Water Rights

Appropriation, Beneficial Use, and Transfers

Utah’s extensive arable lands significantly exceed the water supply provided by Utah’s arid climate. The disparity in the ratio between available land and available water necessitated the establishment of legal framework through which available water is allocated. The legal identification of who possesses the right to use available water, where it’s taken from, where it’s used, how much, in what priority, and for which specific purpose(s) is called an appropriation.

The appropriation of water from the rivers, lakes, and wells is regulated by the Utah Division of Water Rights (UDWR) and is subject to both state and federal laws. Additionally, legal settlements, rulings, and treaties play significant roles in determining how water is allocated to users. Point of Diversion data (WRPOD), Stream Alteration data, Place of Use data, and Adjudication Areas data can be used by the county to help determine areas of the county that may have complex water rights issues.

The purpose for which the allotted water is legally intended is called the Beneficial Use. Common beneficial uses include:

• Irrigation
• Stock watering
• Municipal and Industrial
• Electric power generation
• Mining

The ownership of a right to use water identified by appropriation is called a “water right.” Utah state law states that water rights are classified as “real property,” which can be held by an entity or individual, and may be bought and sold; is tied to a specific source which is defined as a diversion, and irrigation water rights are tied to a quantified acreage of land; and must be continually used for the purpose for which it was appropriated, which is defined as beneficial use; and with some limitations can be rented or sold to other users, subsequent to the UDWR approval, and provided that the transfer of water rights does not affect other relevant water users; and with some limitations, water rights for a certain beneficial use may be held in lieu of a different beneficial use subsequent to the UDWR approval and an appropriate exchange can be accounted for by UDWR; and with some limitations, the use of water rights from a specific diversion may be transferred to the use of water from another diversion, subsequent to the UDWR approval and an appropriate exchange rate can be accounted for by UDWR. Water rights are subject to available supply, so ownership of a water right may not necessarily guarantee the user receives a specific predefined volume of water. Additionally, not all water rights possess an equal standing when annual water allocations are reduced due to availability.

The laws in the State of Utah governing the statewide administration of water rights are based on the principles of a legal doctrine known as Prior Appropriations. The Prior Appropriations Doctrine establishes the ranking of a water right’s priority based upon the chronologic establishment of the original beneficial use, making older water rights senior to newer water rights. In other words, all water rights are not created equal. As available water supply diminishes at any given diversion, a junior water right holder may have to yield remaining water supply to the holder of a more senior water right.

The source of the water may be a determining factor identifying which beneficial use may be applied. Drinking water often comes from wells where little or no treatment is required, while irrigation water often comes from rivers because irrigation water does not typically need to be treated. Water appropriated for irrigating farmland must be used only for irrigation until (and if) approval to change the use can be obtained from the UDWR. Similarly, irrigating farmland from a culinary well is not legal unless approval has been obtained from UDWR. Additionally, failure to actively maintain beneficial use may result in the forfeiture of the water right.

Depletion

Whether it is used for household use or irrigating corn, water rights are typically quantified as a gross volume of flow, and represent the maximum amount of water a water rights holder is entitled to divert from a common supply. However, it is a common misconception that the water rights holder owns that water, or that all the water diverted is taken out of circulation. Because of the cyclical nature of how finite water supplies become available to users, ownership of a water right entitles the owner to only the single annual beneficial use for which the right was appropriated. Water right ownership entitles the holder to divert a given volume of flow (if both available supply and water right seniority allow) and apply that diverted water to the beneficial use. However, after the use of the water has been applied, the water must then be released downstream to the next user. Water rights are quantified at the diversion point because there is no reliable way to accurately measure water returned to the system after all the various beneficial uses.

Depletion is the term defining the actual net water volume a user takes from a given diversion point, removing it from the system and rendering it unavailable for reuse by downstream users. A water right is more accurately described as the right to an estimated amount of depletion. The estimated amount of depletion is approximated based on known rates of water that are lost to the system for a particular use, which is why water rights are tied to a specific beneficial use.

