Since water use by private individuals and others is always a moving topic in our area, water rights and government involvement such as in South Willard at the present time are often discussed. South Willard is currently involved in some potential changes involving drinking water, and secondary water potentially involving government. The Sentinel asked questions to see if there are any relationships between water, the Constitution, and government.
Water is part of the earth that has been around for a long time. Genesis 1:6 tells us: “And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters.” Christians and others know that God created both the earth and mankind. Water is necessary for life (inalienable), and although water is not mentioned in the Constitution specifically, the term “inalienable Rights” is set forth in the Declaration of Independence. And the 5th, 9th, and 10th Amendments to the Constitution refer to rights, life, and property as follow:
Amendment V. “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
Amendment IX. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Amendment X. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Utah Constitution also refers to rights, life, and property as follows from Utah’s original 1896 Constitution:
ARTICLE I. DECLARATION OF RIGHTS, Sec. 1. [Inherent and inalienable rights.] “All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property;…”
Sec. 22. [Private property for public use.] “Private property shall not be taken or damaged for public use without just compensation.”
Sec. 25. [Rights retained by people.] “This enumeration of rights shall not be construed to impair or deny others retained by the people.”
The only two direct references to water in the State Constitution are listed here. In 1896:
ARTICLE XVII. WATER RIGHTS Sec.1 [Existing Rights Confirmed.] “All existing rights to the use of any of the waters in this State for any useful or beneficial purpose, are hereby confirmed.”
ARTICLE XI. LOCAL GOVERNMENTS, Sec.6. [Municipalities forbidden to sell waterworks or rights] “ No municipal corporation, shall directly or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply now, or hereafter to be owned or controlled by it; but all such waterworks, water rights, and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained and operated by it for supplying its inhabitants with water at reasonable charges: Provided, That nothing herein contained shall be construed to prevent any such municipal corporation from exchanging water-rights, or sources of water supply, for other water-rights or sources of water supply of equal value, and to be devoted in like manner to the public supply of its inhabitants.”
Also in 2001 the following Amendment was added: Sec.5. […--Legislature to provide for the incorporation, organization, dissolution, and classification of cities and towns…] “…The power to be conferred upon the cities by this section shall include the following: …(b) To furnish all local public services, to purchase, hire, construct, own, maintain and operate, or lease, public utilities local in extent and use; to acquire by condemnation, or otherwise, within or without the corporate limits, property necessary for any such purposes, subject to restrictions imposed by general law for the protection of other communities; and to grant local public utility franchises and within its powers regulate the exercise thereof.
We did not find any other Constitutional authority for federal or State control of water listed in either the U.S. or Utah Constitutions. For example, The U.S. Bureau of Reclamation and quasi-governmental agencies such as water conservation districts and as are administered by Pine View are brought into question – at least for the protection of beneficial uses of water as noted.
Mr. Doug McGregor, a local resident and Vice-President of the Freedom Coalition, gave his opinion that: “We live in a land that recognizes the ownership of property with the use of minerals and natural resources such as water within certain limitations such that the impact on the neighbors is not unreasonable.”
