Utah Water Law

Posted: Oct 15, 2010

Utah is the second driest state in the United States, receiving an average of less than twelve inches of precipitation a year.  This average belies the geographic diversity of Utah, as precipitation varies between less than five inches a year in the Great Salt Lake Desert and up to sixty inches in some areas of the Wasatch mountains.  

The dominant use of water in Utah is for irrigation, almost 85% according to recent data .  The second largest user of water is for public supply, including rapidly increasing municipal use, up 8.2% from 1995 to 2000.  This is due in large part to the rapid growth of Salt Lake City and other urban centers.  Although the majority of overall water withdrawals are from surface sources, groundwater provides the bulk of drinking water supplies, as it tends to be higher in quality and require less treatment.  

Historical and Constitutional Framework

Utah adopted the prior appropriation doctrine of water rights even before statehood, rejecting the doctrine of riparian rights as being incompatible with the state's irrigation needs.   At the time of statehood in 1896, the Utah Constitution in Article XVII, § 1, upheld all preexisting appropriations made under territorial law. Currently, the statutes relating to appropriation of water are contained in the UTAH CODE ANN (UCA) § 73-3.

From the outset, Utah had declared that its surface waters in natural channels or bodies are owned by the state in trust for the people.  This rule did not include groundwater which was dealt with according to a correlative rights theory until 1935 when UCA § 73-1-1 was amended, providing that "[a]ll waters in this state, whether above or under the ground, are hereby declared to be the property of the public, subject to all existing rights to the use thereof."  Additionally the Governor, upon recommendation of the State Engineer may reserve water from appropriation "when…the welfare of the state demands it."  

In 1903, the state adopted a permit system for appropriation of water rights which requires a new appropriator to go through an application process as outlined in UCA § 73-3-1. Prior to this, all that was required was for an appropriator to construct some diversion works and use reasonable diligence to place the water to beneficial use, although there was also an option to post notice and record such notice with the county recorder.  

Since 1903, the priority of a water right attaches as of the date of perfection of the application, with the date relating back to the date the application was filed as long as the appropriator was reasonably diligent in perfecting the right. Additionally, UCA § 73-3-21 provides that among rights of equal priority, domestic use is the preferred use.

Structure of State Water Agency

The agency that directs the management of water appropriation in Utah is the Division of Water Rights, which is within the Department of Natural Resources.  The head of the Division of Water Rights is the State Engineer, who is appointed by the governor and charged with administrative supervision of the waters of the state and, specifically, the appropriation of such water. The State Engineer reviews applications for appropriations and makes the final decision to grant or reject permits.  

 Surface Water Rights

From the inception of the state of Utah, surface water has been subject to a prior appropriation regime.  In Utah, 78.6% of total water withdrawals are from surface sources- lakes, rivers, or streams.   Due to the scarcity of water in the state, with rare exception all of the available surface water has been fully appropriated.

Utah allows for current water rights to be converted to an instream flow only by the Division of Wildlife Resources or the Division of Parks, Lands and Recreation under UCA § 73-3-3(11).  Instream flows may be created only for purposes of fish propagation, public recreation, or reasonable preservation or enhancement of the natural stream environment.  Additionally, instream flow rights may only be created from already perfected water rights purchased with funds specifically appropriated for that purpose, or acquired through gift or donation. Currently, no private entities can hold instream flow rights.  

Groundwater Rights

Before 1935, groundwater in Utah was treated under a correlative rights theory, which holds that rights to groundwater are tied to land ownership.  However, since the amendment of the statutes in 1935, groundwater is now subject to appropriation, with the exception of diffused surface water (rain that falls on the ground), which is still considered part of the soil and not subject to appropriation.

Utah law has changed significantly with regards to issues of interference and groundwater. The law used to protect appropriators from declines in the water table by requiring junior appropriators who lowered the water table to drill replacement wells and perpetually pay for the costs of such wells. This approach limited groundwater appropriation to those who could afford to pay the high costs. This concern led Utah away from a non-interference doctrine to the rule established in City of Roswell v. Reynolds, that lowering of the water table does not by itself constitute interference with a water right.  

However, to ensure that overdrafting of groundwater does not occur, the State Engineer has the power to adopt groundwater management plans. Upon a finding that the safe yield of a basin has been or will soon be reached, the Engineer may impose a moratorium on further groundwater development.  This moratorium allows for the Division of Water Rights to study the area and decide the proper amount of groundwater production.  The State Engineer may then implement a specific groundwater management plan for the area which usually places a cap on total groundwater withdrawals from the basin. There are currently eleven groundwater management plans in effect in Utah.   