As water supplies fluctuate from year to year, any water right is subject to available supply. The State of Utah follows the prior appropriation system, which grants priority water rights to whoever has documented the earliest beneficial use of water.

Diversions can be any drilled or dug well, gate, valve, dam, or pump that takes water from a natural stream channel or groundwater. The UDWR maintains records of all water wells, storage dams, and diversions, as well as places of use, and municipal water suppliers. However, many water rights holders in Utah are entities that function for a collective set of water shareholders. Shareholders own a portion of water right(s) which is administered by the water right holder. This is usually the case within irrigation districts or ditch companies. The UDWR does not necessarily possess records of individual shareholders as those records are held by the entity owning the water right on behalf of the shareholders. Changes to any water rights may be applied for by filing an application to the UDWR which is a division of the Utah Department of Natural Resources.  The UDWR and the Utah Division of Natural Resources are both headed by appointees of the governor, accountable to the governor, subject to state legislative action, and tasked with administering all state and federal water rights within Utah.

The UDWR mailing address:

Utah Division of Water Rights
1594 West North Temple Suite 220
P.O. Box 146300
Salt Lake City, Utah 84114-6300
Phone Number 801-538-7240
Email: waterrights@utah.gov

Refer to the Utah Code, Title 73: Water and Irrigation for more detailed information about water rights in Utah.

Examples of County goals and policies that can help address water rights issues are:

• Coordinate with water resource management entities, especially water districts and canal companies, to ensure water supplies and water delivery infrastructure will meet growth needs;
• Implement watershed protections and vegetation management to maintain availability of water for beneficial uses and to protect water quality;
• Consider and help implement in-stream water flows for the benefit of aquatic habitats and sensitive species while recognizing existing water rights;
• Coordinate with public land management agencies to acquire and protect water rights for use on public land and maintain them with the State Water Engineer;
• Enact strict stormwater management policies for each jurisdiction and maintain robust stormwater mitigation infrastructure focusing on ecological stormwater treatment methods.

Other related BMPs are listed under:

• Ditches and Canals
• Water Quality and Hydrology

• Although water rights are the right to use appropriated water within requirements accounted for a given beneficial use, water rights are classified as “real property” in the State of Utah and are bought and sold much like real estate.[1]
• Many developers are seeking to obtain water rights allowing them to construct new development for which the land has inadequate water rights. Transferring water rights can involve substantial costs and may be a significant factor determining whether a particular transfer can be profitably implemented.[2]
• Availability of adequate water resources is vital when attracting manufacturing businesses. If the water resources are not available, a business will look elsewhere.

Managing water rights is a complex task. Water reliability is usually a concern in western states given the nature of the region, and the prior appropriation system. Since water rights are allocated based on seniority of the right, competing demands may arise causing supply interruptions to younger water right holders.[3]

In highly populated areas, new water appropriations will most likely be closed. New developments usually have to secure already existing rights by purchasing or transferring a water right in order to supply their needs.[3]

Certain flow levels may be required for conservation and recreational water uses. In addition, lands managed by federal agencies usually have implied reserved rights to guarantee sufficient water to satisfy their purposes. Some examples of lands with implied water rights include national parks and forests, tribal lands, wilderness areas, and wild and scenic rivers.[3]

The transfer of water rights is usually restricted to the designated service area for which a water right is held. Transferring a water right to be used either upstream or downstream within a watershed may create little or no ill effects to the overall watershed. Transferring a water right outside the watershed may also be possible, but doing so may adversely affect remaining water users within the service area, or other downstream water users. Additionally, diverting water for use outside the service area may have detrimental effects on groundwater levels and stream flows in the area from which the water is removed.

The Utah Water Use Program collects and compiles water use and water diversion data from public water suppliers throughout the state. This database is useful to consultants, engineers, attorneys, and others interested in quantification of water supply system characteristics and total water diverted and placed to use.

In addition to UDWR recognized water rights held by the federal government, various federal agencies may claim additional unresolved federally reserved water rights that may have tremendous effect on natural resource management within relevant watersheds.