Rural Water - Quarter 2, 2008 - (Page 17) to underground sources, complicating the process a great deal. Not only did the effect of one well upon another have to be taken into consideration when approving a new right, but also the potential effect upon surface water and spring sources. In addition, many lower-priority surface rights were allowed to be transferred to underground sources, making them more dependable. The result has been that the vast majority of Utah’s small drinking water systems now rely upon underground water for their source of drinking water. Through time, farms lying on the outskirts of cities and towns develop into subdivisions, placing a larger demand upon drinking water systems. At the same time, growth that results in greater density within municipal boundaries also increases the demand. While the water used by the farm may be acquired by the drinking water system to offset the increased demand, this is not always the case. Often the farmer transfers the water right to another piece of property, thereby enjoying the profits from the subdividing of the first piece of ground while continuing to farm on the second. In order to meet increasing demands and to have sufficient water for future demands, public drinking water systems have traditionally purchased, with public funds, water rights that become available in their area. This water is generally held “for future public need” and not put to beneficial use. Utah water right law allows a governmental public drinking water system to hold water for future public use for a period not to exceed 50 years, as long as a non-use permit is filed every five years. A private individual, on the other hand, may only hold a water right in non-use for five years. If the right is not put to beneficial use within the fiveyear period, the right is forfeited. This system would seem to have solved the need for water systems to plan for the future and hold needed water for future use. However, several factors have resulted in this system no longer fulfilling its intended need: 1. Some rights acquired by governmental public drinking water systems are nearing their 50-year limit. 2. Many small governmental public drinking water systems, because of insufficient resources, have failed to file their non-use permits every five years. The non-filing results in that water being subject to forfeiture. 3. Non-governmental public drinking water systems, private nonprofit and private for-profit (remember the mutual water companies discussed above?), have the same need to plan for growth and yet are treated the same as any private individual – only being allowed to hold water in nonuse for five years. 4. Public drinking water systems need redundancy in their water sources to be prepared for higher-than-normal peak demands or for use in emergencies. These redundant sources and their water rights often sit unused for a number of years or are expensive to run occasionally simply to prove use and protect the water right. Several years ago, the Rural Water Association of Utah, in concert with the Utah Association of Special Districts, the Utah League of Cities and Towns, the Utah Farm Bureau, the Utah Water Users Association and the Utah Association of Counties, formed the Utah Water Coalition. The impetus for the coalition was a need for state-supported water infrastructure funding and the thought that if these groups could stand together on an issue, their combined voice would command attention. The initial success of the coalition in securing the needed funding led to its becoming a permanent feature in Utah politics. The coalition annually drafts consensus legislation and supports or opposes other legislation introduced in the Utah legislative session (held from midJanuary through the first week of March each year). Like all coalitions, the group is loosely knit, and support of a given issue is not always unanimous. In 2007, the coalition agreed to take on the issue of water rights forfeiture as it applies to public drinking water systems, with introduction of the legislation targeted for the 2008 Utah legislative session. From April through November 2007, the coalition met, usually twice a month – one meeting consisting of the full coalition and the other of a working group to distill ideas and concepts to be presented at the next full coalition meeting. Early on, Rep. Patrick Painter, of Nephi, Utah, joined the group as the bill’s intended sponsor. (I’ve often wondered if he knew what he was getting himself into.) Numerous ideas were put forward and debated, with a final consensus being that all public drinking water systems – whether governmental or private – should be able to hold water rights unused without them being subject to forfeiture. Within this solution there were two huge changes to Utah water rights law – the recognition of private/public drinking water systems as having the same standing as governmental systems and the exemption from forfeiture which could be seen as against the concept of beneficial use. As the draft legislation was brought forward in Interim Legislative Committee meetings, it became apparent that those who opposed the bill would base their opposition on several points: 1. They believed the bill would create two separate classes of water rights – one for drinking water and one for agriculture. 2. They feared that the result of the bill would be the hoarding of water by cities and towns. 3. They felt that a small private system could be used by a private individual to hoard water, protect those rights and then speculate on the water rights. 4. They believed that the principle of beneficial use should apply to all water rights. >>18 The development of cities and towns in the intermountain West was tied to the availability of water. While Eastern cities tended to be built in proximity to transportation corridors (which included rivers), Western cities grew where water was available, and the transportation corridors followed. Second Quarter 2008 • 17
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