• Utah Farmers Told To Use It Or Lose It
  • January 15, 2005
  • Law Firm: Parr Waddoups Brown Gee & Loveless, A Professional Corporation - Salt Lake City Office
  • With Utah in its sixth year of drought, the Utah Legislature has given farmers an ironic ultimatum: Use all your water, or what's not used may be taken away. "The whole thing is a little goofy in my mind," said Dan Jensen, a water attorney with Parr Waddoups Brown Gee & Loveless. "We're in a drought. So it's considered unpatriotic if you use your sprinklers when it's raining. But when you buckle down and conserve, you get penalized." In 2002, the Legislature modified provisions of Utah's water law to address the problem of what's often referred to as "partial" forfeiture -- when people aren't using their full water allocation. What had been a long-standing right, allowing people to keep their water rights as long as they use at least some of it over a period of five years, is no longer the case. Now, water users are under enormous pressure to use their entire water allocation because if they fail to use some of the water for five years without notifying the state, their right to it is automatically forfeited. The unused portion of that water right then reverts to the public. It's been one of the most heated issues in this dry desert state where water rights are sacrosanct. " At times it appears water is like gun rights. It seems to touch more buttons than religion in this state," said Eric Olson, an attorney who has represented The Church of Jesus Christ of Latter-day Saints (Mormon) on water issues. "Partial forfeiture forces you to use water to its fullest when it makes no sense to use it." Despite what appears to be a mixed message -- the state continues its publicity campaign asking Utahns to "slow the flow and conserve H2O" -- water officials say the changes to the law were needed. "What it is trying to do is basically say water is in short supply," said State Engineer Jerry Olds. "We need to make sure it is used to its full intent. You can't just acquire a water right you don't intend to use." A lawsuit in the late 1990s prompted the revisions in the law. The Washington County Water Conservancy District sued over the state engineer's approval that allowed the LDS Church to change the location of its water right in Washington's County's Harmony Basin. The water conservancy district claimed that all or part of the church's water rights had been forfeited because the church had not been using its entire water allocation. The lawsuit was eventually dismissed. "We beat each other up so badly," Olson said, that state officials felt the law needed work. At the heart of HB58, sponsored by Rep. Mike Styler, R-Delta, is to instill a state policy of "securing the maximum use and benefit of its scarce water resources." The law was modified to expand the provisions that weren't spelled out before, such as allowing water users to file applications with the state engineer for non-use. Those applications can apply to all, or a portion, of the water right. If, for instance, a farmer decides to hold off on irrigating a portion of his crop for five years because he wants to do his part and conserve water, he can file an application of non-use with the state to protect his water right. "We tried to define the rules dealing with forfeiture," said Fred Finlinson, a water attorney and former state senator who served on a legislative task force that helped draft legislation. "We've expanded the exemptions, increased the opportunities to go to the state engineer for such reasons as economic hardships and water conservation. The bill is pretty good and deals with these kinds of issues." The exemptions apply to drought conditions when water suppliers simply don't have enough water to allocate to all its users. It also applies to situations where all or part of the land on which water is used is under a conservation agreement. The problem, say some water attorneys, is that not many people understand the law and that someone can conserve water and keep rights to it. "People are not familiar with the rules, and as a result can lose something very valuable," Jensen said. "So people who use 80 percent of their water right and do that consistently for five years or longer lose ownership of 20 percent of their water right. It sets up a situation that people think they have to use 100 percent. "This is really the absurd thing about the whole system," added Olson. "What really ought to be happening is that the state should consider what policy it wants to promote, which uses are a greater value to the state, and find a way to retire unproductive uses." The law is vulnerable to court challenges. And judges are reluctant to rule on forfeiture cases, Olsen added. In the case of the LDS Church, the courts never addressed the issue of forfeiture. The district court, and ultimately the Utah Supreme Court on Dec. 23, 2003, simply ruled that the water district was not impacted and therefore lacked standing to seek judicial review of a state engineer decision. Jensen foresees a nascent trend whereby environmental groups sue to stop developments where the water rights have not been used to their full extent. "We haven't seen lawsuits crop up -- yet," Jensen said. "But then again, the law hasn't been on the books for a full five years yet."