Water law poses complex issue
|Boyd Marsing disks a field in Carbonville last Tuesday. How the drought will affect the harvest remains to be seen. Water law continues to pose complex legal issues in wet as well as dry years in the West. |
The question of water ownership has always been a complicated issue. Current water law is more definitive than the earlier practice of considering the source, property ownership or direction of water flow.
The signing of the Colorado River Compact brought the basin into the modern era. All of the water in the creeks and rivers no longer belonged to the people living along the creeks or rivers. The water also belonged to people residing downstream- not just on the next farm or ranch, but a thousand miles away.
That is the dilemma that many faced at the beginning of the compact's impact on their world. But despite more than 80 years of dealing with the agreement and the subsequent Upper Basin Colorado Compact signed by Utah, Colorado, Wyoming and New Mexico in the 1940s, there is still confusion about water rights and ownership in the West.
At public meeting, officials frequently throw out terms like primary and secondary water, stream flow, rights, shares, surface and ground water.
Federal and state laws governing water are generally written for specific purposes. But interpretations can remain unclear until the laws are tested in court and legal precedents are set.
Laws are usually tested during times of strain. For example, a string of mass murders and terrorist acts test the basis of homicide laws.
Improper deals, insider trading and mass embezzlement test financial laws.
And of course, a severe drought, when water becomes ever so much more precious, tests water law.
But first and foremost, when it comes to water law, it is the question of ownership. In other words 'Who owns the water?"
In Utah and in many states, the water is owned by the state itself; by the public.
The provision that names the state as the owner of the water is cited in 731-14 of the Utah Code.
This code states "All waters in this state, whether above or under the ground, are hereby declared to be the property of the public, subject to all existing rights to the use thereof."
In short, the state can do anything it wants with the water within it's boundaries, and has the right to regulate that water as well.
That is why when Utah signed some of it's water away to the lower basin states in the Colorado River Compact, it had the legal right to do so according to this specific water code.
It is of note that the Colorado River Compact is not the only compact the state has entered into when it comes to water either. Utah has also signed and agreed to two other water compacts.
The Bear River Compact was signed in 1955 and deals with the steams and tributaries of the Bear River in the states of Idaho, Wyoming and Utah.
Utah also signed the Columbia River Compact, which involves Utah, Idaho, Oregon and Washington.
Utah's part in that compact however, is very minimal because only a few streams in the very northwest corner of the state feed into that system.
It is hard for an individual to imagine the vast amounts of water that are talked about in these agreements, particularly the Colorado River Compact.
Upper and lower basins are guaranteed 7.5 million acre feet annually. One can gaze at Lake Powell and imagine the water, but the depth of that lake, even in it's diminished state as of late, as well as it's breadth and length are hard to comprehend. And it is only a small part of the total water in the Colorado basin.
For an individual or even a community this means restraints on water; it means only so much of the water that passes by actually belongs to those who live by it.
When a resident discusses water rights, it is based upon a number of factors including quantity, priority, date, source, point of diversion and the nature of it's use.
Water rights in Utah are administered under what is called the Doctrine of Prior Appropriation.
This doctrine basically means "first in time, first in right." It has to do with the amount of water (which is just slightly more important than the quality of water) any one person or entity has a right to use.
Use is a very good word to note here. People, industry, communities only use water, they don't own it.
Under the Doctrine of Prior Appropriation those with the earliest (in time) dibs on the fluid are the ones who can divert the water they need first before those farther down the list.
Present stream flows, according to the United States Geologic Survey, are the lowest recorded in nearly 100 years in Utah this spring.
While droughts are just part of living in Utah, the severity of this particular four year period is nearly unprecedented. This affects not only surface water, but ground water supplies as well.
"The effect of the drought on ground water resources is two fold," indicated Chris Wilkowske, a hydrologist for the geologic survey organization. "First, decreased precipitation leads to a decrease in a recharge to aquifers (natural underground storage from which wells draw their water). Second, decreased surface water resources lead to an increase in ground water withdrawals (by those wells). In fact, an increase in water well construction permits can be directly correlated to periods of drought."
For some individuals, they see the rule of water law as not pertaining to "underground water." In some states, such as Texas, Rule of Capture as groundwater pumping under private property is called, has been upheld.
Consequently, the water that a landowner can draw out of a well is his. But in Utah, the water is the states and ground water is regulated by permits.
Runoff is also another bone of contention among some Utah residents. In various places in the United States, property owners can capture large amounts of runoff from their property that either falls as rain or snow, and utilize it at a later date.
In Utah, once the water has reached the surface of the land it is the states. While few people would argue with someone having a rain barrel under their gutter to use water that fell from the sky to water their flowers, capturing large amounts of water in a man made reservoir that is not permitted would be a very different situation.