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[Utah Code Table of Contents]
[TITLE 73. Table of Contents]
73-1-1 Waters declared property of public.
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.
1953
73-1-2 Unit of measurement - Of flow - Of volume.
The standard unit of measurement of the flow of water
shall be the discharge of one cubic foot per second of time,
which shall be known as a second-foot; and the standard unit
of measurement of the volume of water shall be the acre-foot,
being the amount of water upon an acre covered one foot deep,
equivalent to 43,560 cubic feet.
1953
73-1-3 Beneficial use basis of right to use.
Beneficial use shall be the basis, the measure and the
limit of all rights to the use of water in this state.
1953
73-1-4 Reversion to the public by abandonment or forfeiture for nonuse within five years - Extension of time.
(1) In order to further the state policy of securing the maximum use and benefit of its scarce water resources, a person entitled to the use of water has a continuing obligation to place all of a water right to beneficial use. The forfeiture of all or part of any right to use water for failure to place all or part of the water to beneficial use makes possible the allocation and use of water consistent with long established beneficial use concepts. The provisions of Subsections (2) through (6) shall be construed to carry out the purposes and policies set forth in this Subsection (1).
(2) As used in this section, "public water supply entity" means an entity that supplies water as a utility service or for irrigation purposes and is also:
(a) a municipality, water conservancy district, metropolitan water district, irrigation district created under Section 17A-2-701.5 , or other public agency;
(b) a water company regulated by the Public Service Commission; or
(c) any other owner of a community water system.
(3) (a) When 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 five years, the water right or the unused portion of that water right ceases and the water reverts to the public, unless, before the expiration of the five-year period, the appropriator or the appropriator's successor in interest files a verified nonuse application with the state engineer.
(b) (i) A nonuse application may be filed on all or a portion of the water right, including water rights held by mutual irrigation companies.
(ii) Public water supply entities that own stock in a mutual water company, after giving written notice to the water company, may file nonuse applications with the state engineer on the water represented by the stock.
(c) (i) A water right or a portion of the water right may not be forfeited unless a judicial action to declare the right forfeited is commenced within 15 years from the end of the latest period of nonuse of at least five years.
(ii) If forfeiture is asserted in an action for general determination of rights in conformance with the provisions of Chapter 4, Determination of Water Rights, the 15-year limitation period shall commence to run back in time from the date the state engineer's proposed determination of rights is served upon each claimant.
(iii) A decree entered in an action for general determination of rights under Chapter 4, Determination of Water Rights, shall bar any claim of forfeiture for prior nonuse against any right determined to be valid in the decree, but shall not bar a claim for periods of nonuse that occur after the entry of the decree.
(iv) A proposed determination by the state engineer in an action for general determination of rights under Chapter 4, Determination of Water Rights, shall bar any claim of forfeiture for prior nonuse against any right proposed to be valid, unless a timely objection has been filed within the time allowed in Chapter 4, Determination of Water Rights.
(d) The extension of time to resume the use of that water may not exceed five years unless the time is further extended by the state engineer.
(e) The provisions of this section are applicable whether the unused or abandoned water or a portion of the water is permitted to run to waste or is used by others without right with the knowledge of the water right holder, provided that the use of water pursuant to a lease or other agreement with the appropriator or the appropriator's successor shall be considered to constitute beneficial use.
(f) The provisions of this section shall not apply:
(i) to those periods of time when a surface water source fails to yield sufficient water to satisfy the water right, or when groundwater is not available because of a sustained drought;
(ii) to water stored in reservoirs pursuant to an existing water right, where the stored water is being held in storage for present or future use; or
(iii) when a water user has beneficially used substantially all of a water right within a five-year period, provided that this exemption shall not apply to the adjudication of a water right in a general determination of water rights under Chapter 4, Determination of Water Rights.
(g) Groundwater rights used to supplement the quantity or quality of other water supplies may not be subject to loss or reduction under this section if not used during periods when the other water source delivers sufficient water so as to not require use of the supplemental groundwater.
