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Show 43 Those who were concerned about government ownership of water carried the day; as a result, the convention left many issues unaddressed and made the future job of administrating water resources more difficult. The work of defining what a water right was, and developing a system to allocate the remaining water resources was left to a future legislature. The result was that most of Utah's basic water laws are based on the work of the legislature, not upon constitutional declaration. 5 Although the constitution's declaration did not alter the legal principles governing water management and administration, it was the first legislative statement about water resource ownership and use since the law of 1880.6 It did specify that the right to use water was conditional upon proper use and therefore implied that it could be forfeited by failure to utilize it properly. The latter was an implication, which itself implied that someone, or some authority, could establish standards defining proper or beneficial use. When statehood was achieved in January 1896, lawmakers immediately confronted questions that involved standards for water use. During the decade that followed, the water resource policy that had prevailed during the last decades of the territory was reversed in at least one important respect. The 1880 law had placed initiative in private hands allowing individual water users to make most decisions regarding water development and water rights. By contrast, the policy which developed in the years after statehood tended toward an assertion that water was a public resource and that only the right to use the water was held by the individual. 7 In addition, water rights were defined to meet the mounting demand for water by industrial and urban purposes. New regulations and precedents were also spelled out to govern the adjudication of water rights. Together with the new definitions of rights, the state's enlarged role represented a dramatic change with regards to water policy. 8 During the first two years of statehood ( 1896- 1897), Utah's policy makers passed several water laws and established three agencies which dealt with water development and administration. In 1896 the Utah State Board of Land Commissioners was created to oversee the equitable and 5Utah water law is primarily based on the water law of 1903. That law has never been repealed, rather later sessions of the legislature merely added to and refined it. Elwood Mead, Irrigation Institutions: A Discussion of the Economic and Legal Questions created by the Growth of Irrigated Agriculture in the West ( New York: The Macmillan Company, London: Macmillan & Company Ltd., 1903), p 224. 7George Thomas, The Development of Institutions Under Irrigation: With Special Reference to Early Utah Conditions ( New York: The Macmillan Company, 1920), pp 196- 202. Thomas discusses the laws passed shortly after statehood in these pages, and he provides a contemporary analysis of the reasons for and results of these laws. 8Clesson S. Kinney, A Treatise on the Law of Irrigation and Water Rights and the Arid Region Doctrine of Appropriation of Waters: As the same is in Force in the States of the Arid and Semi- Arid Regions of the United States, and the Decisions of the United States; and also including an Abstract of the Statutes of the Respective States, and the Decisions of the Courts Relating to those Subjects ( San Francisco: Bender- Moss Company, 1912), pp 3608- 3608. Kinney explains that: That appropriators shall have priority among themselves according to the dates of their respective appropriations, so that each appropriator shall be entitled to receive the whole supply to which his certificate entitles him before any subsequent appropriator shall have any right; ' Provided, that whenever the natural flow of any stream shall have receded in volume in the annual low- water stage, then the rights of all users to such flow at such stage, shall be apportioned pro rata among such users. But in times of scarcity, while priority of appropriation shall give the better rights as between those using water for the same purpose, the use for domestic purposes shall have preference over use for all other purposes, and use for agricultural purposes shall have preference over use for any other purpose expect domestic use.' It is made the duty of the water commissioners of their respective water districts to regulate the distribution of water among the various ditches and users thereunder according to the rights of the respective parties. . . . |