How to . . .
| Publication year | 1994 |
| Pages | 19 |
Basic Utah Water Law
J. Craig Smith, J.
INTRODUCTION
There is, perhaps, no area of American law which evokes the lore of the West more than water law. The scarcity of water in the West has been dramatized in dozens of books and movies from Shane to Chinatown to The Milagro Beanfield War. The body of law that developed in the irrigated river basins and mining camps to allocate this scarce and valuable resource is unique to the arid states of the West, and has long been shrouded in mystique. As an installment of a new "How To" series in the Utah Bar Journal, this article will discuss basic Utah water law. The goal of this article is to acquaint the reader with the major principles of water law.
Water law is, in essence, a form of property law and thus is best understood in that context.[1] It seeks to allocate a finite and unique resource. There are two standard measures of water that are used interchangeably.[2] The first is acre feet. This is a measure of volume which has its origins in irrigation. An acre foot is the amount of water necessary to cover one acre of land with one foot of water. This equals 325,851 gallons. The second standard measure is cubic feet per second (CFS). This is a measure of flow. A CFS or "second foot" is the number of cubic feet of water that passes a certain point each second. One CFS for an entire year yields 235,905,363 gallons or 723.97 acre feet.
APPROPRIATION DOCTRINE
The basis of Utah water law is the appropriation doctrine which first evolved in Colorado. This doctrine prescribes that all water not already appropriated, i.e., not being used, is available for use by any person for a "beneficial" purpose.[3] The appropriator does not "own" water, but rather holds the right to perpetually use the water appropriated.[4] Courts have long recognized this right of use, once it is perfected, as a property right.[5] This property right may be conveyed separately by deed, or transferred by shares of stock, or if appurtenant to land, with the land.
Beneficial uses are generally considered to be those uses that promote economic activities. In recent years this concept has expanded, in limited circumstances, to include instream flow to enhance fishery, natural stream habitat and recreation.[6] Once appropriated, the right to use water exists only so long as the beneficial use continues. A term which must be understood in connection with beneficial use is the "duty" of water. This is the concept that only so much water may be beneficially used for any authorized purpose. For example, the "duty" of irrigation water is, depending on location, around 3 acre-feet per year. Only this much water may be beneficially used for irrigation of an acre of land.
If there is a failure to use water for five years, the right is forfeited.[7] Water rights may also be abandoned, and, prior to 1939, water could be adversely possessed by seven years of adverse use of the water.[8] A large and important exception to the state water law principles discussed in this article are water rights held by or reserved for the federal government. Federal water rights are not subject to many aspects of state law. They cannot be forfeited or lost through non-use arid may exist without any record or documentation.[9]
A critical aspect to understanding the appropriation doctrine is recognizing its slavish adherence to priority. The principle of priority fully protects beneficial users in order of seniority of their use.
Whoever has the first or prior water right is entitled to receive their entire allocation of water prior to any junior appropriator receiving any water. Need or relative importance of various uses is not a consideration. Obviously, this becomes of particular significance during times of drought when a junior water right holder may not receive any water. During the recent drought, river commissioners on various drainages ordered that holders of water rights with lower priority dates refrain...
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