DAR File No. 41590
This rule was published in the June 1, 2017, issue (Vol. 2017, No. 11) of the Utah State Bulletin.
Natural Resources, Water Rights
Rule R655-2
Procedure for Administrative Proceedings Before the Division of Water Rights Commenced Prior to January 1, 1988
Notice of Proposed Rule
(Repeal)
DAR File No.: 41590
Filed: 05/05/2017 11:19:15 AM
RULE ANALYSIS
Purpose of the rule or reason for the change:
This rule used to provide direction for administrative proceedings commenced prior to January 1, 1988 and is no longer in use nor applicable to current rule requirements.
Summary of the rule or change:
This rule is no longer in use nor applicable to current rule requirements. Therefore, this rule is repealed in its entirety.
Statutory or constitutional authorization for this rule:
- Title 73, Chapter 3
- Section 63G-4-203
Anticipated cost or savings to:
the state budget:
No cost is involved. Clarification for procedures does not require a dollar figure.
local governments:
No cost is involved. Clarification for procedures does not require a dollar figure.
small businesses:
No cost is involved. Clarification for procedures does not require a dollar figure.
persons other than small businesses, businesses, or local governmental entities:
No cost is involved. Clarification for procedures does not require a dollar figure.
Compliance costs for affected persons:
No cost is involved. Clarification for procedures does not require a dollar figure.
Comments by the department head on the fiscal impact the rule may have on businesses:
There is no fiscal impact. Clarification for procedures does not require a dollar figure.
Michael Styler, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:
Natural ResourcesWater RightsRoom 220
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154
Direct questions regarding this rule to:
- Marianne Burbidge at the above address, by phone at 801-538-7370, by FAX at 801-538-7467, or by Internet E-mail at marianneburbidge@utah.gov
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
07/03/2017
This rule may become effective on:
07/10/2017
Authorized by:
Michael Styler, Executive Director
RULE TEXT
R655. Natural Resources, Water Rights.
[R655-2. Procedure for Administrative Proceedings Before the
Division of Water Rights Commenced Prior to January 1,
1988.
R655-2-1. General Provisions.
1.1 Procedure Governed. These rules shall govern all
hearings which are held by the State Engineer on matters within
his jurisdiction for all adjudicative proceedings commenced prior
to January 1, 1988. Adjudicative proceedings commenced on and
after January 1, 1988, are governed by R655-6 of these
rules.
1.2 Definitions.
(a) "Division" means Division of Water
Rights.
(b) "State Engineer" is the Administrator of
the Division of Water Rights, which is the agency having general
administrative supervision over the waters of the State. The
duties of this Division are primarily set forth in Title 73,
Chapters 1 through 6.
(c) "Staff" means the Division of Water Rights
staff.
(d) "Hearing officer" is the individual
conducting a hearing which is provided for in these rules and
will be either the State Engineer or a designated member of his
staff.
(e) "Application" means any application which
has been filed pursuant to Title 73, Chapters 1 through 3, and
shall include -- but not be limited to -- applications to
appropriate, change applications, requests for extension of time,
exchange applications, segregation applications, applications to
resume the use of water, and applications for stream channel
changes. The rules governing the filing and perfecting of these
documents are specified in said Chapters, and the following rules
govern only the hearing procedures for those applications which
have been properly filed and have proceeded to the point that
they are ready for hearing.
(f) "Applicant" is a person applying for an
application.
(g) "Petitioner" is any person, other than the
applicant, seeking relief from the State Engineer where the
relief sought falls within the jurisdiction of the State
Engineer's statutory duties and responsibilities.
(h) "Protestant" means a person who protests an
application before the State Engineer.
(i) "Person" means any governmental subdivision
or agency, individual, corporation, partnership or
association.
(j) "Proceeding" shall include -- but not be
limited to -- hearings, petitions, orders to show cause, and
formal investigations made by the State Engineer.
(k) "Party" means each person named or admitted
as a party in a proceedings before the State Engineer.
(l) "Water user" means any person using water
and subject to the regulatory authority of the State
Engineer.
1.3 Liberal Construction. These rules shall be liberally
construed to secure a just, speedy and economical determination
of all issues presented to the State Engineer.
