Section 73-1-15.5 - Relocation of easements for a water conveyance facility - Alteration of a water conveyance facility(1) As used in this section:(a) "Facility owner" means an individual, entity, mutual water company, or unincorporated organization: (i) operating a water conveyance facility;(ii) owning any interest in a water conveyance facility; or(iii) having a property interest in real property based on the presence of the water conveyance facility located and operating on the real property.(b)(i) "Water conveyance facility" means a ditch, canal, flume, pipeline, or other watercourse used to convey water used for irrigation or storm water drainage and any related easement for the ditch, canal, flume, pipeline, or other watercourse.(ii) "Water conveyance facility" does not mean a ditch, canal, flume, pipeline, or other watercourse used to convey water used for culinary or industrial water, or any federal water project facility.(2) Unless prohibited by the terms of a written grant of easement or an agreement for which consideration was given, a property owner may make reasonable changes in the location and method of delivery of a water conveyance facility located on the property owner's real property after: (a) having a licensed engineer:(i) redesign the water conveyance facility, which may include relocating the water conveyance facility to a new location on the property owner's real property or on the real property of another person who consents to the relocation; and(ii) certify that the engineered redesign of the water conveyance facility and method of delivery meets the requirements of Subsection (4);(b) providing the plans designed by the licensed engineer under Subsection (2)(a)(i) to the facility owner;(c) allowing the facility owner a reasonable time to review the plans designed by the licensed engineer under Subsection (2)(a)(i), provide comments to the plans, and subject to Subsection (3), require changes and approve the planned redesign before commencing the modifications;(d) allowing the facility owner to inspect the modified water conveyance facility during construction of the modification and require reasonable changes if construction of the modification is not occurring according to an approved redesign plan as required by Subsection (3)(b); and(e) providing the facility owner with the ability to reasonably access, operate, maintain, and replace the modified water conveyance facility.(3) A facility owner: (a) may require a change to the plans designed by the licensed engineer under Subsection (2)(a)(i) only if the change is:(i) directly related to a reasonably anticipated negative impact, resulting from the relocation of the water conveyance facility or a change in the method of water delivery; and(ii) the least costly means of addressing the anticipated negative impact described in Subsection (3)(a)(i) after taking into account the provisions of Subsection (4); and(b) shall approve the plans designed by the licensed engineer under Subsection (2)(a)(i) if: (i) the plans reasonably address any anticipated negative impacts resulting from the relocation of the water conveyance facility or a change in the method of water delivery;(ii) the property owner has proposed reasonable terms or conditions to satisfy the provisions of Subsection (4); and(iii) the property owner satisfies the provisions of Subsection (2).(4) A property owner may not relocate a water conveyance facility or change the method of delivery of a water conveyance facility in accordance with Subsection (2) if the modification: (a) significantly decreases the utility of the water conveyance facility for its current use;(b) increases the burden on the facility owner's use of the water conveyance facility in a way not compensated for by the property owner; or(c) frustrates the purpose of the water conveyance facility.(5)(a) A property owner or a facility owner may request the Office of the Property Rights Ombudsman to mediate any dispute over the application of this section.(b) A property owner and a facility owner may jointly request the Office of the Property Rights Ombudsman to arbitrate any dispute over the application of this section.(6) A property owner relocating a water conveyance facility under this section is responsible for: (a) the reasonable, actual costs incurred in modifying the water conveyance facility, including: (i) planning and construction costs;(ii) the actual engineering and inspection costs during construction;(iii) costs reasonably and necessarily incurred by the facility owner related to the modification of the water conveyance facility; and(iv) legal costs incurred by the facility owner in reviewing and approving plans and proposing modifications, limited to the lesser amount of actual attorney fees incurred or $5,000; and(b) the costs of preparing instruments associated with any new easement for the modified water conveyance facility, as described in Subsection (8).(7) In an action where a claim is made that a provision of this section has been violated, a court may, in addition to any other relief granted, award costs and reasonable attorney fees: (a) to the facility owner if the court finds that the property owner failed to comply with the plan approved in accordance with Subsection (3); or(b) to the property owner if the court finds that the facility owner made unreasonable demands in reviewing the property owner's proposed plans or in requiring changes to the proposed or approved plans.(8)(a) If a water conveyance facility is relocated under this section, the facility owner shall record an instrument extinguishing the existing easement in exchange for the grant of a new easement for the relocated water conveyance facility by the property owner burdened by the modified water conveyance facility.(b) The instruments extinguishing the previous easement and granting the new easement shall be: (i) in a form mutually acceptable to the facility owner and the property owner; and(ii) recorded in the county in which the modified water conveyance facility is located.(c) The property owner shall pay all recording fees for the instruments described in Subsections (8)(a) and (b).Added by Chapter 349, 2018 General Session ,§ 3, eff. 5/8/2018.