Amid drought and demand, this state is trying to circumvent one of the oldest water rules of the West: ‘Use It or Lose It.’
X
Amid drought and demand, this state is trying to circumvent one of the oldest water rules of the West: ‘Use It or Lose It.’
November 5, 2024
Center-pivot irrigated fields in Utah. (Photo credit: Cavan Images)
A version of this article originally appeared in The Deep Dish, our members-only newsletter. Become a member today and get the next issue directly in your inbox.
Expand your understanding of food systems as a Civil Eats member. Enjoy unlimited access to our groundbreaking reporting, engage with experts, and connect with a community of changemakers.
Already a member?
Login
Before he was appointed head of Utah’s Department of Natural Resources, Joel Ferry was a full-time farmer—and a very good one. “I was the top ‘Young Farmer and Rancher’ in the state of Utah a few years ago,” he said on a recent phone call, as he drove across the state, minutes before heading into a meeting with the governor. “My wife was the Utah ‘Farm Mom of the Year.’ I’m raising my kids in agriculture.”
Illustration by Nhatt Nichols. Source: “Review and Synopsis of Natural and Human Controls on Fluvial Channel Processes in the Arid West,” by John J. Field and Robert W. Lichvar.
In Corinne, Utah, where his family has farmed for 125 years, Ferry, who is 46, raises cows, corn, and alfalfa. His is the last ranch before the Bear River—the longest river in North America that does not empty into an ocean—flows into the Great Salt Lake. On his farm, Ferry is witness to the effects of water usage in a drought-ridden region. “I’m personally seeing the impacts on the ecosystem, the impacts on the environment,” Ferry said, “and then also trying to balance these competing demands for agriculture and city growth. We’re right in the thick of it.”
The whole state of Utah, like many western U.S. states, is in the thick of it. Utah recently emerged from its driest 20-year period since the Middle Ages, while the Great Salt Lake, an iconic landmark of the West, is on course to dry up completely in a matter of years, not decades.
“In most other places, you’re penalized because you ‘use it or lose it.’ We flip that completely on its head through some of the statutes and laws that we’ve adopted.”
Ferry must now not only think of his ranch, but his neighbors, and their neighbors, and everyone else in the state, not to mention fish and wildlife that rely on rivers, lakes, and streams. Here, those resources are managed through a prioritization of water rights, where the oldest claims are first in line to receive an allocation of the water that flows through the basin. “The priority system has helped us manage a limited water resource in the West for over a century,” Ferry said.
But amid climate change, drought, and increased demands for water, Utah is trying to change the system, bucking one of the oldest water rules in the western U.S.
As it does in other Western states, Utah’s water policy fits under a principle of “beneficial use,” which declares that water rights holders must use their water for beneficial purposes, such as agriculture, or give up those rights. In Utah, though, the state legislature has passed multiple statutes that are attempting to encourage farmers to use less water without losing rights to it.
“Through our laws, we promote conservation,” Ferry said. “You’re benefited by conserving water. In most other places, you’re penalized because you risk forfeiture, you ‘use it or lose it.’ We flip that completely on its head through some of the statutes and laws that we’ve adopted.”
The “first in time, first in right” doctrine, also known as “prior appropriation,” stems from the 1850s California Gold Rush, whose miners claimed stakes along rivers or streams and diverted the water as they needed it. Older claims, no matter where they were on the waterway, had priority rights to use the water. In 1928, California amended its constitution to include “beneficial use,” requiring those who claimed rights to water to make use of it. Today, Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming all abide by the doctrine.
Utah is primarily tackling the problem through its Agricultural Water Optimization Program, which awards farmers funding to become more efficient with their water use.
In the past, the doctrine prevented conflicts over water, especially for people coming from the Eastern United States, where water was plentiful and so-called “riparian rights” are related to land ownership along a waterway. But it also created an entanglement of rights, and as more people moved into the West, putting a strain on water use, this entanglement has become a real obstacle to conservation.
In these states, the right to use a certain amount of water is granted by date. Those with the oldest water rights have first claims to the water, no matter where they are on the river—as long as they continue to use it. If you don’t use water, you can lose your right to it, which hardly incentivizes conservation.
These water rights are incredibly important right now for states and tribal nations along the Colorado River, which winds its way out of the Rocky Mountains, through the desert Southwest and (almost, under the right conditions) into Mexico.
More than 40 million people rely on the Colorado River and its tributaries in Colorado, New Mexico, Utah, and Wyoming (the Upper Basin States) and in Arizona, California, and Nevada (the Lower Basin States). Through a complex legal agreement, these states share water from the Colorado River with each other and with tribal nations: the Ute, Ute Mountain Ute, Southern Ute, Jicarilla Apache, Navajo Nation, Chemehuevi, Colorado River Indian Tribes, Fort Mojave, Quechan, and Cocopah.
This agreement, known as the Colorado River Compact, is now under renegotiation, after prolonged drought and overuse of water caused a huge drop in the water held in Lake Mead—a key water bank and hydropower source for the region. If the states and tribes cannot agree on how to share the river, the federal government will take over. This has created a series of tough negotiations, as each state must agree to cutbacks—and to find the best ways to use the water they do have.
