A. INTRODUCTION

There is, perhaps, no area of American law which evokes the lore of the old West more than water law. The scarcity of water in the West has 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.⁽¹⁾ The goal of this presentation is to acquaint the attendee with basic principles of Utah water law.

Water law is, in essence, a form of property law and thus is best understood in that context.⁽²⁾ It seeks to allocate a finite and unique resource. There are two standard measures of water that are used interchangeably.⁽³⁾ 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 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.

B. 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.⁽⁴⁾ The appropriator does not "own" water, but rather holds the right to perpetually use the water appropriated.⁽⁵⁾ Courts have long recognized this right of use, once perfected, as a property right entitled to the constitutional protection afforded to property rights.⁽⁶⁾ This property right may be conveyed separately by deed, or transferred by shares of stock, or if appurtenant to land, with the land.⁽⁷⁾

1. Beneficial Use

"Beneficial use shall be the basis, the measure, and the limit of all e shall be the basis, the measure, and the limit of all rights to use water in this state."⁽⁸⁾ 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.⁽⁹⁾ 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, between 2 and 6 acre-feet of water per acre of land per year. Only this much water may be beneficially used for d per year. Only this much water may be beneficially used for irrigation of an acre of land.

2. Abandonment and Forfeiture

If there is a failure to use water for five years, the right is automatically forfeited.⁽¹⁰⁾ Water rights may also be abandoned, and, prior to 1939, water could be adversely possessed by seven years of adverse use of the water.⁽¹¹⁾ 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 and may exist without any record or documentation.⁽¹²⁾

3. Priority

A critical aspect to understanding the appropriation doctrine is recognizing its slavish adherence to priority. The old adage is, "First in time is first in right." The principle of priority fully protects beneficial users in order of seniority of their use. Whoever has the first or prior water rity 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 drought this past summer, river commissioners on various drainages ordered that holders of water rights with later priority dates refrain from taking any water. As the drought worsened, the prohibition date moved back into early pioneer times, leaving more and more water users without any water at all.

C. ROLE OF THE STATE ENGINEER

The ultimate goal of the appropriation doctrine is to put all water to beneficial use. Unappropriated water is available at no cost to anyone who can use it beneficially. To accomplish this goal and to administer water rights, an extensive legal and administrative system has been put into place by the state. Title 73 of the Utah Code is the Water and Irrigation title. Since water is the` property of the public, water rights in Utah are administered by the state, subject to federal sovereignty. The administrative body established by Utah statute to regulate water for the State is the State Engineer's office, formally known as the Division of Water Rights.⁽¹³⁾ The State Engineer, currently Robert L. Morgan, is the director of the Division of Water Rights in the Department of Natural Resources.⁽¹⁴⁾

Since 1903, when statutory administrative procedures to appropriate water were first established, the exclusive method of obtaining a new surface water right, (and since 1935, an underground water right) is through filing an application with and ultimately obtaining a certificate from the State Engineer.⁽¹⁵⁾ Prior to 1903 the method for obtaining the right to use water was simply by putting the water to beneficial use. These water rights are known as diligence claims and require beneficial use prior to 1903. In order to memorialize a diligence claim, a written claim must be filed with the State Engineer.⁽¹⁶⁾

In addition to appropriation,⁽¹⁷⁾ the State Engineer is also responsible for general adjudications where the rights in an entire drainage are determined by Court Decree,⁽¹⁸⁾ e,⁽¹⁸⁾ distribution of water,⁽¹⁹⁾ dam safety,⁽²⁰⁾ and regulating water well drillers,⁽²¹⁾ stream alterations⁽²²⁾ and geothermal power.⁽²³⁾ In many drainages which are fully appropriated, or in other words, where all of the available water has been put to beneficial use, a major function of the State Engineer is to preside over applications for changes in use or points of diversion of water. A catalyst for such applications is often urbanization, where irrigation water is sought to be changed to domestic or municipal use. In addition, the State Engineer maintains public records of water rights applications, deeds and assignments.⁽²⁴⁾ Working under the State Engineer are subordinate engineers over appropriations, distribution and adjudications, dam safety, and finally, special investigations.

