Utah Law Basic Concepts Water is public property

Utah Law Basic Concepts  Water is public property

Utah Law Basic Concepts Water is public property Water right obtained through application Beneficial use is the basis, the measure, and limit of all rights. Failure to use / loss of right First in time, first in right Establishing a Water Right Diligence Claim Surface water uses prior to 1903 Ground-water uses prior to 1935 Court Decree

Applications filed with State Engineer Federal Reservations Water Right vs. Water Share Water Rights treated like real property Based on specific usages Can be perfected or unperfected Not all rights are created equally

Water Shares are stock holder privilege to receive water from a private organization Allowable usage determined by irrigation company Change Application Process

File application in proper form Advertise for 2 consecutive weeks 20 day protest period Protested? Hearing? Approval or rejection Reconsideration/Judicial Review Develop, proof of beneficial use Certificate

Changing a Water Right Types of changes: Point of diversion. Place of use. Nature of use. Period of use. Pertinent issues: Same approval criteria as appropriations No enlargement (give to get) Must be entitled to use of water Changing a Water Right Water Rights being proposed for change are

evaluated on their own merits Applications must meet the criteria of Water Rights Law 73-3 (www.waterrights.gov) In order to not enlarge a water right, volume or depletion may not be larger than historic use Land must be able to be taken out of production Subirrigated land is an issue Nonuse/Forfeiture Water must be placed to beneficial use The use for which it was intended

5 years nonuse triggers 15 years of use erases Judicial action declares forfeiture Nonuse application exempts Date water was last used Must be extended or placed back to use Regulation of Water Rights Water Rights can be limited by:

Flow Volume Priority (1st in time is 1st in right) Source Point of Diversion (Surface water diversions are regulated by priority based on the supply available) Period of Use

Place of Use Type of Use (Quantities available are based on historic use) Supplemental Use Rights which are used together for a single use are considered supplemental to each other. In order to change to use of these water rights, the specific location of usage must be clearly defined. Perfected Rights

Judicially decreed rights (ex. Provo River Decree) Diligence claims Certificated rights These rights continue into perpetuity IF the water continues to be placed to beneficial use Unperfected Rights Applications to Appropriate which have not been certificated by the State Engineer These rights: Are subject to the conditions of approval

Can lapse and become invalid Diligence must be exercised in placing the water to use and proof provided to avoid lapsing Enforcement There is a joint responsibility between the State Engineer and water users to protect the rights and the integrity of the system. The State Engineer has been granted authority to pursue illegal water use. Water users participate in water appropriation process through protests, build a record of their rights with the state engineer, and may pursue

injury through court action.

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