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Important Concepts Regarding Water in Utah

March 23, 2020 by VF Law Team Articles
Home | Articles | Important Concepts Regarding Water in Utah

By: Dale B. Kimsey

I

DIVERSION is the change of course, scope or use of water. Your groundwater or surface source is under constant threat by other water withdrawals, administrative actions, change applications and legal proceedings.

BENEFICIAL USE is the basis, the measure and the limit of all rights to the use of water in Utah. How your beneficial use is evaluated is critical to the scope of your right to use water.

STATE ENGINEER Unlike any other state the Utah State Engineer administers water rights with a team of professionals who govern and monitor the transfer, challenges, beneficial use and changes requested in water rights.

TITLE is the record of ownership of property, your water, water rights, water shares. Often overlooked title is essential to any transaction, protection and defense of water.

PRIORITY OF RIGHT “First in time is first in right.” As a “prior” appropriation state, Utah water rights are allocated by priority of beneficial use, so the first person to beneficially use water can establish rights senior to subsequent users. This does not preclude other users of “surplus” water from establishing rights in water that they may put to beneficial use. But if there are equal claims to certain water or water rights the first in time is first in right for that water.

II

Water transactions are unique and complex. Be certain you can own and use the water you believe to be yours. You should protect your water rights from forfeiture, administrative roadblocks or impairment. You may need to change elements of your water rights to update title and the avoid loss of your rights.

With the Utah population expected to double in the next 40 years and other threats to supply, water right will only become more important in the future. 

Rule #1 Be certain you can use the water you own or have rights to. (See beneficial use above)

You can determine whether water or a water right is registered in your name or someone else’s and if its elements are accurate. It can be important to understanding the history behind your Utah water right. You should have a plan to maximize and protect your right from administrative reduction, impairment or even forfeiture due to extended nonuse.

III

Utah settlors, in the late 1840’s, were the first western settlors to practice irrigation on an extensive scale in the United States. The Utah “desert” contained more cultivable land than could be watered from the incoming mountain streams. The new settlors developed a system that those who first made beneficial use of water should be entitled to continue to use it in preference to those who came later (to the extent they actually used the water—no hoarding). This became Utah law, and is known as the Doctrine of Prior Appropriation. Those holding water rights with the earliest priority dates, and who have continued beneficial use of the water, have the right to water from a certain source before others with water rights having later priority dates. 

With Statehood, Utah decided to take official control of all the water in the State. The Office of the State Engineer was created in 1897. The State Engineer is the chief water rights administrative officer for the state. A complete “water code” is presently in force mostly as Utah Code, Title 73. The State Engineer is the Director of the Division of Water Rights.

It follows that all waters in Utah are public property. A “water right” is a right to divert (remove from its natural source) and beneficially use water. The defining elements of a typical water right will include: 

  • A defined nature and extent of beneficial use;
  • A priority date;
  • A defined quantity of water allowed for diversion by flow rate (cfs) and/or by volume (acre-feet);
  • A specified point of diversion and source of water;
  • A specified place of beneficial use.

Water rights in the State of Utah must be established through the appropriation process administered by the Division of Water Rights. The steps to this process for an “Application to Appropriate Water” are as follows:

  • An Application to Appropriate Water is filed with the Division.
  • The application is advertised and protests may be received and a hearing may be held. 
  • The State Engineer renders a decision on the application based upon principles established in statute and by prior court decisions.
  • If the application is approved, the applicant is allowed a set period of time within which to develop the proposed diversion and use water. When the diversion and use are fully developed, the applicant retains the services of a professional engineer or land surveyor who files “proof” documentation with the Division showing the details of the development. 
  • Upon verification of acceptably complete proof documentation, the State Engineer issues a Certificate of Appropriation, thus “perfecting” the water right.

IV

Some areas of the state are “closed” to new appropriations of water. All the available water has been allocated. In those areas, new diversions and uses of water can established by the modification of existing water rights. Such modifications are obtained by the filing of “change applications.” These applications are filed and processed in a manner very similar to that described above for Applications to Appropriate Water. 

Water appropriation issues in specific geographic areas of the state are usually administered with policies and guidelines designed to address local conditions. These policies and guidelines are generally developed for all or part of a defined Drainage Basin. 

Do I need to have my address registered with the Division of Water Rights?

If you have water or water rights you want to be able to be in contact with the State Division of Water Rights. If anyone challenges your rights or wants to make a change in water rights that affects you or your rights you want the Division to be able to contact you for a response. 

The Division is located at:

1594 West North Temple Suite 220
P.O. Box 146300
Salt Lake City, Utah 84114-6300

If would like to have email contact with the Division you need to go to the Division of Water Rights web page. You can select Programs then click on Water Rights, then Notices, then Email Service. After you register you may enter a specific water right by number or Exchange number. Enter your email address to register with that application. You will then be notified by email when a new document is scanned to the file.

