HB 251

Enrolled Copy  H.B. 251
1Diligence Claims Water Amendments
  2026 GENERAL SESSION
  STATE OF UTAH
  Chief Sponsor: Scott H. Chew
  Senate Sponsor: David P. Hinkins
2
3  LONG TITLE
4  General Description:
5      This bill addresses use of water related to diligence claims.
6  Highlighted Provisions:
7      This bill:
8      ▸ clarifies provisions related to submitting a claim;
9      ▸ defines terms;
10      ▸ provides for the creation of a rebuttable presumption of the right to use certain water
11  related to a homestead parcel;
12      ▸ establishes the process for rebutting the presumption; and
13      ▸ makes technical and conforming amendments.
14  Money Appropriated in this Bill:
15      None
16  Other Special Clauses:
17      None
18  Utah Code Sections Affected:
19  AMENDS:
20      73-5-13, as last amended by Laws of Utah 2020, Chapter 59
21
22  Be it enacted by the Legislature of the state of Utah:
23Section 1. Section 73-5-13 is amended to read:
2473-5-13 . Claim to surface or underground water not otherwise represented --
25  Information required -- Corrections -- Filing -- Investigation -- Publication -- Judicial
26  action to determine validity -- Rules -- Homestead parcels.
27  (1)(a) A claimant to the right to the use of water, including both surface and
H.B. 251  Enrolled Copy
28underground water, whose right is not represented by a certificate of appropriation
29issued by the state engineer, by an application filed with the state engineer, by a court
30decree, or by a notice of claim filed [pursuant] according to law, shall submit the
31claim to the state engineer in accordance with this section.
32(b) Subsections (2) through (7) only apply to [claims or corrected claims] a claim or
33corrected claim submitted to the state engineer in accordance with this section on or
34after May 14, 2013.
35(c) Subsection (8) applies to a claim or corrected claim submitted to the state engineer in
36accordance with this section on or after May 6, 2026.
37   (2)(a) The claimant or the claimant's appointed representative shall verify under oath a
38claim submitted under this section and submit the claim on [forms] a form provided
39by the state engineer setting forth [any] the information the state engineer requires,
40including:
41(i) the name and mailing address of the person making the claim;
42(ii) the quantity of water claimed in acre-feet or rate of flow in second-feet, or both, [
43where] when appropriate;
44(iii) the source of supply;
45(iv) the claimed priority date of the right;
46(v) the location of the point of diversion with reference to a United States land survey
47corner;
48(vi) the place of use;
49(vii) the nature and extent of use;
50(viii) the time during which the water has been used each year; and
51(ix) the date when the water was first used.
52(b) [The] A claim described in Subsection (1) shall also include the following
53information, prepared by a Utah licensed engineer or a Utah licensed land surveyor:
54(i) measurements of the amount of water diverted;
55(ii) a statement that the quantity of water claimed either in acre-feet or cubic feet per
56second is consistent with the beneficial use claimed and the supply that the source
57is capable of producing; and
58(iii) a map showing the original diversion and conveyance works and where the water
59was placed to beneficial use, including irrigated lands, if irrigation is [the] a
60claimed beneficial use.
61(c) The state engineer may require additional information as necessary to evaluate [any] a
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62claim described in Subsection (1) including:
63(i) [affidavits] an affidavit setting forth facts of which the affiant has personal
64knowledge;
65(ii) an authenticated or historic [photographs, plat or survey maps, or surveyors' notes]
66photograph, plat or survey map, or surveyor's note;
67(iii) an authenticated [copies of original diaries, personal histories, or other historical
68documents that document] copy of an original diary, personal history, or other
69historical document that documents the claimed use of water;[ and]
70(iv) evidence of a homestead parcel as defined in Subsection (8); or
71[(iv)] (v) [other relevant records] another relevant record on file with a county
72recorder's, surveyor's, or assessor's office.
73  (3)(a) A claimant, or a claimant's successor in interest, as shown in the records of the
74      state engineer, may file a corrected claim that:
75(i) is designated as a corrected claim;
76(ii) includes the information described in Subsection (2); and
77(iii) bears the same number as the original claim.
78      (b) If a corrected claim that meets the requirements described in Subsection (3)(a) is
79filed before the state engineer publishes the original claim in accordance with
80Subsection (4)(a)(iv), the state engineer may not charge an additional fee for filing
81the corrected claim.
82      (c) The state engineer shall treat a corrected claim that is filed in accordance with
83Subsection (3)(a) as if the corrected claim were the original claim.
84  (4)(a) When a claimant submits a claim that is acceptably complete under Subsection (2)
85      and deposits money with the state engineer sufficient to pay the expenses of
86      conducting a field investigation and publishing a notice of the claim, the state
87      engineer shall:
88(i) file the claim;
89(ii) endorse the date of the claim's receipt;
90(iii) assign the claim a water right number;
91(iv) publish a notice of the claim following the same procedures as provided in
92Section 73-3-6; and
93(v) if the claimant is the federal government or a federal agency, provide a copy of
94the claim to the members of the Natural Resources, Agriculture, and Environment
95Interim Committee.