1.4 Deviation from Rules. During emergency situations
where it is essential to restore or establish water for the
preservation of life or critical crops, the State Engineer may
permit a deviation from these rules except where precluded by
statute.
1.5 Computation of Time. The time within which any act
shall be done shall be computed by excluding the first day and
including the last, unless the last day is a Saturday, Sunday, or
State holiday, and then it is excluded and the period runs until
the end of the next day which is neither a Saturday, Sunday, nor
State holiday. For good cause shown, the State Engineer may
extend or waive any time limit prescribed or allowed by these
rules.
1.6 Notice. The State Engineer shall give written notice
of hearings to all persons who have become parties to a
proceeding, by regular mail at least ten days prior to the
hearing.
R655-2-2. Parties.
2.1 Generally. Parties to a proceeding before the State
Engineer shall be:
(a) Persons who have a statutory right to be a
party;
(b) Persons who may become a party when they have
established to the satisfaction of the State Engineer that they
have a substantial interest in the subject matter of the
proceeding and that their intervention will not unduly broaden
the issues.
2.2 Rights of Parties. All parties shall be entitled to
introduce evidence, examine and cross-examine witnesses, make
arguments, and fully participate in the proceeding.
R655-2-3. Intervention.
3.1 Order Granting Leave to Intervene Required. Persons
desiring to intervene in a proceeding shall obtain permission
from the State Engineer granting leave to intervene before being
allowed to participate. Permission shall be requested by means of
a petition in the following manner, provided that for good cause
shown leave to intervene may be requested orally at the
hearing.
(a) Content of Petition. Petitions for leave to intervene
must be in writing and must identify the proceeding by water
right number, if known. The petition must contain a clear and
concise statement of the direct and substantial interest of the
petitioner in the proceeding and the manner in which the
proceeding will affect his interests.
(b) When Petition Must be Filed. A petition for leave to
intervene must be filed with the State Engineer at least five
days prior to the date set for the hearing.
(c) Granting of Petition. If a petition for leave to
intervene shows a direct and substantial interest in the subject
matter of the proceeding and does not unduly broaden the issues,
the State Engineer may grant leave to intervene.
R655-2-4. Pleadings.
4.1 Pleadings before the State Engineer for
administrative hearings shall consist of:
(a) Applications.
For purposes of a hearing before the State Engineer,
applications which have been filed with the State Engineer in
accordance with the provisions of Title 73, Chapters 1 through 3,
and which have been protested, shall be deemed pleadings for
purposes of the administrative hearing procedure provided for in
these rules.
(b) Formal Protests.
Formal protests shall consist of those protests which
have been filed with the State Engineer in objection to the
granting of an application. The provisions for filing formal
protests and the time within which they must be filed is provided
in Section 73-3-7. The formal protest shall set forth clearly and
concisely the grounds for the protest. Two or more grounds of
protest concerning the same application may be included in one
formal protest, but should be numbered and stated separately. Two
or more protestants may join in one formal protest if their
respective protests are against the same application and deal
substantially with the same issue.
(c) Informal Protests.
Informal protests may be made by a letter or other
writing, and no particular form is required. The writing must
clearly state the matters complained of and must identify the
party complained against and must be signed by the protestant or
his attorney and show the address of protestant or his
attorney.
Informal protests may be handled by the State Engineer by
informal conference, correspondence, or otherwise with the
parties affected in an endeavor to bring about adjustment of the
protest without a formal hearing.
(d) Orders to Show Cause or Other Notice.
Pleadings before the State Engineer shall also include
Orders to Show Cause or other notices used by the State Engineer
to initiate a hearing on his own motion.
(e) Petitions.
All pleadings other than applications requesting
affirmative relief, including requests to intervene or for
re-hearing, shall be entitled "petitions". A petition
shall set forth clearly and concisely the basis and grounds for
the petition and the relief requested.
(f) Title and Content of Pleadings.
Applications and other similar documents must only be
filed upon the forms provided by the State Engineer. All other
pleadings filed with the State Engineer should include the water
right number as it appears in the State Engineer's office, if
the water right which is the subject matter of the pleading has
been assigned a number by the State Engineer. The pleading should
also identify the name and address of the water user against whom
the protest is directed.
