(1) |
Terms Used In Utah Code 73-2-26- Lien: A claim against real or personal property in satisfaction of a debt.
- 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
(a) |
As part of a final order issued under Section 73-2-25, the state engineer may order that a person to whom an order is issued:
(i) |
pay an administrative fine not to exceed:
(A) |
$5,000 for each knowing violation; or |
(B) |
$1,000 for each violation that is not knowing; |
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(ii) |
replace up to 200% of water taken; and |
(iii) |
be liable for any expense incurred by the state engineer or division in investigating and stopping the violation. |
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(b) |
The definition of “knowingly” under Subsection 76-2-103(2) shall apply to determinations under Subsection (1)(a)(i). |
(c) |
The penalties described in Subsection (1)(a) shall be in addition to:
(i) |
any criminal penalty established for a violation described in Subsection (1); and |
(ii) |
any private right of action. |
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(d) |
(i) |
Each day of a continuing violation of the provisions described in Subsection 73-2-25(2)(a) or an initial or final order issued under Section 73-2-25 is a separate violation. |
(ii) |
A penalty may not be imposed for a violation of the provisions listed in Subsection 73-2-25(2)(a) or an initial or a final order issued under Section 73-2-25 for a violation occurring more than 12 months before the day on which a notice of violation is issued. |
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(e) |
Separate violations under Subsection (1)(d) may be consolidated for resolution in one enforcement proceeding under Section 73-2-25. |
(f) |
The state engineer has discretion to pursue an administrative fine, order requiring replacement, or both. |
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(2) |
Before imposing a fine or ordering replacement under Subsection (1), the state engineer shall consider:
(a) |
the value or quantity of water unlawfully taken, including the cost or difficulty of replacing the water; |
(b) |
the gravity of the violation, including the economic injury or impact to others; |
(c) |
whether the person subject to fine or replacement attempted to comply with the state engineer’s orders; and |
(d) |
the violator’s economic benefit from the violation. |
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(3) |
(a) |
The state engineer may require that the water unlawfully taken be replaced after:
(i) |
a person fails to request judicial review of a final order issued under Section 73-2-25; or |
(ii) |
the completion of judicial review, including any appeals. |
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(b) |
The state engineer’s order shall require that replacement of water begin within one year of the day on which:
(i) |
the time period for requesting judicial review of a final order issued under Section 73-2-25 expires without a person requesting judicial review of the final order; or |
(ii) |
the completion of judicial review, including any appeals. |
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(4) |
Water replaced under Subsection (3) shall be taken from water that the person subject to the order requiring replacement would be entitled to use during the replacement period. |
(5) |
(a) |
If the state engineer issues an order requiring replacement, a copy of the order shall be placed in the Division of Water Rights’ water rights records. |
(b) |
The order requiring replacement shall constitute a lien upon the water right affected if the state engineer files a notice of lien in the office of the county recorder in the county where the place of use of the water right is located. |
(c) |
A notice of lien under Subsection (5)(b) shall include a legal description of the place of use of the water right. |
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(6) |
Any money collected under this section shall be deposited into the General Fund. |
Enacted by Chapter 33, 2005 General Session