Oh, This Will Be LOTS Of Fun - Utah Wants To Revise Fundamental Doctrine Of Western Water Law

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The “first in time, first in right” doctrine, also known as “prior appropriation,” stems from the 1850s California Gold Rush, whose miners claimed stakes along rivers or streams and diverted the water as they needed it. Older claims, no matter where they were on the waterway, had priority rights to use the water. In 1928, California amended its constitution to include “beneficial use,” requiring those who claimed rights to water to make use of it. Today, Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming all abide by the doctrine.

In the past, the doctrine prevented conflicts over water, especially for people coming from the Eastern United States, where water was plentiful and so-called “riparian rights” are related to land ownership along a waterway. But it also created an entanglement of rights, and as more people moved into the West, putting a strain on water use, this entanglement has become a real obstacle to conservation. In these states, the right to use a certain amount of water is granted by date. Those with the oldest water rights have first claims to the water, no matter where they are on the river—as long as they continue to use it. If you don’t use water, you can lose your right to it, which hardly incentivizes conservation.

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Utah is primarily tackling the problem through its Agricultural Water Optimization Program, which awards farmers funding to become more efficient with their water use. Utah’s new initiatives are meant to address stress and uncertainty for farmers. But on a larger scale, these initiatives are aiming to thwart, or at least delay, catastrophic water shortages in the region. If water consumption in the region continues at the current rate, Food and Water Watch warns, food prices, energy systems, and ecosystems could be impacted indefinitely. At Ferry’s farm, for example, the fields are water optimized. He has thousands of feet of pipeline, drip irrigation, and GPS monitoring. He’s measuring his water use and the flow rate. In 2024, 190 farms received more than $20 million in funds to improve their on-farm practices. Each farm received an average of approximately $106,000. Forty-five irrigation companies received approximately $22 million to improve their practices.

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The Agricultural Water Optimization Program was passed in 2023. Along with acquiring funding to improve water practices, farmers can also file a “change application” to lease out any “saved water” through a water marketplace. “It kind of gives an incentive to save that consumptive use and potentially be able to lease it or do something else with it,” said Utah State Engineer Teresa Wilhelmsen. Wilhelmsen estimates that around 400 farmers applied for grants this year. However, not all farmers are jumping on board. “As you can imagine, there’s a fear of the state engineer with some folks,” she said, because the state engineer is often the one enforcing water rights and making sure people do not pull more water than they should. Peterson describes her as “the lead water cop.” This is why she is trying to frame these programs as opportunities to “tune up your water rights.”

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https://civileats.com/2024/11/05/utah-tries-a-new-water-strategy/