(4) (a) The state engineer shall furnish an application requiring the following information:
(i) the name and address of the applicant;
(ii) a description of the water right or a portion of the water right, including the point of diversion, place of use, and priority;
(iii) the date the water was last diverted and placed to beneficial use;
(iv) the quantity of water;
(v) the period of use;
(vi) the extension of time applied for;
(vii) a statement of the reason for the nonuse of the water; and
(viii) any other information that the state engineer requires.
(b) Filing the application extends the time during which nonuse may continue until the state engineer issues his order on the nonuse application.
(c) (i) Upon receipt of the application, the state engineer shall publish a notice of the application once a week for two successive weeks in a newspaper of general circulation in the county in which the source of the water supply is located and where the water is to be used.
(ii) The notice shall:
(A) state that an application has been made; and
(B) specify where the interested party may obtain additional information relating to the application.
(d) Any interested person may file a written protest with the state engineer against the granting of the application:
(i) within 20 days after the notice is published, if the adjudicative proceeding is informal; and
(ii) within 30 days after the notice is published, if the adjudicative proceeding is formal.
(e) In any proceedings to determine whether the application for extension should be approved or rejected, the state engineer shall follow the procedures and requirements of Title 63, Chapter 46b, Administrative Procedures Act.
(f) After further investigation, the state engineer may approve or reject the application.
(5) (a) Nonuse applications on all or a portion of a water right shall be granted by the state engineer for periods not exceeding five years each, upon a showing of reasonable cause for nonuse.
(b) Reasonable causes for nonuse include:
(i) demonstrable financial hardship or economic depression;
(ii) the initiation of recognized water conservation or efficiency practices, or the operation of a groundwater recharge recovery program approved by the state engineer;
(iii) operation of legal proceedings;
(iv) the holding of a water right or stock in a mutual water company without use by any public water supply entity to meet the reasonable future requirements of the public;
(v) situations where, in the opinion of the state engineer, the nonuse would assist in implementing an existing, approved water management plan;
(vi) situations where all or part of the land on which water is used is contracted under an approved state agreement or federal conservation fallowing program;
(vii) the loss of capacity caused by deterioration of the water supply or delivery equipment if the applicant submits, with the application, a specific plan to resume full use of the water right by replacing, restoring, or improving the equipment; or
(viii) any other reasonable cause.
(6) (a) Sixty days before the expiration of any extension of time, the state engineer shall notify the applicant by registered mail or by any form of electronic communication through which receipt is verifiable, of the date when the extension period will expire.
(b) Before the date of expiration, the applicant shall either:
(i) file a verified statement with the state engineer setting forth the date on which use of the water was resumed, and whatever additional information is required by the state engineer; or
(ii) apply for a further extension of time in which to resume use of the water according to the procedures and requirements of this section.
(c) Upon receipt of the applicant's properly completed, verified statement, the state engineer shall conduct investigations necessary to verify that beneficial use has resumed and, if so, shall issue a certificate of resumption of use of the water as evidenced by the resumed beneficial use.
(7) The appropriator's water right or a portion of the water right ceases and the water reverts to the public if the:
(a) appropriator or the appropriator's successor in interest fails to apply for an extension of time;
(b) state engineer denies the nonuse application; or
(c) appropriator or the appropriator's successor in interest
fails to apply for a further extension of time.
2003
73-1-4.5 Authorization for water companies to allocate water rights lost by forfeiture or nonuse - Redemption and retirement of water shares.
(1) (a) If a water right, to which a mutual water company holds title, ceases or is lost due to forfeiture or abandonment for lack of beneficial use, in whole or in part, the water company shall, through procedures consistent with this section, and as defined in the company's articles of incorporation or bylaws, apportion the loss to each stockholder whose failure to make beneficial use caused the loss of the water right.
(b) The water company shall make an apportionment if the Utah Division of Water Rights or a court of proper jurisdiction makes a final decision that a loss has occurred.
