Utah Administrative Code
Topic - Natural Resources
Title R655 - Natural Resources, Water Rights
Rule R655-15 - Administrative Procedures for Distribution Systems and Water Commissioners
Section R655-15-7 - Water Commissioners
Universal Citation: UT Admin Code R 655-15-7
Current through Bulletin 2024-18, September 15, 2024
(1) An applicant for the position of Water Commissioner ("Commissioner") shall, at a minimum:
(a) Be a high school
graduate;
(b) Demonstrate a level
of education and experience commensurate with the level of complexity and
difficulty involved in regulating the Distribution System;
(c) Have demonstrated knowledge of:
(i) Irrigation practices and
technologies;
(ii) The local area
and the water users involved in the Distribution System;
(iii) The use and maintenance of water
control and measurement equipment and devices;
(iv) Water measurement units, calculations
and conversions; and
(v) Maps,
standard land description terminology, units of measure and
conversions,
(d) Have a
demonstrated knowledge of or the ability and willingness to learn;
(i) Principles and terminology of Utah water
rights law; and
(ii) Technology
necessary for the effective regulation, distribution, measurement and reporting
of water use in the Distribution System.
(e) Have a demonstrated ability to
communicate effectively verbally and in writing;
(f) Have a demonstrated ability to work
cooperatively with persons with conflicting interests to find appropriate
solutions to challenges and /or resolve disputes;
(g) Be available at all times necessary
throughout the distribution season to fulfill the duties of Water Commissioner
set forth herein;
(h) Hold a valid
Utah Drivers License
(i) Be able to
walk over rough and uneven terrain for distances up to a half mile.
(j) Be less than 75 years of age. A person
who is 75 years of age or older will not be appointed as Commissioner by the
State Engineer.
(k) The applicant
must disclose to the State Engineer and the interview panel any conflict of
interest related to exercising the duties of the Commissioner. The State
Engineer will determine whether a disclosed conflict of interest would prevent
objective regulation and distribution of water on the Distribution System in
accordance with the water rights and the instructions and Distribution Orders
from the State Engineer. If such a conflict of interest exists, the applicant
will be deemed ineligible for appointment. If such a conflict develops or is
found to exist subsequent to an appointment, the Commissioner will be removed
as described in this rule.
(2) Selection Process
(a) Public notice of the intent to fill a
Commissioner position shall be advertised in a newspaper of local circulation
in the area where the distribution system is located. The notice shall:
(i) Include a general description of the
qualifications, duties, and compensation related to the position;
(ii) include the method of making application
for the position; and
(iii) Be
published in a manner and for a duration determined by the State Engineer as
reasonable and sufficient.
(b) Application for the Water Commissioner
position shall be made in writing to the Committee Chair or the Distribution
System Chair as directed in the public notice. The application shall include a
summary of the applicant's qualifications and experience. The Chair, in
consultation with the State Engineer, shall determine, based on the relative
qualifications of the applicants, those applicants to be invited for an
interview.
(c) Interviews for the
position of Water Commissioner shall be conducted by an interview panel. The
interview panel shall consist of the Committee and the State Engineer. At the
discretion of the Committee and with the consent of the State Engineer, the
Committee may include additional water users on the interview panel to assure
all interests are adequately represented. If a Committee has not been
established on the Distribution System, the panel shall include the
Distribution System Chair, a representative group of water users selected by
the Distribution System Chair, and the State Engineer.
(d) The recommendation to the State Engineer
concerning the appointment of the Commissioner shall be based on the results of
the applicant interviews as determined by a majority vote of:
(i) The water users of the Distribution
System if:
(A) The interview panel consisted
of selected water users; or
(B) The
interview panel consisted of a Committee that prepares recommendations for the
water users' ratification.
(ii) The Committee if the Committee is
established to act without ratification by the water users.
(e) If a majority of the water
users, as determined by a vote of the water users or by a vote of the Committee
as described above, agrees on a qualified applicant to recommend to the State
Engineer, the State Engineer shall appoint the recommended applicant as
Commissioner based on the recommendation. If the water users cannot agree as
evidenced by a majority vote, the State Engineer shall select a person from
among the qualified applicants for appointment as Commissioner.
