Background

All Utah waters, including groundwater, are public property subject to use under the prior appropriation system.1 Historically, Utah recognized three categories of groundwater: water flowing in underground streams, underflow of surface streams, and percolating waters.2 Users could appropriate underground streams through diversion and beneficial use; surface stream underflow was subject to appropriation as a surface source; and percolating groundwater was deemed part of the soil owned by the landowner, and appropriable based on correlative rights.3 Utah struggled to distinguish these categories, and, in 1935, the Utah Supreme Court rejected the arbitrary distinction between ground and surface water, and declared the sources should be treated as one.4 Today, Utah manages ground and surface water conjunctively based on prior appropriation.5

Utah surface water is largely fed by snowmelt, resulting in variable supplies that meet demand certain times of the year, and then fail to meet demand in others.6 Water users tend to rely on surface water to meet regular demands and groundwater to fill gaps during peak use periods.7 Today, groundwater accounts for 24.9% of the state's total freshwater use.8 Approximately half of the groundwater withdrawn is used for agriculture.9 Utah groundwater is important for domestic consumption, accounting for about 100% of individual household water use and 54% of municipal supplies.10

Summary of the Law

The State Engineer regulates appropriation and distribution of Utah water. To obtain the right to pump groundwater, a would-be appropriator must file a permit application with the State Engineer.11 The State Engineer shall approve the application if certain statutory criteria are met, including there is unappropriated water and the proposed withdrawal will not impair existing rights or the public welfare.12 Permit holders must complete any necessary works and apply the water to beneficial use within the time frame designated by the State Engineer.13 The water right is not perfected until the State Engineer receives proof that an appropriation has been made in accordance with the application.14 Once the State Engineer is satisfied these requirements are met, he/she will issue a certificate of beneficial use, which perfects the water right.15 All water rights in the state are limited by the appropriator's place in the priority system.16 Utah law allows rights holders to change their point of diversion or purpose of use upon application to the State Engineer.17 It is common for rights holders to change from surface to groundwater diversions because this change often provides users with more reliable supplies.18

Special Permitting Area – Groundwater Management Plans: While Utah manages surface and groundwater conjunctively, certain distinct management practices are in place for groundwater. The State Engineer may deem a particular portion of a groundwater basin a critical management area when withdrawals consistently exceed safe yield.19 In these areas, the State Engineer may develop a groundwater management plan to limit groundwater withdrawals to safe yield, protect the physical integrity of the aquifer, and protect water quality.20 Groundwater management plans may allow the State Engineer to close the basin to new users, limit appropriations, and establish total maximum annual withdrawals.21 To date, the State Engineer has issued sixteen management plans, in addition to certain basin-specific groundwater polices.22

Utah law also allows local areas deemed critical management areas to voluntarily "unitize," pooling their water rights and opting for a local-control.23 This involves forming a groundwater management district, and agreeing on a management plan and pumping reductions with the State Engineer.24 One area, the Escalante Valley in southern Utah, has taken this route.25

Next: Law & Practice »

Law and Practice

Water is scarce in Utah, a reality the state's laws reflect. To protect surface water rights holders, Utah law requires managing groundwater conjunctively with surface water.26  Although in theory this should keep groundwater withdrawals in check, in practicality achieving this has proven difficult. Water table lowering due to groundwater overdraft may take years to materialize.27 Moreover, when withdrawals injure senior appropriators, proving causal links to specific groundwater withdrawals can be difficult.28 Utah's general lack of data regarding connectivity of surface and groundwater sources has made limiting pumping to eliminate impacts on surface water difficult to achieve.29

For this reason, Utah has taken additional steps to better manage groundwater, primarily through groundwater management plans.30 In terms of controlling overdraft, this approach has met with mixed success. On the positive side, the Salt Lake Valley Groundwater Management Plan, in place since 2002, has achieved some significant milestones.31 The Plan closes the Valley to new appropriators and limits withdrawals to achieve long-term safe yield.32 The Plan also places certain areas under specific regulations aimed at addressing groundwater contamination.33 Salt Lake Valley's experience may be contrasted with Escalante Valley's, which the State Engineer declared among sthe most critical state groundwater areas in 2006.34 There, the water table had dropped by up to 110 feet, leading to two to four feet of subsidence and multiple surface cracks of up to 1/4 mile long.35 Users and the state failed to reach an agreement on a groundwater management plan for years, and users attempted to avoid state-dictated controls by unitizing their water rights in 2010.36 Finally, in 2012, a plan was adopted for the area with the goal of achieving safe yield, although the plan's success will not be known for some time.37 This experience highlights the political difficulties of actually deploying legal tools to control groundwater use.

In addition to intra-state issues, Utah also faces disputes with its neighbors. In particular, Las Vegas, Nevada has sought to increase its use of the Snake Valley aquifer, which underlies the Utah-Nevada border.38Proposals for increased Nevada-based withdrawals are projected to threaten supplies currently enjoyed by Utah users, and have resulted in a protracted interstate legal battle.39 As Utah continues to contend with this and other demands on its groundwater, the state may be forced to take greater advantage of its current legal tools, including aquifer storage and recovery, in addition to exploring alternative management approaches.