1. The History and Origin of Water Rights Law Norman K. Johnson Tooele County Water Users Workshop September 7, 2011 Tooele County Health Building Tooele, Utah

2. The History and Origin of Western Water Rights Law  In the arid West areas of water use were often located far from sources of supply  Miners built diversions and moved water where it was needed  Their “first in time/first in right” mining principles carried over to water rights  The doctrine of “prior appropriation” of water was born (mid to late 1800s)

3. The History and Origin of Western Water Rights Law  The federal government supported growth and development of this “new” water law  1866 Mining Act; 1877 Desert Land Act  The U.S. Supreme Court said these acts separated the land and water estates and directed that water rights be obtained under the laws of the territories and states

4. The History and Origin of Western Water Rights Law  Appropriative water rights became constitutionally protected property rights  Their basis is the beneficial use of water  They are defined by quantity, time, and nature of use and can be lost by non-use  Priority date is when beneficial use began  They are often transferable

5. The History and Origin of Water Rights Law in Utah  Some of the earliest off-stream diversions in the West were made in Utah Territory  In some cases, very early on in Utah history, to provide for orderly settlement, the right to use water from a stream was recognized in a particular individual  Prior appropriation principles were followed otherwise

6. The History and Origin of Water Rights Law in Utah  Water rights were acquired by beneficial use  Disputes were handled in probate courts  In 1897 Office of State Engineer was created  In 1903 a statute required that for surface water a person had to file an application to obtain a water right

7. The History and Origin of Water Rights Law in Utah  In 1935 a statute required an application to obtain groundwater right  Older rights, established before the application requirements (diligence claims), can still be recognized  After 1935 (and to this day) establishment of a water right today requires:  An application on a State Engineer form

8. The History and Origin of Water Rights Law in Utah  Advertisement/Possible Protest  State Engineer Decision  Approval/Rejection  Approval = time to put water to beneficial use  Completed beneficial use = proof filed  Proof = verification of use/certificate issued  Rejection = opportunity for state court de novo review

9. The History and Origin of Water Rights Law in Utah  By 1919 the general adjudication statutes were in place and within a few years several large adjudications began  These comprehensive legal actions, intended to define and decree all rights to use water within a certain area, continue to this day  Historic characteristics also continue

10. The History and Origin of Water Rights in Utah  While Utah water law continues to evolve, the requirements for a water right haven’t change much since 1903:  Defined nature & extent of beneficial use  Priority date  Defined quantity of use (by flow rate or volume)  Defined point of diversion and water source  Specified place of beneficial use

11. The History and Origin of Water Rights in Utah  Questions?