According to the Utah State Water Plan, conjunctive use of surface and groundwater can help to obtain maximum beneficial use when resources are fully developed.  The form of conjunctive use most employed is aquifer storage and recovery (ASR), where excess surface water is stored in underground aquifers for use during times of deficit.   

Incidental Extractions

In Utah a mining operation does not need to obtain a water right in order to dewater a mine unless they plan on using the water for another purpose.  However, there may be secondary restrictions put on the mine if the dewatering will interfere with the water rights of others. 

Permit and Adjudication Process

Under UCA § 73-3-1, a person seeking a new appropriation of either surface or groundwater must file an application with the State Engineer. The State Engineer must provide notice of all applications by publishing notice of the application "once a week for a period of two successive weeks in a newspaper of general circulation in a county in which the source of supply is located, and where the water is to be used."   

Notice is provided so that interested parties may protest an application as provided in UCA § 73-3-7.  An "interested person" is one who has a genuine concern about a proposed appropriation.  Under UCA § 73-3-7, the State Engineer must consider the protest when deciding on approving or rejecting the application.

In addition to any filed protests, the State Engineer must review applications and ensure that they meet the statutorily established criteria. The criteria are that: there is unappropriated water in the proposed source; the proposed use will not impair existing rights or interfere with the more beneficial use of the water; the proposed plan is physically and economically feasible (unless filed by Bureau of Reclamation); the applicant has the financial ability to complete the proposed works; and the application was filed in good faith and not for purposes of speculation. 

Furthermore the State Engineer must withhold approval if there is reason to believe that the appropriation will interfere with its more beneficial use for irrigation, domestic or culinary, stock watering, power or mining development, or manufacturing, or if the appropriation will unreasonably affect public recreation or the natural stream environment or will be detrimental to the public welfare.   

In Utah, water may only be appropriated for a beneficial use, which is historically some human economic activity. This historical definition of beneficial use has been slowly changing, first with the adoption of instream flow rights and highlighted by a recent statement by a Utah court that "the concept of beneficial use is not static. Rather it is susceptible to change over time in response to changes in science and values associated with water use."   

After approval by the State Engineer, the applicant must proceed in diverting and using the water with reasonable diligence. Under UCA § 73-3-10, the Engineer prescribes the time period within which the applicant must complete the appropriation.  Under UCA § 7-3-13, any other applicant, or any user of water may file a protest that the work is not being completed with diligence.  If such a protest is made, the State Engineer shall hold an adjudicative proceeding to determine if the appropriation is proceeding with diligence.  If not, the State Engineer may declare the application forfeited.  Upon filing proof of appropriation, the State Engineer issues a Certificate of Beneficial Use, which constitutes prima facie evidence of the owner's perfected right.   

Abandonment and Forfeiture

The doctrines of abandonment and forfeiture exist in Utah to prevent mere speculation in water rights.  Abandonment of a water right in the state of Utah does not require a set time period but instead requires a definite intent to abandon the right, with intent being shown by the conduct of the appropriator.  In contrast, under UCA § 73-1-4, a water right is forfeited if not used for five consecutive years if there is no defense to non-use.  Forfeiture is automatic but requires that someone with standing to benefit from the forfeiture bring suit to quiet title.  Defenses to non-use include lack of precipitation or damage to diversion works.  In addition an appropriator may file a non-use application under UCA § 73-1-4 in order to secure a non-use permit, which is good for five years.  Once forfeited, the title reverts back to the public, although in most cases the water forfeited is used to satisfy the rights of junior appropriators. The question of how much water must be used to avoid forfeiture was addressed by the legislature in 2002 when it amended the statute to specify that forfeiture does not occur when “a water user has beneficially used substantially all of [a] water right within a seven-year period.” 

Transfers and Exchanges

Utah law allows for an appropriator to make a change in the nature of use, place of use and/or point of diversion of a water right.  This right is subject to a showing of non-interference with other water users.   Such changes in use may either be permanent or temporary. The applicant for a change must meet a minimal showing that there is reasonable cause that a change will not cause harm.  A party can protest a change application but faces a higher burden to prove that by a preponderance of the evidence a change in use will cause serious harm. In addition to the criteria of UCA § 73-3-3, the State Engineer must take into account the criteria under UCA § 73-3-8 when evaluating a change in use permit, including evaluation if such a change is detrimental to the public interest.   

