Presented at the Idaho State Bar CLE Workshop - Sept. 14, 2022

1. parsonsbehle.com
Utah Domestic Groundwater Use &
Management

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Overview and Objectives
 Utah’s statutory exemption
 How are domestic rights administered with other rights?
 What is the process for acquiring new domestic water rights?
 Are water users required to mitigate impacts of new domestic
depletions?
 How do communities fit into the mix with domestic water rights?

3. Utah Domestic Exemption

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Statutory Exemption in Utah
 There is no statutory exemption for domestic water use in Utah
 Utah Code Ann. § 73-1-1(1): All waters in this state, whether above
or under the ground, are hereby declared to be the property of the
public, subject to all existing rights to the use thereof.
 Every water user must obtain a valid water right

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Domestic Exemption Policy-Bracken (2012)
 The underlying policy supporting [domestic] exemptions stems from
the belief that exempt wells use a de minimis amount of water and
are not worth the administrative resources needed to permit and
monitor them.
 The exemptions provide potable, domestic water supplies in areas
where public supplies may not be available.

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Piute Reservoir & Irr. Co. v. W. Panguitch Irr.
& Reservoir Co. (Utah 1962)
 State Engineer approved a change application, stating that change
would only cause “de minimis” impact to other users, “with which
the courts will not be concerned.”
 “This court has never adopted the so-called ‘de minimis’
theory…This means that if vested rights will be impaired by such
change or application to appropriate, such application should not be
approved.”

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Wayment v. Howard (Utah 2006)
 Water interference case where junior appropriator dammed a
slough that interfered with flow to senior user’s property.
 Footnote 11: Refuses to take up application of “de minimis” theory
to interference, but affirming, “we have not adopted the de minimis
standard, but rather have stated that no impairment is acceptable.”

8. Water Rights Administration

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General Priority of Rights
 U.C.A. § 73-3-1(5): Between appropriators, the one first in time is
first in rights
 § 73-3-21.1: Appropriators shall have priority among themselves
according to the dates of their respective appropriations, so that
each appropriator is entitled to receive the appropriator’s whole
supply before any subsequent appropriator has any right

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Beneficial Use Preferences
 U.C.A. § 73-3-1(5): During a temporary water shortage emergency,
water may be prioritized by beneficial use
o Drinking, sanitation, hydropower, and fire suppression;
o Agricultural use, including both irrigation and livestock
 Preferential users must pay appropriators whose higher historical
priority was curtailed during the emergency

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Acquisition of Water Rights
 Utah Code Ann. § 73-3-8: The State Engineer MUST approve an
application to appropriate if there is reason to believe that:
o There is unappropriated water in the source;
o Use will no impair existing rights or interfere with the more beneficial use;
o Plan is physically and economically feasible and not detrimental to public
welfare;
o Applicant has financial ability to complete works;
o Application made in good faith and not for speculation or monopoly;
o Compliance with applicable groundwater management plan
 Generally subject to public notice and opportunity for protest

12. Utah Groundwater Management Plans

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Groundwater Management Plans
 Utah Code Ann. § 73-5-15
o State Engineer may adopt groundwater
management plan with goals to (1) limit
withdrawals to safe-yield, (2) protect
physical integrity of aquifer, and (3)
protect water quality.
 Where area policy is one of full
appropriation, burden is on applicant
to provide evidence that
unappropriated water exists.

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Policy Exemptions
 In some cases, State Engineer explicitly allows new domestic
applications to appropriate, despite a more general finding that
groundwater is fully appropriated
 Generally hyper-location specific
 Emphasis on lack of public water supply (i.e., rural areas)

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Bountiful Sub-Area
 Closed to new appropriations,
except:
o Isolated domestic/stock watering
wells in non-subdivisions, limited to
1.0 acre-foot per year
o Well to be sealed and water right
terminated when public water
system becomes available

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Monticello/San Juan County
 Only open to small applications
for domestic requirements of one
family, one acre of irrigation, and
10 head of livestock

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Sevier River Basin
 Closed to new appropriations,
except:
o New applications for domestic use,
irrigation of 0.1 acres, and 5 head of
livestock
o Total withdrawal limited to 1 acre-
foot per year
o Only applies in Ranges 8 and 9
West of the Water Rights Area

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Tooele Valley
 Only applies to specific sub-
basins in the water rights area
 Limited to either 4.73 acre-feet or
1.73 acre-feet per year,
depending on sub-basin

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Weber River Delta
 “Individual domestic filings for 1.0
acre-foot per year are generally
approved where a public water
supply is not accessible.”

20. Practical Results

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San Juan County Applications
 Water Rights Numbers: 09-2565;
09-2566; and 09-2567
 Filed: June 2022
 Published: July 2022
 Approved: August 2022

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Prevalence of Domestic Wells
2010:
 41,000 domestic wells
throughout the state
2022:
 45,400 domestic wells
0
100
200
300
400
500
600
700
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022
New Domestic Wells 2010-2022

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Conclusions
 Provides data to State Water managers on how much water is
approved for use, the location of use, and the location of
infrastructure
 Increased development in rural areas
 Proof process protects senior water users
 Less stringent review process could lead to increased stress on
groundwater inventory

24. Thank You