If the water right involved in the pleading has not been
assigned a water right number by the State Engineer, then the
protestant or petitioner should identify the water right involved
by other means -- the name and address of the water user, the
water source, nature and location of the use, and other
information as will aid in the identification of the water
right.
Protests and petitions should be filed on legal-sized
paper, type-written and double-spaced, but may be submitted in
hand-written form. Protests and petitions should identify the
water right by number and should contain a clear, concise
statement of the matter relied upon as the basis for the
pleading, together with an appropriate request for relief when
relief is sought.
(g) Signing of Pleadings.
Pleadings shall be signed by the party or by the
party's attorney or other authorized representative, and
shall show the signer's address. The signature shall be
deemed to be a certification by the signer that he has read the
pleading and that, to the best of his knowledge and belief, the
statements are true.
(h) Amendments to Pleadings.
The State Engineer may allow pleadings to be amended or
corrected, and defects which do not affect substantial rights of
the parties may be disregarded; provided, however, that
applications and other similar documents which are governed by
specific statutory provisions shall be amended only as provided
by statute.
R655-2-5. Filing and Service.
5.1 Filing of Pleadings. Applications and protests shall
be filed in accordance with the applicable statutory provisions.
Petitions shall be filed with the State Engineer as specified in
these rules.
5.2 Service. The State Engineer, upon receipt of a
protest or petition, shall mail copies to those parties against
whom relief is sought.
5.3 Service on Attorney. When any party has appeared by
an attorney or other authorized representative, service upon the
attorney or representative constitutes service upon the party he
represents.
5.4 Time for Filing. Protests and other documents which
are governed by statute shall be filed in accordance with the
time specified in the statute. Other pleadings which are provided
for in these rules shall be filed within the time
specified.
R655-2-6. Appearances and Representation.
6.1 Taking Appearances. Parties shall enter their
appearances at the beginning of a hearing or at a time designated
by the State Engineer by giving their names and addresses and
stating their positions or interests in the proceeding.
6.2 Representation of Parties.
(a) An individual who is a party to a proceeding, or an
officer designated by a partnership, corporation, association or
governmental subdivision or agency which is a party to a
proceeding, may represent his or its interest in the
proceeding.
(b) Any party may be represented by an attorney at
law.
R655-2-7. Pre-Hearing Procedure.
The State Engineer may, upon written notice to all
parties or record, hold a pre-hearing conference for the purposes
of formulating or simplifying the issues, obtaining admissions of
fact and of documents which will avoid unnecessary proof,
arranging for the exchange of proposed exhibits, and agreeing to
other matters as may expedite the orderly conduct of the
proceedings or the settlement.
R655-2-8. Hearings.
8.1 Initiation of Formal Hearing in Contested
Cases.
(a) By the State Engineer. The State Engineer may
initiate a formal hearing upon his own motion to determine
matters within his authority. If the hearing is directed toward
an applicant or water user, the State Engineer shall serve on
that person an order to show cause or other notice or order
suitable to the purposes of the hearing which shall set forth in
ordinary and concise language the acts or omissions with which
the person is charged, or the issues to be determined at the
hearing. The notice or order shall specify the statutes and rules
involved in the proceeding.
(b) By Other Persons. A formal hearing may be initiated
by other persons by filing with the State Engineer a formal
protest or petition. Upon the filing of a formal protest or
petition which is directed toward an applicant or water user, the
State Engineer shall serve a copy of the formal protest or
petition upon the applicant or water user, except as provided in
the following sub-paragraphs (c) and (d) of this rule.
