Frequently Asked Questions

 The following is a summary of questions and agency responses about water rights or diverting water for use in Utah.

The short answer is no, the practice of harvesting rain water is not illegal. The longer answer is that rain water diversion and beneficial use like all other use of the waters of the public in the state of Utah (whether above or below the ground) are subject to appropriation through the water right system. In other words, to have a right to divert and beneficially use water you need to have a water right. You don’t have a right to divert and use the waters in streams, springs, groundwater or any other source just because they are on your land, like they do back east. In Utah, a water right (right to use the waters of the public) is obtained by application to, and approval of the application by the State Engineer. If you don’t have a right and you divert water you may be impairing the water rights of someone who does have a legal right to the use of the water and could be subject to prosecution for depriving them of that right.

Water rights in Utah are controlled by priority. The person who first obtained a water right, in a drainage basin, has the first right to divert and beneficially use the water. If more water is available than necessary to satisfy the first water right holder’s uses, the right extends to the next water right… and so forth. The State Engineer is responsible to approve water right applications and supervise the actual distribution of water in a way that promotes the use of the waters of the state but protects the rights of the existing water right holders. The State Engineer doesn’t sell water or tax it’s use, the State Engineer simply regulates who is entitled to use the water. To accomplish that purpose the State Engineer may decide there is no additional water available for appropriation in certain areas of the state; these are referred to as basins closed to new appropriation. He can also establish a water right distribution system in an area where there are many competing water rights to make sure the priority system is followed. If someone decides to divert and use water without a water right it disrupts the state’s water right system by inhibiting the State Engineer’s knowledge of what water is available for appropriation and his ability of getting the water to the appropriate user by respective priority. To avoid that, the state has implemented an enforcement statute that severely penalizes the illegal diversion and beneficial use of water.

There is a distinction between diverting and beneficially using water and simply controlling waters that are on your property. No water right is required to control and direct waters on your property. Rain gutters, which take water from your roof, gutters and drain piping, which direct waters and control drainage on your property require no water right. Similarly water, which falls on or flows across your property and may benefit your lawn, garden, or landscaping is not subject to the water right system. The water right laws apply only when water from a natural source is actually diverted and beneficially used. Conceptually, rainwater harvesting is a water right issue only to the extent rainwater is actually stored and then later used for some purpose rather than being released back to the natural drainage system.

Answer: You must have a water right to divert and use water in the State of Utah. Water well drillers are licensed and cannot drill a well unless permission to drill has been obtained from the State Engineer. In areas which are open to appropriation you can apply to appropriate new water. In areas closed to new appropriation you will need to acquire all or part of an existing water right and file a change application to change it’s attributes to cover your use of the water right. Both application processes (appropriate and change) require public notice and a decision by the State Engineer which take time to complete. You need to allow several months between the time you apply and the time a decision will be made. A favorable decision will include permission to drill the well. In some instances, provisional drilling authority (a "rush letter") can be issued which will allow the driller to start immediately on the well. A rush letter does not include permission to use the water.

Answer: Water rights are classified as “real property” in the state of Utah and are bought and sold much like real estate. Many real estate agencies will have listings for water rights much as they do for properties.

First, you should determine where you intend to use the water (“the place of use”) and how you will use the water (“the beneficial uses”). These two factors will largely determine the area in which a suitable right may be purchased and how large an interest in a right you will need. Specific policy guidelines for different areas in the state are available at this link.

For example, if you need water in the northern portion of Cedar City Valley for a single family residence (one family domestic use), two head of livestock (cows or horses or equivalent in sheep, goats, barnyard fowl, etc.), and irrigation of about 1/8-acre of landscape, garden, etc., you will need to purchase an interest in a northern Cedar City Valley water right sufficient to provide for a diversion allowance of about 1.0 acre-foot. This estimate is based on current standard requirements of 0.45 acre-foot for domestic (indoor only) use, 0.028 acre-foot for stockwatering of one cow or horse (or equivalent) and 4.0 acre-feet per one acre of irrigation. more...

If you desire a different nature or extent of use than those in this example, you can use those same standards to determine your acre-foot needs. The right you purchase will likely be an irrigation right, for example 1.0 acre-foot for 0.25 acres of irrigation. Once a suitable water right interest has been identified and you know the owner and water right number, you are advised to consult with the Regional Office of the Division of Water Rights for the area of interest to determine if the right is likely going to be suitable for your intended uses. Once you are satisfied a suitable right has been identified, the owner(s) of the right must execute a deed conveying that interest to you. Once the deed has been executed and recorded in the county (in which the water is presently diverted), a Report of Water Right Conveyance must then be filed with the Division of Water Rights to document that transaction. Once that filing has been made, verified and processed (usually takes one to two weeks), you can then work with personnel of the Division of Water Rights to file a change application to make any necessary changes to the water right as to source of water, place of use or nature of use.