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96(b) [A claim not acceptably complete under Subsection (2) shall be returned to the
97claimant.] The state engineer shall return a claim to the claimant that the state
98engineer determines is not acceptably complete.
99(c) [The acceptance of a claim filed under this section by the state engineer may not be
100considered to be ] The state engineer's acceptance of a claim filed under this section is
101not considered an adjudication by the state engineer of the validity of the claimed
102water right.
103   (5)(a) The state engineer shall:
104(i) conduct a field investigation of [each] a claim filed under this section; and
105(ii) prepare a report of the investigation.
106(b) In preparing the report of the investigation described in Subsection (5)(a), the state
107engineer shall:
108(i) apply Section 73-1-3; and
109(ii) include an evaluation of the asserted beneficial uses as the asserted beneficial
110uses existed at the time of the claimed priority date, specifically identifying any
111portion of the claim that was not placed to beneficial use in accordance with law.
112(c) The report of the investigation shall:
113(i) become part of the file on the claim; and
114(ii) be admissible in [any] an administrative or judicial proceeding regarding the
115validity of the claim.
116   (6)(a) A person who may be damaged by a diversion and use of water as described in a
117claim submitted [pursuant] according to this section may file an action in [district
118court] a court with jurisdiction to determine the validity of the claim, regardless of
119whether the state engineer has filed the claim in accordance with Subsection (4)(a).
120(b) Venue for an action brought under Subsection (6)(a) [shall be] is in the county where
121the point of diversion listed in the claim is located, or in a county where the place of
122use, or some part of [it] the place of use, is located.
123(c) [The] A person bringing an action under this Subsection (6) shall [be brought] bring
124the action against the claimant to the use of water or the claimant's successor in
125interest.
126(d) In an action brought to determine the validity of a claim to the use of water under
127this section, the claimant has the initial burden of proof as to the validity of the
128claimed right.
129(e)(i) A person filing an action challenging the validity of a claim to the use of water
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130under this section shall notify the state engineer of the pendency of the action in
131accordance with state engineer rules.
132(ii) Upon receipt of the notice, the state engineer may take no action on a change or
133exchange application founded on the claim that is the subject of the pending
134litigation until the court adjudicates the matter.
135      (f) Upon the entering of a final order or decree in a judicial action to determine the
136validity of a claim under this section, the prevailing party shall file a certified copy of
137the order or decree with the state engineer, who shall incorporate the order into the
138state engineer's file on the claim.
139  (7)(a) In a general adjudication of water rights under Title 73, Chapter 4, Determination
140      of Water Rights, after completion of final summons in accordance with Section
141      73-4-22, a claimant is prohibited from filing a claim under this section in the general
142      adjudication area, division, or subdivision.
143      (b) The state engineer shall return a claim filed under this section to a claimant without
144further action if:
145(i) the state engineer receives a claim for an area where the claimant is prohibited
146from filing the claim under Subsection (7)(a) or Section 73-4-9.5; or
147(ii) the claim is untimely as provided in Section 73-4-9.
148  (8)(a) As used in this Subsection (8):
149(i) "Homestead parcel" means the land area of 640 acres or less conveyed by patent
150from the federal government.
151(ii) "Livestock" means a domestic animal raised or kept for profit or personal use.
152(iii) "Livestock watering pond" means a pond that:
153(A) is formed by precipitation and not the diversion of a water source;
154(B) has an annual use that meets the condition of Subsection (8)(b)(i); and
155(C) is used to directly water livestock or for associated uses related to the raising
156and care of livestock.
157(iv) "Water right" means the same as that term is defined in Section 73-3c-102.
158      (b) There is a rebuttable presumption that a claimant has the right to the use of a
159livestock watering pond even though the right is not represented by a certificate of
160appropriation issued by the state engineer, by an application filed with the state
161engineer, by a court decree, or by a notice of claim filed according to law if:
162(i) the aggregate of annual use of all livestock watering ponds that support the
163homestead parcel is less than 20 acre-feet of water;
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164(ii) the claimant files an acceptably complete claim in accordance with this section;
165(iii) the claimant deposits money with the state engineer sufficient to pay the
166expenses of conducting a field investigation and publishing a notice of the claim;
167(iv) the livestock watering pond is in support of a homestead parcel; and
168(v) the livestock watering pond:
169(A) existed before the conveyance of the patent for the homestead parcel; and
170(B) was used as surface water before 1903.
171(c) The priority date of a claim described in Subsection (8)(b) is the date on which the
172homestead parcel is first used in support of livestock notwithstanding that the date is
173before the patent conveying title to the homestead parcel.
174(d) The rebuttable presumption described in Subsection (8)(b) may be rebutted by a
175person protesting a claim based on the impairment of a water right held by the person
176protesting the claim. A person may rebut the rebuttable presumption described in
177Subsection (8)(b) by a preponderance of the evidence.
178(e) If a claimant and a protestant come to a written agreement regarding how the issue of
179impairment may be mitigated:
180(i) the state engineer may incorporate the agreement as part of the file on the claim;
181and
182(ii) the agreement is admissible in an administrative or judicial proceeding regarding
183the validity of the claim.
184Section 2. Effective Date.
185   This bill takes effect on May 6, 2026.
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