BY: PHILLIP E. MILLER

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

       Much like the last articles I have written about Wills and Trusts, another area of law that I practice, water rights, is not very well understood.  My clients will come to me with a water rights issue [updating title (report of conveyance) or doing a change application] and they will have a host of preconceived misnomers.  Often times I have to explain what their water rights are and are not and where they are derived.  Water law in Utah is fairly complex at first and prior experience is required. The first issue is title, then quantity, place of use, point of diversion and source, priority, and drainage.

There are two common ways for people to receive ownership of water, by water deed, or by appurtenance.  A water deed deeds a certain quantity of water to that person.  Appurtenance is where the water comes attached with the land being transferred and there is no reservation in the deed.  Deeds are recorded at the county recorder and then recorded at the Division of Water Rights as well.  The Division of Water Rights is the department that is tasked with managing the State’s water.  Often times when land and water is sold the deed is only recorded with the county recorder.  This can happen over and over with no title being updated through the division of water rights.  When the person who believes they own the water goes to do a change application or look up their water rights they are unable to find them or surprised to find the water is not in their name and never has been.  This is a common situation that is easily taken care of by an attorney, surveyor, engineer, or title insurance agency, so long as the chain of title is traceable and there have not been significant changes in the deeds description.

Once title is determined, quantity must be determined.  The water right is for a certain quantity of water, usually measured in acre feet or cubic feet per second.  Certain uses require certain amounts of water.  For instance, irrigation requires between 2 acre feet per irrigated acre up to 6 acre feet per irrigated acre and year round domestic use currently requires .45 acre feet.  Usually the deed to the water or the appropriating documents will have the quantity on their face.

Place of use is intuitive.  It is where the water is actually being used.  The Division of Water Rights keeps track of where all water is used.  Place of use becomes important when doing a report of conveyance.  If the deed description has been changed the place of use will help determine ownership of the water.

Point of diversion is where the water is taken from its source.  For instance where water is diverted from a creek, or where a well is located.  It differs from place of use in that a well is a single point but the water from the well may be used over several acres.  Point of diversion is important in determining the drainage the water is in and what location the water may be transferred to.  The source of the water is associated with the point of diversion.  Ground water, a well, a creek, or a spring, is often differentiated by being surface water or ground water.

All water rights have a priority date.  This date is important in times of shortage.  When there is not enough water to go around the priority date becomes critical.  As the water source dries up, the person with the first (earliest) priority date will lose their quantity of water last.  In other words you may have water in the creek on your property, but if your neighbor has an earlier priority date, even though he may be downstream, he is entitled to water before you get any.  In some instances the person with the earlier priority may take all of the water and the later priority user will get none.

Although there are several other considerations and I may get into them in a later article, the last consideration I will cover here is the drainage.  The state’s water is broken down into drainage areas.  For instance much of Utah County is area 51.  Water rights in this area will begin 51-####.  Water is generally not allowed to be transferred out of its area and can be further restricted to a specific drainage.  The precise determinations of drainages and water areas are beyond the scope of this article.

Hopefully this article has helped your understanding of water rights and the composition of a water right.  If you have further questions please set up an appointment and I would be happy to help you further whether it be simply gaining a broader understanding or helping you through a specific water rights issue.