(c) Dismissal of Formal Protest or Petition. If it
appears to the State Engineer upon the filing of a formal protest
or petition that the matters alleged in the formal protest or
petition are not within his jurisdiction or regulatory powers,
the State Engineer in his discretion need not serve a copy of the
formal protest or petition on the applicant or water user, but
shall serve a notice on the protestant or petitioner which shall
state the reasons why the formal protest or petition has not been
served, and shall set a time at which the protestant or
petitioner may appear before the State Engineer or submit a
written memorandum setting forth reasons why the State Engineer
has jurisdiction and authority to resolve the matter. Following
appearance or submission of memorandum, the State Engineer may
proceed to serve the formal protest or petition on the applicant
or water user, or may -- upon his own motion -- dismiss the
formal protest or petition if he concludes that he does not have
jurisdiction over or the authority to resolve the matter. The
State Engineer shall mail a written notice to the protestant or
petitioner of his action, and, if he dismisses the formal protest
or petition, the notice shall contain a statement of the reasons
for his decision. If the State Engineer proceeds to serve the
protestant or petitioner, no action taken pursuant to this
paragraph shall preclude the applicant or water user from
challenging the jurisdiction and authority of the State Engineer
over the matter in issue.
(d) Protest or Petition Insufficient. If a formal protest
or petition filed with the State Engineer does not contain
sufficient information in the opinion of the State Engineer to
adequately apprise the applicant or water user of the matters
which are complained of and to enable the applicant or water user
to prepare his defense, the State Engineer may require the
protestant or petitioner to furnish additional information, or to
file a new protest or petition before the formal protest or
petition is served on the applicant or water user.
8.2 Setting of Hearing. Upon the filing of a formal
protest or petition which does not require a responsive pleading,
or when the State Engineer initiates a proceeding upon his own
motion and no responsive pleading is required, the State Engineer
shall set a time and place for hearing. No hearing shall take
place within the ten-day period immediately following the filing
of the formal protest or petition unless the parties consent to a
shorter period of time. Notice of the hearing will be served on
all parties by regular mail at least ten days prior to the
hearing.
8.3 Failure to Appear. When a party or his authorized
representative to a proceeding fails to appear at a hearing after
due notice has been given, the State Engineer may dismiss or
continue the matter, or may proceed to hear the matter in the
absence of the defaulting party.
8.4 Continuance. If application is made to the State
Engineer within a reasonable time prior to the date of hearing,
upon proper notice to the other parties the State Engineer may
grant a continuance of the hearing.
8.5 Hearings. All hearings held by the State Engineer
shall be open to the public.
8.6 Testimony. At a hearing, the State Engineer or his
hearing officer shall accept oral or written testimony from any
party. Further, the hearing officer shall have the right to
question and examine any witnesses called to present testimony at
a hearing. The testimony and statements which are received at
hearings before the State Engineer may be under oath.
8.7 Order of Presentation of Evidence. Unless otherwise
directed by the State Engineer at a hearing, the presentation of
evidence shall be as follows:
(a) Upon applications and other documents filed in
connection with the appropriation and use of water:
1. applicant;
2. protestants.
(b) Upon petitions or objections concerning the exercise
of a water right:
1. protestants;
2. water user whose use is being protested.
(c) Upon complaints by the State Engineer and orders to
show cause --
1. Division of Water Rights staff;
2. party against whom the action is being taken.
During any of the hearings specified above, a party may
offer rebuttal evidence.
8.8 Rules of Evidence. A hearing may be conducted in an
informal manner and without adherence to the rules of evidence
required in a judicial proceeding. The hearing officer shall
admit all relevant and material evidence, except evidence which
is unduly repetitious, even though evidence may be inadmissible
under rules of evidence in judicial proceedings. The weight to be
given to evidence shall be determined by the State Engineer. Any
relevant evidence may be admitted if it is the type of evidence
commonly relied upon by prudent men in the conduct of their
affairs. Hearsay evidence may be used for the purpose of
supplementing or explaining other evidence, but it shall not be
sufficient in itself to support a finding unless it would be
admissible in a judicial proceedings. Irrelevant, immaterial and
unduly repetitious evidence shall be excluded.
8.9 Documentary Evidence. Documentary evidence may be
received in the form of copies or excerpts. However, upon
request, parties shall be given an opportunity to compare the
copy with the original.