(c) The water company shall also reduce the amount of water provided to the shareholder in proportion to the amount of the lost water right during an appeal of a decision that reduced the company water rights, unless otherwise ordered by a court of proper jurisdiction.
(d) The water company may take any action under this Subsection (1), whether the loss occurred:
(i) under Utah Code Annotated Section 73-1-4 , including losses that occur as part of a general determination under Title 73, Chapter 4, Determination of Water Rights; or
(ii) through any other decision by a court of proper jurisdiction.
(2) (a) If the water company apportions a water right under Subsection (1), a sufficient number of shares to account for the water right lost, including necessary transport or "carrier water" losses, shall be treated by the water company as shares redeemed by the company from the stockholder responsible for the loss.
(b) The number of shares owned by that shareholder shall be reduced accordingly on the records of the company.
(c) Upon the redemption, the authorized shares of the company shall be reduced by the amount of shares that were redeemed under this Subsection (2).
(3) The redemption and retirement under this section of
shares belonging to a stockholder does not relieve the stockholder
of liability for unpaid assessments on the stock or debts
the shareholder may owe to the water company.
2002
73-1-5 Use of water a public use.
The use of water for beneficial purposes, as provided
in this title, is hereby declared to be a public use.
1953
73-1-6 Eminent domain - Purposes.
Any person shall have a right of way across and upon public,
private and corporate lands, or other rights of way, for
the construction, maintenance, repair and use of all necessary
reservoirs, dams, water gates, canals, ditches, flumes, tunnels,
pipelines and areas for setting up pumps and pumping machinery
or other means of securing, storing, replacing and conveying
water for domestic, culinary, industrial and irrigation purposes
or for any necessary public use, or for drainage, upon payment
of just compensation therefor, but such right of way shall
in all cases be exercised in a manner not unnecessarily to
impair the practical use of any other right of way, highway
or public or private road, or to injure any public or private
property.
1953
73-1-7 Enlargement for joint use of ditch.
When any person desires to convey water for irrigation
or any other beneficial purpose and there is a canal or ditch
already constructed that can be used or enlarged to convey
the required quantity of water, such person shall have the
right to use or enlarge such canal or ditch already constructed,
by compensating the owner of the canal or ditch to be used
or enlarged for the damage caused by such use or enlargement,
and by paying an equitable proportion of the maintenance
of the canal or ditch jointly used or enlarged; provided,
that such enlargement shall be made between the 1st day of
October and the 1st day of March, or at any other time that
may be agreed upon with the owner of such canal or ditch.
The additional water turned in shall bear its proportion
of loss by evaporation and seepage.
1953
73-1-8 Duties of owners of ditches - Safe condition - Bridges.
The owner of any ditch, canal, flume or other watercourse
shall maintain the same in repair so as to prevent waste
of water or damage to the property of others, and is required,
by bridge or otherwise, to keep such ditch, canal, flume
or other watercourse in good repair where the same crosses
any public road or highway so as to prevent obstruction to
travel or damage or overflow on such public road or highway,
except where the public maintains or may hereafter elect
to maintain devices for that purpose.
1953
73-1-9 Contribution between joint owners of ditch or reservoir.
When two or more persons are associated in the use of
any dam, canal, reservoir, ditch, lateral, flume or other
means for conserving or conveying water for the irrigation
of land or for other purposes, each of them shall be liable
to the other for the reasonable expenses of maintaining,
operating and controlling the same, in proportion to the
share in the use or ownership of the water to which he is
entitled.
1953
73-1-10 Conveyance of water rights - Deed - Exceptions - Filing and recording of deed - Report of water right conveyance.
(1) (a) A water right, whether evidenced by a decree, a certificate of appropriation, a diligence claim to the use of surface or underground water, or a water user's claim filed in general determination proceedings, shall be transferred by deed in substantially the same manner as is real estate.
(b) The deed must be recorded in the office of the recorder of the county where the point of diversion of the water is located and in the county where the water is used.
