August 22, 2013
Utah Supreme Court
2013 UT 54 (Click here for full text of Opinion)
August 16, 2013
The Utah Supreme Court clarified rules pertaining to partial forfeiture and partial abandonment of water rights. The Court reasserted long-standing precedent that water rights may be partially forfeited through non-use. Utah Statutes apparently did not include partial forfeiture until 2002, but the Court cited to cases dating back to 1897 which at least implied that a portion of a water right may be lost through non-use. In 2002, a partial forfeiture provision was added to the Utah Code. The Court held that this amendment did not alter the Court’s previous rulings about partial forfeiture, but codified existing practice.
The Court also held that the Forfeiture Statute (§ 73-1-4(3) of the Utah Code) should be read in conjunction with the Beneficial Use Statute (§ 73-1-3, “Beneficial use shall be the basis, the measure and the limit of all rights to the use of water. . . “). If an appropriator fails to use material amounts of available water for the statutory period (five years), the right to the unused water is forfeited back to the public, and may be made available for appropriation by another user.
The Court clarified the physical causes exception, which provides that water rights will not be forfeited if the failure to use is due to reasons beyond the control of the appropriator, including reduced availability because of drought. The Court interpreted this exception in conjunction with the Beneficial Use Statute, and held that even in times of limited availability, failure to put available water to beneficial use may result in forfeiture. However, if water is not available for use, the rights will not be subject to forfeiture. The Court also pointed out that if an appropriator does not risk forfeiting a water right if substantially all of the water is used, and only a minimal portion is not used.
Abandonment of water rights is a common-law action rather than a statutory claim, and is separate and distinct from forfeiture. Whereas forfeiture is based on non-use for a defined period of time, abandonment has no time element, and is based on a showing of intent to relinquish a water right.
As part of its discussion on beneficial use, the Court recommended that the amount of water appropriated should be defined in terms of volume as well as flow, which is a better measure of beneficial use.