The law was modified to expand the provisions that weren't spelled out before, such as allowing water users to file applications with the state engineer for non-use. Those applications can apply to all, or a portion, of the water right. If, for instance, a farmer decides to hold off on irrigating a portion of his crop for five years because he wants to do his part and conserve water, he can file an application of non-use with the state to protect his water right.

"We tried to define the rules dealing with forfeiture," said Fred Finlinson, a water attorney and former state senator who served on a legislative task force that helped draft legislation. "We've expanded the exemptions, increased the opportunities to go to the state engineer for such reasons as economic hardships and water conservation. The bill is pretty good and deals with these kinds of issues."

The exemptions apply to drought conditions when water suppliers simply don't have enough water to allocate to all its users. It also applies to situations where all or part of the land on which water is used is under a conservation agreement.

The problem, say some water attorneys, is that not many people understand the law and that someone can conserve water and keep rights to it.

"People are not familiar with the rules, and as a result can lose something very valuable," Jensen said. "So people who use 80 percent of their water right and do that consistently for five years or longer lose ownership of 20 percent of their water right. It sets up a situation that people think they have to use 100 percent.

"This is really the absurd thing about the whole system," added Olson. "What really ought to be happening is that the state should consider what policy it wants to promote, which uses are a greater value to the state, and find a way to retire unproductive uses."

The law is vulnerable to court challenges. And judges are reluctant to rule on forfeiture cases, Olsen added.

In the case of the LDS Church, the courts never addressed the issue of forfeiture. The district court, and ultimately the Utah Supreme Court on Dec. 23, 2003, simply ruled that the water district was not impacted and therefore lacked standing to seek judicial review of a state engineer decision.

Jensen foresees a nascent trend whereby environmental groups sue to stop developments where the water rights have not been used to their full extent.

"We haven't seen lawsuits crop up — yet," Jensen said. "But then again, the law hasn't been on the books for a full five years yet."

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E-mail: donna@desnews.com