Water and the Law
Efficiency of Use vs. Subsequent Re-Use
By David B. Hartvigsen
(Published in the Utah Water News, November 1992)

The Utah Supreme Court recently decided a case that considered the competing interests of a water user's right to improve the efficiency of its irrigation system and another water user's right to re-use the runoff and seepage water that the first user's long-standing practices have made available. The Court concluded that in most circumstances, the original user is entitled to capture, use, and re-use water that previously went to the subsequent user.

The case involved New Escalante Irrigation Company, which had an 1875 right to water in the Escalante River, and the Estate of Paul Steed, which had a 1909 right to water in Alvey Wash. New Escalante had historically diverted water from the Escalante River, conveyed it via open canals to its shareholder's lands that drain into Alvey Wash. Those lands were then flood-irrigated. The runoff and seepage from this practice resulted in increased flows in Alvey Wash. In 1909, Steed's predecessor filed to appropriate irrigation water out of Alvey Wash, consisting of both the natural flows in the wash and the runoff flows from the flood-irrigating practices.

Then in 1982, New Escalante changed its system to a pressurized pipe and sprinkle irrigation system. This resulted in a 25% saving in water needed to irrigate its shareholders' lands. The water saved was stored for use later in the season when the Escalante River is too low for New Escalante to divert its full entitlement. Consequently, New Escalante was able to irrigate more acreage over a longer season but Steed was deprived of the run-off and seepage flows and was therefore unable to meet its irrigation needs.

Steed sued New Escalante seeking to force New Escalante to replace the loss of the run-off and seepage flows to Steed that resulted from New Escalante's change to the new irrigation system. Steed claimed that it had a vested right to receive the run-off and seepage flows pursuant its 1909 water filing.

The Court re-stated the well-established law in Utah that an upstream irrigator has the right to recapture and reuse all of the water it diverts before such water leaves its lands. Presently, there are only two recognized exceptions to this rule. These are: (1) when the run-off or seepage returns to, and is commingled with, the source from which it was originally diverted; and (2) when the run-off or seepage water flows into, and is commingled with, a ground water aquifer, thus losing its identity as diverted water. In other words, the upstream water user has the right to use and re-use the water it diverts until the water either leaves the irrigator's land or becomes commingled with a body of water that is subject to appropriation by others. Neither of these exceptions applied to Steed.

With respect to Steed's claim that it had a vested right to receive the run-off and seepage flows, the Court held that although waste water, runoff, and other types of return flows may be re-appropriated, the re-appropriator acquires no rights to compel the original appropriator to continue to generate those return flows. The re-appropriator has the right to use the waste water and runoff only as such flows actually occur. The Court stated that the law simply favors the original appropriator. "When there is not enough water to satisfy the needs of all users, the user who depends upon another's seepage and runoff will suffer."

The Court also emphasized the State's policy to encourage greater efficiency through water saving techniques. Water users would have no incentive to implement water-conserving changes if they could not utilize the water saved. In the case of conserved irrigation water, that incentive remains intact here in Utah.

(This is a series of articles under the heading Water and the Law highlighting recent developments in water law. Each article is written by an attorney with the Salt Lake City based law firm of Smith Hartvigsen. The purpose of this series is to help readers of Utah Water News be informed as to developments and trends in water law. Input from readers is welcome. If you have a comment or question, please contact David B. Hartvigsen, Smith Hartvigsen, Suite 1150, Eagle Gate Tower, 60 East South Temple, Salt Lake City, Utah 84111. Telephone: (801) 413-1600.)

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