| OCR Text |
Show with the State Engineer. Although the Board of Water Resources has not charged user fees on these waters to date, the Board is not obligated by law to assign these applications or rights of water use under them, to water users free of charge. Apparently the Board of Water Resources could decide administratively to develop waters under its approved applications and impose a system of charges for the use of these waters. Although unappropriated waters are technically not owned, some legal scholars have suggested that states could establish procedures in interregional transfers for selling unappropriated waters to purchasers in other states. States have the power to create property rights in the waters by establishing procedures for appropriation, and, as mentioned, the state itself can appropriate water. Such sales have been proposed by states within the " area of origin" in connection with interregional transfers. And, if a state is legally empowered to sell its water to another state, there is reason to believe because of the conceptual similarity that the state would also be empowered to impose water user fees within the state. It has also been suggested that it would be legal for states to sell unappropriated water to the highest bidder through procedures similar to those used in leasing state lands for extraction of oil, gas, and other minerals. In Utah the State Engineer is obligated by statute to process and act on applications to appropriate water, and to charge only a prescribed filing fee. However, it is likely, subject to some constitutional questions yet unresolved, that the state legislature could enact legislation to change the appropriation process and require that all new ( future) uses be subject to a water user fee schedule. Under the restricted definition of a user fee as a fee on actual use of something, there seems to be no question that an appropriation state such as Utah could not impose user fees on already perfected water rights. Although no state apparently has attempted to impose such fees, and therefore, the courts have not had an occasion to speak on the subject, it seems clear that such a system of fees would be an unconstitutional interference with property rights under both the Utah and the federal constitutions. " All appropriation states view perfected water rights as property that is entitled to constitutional protection." Pertinent Utah cases are In re: Bear River Drainage Area, 2 Utah 2d 208, 271 P. 2d 846 ( 1954); Salt Lake City v. Boundary Springs Water Users Ass'n, 2 Utah 2d 141, 270 P. 2d 453 ( 1954); Logan, Hyde Park, and Smithfield Canal Co. v. Logan, 72 Utah 221, 269 Pac. 776 ( 1928) ( Dewsnup, 1975). There are, of course, some nonconsumptive water uses, including recreation, navigation, waste transport, and hydropower generation that do not relate to the water rights issue just described. Furthermore, user fees as narrowly defined above, should be distinguished from regulatory fees, which a state or the federal government can impose under its general police powers to insure that property is used in accordance with particular regulations. Fees may be assessed in amounts sufficient to defray the costs of regulation. This type of fee is quite common. Water right application fees charged by the State Engineer, for example, are designed to cover costs of processing applications. An expansion in the application of these fees and an increase in the level of the fees imposed by the State Engineer and other water regulatory agencies seems legally feasible. With higher fees and a broader range of application of regulatory ( user) fees, imposed by regulatory agencies, a significant shift in funding support of these agencies from state appropriated funds to user fee revenues appears possible. If an analogy is drawn between this type of water user fee and hunting and fishing license fees, it could also be argued that the water user fees might be expanded to provide financial support for other functions of state government. Nonresident fishing and hunting licenses are higher than those paid by residents, and in some cases part of the license fee revenues from one activity, e. g., big game hunting, is used in managing another, such as fishing. User fees ( as defined above in relation to constitutional protections afforded property rights) should also be distinguished from property taxes, which obviously also are quite common. Property taxes have been imposed on land and other property to provide funds for a variety of purposes. It is conceivable that a perfected water right viewed as property might be similarly taxed. That is, the right to use the water might be taxed rather than the use per se. In Utah, however, for irrigation use this would be precluded by a constitutional restriction which stipulates that irrigation water rights cannot be taxed separately ( Utah Const. Art. 13, Sec. 2). Although other states may not have the same constitutional restriction that Utah has, there would still be a question of double taxation to consider in applying a separate property tax to water rights. Some property ( farm land, for example) valuations upon which taxes are based reflect the value added by available water supplies. Thus, irrigated land ordinarily is taxed higher than dry farm land. In such an instance, the water use or water right is in effect taxed with the land. CONSTITUTIONAL QUESTIONS Basic constitutional questions that would arise from the imposition of state water user fees relate to the concepts of " a guaranteed right of appropriation" and the " public nature of water." Since water traditionally has been appropriated without the payment of user fees, would the imposition of such fees be so fundamentally in opposition to the concept of appropriation that it would be unconstitutional? In some states that have constitutional provisions protecting the right to appropriate, the answer to this question would be extremely significant and would have to come from the respective supreme courts of these states. Of course, to states without this constitutional provision it would pose no problem. 46 |
