State Codes and Statutes

Statutes > Utah > Title-73 > Chapter-03 > 73-3-3-5

73-3-3.5. Application for a change of point of diversion, place of use, or purpose ofuse of water in a water company made by a shareholder.
(1) As used in this section:
(a) "Shareholder" means the owner of a share of stock, or other evidence of stockownership, that entitles the person to a proportionate share of water in a water company.
(b) "Water company" means any company, operating for profit or not for profit, in whicha shareholder has the right to receive a proportionate share, based on that shareholder's ownershipinterest, of water delivered by the company.
(2) A shareholder who seeks to change the point of diversion, place of use, or purpose ofuse of the shareholder's proportionate share of water in the water company shall submit a requestfor the change, in writing, to the water company. This request shall include the followinginformation:
(a) the details of the requested change, which may include the point of diversion, periodof use, place, or nature of use;
(b) the quantity of water sought to be changed;
(c) the certificate number of the stock affected by the change;
(d) a description of the land proposed to be retired from irrigation pursuant to Section73-3-3, if the proposed change in place or nature of use of the water involves a situation wherethe water was previously used for irrigation;
(e) an agreement by the shareholder to continue to pay all applicable corporateassessments on the share affected by the change; and
(f) any other information that the water company may reasonably need to evaluate therequested change application.
(3) (a) A water company shall make a decision and provide written notice of thatdecision on a shareholder's request for a change application within 120 days from receipt of therequest.
(b) Based on the facts and circumstances of each proposed change, a water company maytake the following action:
(i) approve the change request;
(ii) approve the change request with conditions; or
(iii) deny the change request.
(c) If the water company fails to respond to a shareholder's request for a changeapplication, pursuant to Subsection (3)(a), the failure to respond shall be considered to be adenial of the request.
(d) The water company may not withhold approval if any potential damage, liability, orimpairment to the water company, or its shareholders, can be reasonably mitigated without costto the water company.
(e) A water company may consider the following factors in evaluating changeapplications:
(i) any increased cost to the water company or its shareholders;
(ii) interference with the water company's ability to manage and distribute water for thebenefit of all shareholders;
(iii) whether the proposed change represents more water than the shareholder's pro ratashare of the water company's right;
(iv) impairment of either the quantity or quality of water delivered to other shareholders

under the existing water rights of the water company, including rights to carrier water;
(v) whether the proposed change would cause a violation of any statute, ordinance,regulation, or order of a court or governmental agency;
(vi) whether the shareholder has or can arrange for the beneficial use of water to beretired from irrigation within the water company's service under the proposed change; or
(vii) the cumulative effects that the approval of the change application may have on othershareholders or water company operations.
(4) The water company may require that all costs associated with the change application,including costs of submitting proof, be paid by the shareholder.
(5) (a) The shareholder requesting the change must be current on all water companyassessments and agree to continue to pay all applicable future assessments, except that theshareholder may choose to prepay any portion of the water company assessments attributable toan existing debt of the water company.
(b) Other than prepaid assessments, the water company may require that the shareholdercontinue to pay all applicable assessments.
(6) If the water company approves the requested change, with or without conditions, thechange application may be filed with the state engineer, and must:
(a) be signed on behalf of the water company; or
(b) be accompanied by written authorization from the water company assenting to thechange.
(7) (a) The state engineer may evaluate a change application authorized by a watercompany under this section in the same manner and using the same criteria that he or she uses toevaluate any other change application.
(b) Nothing in this section shall limit the authority of the state engineer in evaluating andprocessing any change application.
(8) If an application authorized by a water company under this section is approved by thestate engineer, the shareholder may file requests for extensions of time to submit proof ofbeneficial use under the change application without further permission of the water company.
(9) (a) Change applications approved under this section are subject to all conditionsimposed by the water company and the state engineer.
(b) If a shareholder fails to comply with all of the conditions imposed by the watercompany, the water company may, after written notice to the shareholder and after allowingreasonable time to remedy the failure, withdraw its approval of the application, and petition thestate engineer for an order canceling the change application.
(c) The water company may not revoke its approval of the change application or seek anorder canceling the application if the conditions are substantially satisfied.
(10) (a) The shareholder requesting the change shall have a cause of action, including anaward of actual damages incurred, against the water company if the water company:
(i) unreasonably withholds approval of a requested change;
(ii) imposes unreasonable conditions in its approval; or
(iii) withdraws approval of a change application in a manner other than as provided inSubsection (9).
(b) The action referred to in Subsection (10)(a) shall be referred to mediation by the courtunder Title 78B, Chapter 6, Part 2, Alternative Dispute Resolution Act, unless both partiesdecline mediation.

Amended by Chapter 3, 2008 General Session

State Codes and Statutes