(c) A recorded deed of a water right shall from the time of its recording in the office of the county recorder constitute notice of its contents to all persons.
(2) The right to the use of water evidenced by shares of stock in a corporation shall be transferred in accordance with the procedures applicable to securities set forth in Title 70A, Chapter 8, Uniform Commercial Code - Investment Securities.
(3) (a) To update water right ownership on the records of the state engineer, a water right owner shall submit a report of water right conveyance to the state engineer.
(b) The report of water right conveyance shall be on forms provided by the state engineer.
(c) The report shall be prepared by:
(i) or prepared under the direction of and certified by, any of the following persons licensed in Utah:
(A) an attorney;
(B) a professional engineer;
(C) a title insurance producer; or
(D) a professional land surveyor; or
(ii) the water right owner as authorized by rule of the state engineer.
(d) The filing and processing of a report of water right conveyance with the state engineer is neither an adjudication of water right ownership nor an opinion as to title or validity of the water right.
(e) The state engineer shall adopt rules that specify:
(i) the information required in a report of water right conveyance; and
(ii) the procedures for processing the reports.
2003
73-1-11 Appurtenant water rights pass to grantee of land - Exceptions - Conveyance of a portion of irrigated land - Appurtenant water rights - Evidence - Where appurtenant - Partial conveyances of water and land.
(1) A water right appurtenant to land shall pass to the grantee of the land unless the grantor:
(a) specifically reserves the water right or any part of the water right in the land conveyance document;
(b) conveys a part of the water right in the land conveyance document; or
(c) conveys the water right in a separate conveyance document prior to or contemporaneously with the execution of the land conveyance document.
(2) (a) If the water right has been exercised in irrigating different parcels of land at different times, it shall pass to the grantee of a parcel of land on which the water right was exercised next preceding the time the land conveyance was executed.
(b) Subsection (2)(a) applies only to land conveyances executed before May 4, 1998.
(3) In any conveyance, the grantee assumes the obligation for any unpaid assessment.
(4) The right to the use of water evidenced by shares of stock in a corporation shall not be deemed appurtenant to land.
(5) (a) This Subsection (5) governs land conveyances executed on or after May 4, 1998, and has no retrospective operation.
(b) For purposes of land conveyances only, a water right evidenced by any of the following documents is appurtenant to land:
(i) a decree entered by a court;
(ii) a certificate issued under Section 73-3-17 ;
(iii) a diligence claim for surface or underground water filed pursuant to Section 73-5-13 ;
(iv) a water user's claim executed for general determination of water rights proceedings conducted pursuant to Title 73, Chapter 4, Determination of Water Rights, or pursuant to Section 73-3-16 ;
(v) an approval for an application to appropriate water issued under Section 73-3-10 ;
(vi) an approval for an application to permanently change the place of use of water issued under Section 73-3-10 ; or
(vii) an approval for an application to exchange water issued under Section 73-3-20 .
(c) For purposes of land conveyances only, the land to which a water right is appurtenant is the authorized place of use of water as described in the:
(i) decree;
(ii) certificate;
(iii) diligence claim;
(iv) water user's claim;
(v) approved application to appropriate water;
(vi) approved application to permanently change the place of use of water; or
(vii) approved exchange application.
(d) If a grantor conveys part of the water right in a land conveyance document pursuant to Subsection (1)(b), the portion of the water right not conveyed is presumed to be reserved by the grantor.
(e) If the land conveyed constitutes only a portion of
the authorized place of use for the water right, the amount
of the appurtenant water right that passes to the grantee
shall be proportionate to the conveyed portion of the authorized
place of use.
1998
73-1-12 Failure to record - Effect.
Every deed of a water right which shall not be recorded
as provided in this title shall be void as against any subsequent
purchaser, in good faith and for a valuable consideration,
of the same water right, or any portion thereof, where his
own deed shall be first duly recorded.
1953
73-1-13 Corporations - One water company may own stock in another.
