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<br />CENTRAL UTAH PROJECT COMPLETION ACT
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<br />179
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<br />conserved water to someone else. A downstream user who holds a valid
<br />existing right to the return flow water can legally prevent the upstream
<br />farmer from implementing the water conservation measure.l13 In
<br />other words, third party effects can prevent water transfers, since the
<br />transfer cannot injure downstream rights to return flows.H' Although
<br />this antiquated law is now recognized as an impediment to more
<br />efficient water allocation, the question remains how to back out
<br />equitably. Reallocation of these long-standing "property rights" defies
<br />an easy solution and confronts any meaningful attempt to reform water
<br />law.''"
<br />Another policy concern that acts as a barrier comes from a
<br />perception that farmers should not be able to get rich by selling
<br />water, He a public resource held in trust by the state.117 While there
<br />appear to be no barriers to selling reclamation water to gain a
<br />profit,1l6 observers contend that reclamation projects are intended to
<br />benefit the fanning community within the project boundaries, and that
<br />allowing one farmer to retain a profit is contrary to this intent.H9
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<br />III George A. Gould, Transfer of Water Ri8ht., 29 NAT. REsOURCES J. 457, 463-u (1989),
<br />114 Tarlock, supra note 17, at 154-56. The protection of juniors shields the downstream user
<br />from risk and promotes full development of water resources; thus, it "must be defended as
<br />ultimately fair.- [d. In Utah, the junior appropriator has a vested right to the return flow. See
<br />Eaet Bench Irrigation Co. v. Deseret Irrigation Co., 271 P.2d 449, 453-54 (Utah 1954), East
<br />Bench is the principal Utah ease addressing the elements of an impairment of a water right.
<br />In East Bench, the Utah Supreme Court held that the downstream users were entitled to all the
<br />return flow water-water that they had been customarily receiving for over 10 years. The court
<br />round that any lesser amount would constitute an impairment. Ill.
<br />us See Tarlock, supra note 17, at 152..03 (discussing the "legacy of the preference for equity
<br />over efficiency'").
<br />1It1 Interview with Dallin Jensen, former Utah State Water Engineer, in Salt Lake City,
<br />Utah, (Mar. 28, 1992). The State Engineer issues state water permits and approves or
<br />disapproves water transfers. Subsidized water for farmers from CUP was an unpopular topic
<br />ror Utah politicians. One local television commentator, Rod Decker, wondered why Salt Lake
<br />City should support the irrigation and drainage project in southern Utah, since Salt Lake
<br />residents generate most of the state's revenue, and thus would pay for most of the irrigation and
<br />drainage system's $80 million lltate cost share. However, as Salt Lake City continues to grow
<br />and look for new water, the city may be forced to buy back the water from the farmers. Local
<br />politicians have been' reluctant to address these unpopular issues.
<br />111 UTAH CODE ANN. I 73.1.1 (1992). A private appropriator may acquire a proprietary right,
<br />commonly described as merely a usufructuary right that is limited in scope to a beneficial UBe.
<br />&e id. t 73-1-3, If not used, the right expires. Id. t 73-1-4l1Xa); see also Rohert W, Swenson,
<br />A Pri_r of Utah Water Law: Part I, 5 J. ENERGY L. & POL'y 165, 177 (1984).
<br />II. With the exception of the Warren Act of1911, 43 U.S.C. It 523-525 (1988), "there appear
<br />to be DO explicit legislative provisioIl8 that would prohibit reclamation water users from
<br />participating in the income gain. from resale. . WAHL, supra note 4, at 150.
<br />m .lT1he money for which a Reclamation project water right is sold or leased. . . does not
<br />belong to the seller, but should be recovered by the irrigation or conservancy district-the
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