Amid these conditions, Utah wants to do something different. It wants to find a way around the “use it or lose it” doctrine, to encourage farmers to conserve water without punishing them for it.
“I don’t want to say Utah is doing better than anyone else,” said Warren Peterson, an agriculture and water attorney who also grew up on a Utah farm, “but I’d like to think that if there’s a pack at the lead of the race, we’re in that pack.”
“These investments that I’ve made are to make my farm sustainable, so the next generation can farm and be successful.”
Utah is primarily tackling the problem through its Agricultural Water Optimization Program, which awards farmers funding to become more efficient with their water use. Utah’s new initiatives are meant to address stress and uncertainty for farmers. But on a larger scale, these initiatives are aiming to thwart, or at least delay, catastrophic water shortages in the region. If water consumption in the region continues at the current rate, Food and Water Watch warns, food prices, energy systems, and ecosystems could be impacted indefinitely.
At Ferry’s farm, for example, the fields are water optimized. He has thousands of feet of pipeline, drip irrigation, and GPS monitoring. He’s measuring his water use and the flow rate. In 2024, 190 farms received more than $20 million in funds to improve their on-farm practices. Each farm received an average of approximately $106,000. Forty-five irrigation companies received approximately $22 million to improve their practices.
“These investments that I’ve made are to make my farm sustainable, so that the next generation can come and farm and be successful, and so that I can continue to farm,” Ferry said. “I don’t want to have the stresses of drought and of a changing climate and of uncertainty. I want certainty in what I do. And by doing these and implementing these types of projects, I then gain the certainty.”
The Agricultural Water Optimization Program was passed in 2023. Along with acquiring funding to improve water practices, farmers can also file a “change application” to lease out any “saved water” through a water marketplace.
“It kind of gives an incentive to save that consumptive use and potentially be able to lease it or do something else with it,” said Utah State Engineer Teresa Wilhelmsen.
Wilhelmsen estimates that around 400 farmers applied for grants this year. However, not all farmers are jumping on board. “As you can imagine, there’s a fear of the state engineer with some folks,” she said, because the state engineer is often the one enforcing water rights and making sure people do not pull more water than they should. Peterson describes her as “the lead water cop.” This is why she is trying to frame these programs as opportunities to “tune up your water rights.”
Still, many farmers find the programs beneficial. Stanford Jensen, who runs a rotational grazing operation with cows, pigs, and chickens on a 560-acre no-till irrigated farm, is among them. Jensen’s irrigation is controlled by a local company. “All the water rights were put in the company years ago, so the company delivers all the water through a canal system that was put in in the late 1800s,” he said. “I’m a board member of that company. So, I went out and applied for the water optimization grant.”
“A lot of these challenges we’re looking at have taken many years to fully develop, and it takes years to respond.”
That grant of $500,000 went toward a $2 million upgrade to the irrigation system by implementing automated canal readers and controllers to reduce waste in the system. Jensen saw the optimization program as a chance to “make sure that we deliver water accurately, timely, and then hold back as much water as possible.”
Not all new water programs are taking hold. In 2020, Utah introduced a statute known as the Water Banking Act, whereby farmers who do not use their full water right can lease their water to others. In theory, this would allow farmers to lease out their water rights. The law led to the establishment of the First Water Bank of Utah, where water is treated as a currency. The bank aims to protect water rights and other assets. “Just depositing water in our bank eliminates the need to prove beneficial use,” the bank claims.
Ideally, this idea will promote water savings. Wilhelmsen notes that the adoption rate for water banking is currently low. According to her, the one application for the program that has been accepted is not yet set up or operating.
Even with the more popular Agricultural Water Optimization Program in Utah, some believe more needs to be done. Burdette Barker, an irrigation expert at Utah State University, thinks efficiency is not the only issue that needs to be addressed; adaptation needs to be at the forefront, too.
“Will [the optimization program] alone meet the objectives that the state and others have?” he asks. “Probably not. Will it allow farmers to adapt better as tighter crunches come? I think so. They will help provide farmers with tools to cope or adjust.”
Barker notes that the Colorado River Basin has always faced problems with competing needs for water. “You’re running into issues where there’s less supply available, or going to be less supply available,” he said. While he thinks the state should be credited for finding ways to ensure that farmers remain safely in production, he is worried about the timeline.
“A lot of these challenges we’re looking at have taken many years to fully develop, and it takes years to respond,” he said.
Still, Peterson is holding out hope that these new programs will be more than a drop in the bucket toward improving water use. Farmers, who are sometimes blamed for the depletion of the Great Salt Lake, could actually lead the way toward saving it. And many have a personal incentive: protecting farms for future generations.
“Farmers are forward-thinking because they know the law of the harvest,” he said. “They aren’t going to foul up our water supply system so that their grandchildren cannot do what they do, and maybe even do it better. You hear farmers say that all the time, ‘I want to leave this so my grandkids can do this better than I did.’”
July 30, 2025
From Oklahoma to D.C., a food activist works to ensure that communities can protect their food systems and their future.
With new understandings on earth sciences about how the Earth is more of a water based core than magma based core, it would be good to see new rules put in place for deep wells, IE: maybe those greater than 1500 feet.
If Joel ever sees this comment it would be cool if he and my brother (who understands Utah water rights more than most) had a conversation.