The State Engineer has divided Utah into seven regions with regional engineers overseeing each region. Regional offices are located in Logan, overseeing each region. Regional offices are located in Logan, Vernal, Price, Richfield and Cedar City. The engineer for each region is known as the Area Engineer. All other offices including two regional offices are located in the State Engineer's main office in the Department of Natural Resources Building at 1594 West North Temple, Suite 220, P. O. Box 146300, Salt Lake City, Utah 84114-6300. They also have an excellent web site on the internet at nrwrt1.nr.state.ut.us. The telephone number is (801) 538-7240.

1. Appearing Before the State Engineer

Practice before the State Engineer is an informal administrative practice. Applications to appropriate water, change the use of or point of diversion of water, extend the period of time to resume use of water, exchange water, and segregate water, among others, are all initiated by completing and filing pre-printed forms, along with a filing fee. Forms to update ownership records are also available. Assistance in completing the forms is readily available from the staff of the State Engineer. Certain applications, including applications to appropriate water, change the nature or place including applications to appropriate water, change the nature or place of use of water, and extensions of time to resume use are advertised by publication and "any interested person" has the right to protest the approval sought in the Application. If a protest is made, a hearing is generally held on the Application and protestants are given an opportunity to be heard.

The State Engineer has designated that all administrative proceedings be informal under the Utah Administrative Procedures Act.⁽²⁵⁾ Special rules govern informal proceedings before the State Engineer. These rules are found at R655-6 of the Utah Administrative Code. At State Engineer hearings, evidence will often be given in the form of a proffer. Hearsay is admissible. Any aggrieved party may, within thirty days, appeal the decision of the State Engineer to the District Court in the County where the water is located.⁽²⁶⁾ The review by the District Court of an informal hearing is de novo.⁽²⁷⁾

However, approval of an application is not the final step. An application on is not the final step. An application to appropriate is merely a hunting license for water. Once an application to appropriate water is approved, the applicant must build the diversion works and actually divert the water and put it to the approved beneficial use. A Proof of Beneficial Use form verifying that the water right has f Beneficial Use form verifying that the water right has been diverted and put to beneficial use must be filed with the State Engineer within five years of the approval of the application, or an extension maybe sought upon a showing of diligent progress.⁽²⁸⁾ Only a licensed engineer may submit the Proof of Beneficial Use. Only after a Proof of Beneficial Use is filed, examined and accepted by the State Engineer will a Certificate of Beneficial Use be issued by the State Engineer. This is the final step in obtaining and perfecting a water right.

D. TRANSFER OF WATER RIGHTS

So long as there is not a change in the nature of use, point of diversion, period of use, or place of use, transfer of ownership of water rights does not require approval of the State Engineer's office. However, because of the various ways water rights maybe held, transfers must be accomplished in certain specified ways. For example, water may be appurtenant to and transferred with the land, transferred separately by deed, or transferred via shares of stock. A pending application that has not been certificated application that has not been certificated may be assigned.

The first step in any transfer of water rights, as in land, is determining the status of the title. However, unlike land, it is not possible to obtain either title reports or title insurance for water from a title insurance company. Title insurance companies, perhaps sensing the title complexities and pitfalls inherent to water rights, steer a wide berth. Thus, determining title and issuing any opinions as to title of water rights fall squarely on the shoulders of lawyers. The source of "insurance" is the professional errors and omissions coverage of the lawyer.

There are several sources to check in researching the status of title or rights to water. First is the County Recorder's office. In many cases water is connected to the land where it is used typically for irrigation. This water is considered appurtenant water, and its title is automatically transferred with the land unless specifically excluded.⁽²⁹⁾ Title to appurtenant water is determined, in part, in the same fashion as title to land. Research of land title, so long as the water has not le to land. Research of land title, so long as the water has not been lost through non-use or severed from the land, will reveal the title of appurtenant water. Each link in the chain of title should be examined to verify that the water or some portion of it has not been severed from the land. Loss of the water through forfeiture or abandonment will obviously not be of record, but must be ascertained by other means.

The County Recorder also has a file of conveyances of water without land. While practices vary from county to county, they are typically found in a "water" or "miscellaneous" index. This index should be checked whether or not the water is believed to be appurtenant to land. An otherwise unknown severance of water rights which were formerly appurtenant to land may be discovered by checking this index.

A second and even more important source in determining title is the State Engineer's office. The State Engineer maintains an index of title to all water rights filed with or approved by the State Engineer. Additionally, pre-1903 diligence claims, if memorialized, are on record there. The records d there. The records of the State Engineer should always be carefully reviewed.

