"The whole thing is a little goofy in my mind," said Dan Jensen, a water attorney with Parr Waddoups Brown Gee & Loveless. "We're in a drought. So it's considered unpatriotic if you use your sprinklers when it's raining. But when you buckle down and conserve, you get penalized."
 

In 2002, the Legislature modified provisions of Utah's water law to address the problem of what's often referred to as "partial" forfeiture — when people aren't using their full water allocation. What had been a long-standing right, allowing people to keep their water rights as long as they use at least some of it over a period of five years, is no longer the case.
 

Now, water users are under enormous pressure to use their entire water allocation because if they fail to use some of the water for five years without notifying the state, their right to it is automatically forfeited. The unused portion of that water right then reverts to the public.
 

It's been one of the most heated issues in this dry desert state where water rights are sacrosanct.
 

"At times it appears water is like gun rights. It seems to touch more buttons than religion in this state," said Eric Olson, an attorney who has represented The Church of Jesus Christ of Latter-day Saints on water issues. "Partial forfeiture forces you to use water to its fullest when it makes no sense to use it."
 

Despite what appears to be a mixed message — the state continues its publicity campaign asking Utahns to "slow the flow and conserve H2O" — water officials say the changes to the law were needed.
 

"What it is trying to do is basically say water is in short supply," said State Engineer Jerry Olds. "We need to make sure it is used to its full intent. You can't just acquire a water right you don't intend to use."
 

A lawsuit in the late 1990s prompted the revisions in the law. The Washington County Water Conservancy District sued over the state engineer's approval that allowed the LDS Church to change the location of its water right in Washington's County's Harmony Basin. The water conservancy district claimed that all or part of the church's water rights had been forfeited because the church had not been using its entire water allocation. The lawsuit was eventually dismissed.
 

"We beat each other up so badly," Olson said, that state officials felt the law needed work.
 

At the heart of HB58, sponsored by Rep. Mike Styler, R-Delta, is to instill a state policy of "securing the maximum use and benefit of its scarce water resources."
 

The law was modified to expand the provisions that weren't spelled out before, such as allowing water users to file applications with the state engineer for non-use. Those applications can apply to all, or a portion, of the water right. If, for instance, a farmer decides to hold off on irrigating a portion of his crop for five years because he wants to do his part and conserve water, he can file an application of non-use with the state to protect his water right.
 

"We tried to define the rules dealing with forfeiture," said Fred Finlinson, a water attorney and former state senator who served on a legislative task force that helped draft legislation. "We've expanded the exemptions, increased the opportunities to go to the state engineer for such reasons as economic hardships and water conservation. The bill is pretty good and deals with these kinds of issues."
 

The exemptions apply to drought conditions when water suppliers simply don't have enough water to allocate to all its users. It also applies to situations where all or part of the land on which water is used is under a conservation agreement.
 

The problem, say some water attorneys, is that not many people understand the law and that someone can conserve water and keep rights to it.
 

"People are not familiar with the rules, and as a result can lose something very valuable," Jensen said. "So people who use 80 percent of their water right and do that consistently for five years or longer lose ownership of 20 percent of their water right. It sets up a situation that people think they have to use 100 percent.
 

"This is really the absurd thing about the whole system," added Olson. "What really ought to be happening is that the state should consider what policy it wants to promote, which uses are a greater value to the state, and find a way to retire unproductive uses."
 

The law is vulnerable to court challenges. And judges are reluctant to rule on forfeiture cases, Olsen added.
 

In the case of the LDS Church, the courts never addressed the issue of forfeiture. The district court, and ultimately the Utah Supreme Court on Dec. 23, 2003, simply ruled that the water district was not impacted and therefore lacked standing to seek judicial review of a state engineer decision.
 

Jensen foresees a nascent trend whereby environmental groups sue to stop developments where the water rights have not been used to their full extent.
 

"We haven't seen lawsuits crop up — yet," Jensen said. "But then again, the law hasn't been on the books for a full five years yet."

E-mail: donna@desnews.com

© 2004 Deseret News Publishing Company

Real leaders would be offering plans to improve water storage and distribution. And they would be chastising Utah lawmakers for lining the pockets of a few rather than taking care of water needs for the many. Conservation won't solve the problem.
 

We are told Utah is the second driest state. That is true only because much of the state is arid. When you look at places where people live — the Wasatch Front, for example — Utah is far from dry.
 

The Wasatch Front receives more rainfall than lush San Diego. San Diego has more humidity, and temperatures there are moderate, thanks to ocean breezes. The advantages we have over San Diego are that our growing season is short and our moisture comes as snow, which means nature handles most of our water storage needs.
 

The Wasatch Mountains, only a few miles from population centers, receive almost as much moisture as water-logged New Orleans.
 

We are told we use more water, per capita, than any other state. Again, that's a selective statistic. Per capita water use climbs because we use water for crop irrigation and industrial purposes, not because we use it for growing lawns and gardens. We use more water to irrigate alfalfa for cattle than we do to water lawns for human beings.
 

And we must continue to grow alfalfa and other crops. Farming is an important activity for the state — economically and culturally. Besides, green crops modify the climate (ever so slightly), help control dust and weeds, prevent erosion, hold runoff water and perform other important functions.
 

We are told we should raise water rates to encourage conservation. The inevitable end result of that strategy would be lush, green lawns in the wealthy sections of the state (including golf courses) and foliage-starved dust producers in poor sections. As usual, the poor pay the heaviest price for dollar-centered solutions.
 

I am not a water expert, and I'm sure the experts will disagree with me. But too many experts are stuck in a vision-less paradigm.
 

We lack more vision than we lack water. The early pioneers were not water experts, either. But they knew they had to move water from the mountains to the valleys if they were to survive.
 

One of the first things they did was build diversion dams and scratch ditches to move water where it could help them prosper. That pioneering culture continued through more than a century and a half.
 

Utah visionaries made sure the state claimed its share of Colorado River water — a share we still do not fully use. More visionaries dreamed up the Central Utah Project, on which we rely heavily during this low precipitation period.
 

Where are the visionaries for tomorrow? Surely they are not among the loud voices who tell us to put bricks in our toilets, dehydrate our lawns and replace roses with penstemon. Those are visionless solutions.
 

No doubt the best way to store water is in deep reservoirs to minimize evaporation. But some fight against additional deep reservoirs. Their influence will fade as the need for water increases. Besides, there are other ways to collect and store water. We need only encourage bright young minds to think about it.
 

And many water-distribution systems are obsolete. We should focus a little youthful intelligence on making improvements in that technology, as well.
 

All this will cost money, of course. But the Legislature has dug itself — and the state — into a hole by being obsessively conservative with financial resources. Lawmakers threaten to do the same thing with water resources. And they find unlikely allies from the conservation movement.
 

If we aren't careful, this unholy alliance will penalize future generations for the sake of a few pieces of silver and a dead-end philosophy.
 

We must find leaders with vision — and the courage to act on their vision. Young people have the vision and the courage . . . until we pound it out of them with false statistics and ill-conceived remedies.
 

And so the next time someone tells you to conserve water, hand him or her a rose and say, "Thanks for your good work. Now, stand aside. Let a new generation be the pioneers for tomorrow."
 

G. Donald Gale is president of Words, Words, Words Inc. He was formerly editorial director at KSL. He earned a Ph.D. at the University of Utah and was awarded an honorary doctorate by Southern Utah University. E-MAIL: dongale@words3.com