Loss of Preference for Drinking Water

In 1880, the Utah Territorial Legislature enacted a law that established a preference for drinking water and other domestic uses over any other type of use in the event of a serious water shortage. This preference has been an exception to the priority date rule--which provides that earlier water rights have priority over later rights--for almost 130 years. The preference is currently codified in section 73-3-21 of the Utah Code. Most prior appropriation states have a similar statute that grants a preference for domestic use in times of scarcity. Indeed, of the 17 western water law states, only Oklahoma does not have a preference statute.

During the 2009 legislative session, the Utah Legislature, at the prompting of the State Engineer’s office and with the support of the Farm Bureau, repealed this preference through House Bill 241. However, as a result of the heated debate over the issue, the Legislature delayed the effective date of the repeal until May 11, 2010, in order to allow the Legislature to again consider the matter in its session next January.

Most of the oldest water rights in Utah, and therefore those with the highest priority, are irrigation rights. Accordingly, without the drinking water preference exception, in times of scarcity, those high priority irrigation rights will have to be fully satisfied before junior priority drinking water rights receive any water. This is obviously a concern to cities, towns, and other public water suppliers because it places plants over people when there is a critical shortage.

During the next few months, the water law attorneys at Smith Hartvigsen, PLLC will be involved in the discussions regarding the drinking water preference statute. If you have any input on the matter, we would love to hear from you.

To read House Bill 241, click here.