It should also be determined whether a general adjudication has been held or is ongoing in the drainage where the water right exists. A general adjudication is a court proceeding which determines all of the water rights ines all of the water rights in a particular drainage. For example, the Weber River has been adjudicated. The quantity and priority dates of most water rights in the Weber River drainage are found in the general adjudication decree entered by the Court. There are many adjudications that, while not complete, are ongoing and affect water rights in those drainages. It should always be determined whether an adjudication has been completed or is ongoing which may affect the water right in question.

Finally, if the water right is represented by shares of stock in an irrigation or mutual water company, the records of the company should be checked. Company records should, if accurate, indicate owners of all shares of stock issues or transferred. The validity of the ownership of shares of stock can be readily ascertained. The company issuing the stock can also advise as to unpaid /stock assessments, and potential marketability or value of the stock.⁽³⁰⁾

E. GENERAL ADJUDICATIONS

As mentioned above, Utah has a general adjudication process to determine al adjudication process to determine all water rights in an entire drainage or sub-drainage. The benefits of a completed General Adjudication are many. One important although less obvious benefit of a General Adjudication is that it can identify and quantify federal claims including reserved claims to water. The United States has waived sovereign immunity for general adjudications by the 1952 McCarren Amendment⁽³¹⁾ and thus must participate in general adjudications like every other person or entity claiming water rights in that drainage.

The statutory procedure for general adjudications in Utah is found in Chapter 4, Title 73 of the Utah Code. The theory of general adjudication is to fix every appropriator's rights and priority.⁽³²⁾ Another purpose is to bring security and certainty to water rights.⁽³³⁾ This allows subsequent purchasers to be able to review and rely upon a permanent record of existing rights.⁽³⁴⁾

Once a general adjudication is commenced, the procedure followed in procedure followed in statutory general adjudications is for the State Engineer to first identify and prepare a list of claimants.⁽³⁵⁾ The list is prepared by publishing a notice in the newspaper designated by the Court asking those with claims to notify the State Engineer. The State Engineer also uses the records in his office to prepare a list of all claimants.

The State Engineer is also required to prepare hydrographic maps of all areas within the adjudicated area.⁽³⁶⁾ These maps show all points of diversion, irrigated acreage, ditches, canals and similar features.

Upon completion of the list of all known claimants by the State Engineer, such claimants are served with summons in the form prescribed in Utah.⁽³⁷⁾ The summons is also published for five consecutive weeks. Those asserting claims must then file what is known as a Water User's Claim.⁽³⁸⁾ This claim acts as a responsive pleading in the general adjudication.⁽³⁹⁾

A Water User's Claim sets forth the name and address of claimant, nature of the use of the water, the flow or quantity of water claimed, the season of use, location of point of diversion, nature of diverting works, date when diverting works were built and water first used, and such other facts and such other facts that the State Engineer may require on a form furnished by him under direction of the court.⁽⁴⁰⁾ Failure to file a Water User Claim within the time prescribed shall cause that person to be forever barred and estopped from subsequently asserting any rights, and that person shall be deemed to have forfeited all rights to the use of water.⁽⁴¹⁾

After receiving all Water Users' Claims, the State Engineer then prepares a proposed determination of water rights of all water users in the drainage or sub-drainage that is served on water users and filed in court.⁽⁴²⁾ All water users who have filed a claim have ninety days to object to their treatment in the proposed determination. Failure to file a timely objection forecloses further contesting of the proposed determination.⁽⁴³⁾

The objections to the proposed determination are answered by the State Engineer. The objections are then litigated and thereafter an interlocutory decree entered. When all portions of a General Adjudication, typically of a General Adjudication, typically divided by sub-drainages, are completed by entering interlocutory decrees, a final decree is entered. Appeals of right may be made to the Utah Supreme Court. There is also an opportunity for interlocutory appeals when interlocutory decrees are entered.

Many General Adjudications were started years ago and never completed because of lack of funding for the State Engineer to prosecute the adjudications. Several years ago funding was made available to hire two attorneys to assist the State Engineer in prosecuting General Adjudications. These attorneys have now been hired and the first decree in twenty years was recently entered. The State Engineer and his legal counsel are currently prosecuting pending adjudications in reverse chronological order.

