45-472

45-472. Conveyance of irrigation grandfathered
right; within service area; outside service area; change to
non-irrigation grandfathered right; forfeiture of right to convey
to non-irrigation use; definition

A. The owner of an irrigation grandfathered right may convey the right only with
the land to which the right is appurtenant.

B. If the land to which an irrigation grandfathered right is appurtenant is within
the exterior boundaries of the service area of a city, town or private water company:

1. The irrigation grandfathered right may be conveyed only for an irrigation use,
except for expanded animal industry use or as provided in paragraphs 2 and 3 of this
subsection. If an irrigation grandfathered right is conveyed for an irrigation or
expanded animal industry use, the full amount of the right is conveyed. The amount of
groundwater conveyed pursuant to the right:

(a) For an irrigation use may be withdrawn from the land to which the right is
appurtenant or any other land and may be used only on the land to which the right is
appurtenant or on contiguous irrigation acres under common ownership within the service
area of the city, town or private water company subject to the provisions of articles 8
and 8.1 of this chapter relating to transportation of groundwater. For purposes of this
subdivision, irrigation acres which are separated by a road, highway, easement or
right-of-way from the land to which the irrigation grandfathered right is appurtenant are
deemed to be contiguous.

(b) For an expanded animal industry use may be withdrawn by the new owner of the
right only from the land to which the right is appurtenant and used on that land or on
any other land, subject to the provisions of articles 8 and 8.1 of this chapter relating
to transportation of groundwater. If the groundwater was delivered by an irrigation
district to the previous owner of the right, the irrigation district may continue to
deliver groundwater to the new owner pursuant to the right. If any portion of the amount
of groundwater conveyed is withdrawn by the new owner and used on other land, no
additional groundwater may be withdrawn for use on the land to which the right is
appurtenant.

2. The irrigation grandfathered right may be conveyed to an industry engaged in the
generation of electrical energy for the purpose of electrical energy generation, except
that, if the facility for the generation of electrical energy is not subject to title 40,
chapter 2, article 6.2, the conveyance is subject to the approval of:

(a) The appropriate city or town, if the irrigation grandfathered right to be
conveyed is appurtenant to land within the exterior boundaries of the service area of a
city or town.

(b) The director, if the irrigation grandfathered right to be conveyed is
appurtenant to land within the corporate limits of a city or town and within the exterior
boundaries of the service area of a private water company.

3. If an irrigation grandfathered right is conveyed for a non-irrigation use
pursuant to paragraph 2 of this subsection, the amount of the right that is conveyed is
the lesser of:

(a) The current maximum amount of groundwater which may be used pursuant to the
right, as calculated pursuant to section 45-465, subsection B.

(b) Three acre-feet per year multiplied by the number of water duty acres in the
farm in which the acre to which the right is appurtenant is located divided by the number
of irrigation acres in the farm.

4. The new owner of an irrigation grandfathered right conveyed pursuant to
paragraph 2 of this subsection may withdraw the amount of groundwater conveyed pursuant
to that right, as determined in paragraph 3 of this subsection, only from the land to
which the right is appurtenant and use the groundwater on that land, but may not use the
groundwater on other land, except that, if the groundwater was delivered by an irrigation
district to the previous owner of the right, the irrigation district may continue to
deliver groundwater to the new owner pursuant to the right for use on the land to which
the right is appurtenant.

5. All withdrawal or use of groundwater pursuant to this subsection is subject to
subsection H of this section.

C. If the land to which an irrigation grandfathered right is appurtenant is
included within the exterior boundaries of the service area of a city, town or private
water company subsequent to the date of the designation of an active management area, the
owner of the right may, with the approval of the director and consistent with the
provisions of this chapter, convey the grandfathered right for a non-irrigation use,
other than an expanded animal industry use, on the land to which the right is
appurtenant, upon a showing that adequate water service is unavailable at rates
comparable to rates charged similar classes of water users within such service area. The
amount of the right conveyed is determined pursuant to subsection B, paragraph 3 of this
section. All withdrawal or use of groundwater pursuant to this subsection is subject to
subsection H of this section.