(3) If the person selected and appointed as Commissioner as a result of the process outlined in (2) above is an employee of one of the water users on the distribution system (such as a water company or water conservancy district) and, if the Commissioner's duties will be performed during the hours of employment by the water user, the State Engineer shall enter into an agreement with the Commissioner's employer. The agreement shall cover, at minimum, the following issues:
(a) The duties to be performed by the
Commissioner during the hours of employment;
(b) Supervision by the State Engineer and
accountability of the Commissioner to the State Engineer in the performance of
all official duties; and
(c) The
compensation that will be paid by the Distribution System to the employer for
the time spent by the Commissioner in the performance of his/her official
duties.
(4) The Commissioner shall be appointed for a term of four years in accordance with Subsection 73-5- 1(1)(a).
(a) A new four-year
term shall commence with each appointment.
(b) The four-year term shall commence at the
Annual Meeting or other Distribution System meeting or Committee meeting
wherein the Commissioner appointment recommendation was made to the State
Engineer.
(c) The four-year term
shall run until the Annual Meeting or Committee Meeting held during the fourth
year following the Commissioner's appointment.
(d) Regardless of the number of years
remaining in a term, a Commissioner's term of appointment will terminate at the
Annual Meeting prior to the Commissioner's 75th birthday.
(e) In exceptional situations, the State
Engineer may extend a person's appointment as water commissioner to one
additional term beyond the person's 75th birthday or until age 79 (whichever
comes first). The decision to extend the person's appointment for one
additional term must be based on consideration of a written request signed by
at least five or a majority (whichever is less) of the water users of the water
distribution system. The request must include the following:
(i) An attestation that the person currently
demonstrates that he/she is physically and mentally capable of adequately
performing the water commissioner duties;
(ii) An explanation why the replacement of
the water commissioner would pose a burden and a hardship on the water
distribution system; and
(iii) The
steps that will be taken by the water users to resolve the concerns described
in (ii) above by the end of the extended appointment.
(f) If a person is appointed as water
commissioner to an extended term beyond his/her 75th
birthday, that appointment will be reviewed with the water users
on a year-by-year basis at the annual distribution meeting. If, as a result of
that review, the State Engineer determines that the person is no longer
physically or mentally capable of adequately performing the water commissioner
duties, the person's appointment as water commissioner will be ended.
(5) If a Commissioner retires, resigns, or is otherwise removed prior to completing the full four- year term of appointment, the uncompleted term shall not be filled. The process described in these rules for selecting a Commissioner shall be followed in making a new appointment.
(6) A vacant Commissioner position shall be filled as soon as possible after the vacancy occurs. However, sufficient time will be taken as required to adequately complete the selection process as described in these rules.
(7) Should a Commissioner vacancy occur during the distribution season, Division staff shall act in the stead of the Commissioner to regulate and distribute water in the Distribution System until such time as a new Commissioner is appointed.
(8) A person may be appointed to serve successive terms as Commissioner without limit.
(9) Authority
(a) The Commissioner is an assistant to the
State Engineer and is authorized to act as described in Sections
73-5-3
and
73-5-4
to assure that water is properly measured, divided and distributed to the water
users in accord with their respective water rights.
(b) As described in Section
73-5-3,
the Commissioner is authorized to enter upon private property whenever
necessary to carry out the provisions of statute and these rules.
(c) In all official duties and
responsibilities of the position, the Commissioner is authorized to act as
directed by the State Engineer.
(10) A person may serve concurrently as Commissioner for more than one Distribution System.
(11) Duties
(a) The Commissioner shall consult with the
State Engineer to exchange information and receive direction. The Commissioner
may also consult with the Committee or Distribution System Chair to exchange
information.
(b) The Commissioner
shall regulate the diversion and distribution of water:
(i) In accordance with properly established
water rights on the records of the Division; and
(ii) In accordance with State Engineer
Distribution Orders.
(c)
The Commissioner shall measure and make records of the measurements of:
(i) The water delivered to each Distribution
Account;
(ii) Any flows or volumes
of water and reservoir water levels necessary for the proper regulation of
water distribution in the Distribution System; and
(iii) Any other flows or volumes of water and
reservoir water levels as directed by the State Engineer.
