Distribution by Water Right Priority

Revised: March 22, 2010

Water Right Priority
"First in time, first in right"

One of the fundamental principals of Utah water law is priority between appropriators. There are two ways that priority is established. If water was put to beneficial use prior to 1903 (the date the statutory water right process was adopted), the priority of the water right is the date the appropriator placed the water to beneficial use. After 1903, the priority is the date the application for appropriation was filed with the state engineer.

Priority distribution requires that a senior appropriator’s water right be satisfied before a subsequent appropriator receives any water (Utah Code 73-3-21). Appropriators with the same priority share proportionately in the available water supply according to the amount of their individual rights.

An appropriator’s water right is considered satisfied if either they are receiving all water entitled under the definition of the right or they choose not to divert their water right or to divert only a portion of their water right.

An appropriator is not authorized by law to dictate the next right in priority; that is, they cannot determine who should receive the water if they choose not to divert it. A water right extends only to controlling one's own diversion and use of water. If a senior right is satisfied, the opportunity to divert falls to the next water right in priority according to the priority date of the water right.

A junior upstream appropriator is not required to reduce their diversion if doing so would not increase the water supply available to a prior downstream appropriator who is not receiving their full water right. In this situation, a call by a senior appropriator for a junior appropriator to reduce their diversion is a futile call and the junior appropriator is not required to comply. A water user may not determine that a futile call situation exists; the State Engineer must make that determination. This rule allows appropriators with non-consumptive uses to divert water out of priority; since the use is non-consumptive (and the entire flow is returned to the source) curtailing the diversion will not change the water supply available to downstream water users.

Utah does not recognize de minimis use. A junior appropriator may not use the argument that their diversion has a minimal or negligible effect on a senior appropriator to avoid curtailment if the senior right is not satisfied. No matter how small the effect if there is a cause and effect relationship the junior right must yield to the senior appropriator.

Within a water distribution system organized by the State Engineer, a water commissioner is appointed by the State Engineer to regulate the distribution of water (under the direction of the State Engineer) according to the priority of the water rights on the system.

In areas where a distribution system has not been organized, the water users cooperate together to assure that each water user receives water according to the priority date of their water right. In situations where ongoing disagreements over the distribution of water cannot be resolved between the water users, they may petition the State Engineer to organize a distribution system and appoint a water commissioner. In distribution systems, the water users are required to install and maintain control structures and measuring devices that meet the approval of the State Engineer and they are assessed to pay the water commissioner’s salary and other expenses of operating the distribution system.

During a temporary water shortage emergency (declared by the Governor), the use of water for drinking, sanitation, and fire suppression has a preferential right over any other water right regardless of the priority. During such an emergency, agricultural uses have a preferential right over all other uses except those just mentioned. Those using water preferentially must compensate those whose use is interrupted for the reasonable cost of the water, crop losses, or other consequential damages.

The distribution of water from surfaces sources (rivers, streams, undeveloped springs etc) is regulated by priority as described in this article. The distribution of water from underground sources (wells, developed springs, etc.) is not normally regulated by priority unless it has been included in a groundwater management plan created under UCA §73-5-15 or a cause effect relationship has been established between diversions from the underground resource and a surface source.