73-31-202. Statutory water bank application.
(1) A record holder, other than the United States or an agency of the United States, of a perfected water right or a valid diligence claim may request approval for a proposed statutory water bank if the place of use and point of diversion for the applicant's water right are encompassed within the proposed service area of the proposed statutory water bank and the applicant files an application with the board that includes the following:
(a) the name of the statutory water bank;
(b) the mailing address for the statutory water bank;
(c) the type of legal entity recognized under Utah law that constitutes the statutory water bank;
(d) a proposed service area map for the statutory water bank;
(e) whether the statutory water bank will accept deposits of surface water rights or groundwater rights, provided that:
(i) a statutory water bank may not accept deposits of both surface water rights and groundwater rights; and
(ii) the applicant's perfected water right or valid diligence claim is of the type accepted by the statutory water bank;
(f) a copy of the statutory water bank's governing documents that specify:
(i) the number of members of the governing body, which may not be an even number;
(ii) the qualifications for governing members, including terms and election or appointment procedures; and
(iii) the initial governing members' names, telephone numbers, and post office addresses;
(g) a confirmation that the applicant satisfies the criteria listed in Subsection (1)(e)(ii);
(h) procedures that describe how the statutory water bank will:
(i) determine and fund the water bank's administrative costs;
(ii) design, facilitate, and conduct transactions between borrowers and depositors for the use of a banked water right; and
(iii) accept, reject, and manage banked water rights, including:
(A) what information a depositor shall provide to inform the statutory water bank, the state engineer, or any other distributing entity regarding the feasibility of using the water right within the statutory water bank's designated service area;
(B) how a potential depositor is to work with the statutory water bank to jointly file a change application seeking authorization from the state engineer to deposit a water right within the statutory water bank;
(C) conditions for depositing a water right with the statutory water bank;
(D) how payments to depositors are determined; and
(E) under what conditions a depositor may use a water right at the heretofore place of use pursuant to Subsection 73-31-501(4);
(iv) accept, review, and approve delivery requests, including:
(A) deadlines for submitting a delivery request to the statutory water bank;
(B) a cost or fee associated with submitting a delivery request and how that cost or fee is to be applied or used by the statutory water bank;
(C) what information a borrower is to include on a delivery request to sufficiently inform the statutory water bank, state engineer, or another distributing entity whether the delivery request is feasible within the statutory water bank's designated service area;
(D) any notice and comment procedures for notifying other water users of the delivery request;
(E) the criteria the statutory water bank will use to evaluate delivery requests;
(F) how the statutory water bank will inform water users who have submitted a delivery request if the delivery request is approved or denied, the reasons for denial if denied, and any applicable conditions if approved;
(G) appeal or grievance procedures, if any, for a borrower seeking to challenge a denial of a delivery request, including identifying who has the burden in an appeal and the standards of review;
(H) how the statutory water bank will determine prices for the use of loaned water rights; and
(I) how the statutory water bank will coordinate with the state engineer to facilitate distribution of approved delivery requests;
(v) how the statutory water bank will ensure that the aggregate amount of loaned water rights during a calendar year does not exceed the total sum of the banked water rights within the statutory water bank; and
(vi) how the statutory water bank will resolve complaints regarding the statutory water bank's operations;
(i) the process that the statutory water bank will follow if the statutory water bank terminates, dissolves, or if the board revokes the statutory water bank's permission to operate pursuant to this chapter, including how the statutory water bank will return banked water rights to depositors and how the statutory water bank will return any amounts owing to depositors; and
(j) a signed declaration or affidavit from at least two governing members of the statutory water bank affirming that:
(i) the information submitted is correct;
(ii) as a condition for permission to operate, the statutory water bank may not discriminate between the nature of use, depositors, or borrowers;
(iii) the statutory water bank shall comply with the conditions of an approved changed application for a banked water right; and
(iv) the statutory water bank shall report to the state engineer known violations of approved change applications.
(2) The board may prepare a form or online application for an applicant to use in submitting an application to the board under this part.
Amended by Chapter 4, 2020 Special Session 5
