for specified period of time -- Filing of royalty contract for removal of salt or minerals -- Request for agency action. (1) (a) The state engineer 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; (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 an application does not meet the requirements of this section, the state engineer shall reject the application. (2) (a) The state engineer may approve an application to appropriate water for industrial, power, mining development, manufacturing purposes, agriculture, or municipal purposes 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 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 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) An applicant shall file a request for extension of a fixed time period in writing in the office of the state engineer on or before the expiration date of the application. (3) (a) Before the approval of an application to divert water from a navigable lake or stream of the state that contemplates the recovery of salts and other minerals or elements, as defined in Section 65A-17-101, 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) Upon written notice to the state engineer of termination or noncompliance of a royalty contract or mineral lease described in Subsection (3)(a), the state engineer shall: (i) reverse the approval of an application; or (ii) indicate on the water right in the records of the state engineer the default if the written notice states that the royalty contract or mineral lease has a reversionary provision related to the water right. (4) (a) The state engineer shall investigate a temporary change application. (b) The state engineer is not required to publish notice of a temporary change application under Section 73-3-6. (c) The state engineer shall: (i) approve the temporary change if the state engineer finds there is reason to believe that the temporary change does not impair an existing right; and (ii) 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 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 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)(i) 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).
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