Article, Water Rights General Adjudications: What’s Going on and Where Are We Now?, 1219 UTBJ, Vol. 32, No. 6. 20

Author:Emily E. Lewis and Timothy R. Pack
Position:Vol. 32 6 Pg. 20
 
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Article, Water Rights General Adjudications: What’s Going on and Where Are We Now?

Vol. 32 No. 6 Pg. 20

Utah Bar Journal

December, 2019

November, 2019

Emily E. Lewis and Timothy R. Pack

The quality of Utah’s future is closely linked to our ability to understand and manage our water resources. As one of the driest states in the nation, water is vital to the economic growth, quality of life, and environmental stewardship of Utah. The Utah Supreme Court has held that “a drop of water is a drop of gold.” Carbon Canal Co. v. Sanpete Water Users Ass’n, 425 P.2d 405, 407 (Utah 1967). Consequently, knowing where we get our water, how much water is available, and how we put it to use is critical information for state water management and growth. The Water Rights General Adjudication (General Adjudication) process is intended to provide a framework for evaluating and decreeing water rights so that the public has a contemporary record of valid water rights.

Local practitioners across the state should be paying attention as General Adjudication activity has increased significantly in the last several years. Your clients’ valuable interests may be affected. This article is intended to provide a basic overview of the importance of water rights and the basics of the General Adjudication process, provide a status update on the Utah Lake Jordan River General Adjudication (ULJR), and identify key upcoming events practitioners should be watching for.

Key Water Law Concepts & General Adjudication Basics

Water in Utah is the property of the public. Water rights authorize and define how private individuals are to put the public’s water to beneficial use. Water rights are in the nature of real property rights but differ in some material respects. For example, unlike traditional real property rights, water rights are usufructory, meaning your “right” is the right to use the public’s water subject to specific restrictions set by the state. At the core of this principle is that one must “use” a water right for it to remain valid or you risk “losing it” through judicial forfeiture. Similarly, water moves in a hydrologically connected system where changes in one part of the system can drastically affect use elsewhere. To ensure order in the face of dynamic conditions, water rights are hyper-defined. A water right clearly identifies what kind of use water can be applied to, the volume of water needed to fulfill that use, the water source, the specific point-of-diversion, season-of-use, and place-of-use. Water right holders can only use their water right in conformance with these limitations. Official water rights are typically evidenced by common-law pre-statutory “diligence claims” based on actual use of water prior to 1903 (1936 for groundwater), a Certificate of Beneficial Use demonstrating the holder completed that statutory Application to Appropriate process, or a court decree. Due to their usufructory nature, individual water rights are subject to constant change. For example, over time water rights can be lost to forfeiture or used in a manner different than authorized. This change makes it difficult for...

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