An Introduction to the Law of Utah Water Rights

JurisdictionUtah,United States,Federal
CitationVol. 4 No. 1 Pg. 7
Pages7
Publication year1991
An Introduction to the Law of Utah Water Rights
Vol. 4 No. 1 Pg. 7
Utah Bar Journal
January, 1991

Ms. Jody L. Williams, J.

INTRODUCTION

Rights to use water in Utah may be acquired by appropriation of unused water or by purchase and conveyance of an existing . water right. Utah's water rights system is based on the appropriation doctrine, as distinguished from the riparian system which evolved from the common law of England. Although Utah claims ownership of both surface and underground water within its boundaries, federal sovereign and proprietary rights to water are still exercised by the United States. This paper addresses the history of the appropriation doctrine and the statutory elements of a water right in Utah as well as conflicts between Utah and the United States inherent in water rights and regulations.

THE APPROPRIATION DOCTRINE

Utah's water law is based on the doctrine of prior appropriation, which is commonly explained as the first in time to put water to a beneficial use has the first and best water right. The appropriation permit system evolved in the arid western United States generally in early mining camps, where disputes over claims were resolved by simple priority rules.[1] The early Mormon settlers in Utah cooperatively carried out irrigation as they settled close to can- ' yon stream mouths, diverting water from its channel, conveying it in canals and ditches, and consuming it for domestic, stock-watering and irrigation uses, all considered "beneficial" uses.

Two forms of the appropriation doctrine evolved in the West, one in California and the other in Colorado. The California doctrine was a sort of hybrid system, recognizing appropriation and priority while still maintaining that rights whose points I of diversion were not on public lands could be riparian rights.[2]

The Colorado doctrine, adopted and modified by the eight interior western states, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah and Wyoming, rejected, in later case law, the theory that riparian rights had ever existed within their boundaries, and supported the view that the federal government had never actively exercised its proprietary interest in Western waters.[3] In 1918, the Utah Supreme Court declared that, "In Utah the doctrine of prior appropriation for beneficial use is, and always has been, the basis of acquisition of water rights."[4]

Both the California and Colorado views were validated in 1935 when the United States Supreme Court, in interpreting the acts of 1866, [5] and 1870, [6] and the Desert Land Act of 1877, [7] ruled that the three acts ' severed all previously unappropriated non-navigable water from the public domain.[8] The Western states were thus free to enact water legislation each deemed in the public interest.

EARLY UTAH LAW OF APPROPRIATION

The earliest water law in Utah, then the State of Deseret, was a series of grants to individuals and communities. The County Court had authority to settle water disputes. In 1880, the Territorial Legislature provided for recording of existing certificates, but did not delineate a system to appropriate new water rights.[9] However, in 1897, a statutory procedure for acquiring water rights was finally provided.[10] The law also created the office of the Utah State Engineer.[11] In 1901, the State Engineer's duties were expanded to include general water distribution supervision[12] and, in 1903, the office received from the Legislature in the State's first enacted "Water Code, " the authority to receive and approve appropriation applications and to investigate and administer potential stream adjudications.[13]

Much of the 1903 system has survived to the present. Filing the application with the Division of Water Rights, diversion from the stream and subsequent beneficial use are required to obtain and maintain a water right. Since much of the arable land in Utah was not adjacent to a stream, or was owned by the federal government, who did not use water adjoining it, diversion from the channel into an artificial conveyance system for delivery to the prime farm land, to the rich ore deposit or to the developing community being built higher and higher on the foothills, and then farther and farther from the natural water source, became the norm, and the I norm became the law.

THE RIPARIAN SYSTEM

The riparian water right system has survived in many states with more water than Utah. Riparian water rights may be acquired by purchase of the riparian land or separately transferred, usually by easement. A basic concept distinguishing riparian from appropriative rights is that all riparian land owners have co-equal rights to the use, but not the possession, of a common water source such as a river, surface or subterranean stream, or lake.

In general, diffuse surface waters were classified as a "common enemy" at common law, and riparian landowners were more concerned with protecting themselves from flooding rather than claiming a riparian interest in them. Many American states have modified the common law by providing for drainage procedures. Springs are treated separately depending on whether they are sources of running watercourses in which case they may be subject to riparian rights, [14] or whether they sink back into the ground on the tract where they originated, in which case they may not be subject to riparian rights.[15]

Unlike appropriative water rights owners who are governed by a priority system, historically, riparian water users usually could not interfere with upstream or downstream users. This has given way to the "reasonable use rule, " which allows for interference with another's use depending on the size and state of the watercourse, a balancing of the purposes of the uses, and a benefit to the proposed user at least commensurate with the injury to other riparian owners.[16] Often, courts must apportion water between two users.

FEDERAL WATER RIGHTS AND REGULATION

The tension between state and federal interests in the West extends to conflicts over water use and control. Even though the Desert Land Act of 1877[17] resulted in patents to federal land being issued without water rights to unappropriated, non-navigable water, leaving water rights up to the states to appropriate and administer, the federal government still exercises both sovereign claims and proprietary rights to water in Utah and the other Western states. The sovereign claims arise from the commerce clause, property clause, treaty power, war power and general welfare clause of the United States Constitution, and always remain with the federal government. Such interests as regulating commerce and controlling navigation are sovereign interests on which the United States may rely to control water.

FEDERAL PROPRIETARY RIGHTS IN WATER

The proprietary rights of the United States arise out of the government's ownership of property under Article IV, section 3, clause 2 of the Constitution of the United States. When the United States opens land to homesteading, patentees may acquire title to the land from the United States and appropriate water to use on it pursuant to state law. But if the United States withdraws or reserves its land from future settlement, the appurtenant water may also be withdrawn or reserved and then be unavailable for appropriation under State law.

FEDERAL SOVEREIGN RIGHTS IN WATER

Historically, the sovereign interest of the United States was construed to be limited to navigable waters. The Army Corps of Engineers was established to direct improvement of the navigable capacity of rivers and harbors. In 1851, the Supreme Court extended jurisdiction to waters suitable for navigation.[18] This test was further liberalized in 1871 in The Daniel Ball[19]when jurisdiction over rivers "navigable in fact" was defined as "when they are used or are susceptible of being used in their ordinary condition as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel over water."[20] This definition survives today as the allocator of title to submerged lands between the United States and the states and "foundation of federal jurisdiction unless Congress adopts the full commerce power."[21]

Federal jurisdiction was expanded over non-navigable portions of otherwise navigable rivers[22] and then to rivers which could be made navigable "by reasonable improvement, "[23] even though the Corps of Engineers had earlier determined the necessary improvements were not economically feasible. By 1960, the Supreme Court had ruled that conditions on development unrelated to navigation could be imposed on water...

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