J. Craig Smith


The Walker Center

175 South Main Street, Suite 300

Salt Lake City, UT 84111

Telephone:  (801)413-1600

Facsimile:  (801)413-1620










J. Craig Smith, Esq., and Jeffry R. Gittins, Esq.






            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 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 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.

            In Utah, water rights are identified by a numbering system created by the State.  Every water right is assigned a number.  Applications to Appropriate, Change Applications, Exchange Applications, sewage effluent reuse applications and water right certificates are also assigned numbers.  For example, a water right will have a two digit number identifying the drainage, followed by a dash and a three or four digit number.  Change applications have a lower case a followed by a consecutive number (now in the 3000’s.)  Applications to appropriate begin with an upper case A.


            The basis of Utah water law is the appropriation doctrine, which first evolved in Colorado.  The appropriation doctrine separates the ownership of water from ownership of land.  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, which is owned by the public, but rather holds the right to perpetually use the water appropriated.[5]  Ownership of land and ownership of water in or on the land are two completely different property interests.  The owner of the land has no ownership of water on the land.  For example, even if a stream or river runs through a parcel of land, the landowner has no right to use or ownership interest in the water.[6]  Since 1935 the same is true for ground water.  The owner of land has no right to drill a well and divert and beneficially use the water.[7]  Courts have long recognized this right of use, once perfected, as a property right entitled to the constitutional protection afforded to property rights.[8]  This property right may be conveyed separately by deed, or transferred by shares of stock, or if appurtenant to land, conveyed with the land.[9]

1.         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 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 past years of drought, 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.

2.         Beneficial Use

            “Beneficial use shall be the basis, the measure and the limit of all rights to use water in this state.”[10]  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.[11]  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 3 and 6 acre-feet of water per acre of land per year.  Only this much water may be beneficially used for irrigation of an acre of land.

3.         Abandonment and Forfeiture

            If there is a failure to use all or a portion of a water right for seven years, the right is subject to forfeiture.[12]  Water rights may also be abandoned, and, prior to 1939, water could be adversely possessed by seven years of adverse use of the water.[13] 

            In 2002, the Utah Legislature made substantial additions and revisions to the forfeiture statute, Utah Code Ann. § 73-1-4, in order to codify the partial forfeiture of a water right.  The forfeiture statute now specifies that “[w]hen an appropriator or the appropriator’s successor in interest abandons or ceases to use all or a portion of a water right for a period of seven years, the water right or the unused portion of that water right is subject to forfeiture . . . .”.[14]

            However, 2008 legislation added several protections against forfeiture.  Exceptions to forfeiture now include use of water under agreement or lease, situations where land is under a federal or state fallowing program, periods when water is not available from the natural system or due to priority, and water that is held for reasonable future needs by a public water supplier.[15] The forfeiture statute provides a 15-year statute of limitations/statute of repose for a judicial action declaring a forfeiture[16] and also provides that a proposed determination in a general determination bars a claim of forfeiture unless a timely objection has been filed in the general determination.[17]

            While there are now a number of exemptions to forfeiture, a water user may still file for approval for nonuse.[18]  No longer is the water user required to state the last date of use when filing an application for nonuse.


            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 entitled “Water and Irrigation.”  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 Division of Water Rights, formally known as the State Engineer’s Office.[19]  The State Engineer, currently Kent L. Jones, is the director of the Division of Water Rights in the Department of Natural Resources.[20]

          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.[21] 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.[22]

       In addition to appropriation,[23] the State Engineer is also responsible for general adjudications, where the rights in an entire drainage are determined by court decree,[24] distribution of water,[25] dam safety,[26] and regulating water well drillers,[27] stream alterations,[28] and geothermal power,[29] and enforcement.[30] In many drainages that 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 2002, the Legislature enacted a new section, codified as 73-3-3.5, dealing with change applications for water rights in the form of mutual water company shares.  This legislation was designed to provide particulars to the reasonable standard enunciated in East Jordan Irrigation Co. v. Morgan, 860 P.2d 310 (Utah 1993), in which the Utah Supreme Court, reversing long-established practice, held that a shareholder of a mutual water company could not, without the company’s consent, change the place or nature of use or point of diversion for his aliquot share of the water company’s water right.

