Western water law, including Utah water law, is based on the appropriation doctrine. In other words, to obtain a right to use water you must divert the water out of its natural course and consume it for beneficial purpose. A classic example is the diversion of water for irrigation of crops. The water is taken from its natural course and used for a purpose recognized as beneficial. The water, except for return flow, is consumed. In pioneer times this beneficial use of water was sufficient alone to obtain and maintain a water right. Later, approval was required from a state regulatory agency. However, changes in use of water as the West has changed, has modified this basic premise of water law.

The most striking example of the evolution of water law is the development of the concept of instream flow as a beneficial use. Every western state now recognizes instream flow as a beneficial use of water. That is under circumstances, which vary widely from state to state, water that is left in the stream and not diverted or otherwise used may still be recognized as a valid beneficial use of water and water appropriated for instream flow cannot be appropriated to other beneficial uses.

At first glance, instream flow appears to totally contradict the appropriation doctrine. First, there is no diversion from the natural water course. Second, the water is not consumed other than through natural evaporation and seepage in the water course. Third, providing habitat for fish riparian plants and animals or recreation, all frequent purposes for instream flows, are not traditional beneficial uses such as irrigation, domestic and industrial uses of water. However, most states including Utah have melded the concept of instream flow into their traditional appropriation schemes.

For example, Utah's instream flow law which is less than ten years old, is found at Utah Code Ann. § 73-3-3(11). This law, which is at the conservative end of the spectrum of instream flow laws, allows two specific state agencies, State Parks and Wildlife Resources, to obtain and hold instream flow water rights. It provides specific purposes for which an instream flow may be approved. These purposes are (1) propagation of fish; (2) public recreation; and (3) reasonable preservation or enhancement of the natural stream environment. None of these purposes are traditional beneficial uses of water. Obviously, there is no diversion of water from the natural stream bed. Nor is there any consumption of water.

However, except for the differences enumerated above, an instream flow right is obtained in the same way as any other right. Also, an instream flow right is provided the same standing as any other water right and the same legal protections. In fact, it may have even greater legal protection in that an instream flow right can never be forfeited through nonuse. Instream flow is in actuality a recognized and protected "nonuse" of water.

Another chapter of the evolution of water law in Utah may be written this winter by our legislature. A bill, similar to one introduced last year that did not pass, will be introduced during the 1995 legislative session. This bill, if passed into law, would create a new class of water from the effluent of sewer treatment plants. Proponents claim that this will allow such water, which can be used in secondary systems but cannot be discharged into streams because of ammonia content and ever stricter federal discharge standards, to be put to beneficial use.

Opponents point out that a basic premise of Utah water law is that once a return flow is placed back in the natural stream channel, it loses its identity as appropriated water and is subject to re-appropriation. Many senior water rights are comprised of return flows of junior upstream users. Many water users depend on effluent flow from sewage.

Whether water law in Utah should evolve to allow a new class of water will be determined by the legislature and perhaps later by the courts. Regardless of the outcome, water law, like other law, will continue to evolve and change to meet the changing needs of the people it serves.

Your comments and questions are welcome. The author may be reached at (801) 413-1600.

Back to Top