Section 30 – Change application for an instream flow.

Effective 5/4/2022
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, the Division of State Parks created in Section 79-4-201, or the Division of Forestry, Fire, and State Lands created in Section 65A-1-4.
  • (b) “Person entitled to the use of water” means the same as that term is defined in Section 73-3-3.
  • (c) “Sovereign lands” means the same as that term is defined in Section 65A-1-1.
  • (d) “Wildlife” means species of animals, including mammals, birds, fish, reptiles, amphibians, mollusks, and crustaceans, that are protected or regulated by a statute, law, regulation, ordinance, or administrative rule.

• (2)
  • (a) Pursuant to Section 73-3-3, a division may file a permanent change application, a fixed time change application, or a temporary change application, or a person entitled to the use of water may file a fixed time change application or a temporary change application, to provide water within the state for:
    • (i) an instream flow within a specified section of a natural or altered stream; or
    • (ii) use on sovereign lands.
  • (b) The state engineer may not approve a change application filed under this section unless the proposed instream flow or use on sovereign lands will contribute to:
    • (i) the propagation or maintenance of wildlife;
    • (ii) the management of state parks; or
    • (iii) the reasonable preservation or enhancement of the natural aquatic environment.
  • (c) 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 or use on sovereign lands, through funding provided for that purpose by legislative appropriation; or
      • (C) secured by lease, agreement, gift, exchange, or contribution; or
    • (ii) an appurtenant water right acquired with the acquisition of real property by the division.
  • (d) A division may:
    • (i) purchase a water right for the purposes described in Subsection (2)(a) only with funds specifically appropriated by the Legislature for water rights purchases; or
    • (ii) accept a donated water right without legislative approval.
  • (e) A division may not acquire water rights by eminent domain for an instream flow, use on sovereign lands, or for any other purpose.

• (3)
  • (a) A person entitled to the use of water shall obtain a division director’s approval of the proposed change before filing a fixed time change application or a temporary change application with the state engineer.
  • (b) By approving a proposed fixed time change application or temporary change application, a division director attests that the water that is the subject of the application can be used consistent with the statutory mandates of the director’s division.

• (4) In addition to the requirements of Section 73-3-3, an application authorized by this section shall include:
  • (a) a legal description of:
    • (i) the segment of the natural or altered stream that will be the place of use for an instream flow; or
    • (ii) the location where the water will be used on sovereign lands; and
  • (b) appropriate studies, reports, or other information required by the state engineer demonstrating:
    • (i) the projected benefits to the public resulting from the change; and
    • (ii) the necessity for the proposed instream flow or use on sovereign lands.

• (5) A person may not appropriate unappropriated water under Section 73-3-2 for the purpose of providing an instream flow or use on sovereign lands.

• (6) Water used in accordance with this section is considered to be beneficially used, as required by Section 73-3-1.

• (7) A physical structure or physical diversion from the stream is not required to implement a change under this section.

• (8) An approved change application described in this section does not create a right of access across private property or allow any infringement of a private property right.

Amended by Chapter 43, 2022 General Session