       Section 73-3-3.5(2) requires that a shareholder seeking to change the point of diversion, place of use, or purpose of use of that shareholder’s proportionate share of water must submit a written request to the water company detailing the requested change and providing any other information the water company may reasonably require in order to evaluate the request.  In addition, the shareholder must agree to continue to pay all applicable share assessments going forward, although “applicability” is undefined.

       Subsection (3)(a) requires the water company to provide written notice of its decision on the request within 120 days of receipt.  The water company must either (i) approve the change, (ii) approve the change with conditions, or (iii) deny the change request in its entirety.  If the water company fails to respond within 120 days, its failure is considered to be a denial of the request.

       Subsection (3)(e) gives a number of factors the water company “may” consider in evaluating a request for a change, including increased costs to the company or its shareholders, interference with the water company’s ability to distribute or manage its water rights, impairments to the rights of other shareholders or enlargement of the rights of the requesting shareholder, the legality of the proposed change and “the cumulative effects that the approval of the change application may have on other shareholders or water company operations.”  In addition, the water company can require that all costs associated with the change application be paid by the shareholder, and the shareholder must be current and must keep current with all assessments on the shares involved.

       If the water company approves the requested change, both the shareholder and the company must sign the change application and the water company must give its written assent to the change.  If the water company unreasonably withholds approval or imposes unreasonable conditions on its approval of the requested change, or withdraws its approval as long as the shareholder substantially satisfies the conditions under which the approval was granted, the shareholder has a cause of action against the company.  Interestingly, the statute requires that the water company and the shareholder mediate their dispute unless both parties decline.  If mediation is declined, the prevailing party to the action is entitled to costs of court and attorneys’ fees.

       In addition, the State Engineer maintains public records of water rights applications, deeds, and assignments.[31]  Working under the State Engineer are subordinate engineers over appropriations, distribution and adjudications, dam safety, and special investigations.

       The State Engineer has divided Utah into seven regions with regional engineers overseeing each region.  Regional offices are located in Logan, Vernal, Price, Richfield and Cedar City.  The engineer for each region is known as the Regional or 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 W. North Temple, Suite 220, P.O. Box 146300, Salt Lake City, Utah  84114-6300, telephone number 801-538-7240.  The Division of Water Rights also has an excellent web site at

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 applications, 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.[32]  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.[33]  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 right is located.[34]  The review by the District Court of an informal hearing is de novo.[35]

       However, approval of an application 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 been diverted and put to beneficial use must be filed with the State Engineer within the time limit contained in approval of the application, or an extension maybe sought upon a showing of diligent progress.[36] Only a licensed engineer may submit the Proof of Beneficial Use.  After a Proof of Beneficial Use is filed, examined, and accepted by the State Engineer, a Certificate of Beneficial Use be issued by the State Engineer.  This is the final step in obtaining and perfecting a water right.


            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 may be assigned.  Except for shares of stock in an irrigation or water company a water right is transferred by deed “in substantially the same manner as real estate.”[37]  A deed conveying water rights must be recorded both in the county where the point of diversion is located as well as the county where the water is used.[38]  Failure to record a water right deed could result in the loss of the water right.[39]  As of July 1, 2011, a water rights addendum form may be attached to a deed for land.

            The first step in any transfer of water rights, as in land, is determining the status of the title.  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.[40]  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 been lost through nonuse 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 that were formerly appurtenant to land may be discovered by checking this index.

            A second 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 of the State Engineer should always be carefully reviewed.  In 2000, a procedure was put into place requiring that all transfers of water rights be accompanied by a Report of Conveyance.  This will help keep the State Engineer’s files up to date.

            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 in a particular drainage.  For example, the Weber River drainage 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.