Once perfected, a water right in Utah is an interest in real property which may be conveyed to another. A water right may either be conveyed as an appurtenance with the land upon which it has been used, or it may be sold as a separate property right.  Under UCA § 73-1-11, there is a presumption of appurtenancy even if a land deed was silent with regards to the water right.  To defeat this presumption a grantor must expressly reserve the water rights in the deed.   In 1998, H.B. 302 was passed which amended UCA § 73-1-11 to include lesser types of water rights in those that are considered appurtenant for the purposes of conveyances (including un-perfected applications to appropriate).    

Standing and Judicial Review

The decisions of the State Engineer in regards to water rights are subject to judicial review.  Judicial review proceeds as a trial de novo in the district courts of Utah, with the State Engineer as the defendant.   The language of UCA § 73-3-14, allows "any person aggrieved" standing to seek judicial review.  This language was interpreted in Bonham v. Morgan to extend beyond those who have vested water rights to anyone who may be injured.  The Utah Supreme Court has ruled that there is a difference between an "aggrieved" party and an "interested" one, with the former having the right to seek judicial review while the later just has the right to intervene at the administrative level.  An "aggrieved" party must meet the standing requirement of a particular injury, while an "interested" party is just one who has a genuine concern about a water right. 

The Utah Supreme Court in S & G, Inc. v. Morgan, held that a party loses standing to review an administrative decision if they do not participate at the administrative level.  This is to encourage the public policy goal of bringing all relevant information to the State Engineer when an initial decision is being made.  In order to preserve standing, the plaintiff must meet a "level of consciousness" test, requiring that he have at least brought the issue to the attention of the State Engineer at the administrative level even if informally.    

The Public Interest

All the waters of the state of Utah, surface or ground, are the property of the public.   With that established, the starting point for a discussion of the public interest and Utah's water law would be UCA § 73-3-8.  This section stipulates that the State Engineer must only approve an application to appropriate if "a proposed plan…would not prove detrimental to the public welfare".  Although there is no statutory definition of what is "detrimental to the public welfare", it is clear that the State Engineer must consider it when approving or rejecting applications to appropriate.  

Furthermore, the court in Bonham v. Morgan, held that when considering approving changes in use applications must also take into account the criteria of UCA § 73-3-8, including the public welfare interest.   Because there are no specific guidelines of what is or is not detrimental to the public welfare, it is difficult to know if such a determination is being made.  However, because any "interested party" may file a protest against a water appropriation application, there is an opportunity for a concerned group or citizen to file such a protest claiming that the application would prove detrimental to the public interest.  In doing so, the State Engineer presumably would have to specifically reply to the public interest concern, and a clearer standard may emerge.  If not, the party filing the protest would possibly be able to seek judicial review as long as they meet the definition of an "aggrieved party", that is one who has suffered a particular injury.  

The standing requirement may be flexible, however, as the court in Washington County Water Conservancy Dist. v. Morgan held that they "remain open" to the possibility that some issues of water rights might present questions of a great public importance and necessitate departure from traditional standing requirements.   The court noted that this would be particularly so if many people would be affected by the outcome. 

The public interest concern has also emerged in regards to priority of water rights.  Specifically UCA § 73-3-21 mandates that the use of water for domestic purposes has preference over other uses among rights of equal priority. 

Finally, according to UCA 73-1-3, "Beneficial Use shall be the basis, the measure and the limit of all rights to the use of water in this state."  As discussed above, in the case of Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating, the concept of what is beneficial use is flexible and may change with changing values.   Especially in a state as arid as Utah, a case can be made that wasteful uses or even marginally beneficial economic uses of water may no longer be considered "beneficial", even if they are not considered detrimental to the public welfare.

 

Resources

STEVEN E. CLYDE, WATERS AND WATER RIGHTS 1067 (Robert E. Beck ed., vol. 6, Matthew Bender 2005 repl. vol.) (1991).

Utah Division of Water Rights, http://www.waterrights.utah.gov/.

Utah Code (2008)-- Statutes and Constitution, http://www.le.utah.gov/~code/code.htm.

Robert W. Swenson, A Primer of Utah Water Law: Part I, 5 J. Energy L. & Pol'y 165 (1984).

Robert W. Swenson, A Primer of Utah Water Law: Part II, 6. J. Energy L. & Pol'y 1 (1985).

Utah State Water Plan, http://www.water.utah.gov/waterplan.

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