Any irrigation or reservoir company incorporated and existing
under the laws of this state may purchase or subscribe for
the capital stock of any other similar corporation which
at the time of such purchase or subscription shall be or
is about to be incorporated; provided, that such purchase
or subscription shall be made only when permitted by the
articles of incorporation, and such corporations are hereby
permitted and authorized to amend their articles of incorporation
so as to authorize such purchase or subscription.
1953
73-1-14 Interfering with waterworks or with apportioning official - Penalty and liability.
(1) Any person, who in any way unlawfully interferes with, injures, destroys or removes any dam, head gate, weir, casing, valve, cap or other appliance for the diversion, apportionment, measurement or regulation of water, or who interferes with any person authorized to apportion water while in the discharge of his duties, is guilty of a crime punishable under Section 73-2-27 .
(2) Any person who commits an act defined as a crime under this section is also liable in a civil action for damages or other relief to any person injured by that act.
(3) (a) A civil action under this section may be brought independent of a criminal action.
(b) Proof of the elements of a civil action under this
section need only be made by a preponderance of the evidence.
2005
73-1-15 Obstructing canals or other watercourses - Penalties.
(1) Whenever any person has a right-of-way of any established type or title for any canal or other watercourse it shall be unlawful for any person to place or maintain in place any obstruction, or change of the water flow by fence or otherwise, along or across or in such canal or watercourse, except as where said watercourse inflicts damage to private property, without first receiving written permission for the change and providing gates sufficient for the passage of the owner or owners of such canal or watercourse. That the vested rights in the established canals and watercourse shall be protected against all encroachments. That indemnifying agreements may be entered as may be just and proper by governmental agencies.
(2) Any person violating this section is guilty of a crime punishable under Section 73-2-27 .
(3) Any person who commits an act defined as a crime under this section is also liable for damages or other relief and costs in a civil action to any person injured by that act.
(4) (a) A civil action under this section may be brought independent of a criminal action.
(b) Proof of the elements of a civil action under this
section need only be made by a preponderance of the evidence.
2005
73-1-16 Petition for hearing to determine validity - Notice - Service - Pleading - Costs - Review.
Where any water users' association, irrigation company, canal company, ditch company, reservoir company, or other corporation of like character or purpose, organized under the laws of this state has entered into or proposes to enter into a contract with the United States for the payment by such association or company of the construction and other charges of a federal reclamation project constructed, under construction, or to be constructed within this state, and where funds for the payment of such charges are to be obtained from assessments levied upon the stock of such association or company, or where a lien is created or will be created against any of the land, property, canals, water rights or other assets of such association or company or against the land, property, canals, water rights or other assets of any stockholder of such association or company to secure the payment of construction or other charges of a reclamation project, the water users' association, irrigation company, canal company, ditch company, reservoir company or other corporation of like character or purpose may file in the district court of the county wherein is situated the office of such association or company a petition entitled ".......... Water Users' Association" or ".......... Company," as the case may be, "against the stockholders of said association or company and the owners and mortgagees of land within the .......... Federal Reclamation Project." No other or more specific description of the defendants shall be required. In the petition it may be stated that the water users' association, irrigation company, canal company, ditch company, reservoir company or other corporation of like character and purpose has entered into or proposes to enter into a contract with the United States, to be set out in full in said petition, with a prayer that the court find said contract to be valid, and a modification of any individual contracts between the United States and the stockholders of such association or company, or between the association or company, and its stockholders, so far as such individual contracts are at variance with the contract or proposed contract between the association or company and the United States.