            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, if accurate, should 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.[41]

            When a share of stock is transferred it is important that the original certificate is located and endorsed on the reverse by the stock holder.  That certificate is then submitted to the company secretary and a new certificate in the name of the new owner is issued by the company.  If the original certificate has been lost or destroyed, most companies have a policy that requires, at a minimum, a lost share affidavit be executed by the owner of the lost share indemnifying and holding harmless the company should the lost share certificate surface at a later date.  In 2011, the Utah Legislature passed legislation to create a uniform procedure for replacement of lost shares.[42]

            Finally, title insurance for water rights has recently become available.  A standard exception in land title insurance policies has long excluded water rights from coverage under land title insurance protection.  Water title insurance is currently available from First American Title Insurance Company.  Also, there is an important water title researcher who works in Utah and surrounding states.  Rod Dean of the Water Title Guy, LLC can be reached at (801) 300-0755 or by email:


       As mentioned above, Utah has a general 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[43] 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 Title 73, Chapter 4 of the Utah Code.  The primary purpose of general adjudication is to fix every appropriator’s rights and priority.[44]  Another purpose is to bring security and certainty to water rights.[45]  This allows subsequent purchasers to be able to review and rely upon a permanent record of existing rights.[46]

       Once a general adjudication is commenced, the procedure followed in statutory general adjudications is for the State Engineer to first identify and prepare a list of claimants.[47]  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.[48]  These maps show all points of diversion and irrigated acreage, as well as 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.[49]  The summons is also published for five consecutive weeks.  Those asserting claims must then file what is known as a Water User’s Claim.[50]  This claim acts as a responsive pleading in the general adjudication.[51]

       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 period of use, location of the point of diversion, nature of diverting works, date when diverting works were built and water first used, and such other facts that the State Engineer may require on a form furnished by him under direction of the court.[52]  Failure to file a Water User’s Claim within the time prescribed shall cause that person to be forever barred and stopped from subsequently asserting any rights, and that person shall be deemed to have forfeited all rights to the use of water.[53]

       After receiving all Water User’s’ Claims, the State Engineer then prepares a proposed determination of water rights of all water users in the drainage or sub-drainage, which is served on water users and filed in court.[54]  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.[55]

       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 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.  The State Engineer and his legal counsel are currently prosecuting pending adjudications in reverse chronological order.


            In most development, water for drinking or culinary purposes is provided by a public water provider.  However there are a number of different types of public water providers.  Public water providers fall into two general categories: governmental and non-governmental.

            Governmental water providers include municipalities, both within and outside their boundaries;[56] special districts;[57] and conservancy districts.[58]  Non-governmental water providers are most usually nonprofit mutual companies serving in their stockholders,[59] with a few for profit water companies regulated by the Utah Public Service Commission.[60]  Recently, the Utah State Engineer changed his practice to allow nongovernmental public water suppliers to hold water rights for municipal use.

            Typically, governmental and non-governmental public water providers require those new customers desiring service to dedicate water rights, pay a fee, or both.  The concept of requiring dedication of water rights in the context of annexation to a municipality was upheld by the Utah Supreme Court in 1975.[61]


       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 law will help the reader to recognize water law issues which would otherwise go unnoticed.















4836-9202-8175, v.  2

[1] Indeed, the Utah Supreme Court has compared a drop of water to a drop of gold.  Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 15, 9 P.3d 762; Carbon Canal Co. v. Sanpete Water Users Ass’n, 425 P.2d 405, 407 (Utah 1967).

[2] See, e.g., Utah Code Ann. § 73-1-10 (requiring 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); Utah Dep’t of Transp. v. G. Kay, Inc., 2003 UT 40, ¶ 15, 78 P.3d 612 (affirming that a water right is a real property right).

[3] Utah Code Ann. § 73-1-2.

[4] See id. § 73-1-3.

[5] See J.J.N.P. Co. v. State, 655 P.2d 1133 (Utah 1982) (discussing the ownership issue).

[6] See Utah Code Ann. § 73-1-1.

[7] This concept is very different than that of riparian law followed in most eastern states.  Under riparian law, a landowner has the right of reasonable use of water found on the land.

[8] 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).

[9] The 1998 legislature amended Utah Code Ann. § 73-1-11 to broaden the water rights that may be appurtenant to land to include non-perfected water rights.  See Utah Code Ann. § 73-1-11.  Since the 1998 amendment went into effect, non-perfected water rights, such as approved applications, may be appurtenant to land.


[10] Id. § 73-1-3.

[11] In Utah, only the Division of Wildlife Resources, the Division of Parks and Recreation, and nonprofit fishing groups may hold an instream flow right.  Id. § 73-3-30.

[12] Id. § 73-1-4(2).