F. CONCLUSION

There are numerous areas of water law omitted or only mentioned briefly in this presentation. Many of these areas, such as water quality, federal reserved water rights and security interests in water rights are too complex to be dealt with here. Hopefully, this discussion of basic Utah water Hopefully, this discussion of basic Utah water law will help the reader to recognize water law issues which would otherwise go unnoticed.

1. Indeed, the Utah Supreme Court has compared a drop of water to a drop of gold. See Carbon Canal Co. v. Sanpete Water Users Assn., 425 P.2d 405 (Utah 1967).

2. See for example, Utah Code Ann. § 73-1-10 (2000 Supp.), which requires that all water rights be transferred by deed in substantially the same manner as real estate, except for water rights represented by shares of stock.

3. Utah Code Ann. § 73-1-2 (1989).

4. See Utah Code Ann. § 73-1-3 (1989).

5. See J.J.N.P. Co. v. State, etc., 655 P.2d 1133 (Utah 1982), for a discussion of the ownership issue.

6. A water right is entitled to legal protection including due process protection. See Hunter v. United States, 388 F.2d 148, 153 (9th Cir. 1967).

7. The 1998 legislature amended Utah Code Ann. § 73-1-11 (1989) to broaden the water rights that may be appurtenant to land to include non-perfected water rights. See Utah Code Ann. § 73-1-11 (2000 Supp.).

8. See Utah Code Ann. § 73-1-3 (1989).

8. See Utah Code Ann. § 73-1-3 (1989).

9. In Utah, only the Division of Wildlife Resources and State Parks may hold an instream flow right. Utah Code Ann. § 73-3-3(11) (2000 Supp.).

10. Utah Code Ann. § 73-1-4 (2000 Supp.). This statute was amended in the 1996 legislature to limit the period for which forfeitures could be claimed to the immediately preceding 20 years.

11. Utah Code Ann. § 73-1-4 (2000 Supp.) and § 73-3-1 (1989). See also Smith v. Sanders, 189 P.2d 701 (Utah 1948).

12. Federal water rights and the implied reservation of water by the federal government are complex subjects outside the scope of this presentation.

13. See Utah Code Ann., Title 73, Chapter 2 for duties of State Engineer.

14. Utah Code Ann. § 73-2-1.2 (1989).

15. Utah Code Ann. § 73-3-1 (1989).

16. Utah Code Ann. § 73-5-13 (1998). See East Jordan Irrigation Co. v. Morgan, 860 P.2d 310 (Utah 1993), for a d 310 (Utah 1993), for a discussion of the two methods to appropriate water.

17. Utah Code Ann., Title 73, Chapter 3 (1989).

18. Utah Code Ann., Title 73, Chapter 4 (1989).

19. Utah Code Ann. § 73-5-1, 3 and 4 (1989).

20. Utah Code Ann., Title 73, Chapter 5a (2000 Supp.).

21. Utah Code Ann. § 73-3-22 to 26 (1989).

22. Utah Code Ann. § 73-3-29 (2000 Supp.).

23. Utah Code Ann., Title 73, Chapter 22 (1989).

24. Utah Code Ann. § 73-1-10 (2000 Supp.), § 73-2-11, and § 73-3-18 (1989).

25. Utah Code Ann., Title 63, Chapter 46b (1996).

26. Utah Code Ann. § 63-46b-14(3) (1996).

27. Utah Code Ann. § 63-46b-15 (1996). See Badger v. Brooklyn Canal Co., 347 Utah Adv. Rep. 3 (July 7, 1998) (Badger II) for a discussion of the responsibility to raise issues before the State Engineer or be deemed to have waived the right to assert the issue before the District Court on de novo appeal. ore the District Court on de novo appeal.

28. Utah Code Ann. § 73-3-12 (2000 Supp.).

29. Utah Code Ann. § 73-1-11 (2000 Supp.). This statute was amended during the 1998 legislative session to broaden appurtenant water to include unperfected water rights that otherwise meet the elements of appurtenancy.

30. A recent Utah Supreme Court ruling held that the corporate structure of mutual water companies prohibits individual shareholders from filing a Change Application without the water company's approval. East Jordan Irrigation Co. v. Morgan, 860 P.2d 310 (Utah 1993).

31. 43 USC § 666.

32. Spanish Fork West Field Irr. Co. v. District Ct., 104 P.2d 353 (Utah 1940).

33. In re Green River Adjudication, 404 P.2d 251 (Utah 1965).