8.10 Official Notice. The State Engineer may take
official notice of the following matters:
(a) Rules, regulations, official reports, decisions and
orders of the State Engineer and any other regulatory agency,
state or federal;
(b) Official documents introduced into the record by
proper reference; provided, however, that documents shall be made
available so that the parties to the hearing may examine the
documents and present rebuttal testimony if they so
desire;
(c) Matters of common knowledge and generally recognized
technical or scientific facts within the State Engineer's
specialized knowledge and of any factual information which he may
have gathered from a field inspection of the water sources or
area involved in the proceeding.
8.11 Oral Argument and Memoranda. Upon the conclusion of
the taking of evidence, the State Engineer may, in his
discretion, permit the parties to make oral arguments setting
forth their positions and also to submit written memoranda within
the time specified by the State Engineer.
8.12 Record of Hearing. A record of any hearing may be
made at the option of either the State Engineer or any party to
the hearing. However, should a party desire a record of any
hearing, that party must notify the State Engineer within a
reasonable time prior to the time the hearing begins. When a
record is made by the State Engineer, it shall be done by means
of an automatic recording device. If the tape of the hearing is
later transcribed, the transcript will be made available for
inspection by any party. The State Engineer will make a
transcription only if he deems it advisable and necessary to do
so.
If a party desires that the testimony be recorded by
means of a court reporter, that party may employ a court reporter
at his own expense and shall furnish a transcript of the
testimony to the State Engineer free of charge. This transcript
shall be available at the State Engineer's office to any
party to the hearing.
R655-2-9. Decisions and Orders.
9.1 Report and Order. After the State Engineer has
reached a final decision upon any proceeding, he shall make and
enter a decision containing his findings of fact and conclusions
and order.
9.2 Service of Decisions. A copy of the decision shall be
served on the parties of record or their representatives by
regular mail.
9.3 Judicial Review of State Engineer's Decision. Any
person aggrieved by a decision of the State Engineer may, within
60 days after notice thereof, bring a civil action in the
district court for a plenary review thereof in accordance with
Sections 73-3-14 and -15.
R655-2-10. Re-Hearings.
10.1 Time for Filing. A petition for re-hearing must be
filed within 20 days after notice of a written order or decision
of the State Engineer.
10.2 Contents of Petition. A petition for re-hearing
shall set forth specifically the grounds upon which the
petitioner considers the order or decision of the State Engineer
to be in error.
10.3 Action on the Petition. Upon the filing of a
petition for re-hearing, the State Engineer may set a time for
hearing the petition or may summarily grant or deny the petition
in whole or in part.
10.4 Re-Hearings Limited. If an order is made granting
the petition for re-hearing, it shall be limited to the matter
specified in the order. Upon re-hearing, the State Engineer may
affirm his former decision or may abrogate it, change or modify
the same in any particular. That decision shall have the same
force and effect as the original decision, but shall not affect
any right or the enforcement of any right arising out of or by
virtue of the original decision unless so ordered by the State
Engineer.
R655-2-11. Declaratory Rulings.
Any interested person may petition the State Engineer for
a declaratory ruling on the applicability of any decision, rule,
regulation, or statutory provision relating to the State
Engineer. The petition will be in the same form as other
petitions and will set forth in detail the specific facts for
which the ruling is requested and the manner in which the
petitioner claims the rule, regulation, decision or statutory
provision may affect him. If the petition sets forth information
which requires the issuance of a ruling, the State Engineer shall
set the matter down for hearing as in other cases.
The State Engineer may in his discretion decline to issue
declaratory rulings where he deems the facts presented to be
conjectural, or where the public interest would best be served by
not issuing a ruling.
KEY: water rights procedures
Date of Enactment or Last Substantive Amendment: 1992
Notice of Continuation: June 15, 2012
Authorizing, and Implemented or Interpreted Law: 73-3;
63G-4-203]
Additional Information
More information about a Notice of Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull_pdf/2017/b20170601.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
Text to be deleted is struck through and surrounded by brackets ([example]). Text to be added is underlined (example). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.
For questions regarding the content or application of this rule, please contact Marianne Burbidge at the above address, by phone at 801-538-7370, by FAX at 801-538-7467, or by Internet E-mail at marianneburbidge@utah.gov. For questions about the rulemaking process, please contact the Office of Administrative Rules.