| (1) |
For purposes of this section, “initial order” means one of the following issued by the state engineer:
Terms Used In Utah Code 73-2-25- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Person: means :Utah Code 68-3-12.5
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
| (a) |
a notice of violation; or |
| (b) |
a cease and desist order. |
|
| (2) |
| (a) |
Except as provided in Subsection (2)(b), the state engineer may commence an enforcement action under this section if the state engineer finds that a person:
| (i) |
is diverting, impounding, or using water for which no water right has been established; |
| (ii) |
is diverting, impounding, or using water in violation of an existing water right; |
| (iii) |
violates Section 73-5-4; |
| (v) |
violates a written distribution order from the state engineer; |
| (viii) |
fails to submit a report required by Section 73-3-25; or |
| (ix) |
engages in well drilling without a license required by Section 73-3-25. |
|
| (b) |
The state engineer may not commence an enforcement action against a person under Subsection (2)(a)(i), if the person directly captures, or stores, precipitation on the surface of, or under, a parcel owned or leased by the person, including in a catch basin, storm drain pipe, swell, or pond, if the collection or storage:
| (i) |
is consistent with local laws and ordinances; |
| (ii) |
does not interfere with an existing water right; and |
| (iii) |
is designed to slow, detain, or retain storm water or protect watersheds from pollution with the intention that the precipitation:
| (A) |
absorbs into the ground or is released for discharge; and |
| (B) |
is not put to beneficial use. |
|
|
| (c) |
To commence an enforcement action under this section, the state engineer shall issue an initial order, which shall include:
| (i) |
a description of the violation; |
| (ii) |
notice of any penalties to which a person may be subject under Section 73-2-26; and |
| (iii) |
notice that the state engineer may treat each day’s violation of the provisions listed in Subsection (2)(a) as a separate violation under Subsection 73-2-26(1)(d). |
|
|
| (3) |
In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the state engineer shall make rules necessary to enforce an initial order, which shall include:
| (a) |
provisions consistent with this section and Section 73-2-26 for enforcement of the initial order if a person to whom an initial order is issued fails to respond to the order or abate the violation; |
| (b) |
the right to a hearing, upon request by a person against whom an initial order is issued; and |
| (c) |
provisions for timely issuance of a final order after:
| (i) |
the person to whom the initial order is issued fails to respond to the order or abate the violation; or |
| (ii) |
a hearing held under Subsection (3)(b). |
|
|
| (4) |
A person may not intervene in an enforcement action commenced under this section. |
| (5) |
After issuance of a final order under rules made pursuant to Subsection (3)(c), the state engineer shall serve a copy of the final order on the person against whom the order is issued by:
| (a) |
personal service under Utah Rules of Civil Procedure 5; or |
|
| (6) |
| (a) |
The state engineer’s final order may be reviewed by trial de novo by the district court in:
| (ii) |
the county where the violation occurred. |
|
| (b) |
A person shall file a petition for judicial review of the state engineer’s final order issued under this section within 20 days from the day on which the final order was served on that person. |
|
| (7) |
The state engineer may bring suit in a court of competent jurisdiction to enforce a final order issued under this section. |
| (8) |
If the state engineer prevails in an action brought under Subsection (6)(b) or (7), the state may recover all court costs and a reasonable attorney fee. |
Amended by Chapter 369, 2014 General Session