V

If you want to appropriate or change a water right you may apply to the Division to do so. The area you are applying may be 1) Open 2) Restricted 3) Closed. If it is restricted or closed you may be required to obtain or modify another existing water right. Either application 1) Appropriation or 2) Change can be found online and submitted to your regional office and, of course, pay the filing fee. Any application process requires public notice and a decision by the State Engineer- which takes time, sometimes several months. 

The current standard requirement is for 0.45 acre-foot for domestic (indoor only) use, 0.028 acre-foot for stockwatering of one large animal and 4.0 acre-feet per (1) one acre of irrigation. Irrigation use accounts for the majority of water use in Utah.

There is a scenario to follow in obtaining a water right or a change to a water right. 

Identify the water, the right and the owner, if any.

Obtain the number of the right; consult with the regional office of the Division of Water Rights to determine if the right is likely to be suitable for your stated use. 

Obtain a deed to the right. Record the Deed. (in the county in which the water is diverted)

File a Report of Water Right Conveyance with the Division. (Follow up for processing) 

File the change/appropriation of the water right as to source, place of actual use, nature of use. 

What is a “Good” water right? Using the process above, carefully review what the history of the water/right is and how and where you intend to use it. Check the following:

Water is obtained and transferred by Deed. Deeds are recorded in the county offices. The Division record is Not the official title record, it is an indication of the ownership only. Check the Division and the County records to determine ownership. 

VI

The rule on water in Utah is “Use or Lose it”. Water is  public property and the right to use it can only be maintained if the water is put to “beneficial use” (this is a broad term but the actual “use” is important). Water rights which have not been used for 7 consecutive years are subject to forfeiture. Be sure to check the status of any water right you intend to use or obtain. 

Water right(s) may be a shared use; one well, stream or river may provide a water right to many users. Water right location and type of use is grouped in Division records. Each group is given a unique number by which it is referenced by the water right(s) which share that use. The Division groups users and uses to organize records and quantify amounts related to a use. If more than one water right is used to provide water for a use, the water rights which have been grouped together are called supplemental water rights. The idea being that each of the water rights contributes to the beneficial use. Ultimately, quantifying a water right involves determining its sole supply contributed to each use. The group quantifies the extent of the use for the group, while the sole supply defines the contribution of each of the supplemental rights towards the group use. A change or segregation which involves a group necessarily requires that the sole supply of each right in the group be quantified.

 

Shared uses may come up in different ways. Sometimes they are by application to appropriate. During the approval process the common uses of the water are quantified and documented in the proof process as identified. The time for supplemental uses to be identified by the Division is during the adjudication process as all the water rights and uses in an area are being reviewed and quantified for consistency. It is important to balance the relationship between the use and the water right that supply of water for the use to determine the water being used and evaluate water rights as new uses are developed.

VII

The Special Master in northern and southern Utah is R.L. Knuth. Rick is an attorney in practice in Utah. He presently serves as the Special Master in the Utah Lake and Jordan River General Adjudication of Water Rights, Third District Court, Salt Lake County, Utah. He has been proposed by the State Engineer to be the Special Master for the Virgin River region General Adjudication of Water Rights. He is responsible for conducting hearings, entering interim orders, ruling on discovery disputes, and issuing reports and recommendations to the District Judge in those regions on objections in the general determination of all water rights, in the largest civil case in Utah history.

VIII

The following are the steps in dealing with the Special Master in each litigation regarding General Adjudication issues following and Objection. 

  1. Following an objection to a Proposed Determination, the Special Master sends three things to the Objector: (1) a copy of Standing Order No. 3; (2) a copy of the Court’s Amended Order Appointing a Master and Order of Reference; and (3) an explanatory cover letter.
  2. The State Engineer files an Answer and identifies any parties who are potentially affected by the Objection proceeding.
  3. Within 14 days of the State Engineer’s Answer and disclosure, the Objector must file a disclosure identifying any additional potentially affected parties.
  4. The Special Master sends a Notice of Objection Proceeding and Opportunity to be Heard to all potentially affected parties.
  5. Potentially affected parties have 49 days to file a notice with the Court indicating that they intend to participate in the Objection proceeding.
  6. After filing a notice indicating their intent to participate, affected parties have 35 days to file a pleading in response to the Objection, which sets forth the party’s claims and defenses.
  7. The Special Master holds a scheduling conference after notifying all parties of the date, time, and location of the conference.
  8. The Special Master issues a Scheduling Order, which contains deadlines for discovery, settlement negotiations, dispositive motions, etc.
  9. Upon conclusion of litigation (or settlement negotiations), the Special Master files a Report and Recommendation with the Court that outlines his findings, conclusions, and recommendation. Parties have 30 days to file an objection to the Report and Recommendation before the Court makes a final decision.