[13] See id. § 73-1-4; id. § 73-3-1; see also Otter Creek Reservoir Co. v. New Escalante Irrigation Co., 2009 UT 16, 203 P.3d 1015.

[14] Utah Code Ann. § 73-1-4(2)(a).

[15] Id. § 73-1-4(2)(e).

[16] Id.§ 73-1-4(c)(i).

[17] Id. § 73-1-4(c)(iv).

[18] See id. § 73-1-4(b).

[19] See id. § 73-2-1.2.

[20] See id.

[21] Id. § 73-3-1.

[22] Id. § 73-5-13; see also E. Jordan Irrigation Co. v. Morgan, 860 P.2d 310 (Utah 1993) (discussing the two methods to appropriate water).

[23] Utah Code Ann., Title 73, Chapter 3.

[24] Id. Title 73, Chapter 4.

[25] Id. Title 73, Chapter 5.

[26] Id. Title 73, Chapter 5a.

[27] Id. §§ 73-3-25 to -26.

[28] Id. § 73-3-29.

[29] Id. Title 73, Chapter 22.

[30] Id. §§ 73-3-25 to -28.

[31] See id. § 73-1-10; id. § 73-2-11; id. § 73-3-18.

[32] See id. § 73-3-7.

[33] Id. Title 63G, Chapter 4.

[34] See id. §§ 63G-4-401, -402.   A Utah Supreme Court opinion involving the Washington County Water Conservancy District held that a party must have standing to assert forfeiture in court.  Washington County Water Conservancy Dist. v. Morgan, 2003 UT 58, 82 P.3d 1125.

[35] Utah Code Ann. § 63G-4-402.  See Badger v. Brooklyn Canal Co., 966 P.2d 844 (Utah 1998) 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.

[36] Utah Code Ann. § 73-3-12.

[37] See id. § 73-1-10.  The transfer of right to use water evidenced by shares of stock in a corporation is accomplished by following the procedure for the transfer of securities set forth in Title 70A, Chapter 8, Uniform Commercial Code – Investment Securities.

[38] See id. §73-1-10.

[39] See Haik v. Sandy City, 2011 UT 26 (2011), in which the Utah Supreme Court upheld a first recorded deed over a later recorded deed to the same water right, even though the later recorded deed was executed prior to the first recorded deed.

[40] Utah Code Ann. § 73-1-11. This statute was amended in 1998 to broaden appurtenant water to include unperfected water rights that otherwise meet the elements of appurtenancy.


[41] The Utah Supreme Court has held that the corporate structure of mutual water companies prohibits individual shareholders from filing a Change Application without the water company's approval.  E. Jordan Irrigation Co. v. Morgan, 860 P.2d 310 (Utah 1993).

[42] See Utah Code Ann. § 70A-8-409.1.

[43] 43 U.S.C. § 666.

[44] See Spanish Fork Westfield Irrigation Co. v. District Court, 104 P.2d 353, 363 (Utah 1940).

[45] See Green River Adjudication v. United States, 404 P.2d 251, 252 (Utah 1965).

[46] See Provo River Water Users’ Ass’n v. Morgan, 857 P.2d 927, 935 (Utah 1993); Mammoth Canal & Irrigation Co. v. Burton, 259 P. 408, 410-11 (Utah 1927).

[47] Utah Code Ann. § 73-4-3.

[48] Id.

[49] Id. § 73-4-4.

[50] Id. § 73-4-5.

[51] See Huntsville Irrigation Ass'n v. District Court, 270 P. 1090, 1092 (Utah 1928).

[52] Utah Code Ann. § 73-4-5.

[53] Id. § 73-4-9.

[54] Id. § 73-4-11; see also Eden Irrigation Co. v. District Court, 211 P. 957, 959 (Utah 1922).

[55] See Jensen v. Morgan, 844 P.2d 287, 290-91 (Utah 1992).

[56] See Utah Code Ann. Title 10, Chapter 8.

[57] See id. Title 17D, Chapter 1.

[58] See id. Title 17D, Chapter 3.

[59] Nonprofit mutual water companies are governed by the Utah Revised Nonprofit Corporation Act.  See id. Title 16, Chapter 6a.

[60] See generally id. Title 54.

[61] Child v. City of Spanish Fork, 538 P.2d 184 (Utah 1975)