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History of water law long, convoluted and complex



By Sun Advocate

Dry lawns at parks, schools, churches and even at residences this spring point to the fact the four year drought that is plaguing the area is being taken seriously. Water in the west is more important than almost anything else, including land. Years of water wars between towns, counties and states have led to many kinds of water laws regulating use, storage, diversion and ownership.

Easterners can’t comprehend it. Midwesterners can’t grasp it. People from the coastal areas of the Pacific Northwest always seem to have way too much of it. And westerners, those living in one of the most dry places in the new world, seldom understand it.
The “it” is water. It’s not that people don’t know what it is. Every childs encyclopedia tells of a clear, but slightly blue, odorless and tasteless liquid that is made up of only two primary elements: hydrogen and oxygen. Of course that is in it’s pure form. The liquid human society has increasingly come to regard as a commodity rarely occurs in it’s pure form, either literally or figuratively. Water dissolves many different substances in it, just like it absorbs the politics and power it brings to those who possess it.
The history of water in the west is long and powerful. In fact, water has defined the west for much longer than the six gun, the rancher, the Bureau of Land Management or even the forgotten native American tribes whose ebb and flow of civilization on the Colorado Plateau were probably connected to long droughts that displaced or destroyed their civilization.
Carbon County, which sits on one edge of a downhill flowing water aquifer called the Colorado River drainage system, one that some consider to be the most remarkable in the world, has been defined by water, or more correctly, the lack of, since it’s earliest days of settlement by the first white men to set up camp here. At that time, the county was part of Emery County (which itself had been a part of Sanpete County only a few years before that). In fact, if it wasn’t for a river, there is a good chance the city of Price wouldn’t have that name today.
It seems in the summer of 1869 an LDS Bishop from Goshen in Utah County, exploring up Spanish Fork Canyon came into the eastern Utah area and when he found the convergence of the White River and Fish Creek, he called it the Price River, which later gave it’s name to the town as well. The river was also the spawning place for settlement in the county. In 1879, Caleb Rhoades, a trapper, along with two other men came and set up a permanent camp on the river, somewhere within the Price city limits of today.
Since that time the river, it’s tributaries and it’s impact have had a lot to say about development in the area. Also since that time, the county has been affected by drought after drought. Some lasted one year, more lasted three or extended to four. A couple even lasted a decade.
Most Carbon County residents are aware of the battle that has gone on through the years between various governmental entities when it comes to water. Most know that right now, negotiations are taking place over water that has inundated Skyline Mine, and has for the last two years been mostly pumped into Fish Creek, consequently flowing into Scofield Reservoir, where it has been stored until used by Carbon County residents. Where that water originates is still up for conjecture, and studies are being conducted as well as many governmental and private agencies working together, and in some cases are at odds with each other.
The question in most people’s mind is singular. Whose water is it? And how will, what has become known as water law, be applied to it when all is said and done?
Water law is a complicated and convoluted part of the legal system that few people understand well. Just as there are divorce lawyers, criminal lawyers and corporate lawyers, just to name a few, there are also water lawyers. Many of those who have had the best mastery over the discipline of water law in the past, changed how water is distributed in the west.
In basic terms, there are three types of water law systems in the United States. The first is what is called the riparian system. Used largely in the eastern half of the country. It assigns rights to water use to land owners of water that flows past their land and generally requires equal sharing amongst users in times of shortages.
In the west, the system largely used is the appropriation system. It allows severance of water rights from property ownership and allocates water in order of priority. In other words, owners of senior water rights have priority over all subsequently acquired rights.
Some places also use a combination of both systems, in varying degrees.
Problems involving water law have occurred time and time again, even in the earliest of civilizations. It’s an old story that changes technologically and socially, but it’s always about the same thing; one group has water that someone else thinks should be theirs.
A community in ancient times may have used the water from a river for both it’s household and agricultural needs. Then one day, the water in the river stopped flowing and when people from the town explored upstream, they found that a new community of people had dammed the stream to save water for dry spells. Who had the right to the water? Is it the first community because they had been using the water for years or was it the newer group of settlers because they had picked a geographically superior position on the river? In those early days, there was a good chance there would have been a physical confrontation over the situation, even a war. Today, in a supposed civil society, people have water law to serve as the guide for what should be done. However, working from a position of political power, laws can be changed and manipulated. Even agreements that were once consented to, can be changed.
In the early part of the 20th century water rights were becoming more and more important. While in most parts of the country the riparian system had granted most of the water rights to the states, the west seemed different. In the west, water did not come down from the sky in every city and town where it could be locally stored in natural lakes and man made reservoirs. Mostly it fell along the coasts and inland in the form of snow in the Rocky and Great Basin Mountain ranges. Then it melted and ran into great rivers that flowed through deep gorges, almost untouchable once it was in there.
The Colorado River basin drains and runs through seven states: Utah, Wyoming, Colorado, New Mexico, Arizona, Nevada and California. Because of the years of costly battles over water between the upper basin states (Utah, Colorado, Wyoming and New Mexico) and the lower basin states (California, Arizona and Nevada), the seven got together in 1922 and drafted the original Colorado River Compact. Under that original document each basin was to receive 7.5 million acre feet of water per year from the river system.
The agreement was a milestone, using riparian rights and appropriation rights in the same document. It protected the lower states from the water all being taken by the upstream users and assured the upper basin states that the lower basin would not legally attack them for using water that was theirs.
But the river itself cared little about man and his paper. It continued to drain the water from the mountains as those who lived along it and it’s tributaries used what they could and watched the rest run by.
(This is a first in a series of articles on water in Utah, the Colorado River Plateau and the Great Basin).

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