Utah farmers are told to use water or lose it

With Utah in its sixth year of drought, the Utah Legislature has given farmers an ironic ultimatum: Use all your water, or what's not used may be taken away.

"The whole thing is a little goofy in my mind," said Dan Jensen, a water attorney with Parr Waddoups Brown Gee & Loveless. "We're in a drought. So it's considered unpatriotic if you use your sprinklers when it's raining. But when you buckle down and conserve, you get penalized."

In 2002, the Legislature modified provisions of Utah's water law to address the problem of what's often referred to as "partial" forfeiture — when people aren't using their full water allocation. What had been a long-standing right, allowing people to keep their water rights as long as they use at least some of it over a period of five years, is no longer the case.

Now, water users are under enormous pressure to use their entire water allocation because if they fail to use some of the water for five years without notifying the state, their right to it is automatically forfeited. The unused portion of that water right then reverts to the public.

It's been one of the most heated issues in this dry desert state where water rights are sacrosanct.

"At times it appears water is like gun rights. It seems to touch more buttons than religion in this state," said Eric Olson, an attorney who has represented The Church of Jesus Christ of Latter-day Saints on water issues. "Partial forfeiture forces you to use water to its fullest when it makes no sense to use it."

Despite what appears to be a mixed message — the state continues its publicity campaign asking Utahns to "slow the flow and conserve H2O" — water officials say the changes to the law were needed.

"What it is trying to do is basically say water is in short supply," said State Engineer Jerry Olds. "We need to make sure it is used to its full intent. You can't just acquire a water right you don't intend to use."

A lawsuit in the late 1990s prompted the revisions in the law. The Washington County Water Conservancy District sued over the state engineer's approval that allowed the LDS Church to change the location of its water right in Washington's County's Harmony Basin. The water conservancy district claimed that all or part of the church's water rights had been forfeited because the church had not been using its entire water allocation. The lawsuit was eventually dismissed.

"We beat each other up so badly," Olson said, that state officials felt the law needed work.

At the heart of HB58, sponsored by Rep. Mike Styler, R-Delta, is to instill a state policy of "securing the maximum use and benefit of its scarce water resources."