Answer: It’s like buying anything. You need to apply some tests to determine if what is offered is really what it appears to be. Good judgment is required and there is an element of risk. If you are uncomfortable with the level of risk or are concerned about your judgment you should seek competent professional assistance. Some issues you should be particularly aware of are listed below:

OWNERSHIP County recorders are the office of record for title in Utah. Updates to ownership records at the Utah Division of Water Rights are based on deeds recorded in the counties and submitted to the office. The Division of Water Rights ownership record is not the official title record but an indication of the state of ownership as understood by our office. If someone is selling a water right and they don’t appear as the owner at the Division of Water Rights there is at a minimum some additional title work which must be processed (that takes time and costs money) before the ownership could appear in your name if you purchase the right.

USE OF WATER Utah’s water law is premised on the concept that water is the property of the public and a right to use the water should only be maintained if the water is put to beneficial use. Water rights which have not been exercised for a 7 year period are subject to forfeiture. A Non-use application can be filed to protect a water right. It is a good idea to look for and record evidence the water right has been used. It is also a good idea to check the status of the water right in the records of the Utah Division of Water Rights.

Water right uses (location and type of use) are organized into groups in Division of Water Rights records. Each group is given a unique number by which it is referenced by the water right(s) which share the use. Groups exist to allow the Division to organize records and quantify amounts related to a use. If more than one water right is used to provide water for a use, the water rights which have been grouped together are called supplemental water rights. The idea being that each of the water rights contributes to the beneficial use. Ultimately, quantifying a water right involves determining its sole supply contributed to each use. The group quantifies the extent of the use for the group, while the sole supply defines the contribution of each of the supplemental rights towards the group use. A change or segregration which involves a group necessarily requires that the sole supply of each right in the group be quantified.

Shared uses (supplemental water rights) may come to light in different ways. Sometimes they are mentioned in applications to appropriate. They may be identified during the approval process, or as the uses of the water are quantified and documented in the proof process. The most common time for supplemental uses to be identified is during the adjudication process as all the water rights and uses in an area are being reviewed and quantified. The important point is that understanding the relationship between uses and the water rights that supply water for the use is critical to determine the water being used and evaluate water rights as new uses are contemplated.

Because water in Utah is considered a scarce and valuable public resource, Utah’s laws have been designed to encourage full responsible development of water supplies and to discourage efforts to speculate in or monopolize the resource. As a result of this approach, it has been believed necessary to assure that those who acquire rights to the use of Utah’s water actually place it to beneficial use. Although the statute has changed since first adopted in 1903, the current law states as follows in Utah Code Section 73-1-4:

“When an appropriator or the appropriator’s successor in interest abandons or ceases to use all or a portion of a water right for a period of seven years, the water right or the unused portion of that water right is subject to forfeiture in accordance with Subsection (2)(c). . ..”

The failure to continue to beneficially use water is “excused” in a variety of circumstances such as during times of extended drought when a supply of water is not available. (You can read the full statute at this link.)

Before a water right (all or in part) is forfeited for nonuse, a State District Court must make a declaration of forfeiture. Such a ruling can come in a private suit or, as is most common, as part of a “General Adjudication of Water Rights” covering a larger area. To learn more about “Adjudication,” more...

The statute governing cessation of rights for non-use, as quoted above, continues:

“. . . unless the appropriator or the appropriator’s successor in interest files a nonuse application with the state engineer.”

This portion of the law is addressing an “Application for Nonuse of Water” which can be filed with the State Engineer to protect a water right from cessation during a period of time when a water user is prevented from beneficially using water due to unavoidable circumstances such as economic depression or legal proceedings. (The full list of acceptable reasons for non-use is spelled out in the statute.)

Any water user with questions or concerns regarding the operation of Utah’s “use it or lose it” statute is advised to contact the appropriate region office of the Division of Water Rights and/or to seek competent legal counsel.

To update water right ownership on the records of the State Engineer, a water right owner shall submit a report of water right conveyance to the State Engineer. Click here for more Title FAQ’s