Thereupon a notice in the nature of a summons shall issue
under the hand and seal of the clerk of said court, stating
in brief outline the contents of said petition, and showing
where a full copy of said contract or proposed contract may
be examined, such notice to be directed to the said defendants
under the same general designations, which shall be deemed
sufficient to give the court jurisdiction of all matters
involved and parties interested. Service shall be obtained
(a) by publication of such notice once a week for three consecutive
weeks (three times) in a newspaper published in each county
where the irrigable land of such federal reclamation project
is situated, and (b) by the posting at least three weeks
prior to the date of the hearing on said petition of the
notice and a complete copy of the said contract or proposed
contract in the office of the plaintiff association or company,
and at three other public places within the boundaries of
such federal reclamation project. Any stockholder in the
plaintiff association or company, or owner, or mortgagee
of land within said federal reclamation project affected
by the contract proposed to be made by such association or
company, may demur to or answer said petition before the
date set for such hearing or within such further time as
may be allowed therefor by the court. The failure of any
persons affected by the said contract to answer or demur
shall be construed, so far as such persons are concerned
as an acknowledgment of the validity of said contract and
as a consent to the modification of said individual contracts
if any with such association or company or with the United
States, to the extent that such modification is required
to cause the said individual contracts if any to conform
to the terms of the contract or proposed contract between
the plaintiff and the United States. All persons filing demurrers
or answers shall be entered as defendants in said cause and
their defense consolidated for hearing or trial. Upon hearing
the court shall examine all matters and things in controversy
and shall enter judgment and decree as the case warrants,
showing how and to what extent, if any, the said individual
contracts of the defendants or under which they claim are
modified by the plaintiff's contract or proposed contract
with the United States. In reaching his conclusion in such
causes, the court shall follow a liberal interpretation of
the laws, and shall disregard informalities or omissions
not affecting the substantial rights of the parties, unless
it is affirmatively shown that such informalities or omissions
led to a different result than would have been obtained otherwise.
The Code of Civil Procedure shall govern matters of pleading
and practice as nearly as may be. Costs may be assessed or
apportioned among contesting parties in the discretion of
the trial court. Review of the judgment of the district court
by the Supreme Court may be had as in other civil causes.
1953
73-1-17 Borrowing from federal government authorized.
That irrigation companies, drainage districts, and irrigation
districts heretofore organized under the laws of the state
of Utah be and they are hereby authorized and empowered to
borrow money from the Reconstruction Finance Corporation,
organized pursuant to an Act of Congress of the United States,
or from any other governmental loaning agency or agencies
to aid them in refunding or refinancing their obligations
outstanding on the date of enactment by the Congress of the
United States of the Emergency Relief and Construction Act
of 1932 through the purchase and retirement of such obligations
at a discount, or otherwise, if such obligations were issued
in connection with irrigation and/or drainage projects of
such companies and/or districts, respectively, which are
self-liquidating in character, or where the loan can be repaid
by the applicant for such loan by assessment on the issued
and outstanding capital stock of the irrigation company,
or by assessment on the land or lands within the exterior
boundaries of the drainage district, or by assessments on
the lands and/or water allotted to lands within the exterior
boundaries of the irrigation district.
1953
73-1-18 Bonds issued - Interest - Lien.
The money so borrowed shall be evidenced by the bond or
bonds or other obligations of the irrigation companies, drainage
districts, or irrigation districts borrowing the same and
shall constitute and be secured by a first lien on the water
rights, canal rights and all assets of the irrigation companies,
and on all lands within the exterior boundaries of drainage
districts, and on all lands and/or water allotted to lands
within the exterior boundaries of the irrigation districts,
and shall bear such rate of interest and mature at such time
or times as the contracting parties may agree upon.
1953
73-1-19 State, agency, county, city or town - Authority of - To procure stock of irrigation or pipeline company - To bring its land within conservation or conservancy district.
The state of Utah, or any department, board or agency
thereof, and any county, city, or town, owning or having
control of land or improvements thereon which is in need
of a supply of water for such land or the improvements thereon,
or in need of facilities for conveyance of such water, is
authorized to subscribe for or purchase corporate stock of
irrigation companies, pipeline companies, or associations
and take the necessary steps to bring the land owned or controlled
by any of them within any conservation or conservancy district
formed or to be formed under the laws of the state of Utah
to procure such supply of water to all intents and purposes
as if an individual.
1953