D. If the land to which an irrigation grandfathered right is appurtenant is outside
of the exterior boundaries of the service area of a city, town or private water company:

1. The irrigation grandfathered right may be conveyed for an irrigation use or a
non-irrigation use. If an irrigation grandfathered right is conveyed for an irrigation
or an expanded animal industry use, the full amount of the right is conveyed. If an
irrigation grandfathered right is conveyed for a non-irrigation use, other than an
expanded animal industry use, the amount of the right that is conveyed is the lesser of:

(a) The current maximum amount of groundwater which may be used pursuant to the
right as calculated pursuant to section 45-465, subsection B.

(b) Three acre-feet per year multiplied by the number of water duty acres in the
farm in which the acre to which the right is appurtenant is located and divided by the
number of irrigation acres in the farm.

2. The amount of groundwater conveyed pursuant to the right for a non-irrigation
use, as determined in paragraph 1 of this subsection, may be withdrawn by the new owner
of the right only from the land to which the right is appurtenant and used on that land
or on any other land, subject to section 45-473.01 and to the provisions of articles 8
and 8.1 of this chapter relating to transportation of groundwater, except that, if the
groundwater was delivered by an irrigation district to the previous owner of the right,
the irrigation district may continue to deliver groundwater to the new owner pursuant to
the right. If any portion of the amount of groundwater conveyed is withdrawn by the new
owner and used on other land, no additional groundwater may be withdrawn for use on the
land to which the right is appurtenant, except that, if the new owner is an industry, it
may withdraw a portion of the amount of groundwater conveyed for use on other land and
withdraw the remainder of the amount of groundwater conveyed for municipal and industrial
use on the land to which the right is appurtenant for purposes directly related to the
industry's industrial operation.

3. The amount of groundwater conveyed pursuant to the right for an irrigation use,
as determined in paragraph 1 of this subsection, may be withdrawn from the land to which
the right is appurtenant or from any other land and may be used only on the land to which
the right is appurtenant or on contiguous irrigation acres under common ownership,
subject to the provisions of articles 8 and 8.1 of this chapter relating to
transportation of groundwater. For purposes of this paragraph, irrigation acres that are
separated by a road, highway, easement or right-of-way from the land to which the
irrigation grandfathered right is appurtenant are deemed to be contiguous.

4. All withdrawal or use of groundwater pursuant to this subsection is subject to
subsection H of this section.

E. If an irrigation grandfathered right is conveyed for a non-irrigation use, the
new owner's right to withdraw or receive groundwater is a non-irrigation grandfathered
right associated with retired irrigated land, or a type 1 non-irrigation grandfathered
right. All subsequent conveyances of that right are governed by section 45-473.

F. The amount of a type 1 non-irrigation grandfathered right shall be determined at
the time it is established and shall remain fixed at that amount.

G. An irrigation grandfathered right may not be conveyed for a non-irrigation use
if one of the following applies:

1. The irrigation grandfathered right has not been retired in anticipation of a
future non-irrigation use and has not been exercised for five consecutive years.

2. The land to which the irrigation grandfathered right is appurtenant was
previously designated by the director as protected farmland pursuant to section 45-483,
subsection A. This paragraph shall not apply to land that was designated by the director
as protected farmland if the director revoked the designation pursuant to section 45-483,
subsection C, paragraph 1 and the director determined at that time that the agricultural
or conservation easement in the land was terminated because a partial or full
condemnation of the land made farming impracticable.

H. A person who owns a type 1 non-irrigation grandfathered right under this section
shall not withdraw or use groundwater pursuant to the portion of the type 1
non-irrigation grandfathered right that is appurtenant to land which the owner may
irrigate with effluent pursuant to section 45-452, subsection J.

I. For the purposes of this section, "land to which the right is appurtenant" means
the acre or group of contiguous acres conveyed with an irrigation grandfathered right.