsection
(1)(a)(iii)
, the state engineer may only consider:
(i)
the effect of the proposed plan on:
(A)
the beneficial use of water; or
(B)
the quantity, quality, or availability of water; and
(ii)
other factors as specifically directed by statute.
(b)
The state engineer may not consider or rely on detriment to the public welfare under
Subsection
(1)(a)(iii)
as a basis for the rejection of an application if:
(i)
the prevention, regulation, or mitigation of the detrimental effect is reserved to,
reasonably within the scope of authority of, or better suited to be addressed by
another regulatory agency; or
(ii)
the factors supporting a finding of a detriment to the public welfare:
(A)
are not directly associated with the interests described in Subsection
(7)(a)
; or
(B)
will have a negligible effect on the interests described in Subsection
(7)(a)
.
Section 4. Section
73-3-14
is amended to read:
73-3-14
. Judicial review of state engineer order.
(1)
(a)
A person aggrieved by an order of the state engineer may obtain judicial review in
accordance with
Title 63G, Chapter 4, Administrative Procedures Act
, and this
section.
(b)
A person is aggrieved by an order of the state engineer approving or rejecting an
application under Section
73-3-8
only if the person has suffered or will suffer a
particularized injury from an action taken by the state engineer in accordance with
Section
73-3-8
.
(b)
(c)
Venue for judicial review of an informal adjudicative proceeding is in the
county in which the water source or a portion of the water source is located.
(2)
The
A person who files a petition of judicial review shall join the
state engineer
shall
be joined
as a respondent in a petition to review the state engineer's decision, but
no
a
court may not award a
judgment for costs or expenses of the litigation
may be rendered
against the state engineer.
(3)
A person who files a petition for judicial review as authorized in this section shall:
(a)
name the state engineer as a respondent; and
(b)
provide written notice in accordance with Subsection
(5)
to each person who filed a
protest in accordance with Section
73-3-7
of:
(i)
the filing of the petition for judicial review; and
(ii)
the opportunity to intervene in accordance with Utah Rules of Civil Procedure,
Rule 24.
(4)
In addition to
the requirements of
complying with
Subsection
(3)
, a protestant in the
adjudicative proceeding who files a petition for judicial review shall also name as a
respondent the person:
(a)
who requested the adjudicative proceeding; or
(b)
against whom the state engineer brought the adjudicative proceeding.
(5)
The
A
written notice required by this section shall:
(a)
be mailed:
(i)
within the time provided for by Utah Rules of Civil Procedure, Rule 4(b); and
(ii)
to the address on record with the state engineer's office at the time the order is
issued; and
(b)
include:
(i)
a copy of the petition; and
(ii)
the address of the court in which the petition is pending.
(6)
If a person who files a petition for judicial review fails to provide notice as required by
this section, the court shall dismiss the petition without prejudice upon:
(a)
the motion of a party;
(b)
the special appearance of a person who:
(i)
participated in the adjudicative proceeding; and
(ii)
is not a party; or
(c)
the court's own motion.
(7)
A person who files a petition for judicial review is not required to:
(a)
notwithstanding Subsection
63G-4-401(3)(b)
, name a respondent that is not required
by this section; and
(b)
notwithstanding Subsection
63G-4-402(2)(a)(iv)
, identify all parties to the
adjudicative proceeding.
Section 5. Section
73-3d-102
is amended to read:
73-3d-102
. Scope of chapter.
(1)
(a)
The powers vested in the governor under this chapter are in addition to, and not in
lieu of, any other emergency powers otherwise statutorily vested in the governor,
including the power of the governor to authorize the use of water sources as
necessary for fire suppression under Subsection
53-2a-204(1)(o)
.
(b)
An executive order of the governor declaring a temporary water shortage emergency
under this chapter is not a declaration of a state of emergency under Section
53-2a-206
and is not subject to
Title 53, Chapter 2a, Part 2, Disaster Response and
Recovery Act
. To exercise an authority granted under
Title 53, Chapter 2a, Part 2,
Disaster Response and Recovery Act
, related to a declaration of a state of emergency,
the governor shall issue an executive order that is separate from an executive order
declaring a temporary water shortage emergency.
(2)
Nothing in this chapter modifies:
(a)
the statutory duties of the state engineer under this title; or
(b)
except as specifically provided in an executive order declaring a temporary water
shortage emergency, Subsection
73-3-1(5)(a)
73-3-1(5)
or Section
73-3-21.1
.
(3)
Nothing in this chapter may be construed to extend or enlarge the powers of the
governor except as specifically stated in this chapter.
Section 6.
Effective Date.
This bill takes effect on
May 6, 2026
.
2-24-26 9:38 AM