(d) The Commissioner shall regularly inspect
Distribution System facilities, including water measuring devices, head gates,
and other water control structures, to ensure they are operating properly and
adequately maintained to meet the purposes of the Distribution System.
(i) The Commissioner shall perform or arrange
for the performance of such facilities maintenance work as is included within
the scope of the duties assigned and consistent with the appointment.
(ii) If inadequacies related to the
regulation, distribution, and measurement of water are identified in the
Distribution System facilities, said inadequacies being outside the scope of
the Commissioner's designated duties, the Commissioner shall notify the
responsible water user(s), the Distribution Committee Chair or Distribution
System Chair, and the State Engineer.
(e) The Commissioner shall assist the State
Engineer as requested to improve water measurement and accounting practices and
procedures in the Distribution System.
(f) As new technologies are implemented to
improve the efficiency of water delivery and distribution, the Commissioner
shall become proficient in the use and application of the technology. Should a
Commissioner prove unable or unwilling to acquire such proficiency in a
reasonable time, this condition shall constitute grounds for termination of the
Commissioner's appointment.
(g) The
Commissioner shall maintain records and make reports including:
(i) Complete, accurate, current, and legible
records sufficient to demonstrate faithful performance of the duties
designated.
(A) All records shall be
available to the State Engineer upon request.
(B) All records shall be submitted to the
State Engineer upon termination of the Commissioner's service.
(ii) A written Annual Report of
the Distribution System including all information determined necessary by the
State Engineer in consultation with the Committee or Distribution System Chair.
(A) The report shall include water use data
based on actual water measurements, a record of regulation and distribution
issues and decisions made during the distribution season, and any other
information required by the State Engineer.
(B) The report shall be prepared in a format
approved by the State Engineer.
(C)
The report shall be delivered to the State Engineer and the Committee and/or
water users each year at the Annual Meeting unless another reporting deadline
has been approved by the State Engineer.
(h) The Commissioner shall assist, as
requested, in acquiring current ownership, mailing address, and other
information required to update Distribution Accounts.
(i) The Commissioner shall provide to the
State Engineer, in a timely manner, an accounting of the water delivered to
each water user as required for the calculation of Distribution
Assessments.
(j) When necessary to
effect the proper distribution of water, the Commissioner may adjust or close
and lock a head gate and/or control structure to prevent changes in the control
settings.
(i) Such adjustments and locks
shall remain as set by the Commissioner until a change in regulation or
distribution is required.
(ii) In
such cases, the Commissioner may attach a State Engineer Water Regulation Tag
at or near the head gate or control structure.
(k) As necessary in effecting a State
Engineer Distribution Order or in a Division enforcement proceeding, the
Commissioner may close and lock a head gate and/or control structure to cease
delivery of water to the affected water user.
(i) Such closure and locking of a head gate
and/or control structure shall remain in place until the conditions of the
Distribution Order or enforcement proceeding have been met.
(ii) In such cases, the Commissioner shall
attach a State Engineer Water Enforcement Tag at or near the head gate or
control structure.
(l)
The Commissioner shall assist the State Engineer as necessary in any Division
enforcement proceeding related to the Distribution System.
(m) The Commissioner shall perform all other
duties specific to the Distribution System as determined by the water users or
the Committee and approved by the State Engineer.
(n) The Commissioner shall accurately
complete and submit to the State Engineer all necessary forms provided by the
State Engineer and supporting documentation of the expenses of the Distribution
System.
(o) The Commissioner shall
supervise and be responsible for the efforts of any Deputy Commissioner(s)
appointed to assist in the regulation, distribution, and measurement of water
on the Distribution System.
(p) The
Commissioner shall devote the time necessary for the completion of the duties
outlined in these rules and shall be generally available for contact at any
reasonable time during the period of the distribution
season.
(12) Compensation and Benefits:
(a) The salary or wage for a
Commissioner shall be set within the guidelines established by the State
Engineer.
(i) The salary or wage shall be
paid through the State of Utah payroll system and shall be subject to all
federal and state taxes and other required withholdings.
(ii) A Commissioner who retires, resigns or
is otherwise removed during a distribution season will be compensated for only
the portion of the distribution season completed prior to the termination of
the Commissioner's service.
(b) A Commissioner shall be provided with a
means of transportation for all travel related to fulfillment of official
duties related to the Distribution System. The transportation may be provided
by either of the following means:
(i) The
Distribution System may provide a suitable vehicle to be used by the
Commissioner solely in the performance of the Commissioner duties, with all
vehicle expenses paid through the Distribution System; or
(ii) The Distribution System may compensate
the Commissioner for the use of a personal vehicle in the performance of the
Commissioner's official duties. Compensation shall include the total costs of
operating and maintaining the vehicle for that portion of the vehicle use
dedicated to the Commissioner's official duties. Compensation may be made:
(A) For actual vehicle operation and
maintenance costs as reported and documented by the Commissioner; or
(B) At a per-mile rate determined from
industry standards for operation and maintenance of similar vehicles in similar
conditions; or
(C) Based on a flat
monthly or yearly amount agreed upon by the water users' representatives and
the Commissioner and approved by the State Engineer. The agreed amount must
reasonably represent the actual costs of operating the vehicle.
(c) A Commissioner
shall be provided with communication and computer equipment necessary for the
effective performance of the Commissioner duties. The cost of purchasing,
operating, and maintaining such equipment shall be borne by the Distribution
System. If a Commissioner chooses to use personally owned equipment,
compensation shall be made on the basis of documentation showing the costs of
acquisition, maintenance and operation of said equipment and the proportion of
said costs directly attributable to the performance of the Commissioner's
official duties. Cost documentation must be acceptable to the Committee or
Distribution System Chair and approved by the State Engineer.
(d) A Commissioner shall be provided with
adequate office space and clerical assistance to enable regulation and
distribution of water on the Distribution System. The need for office space
will be determined in consultation among the State Engineer, the Commissioner,
and the Committee or Distribution System Chair.
(e) A Commissioner shall be provided, at the
expense of the Distribution System, such other equipment as is needed to
effectively measure, distribute, and regulate water on the Distribution
System.
(f) At the discretion of
the Committee and with the consent of the water users and the State Engineer,
the Commissioner may be provided with health insurance with premiums paid all
or in-part by the Distribution System.
(g) A Commissioner shall be provided with
Workers Compensation Insurance at the expense of the Distribution System in
accordance with pertinent regulations governing the same.
(h) The Distribution System shall pay the
cost of the retirement benefit for any Commissioner whose salary meets or
exceeds the minimum salary level set by the Utah State Retirement Office to
qualify for retirement benefits.
(i) The Commissioner shall be reimbursed
according to the Distribution System budget for expenses incurred in the
performance of the Commissioner's duties. The Commissioner must request
reimbursement by properly completing and submitting reimbursement forms and
documentation as directed by the State Engineer. Unless prior arrangements have
been made with the Committee or the Distribution Chair and approved by the
State Engineer, reimbursement forms and supporting documentation must be
submitted to the State Engineer no later than December 15th of the calendar
year in which the expense was incurred. Unless prior arrangements have been
made, reimbursement will not be made on reimbursement forms submitted after
December 15th of the year in which the expense was incurred.
(j) If the Commissioner is an employee of a
regulated water user as described in (3) above, the Commissioner's salary,
health insurance, worker's compensation insurance, retirement, and related
payroll costs will be as provided by the employer. The Distribution System will
compensate the employer for that portion of these costs that pertain directly
to the performance of Commissioner's duties. Any other Commissioner expenses
required for the operation of the Distribution System will be paid by the
Distribution System as outlined above.
(13) Removal
(a) A Commissioner may be removed by the
State Engineer for cause.
(i) The process to
remove a Commissioner may be instigated by the State Engineer or as a result of
a petition to the State Engineer from the water users or Committee.
(ii) The process for removing a Commissioner
shall be governed by the provisions of the Utah Administrative Procedures
Act.
(b) Water users may
petition the District Court for the removal of a Commissioner.
Disclaimer: These regulations may not be the most recent version. Utah may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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