Butler, Crockett & Walsh Development Corp. v. Pinecrest Pipeline Operating Co.

ORME, Court of Appeals Judge,

concurring:

T 61 I concur in the court's opinion. My limited purpose in writing separately is to emphasize that the principle of beneficial use is flexible and evolving. I see no real hindrance to concluding that the use of water to irrigate natural vegetation can constitute, under appropriate circumstances, a beneficial use. In an area like Emigration Canyon, changing landscaping preferences may well favor preservation and enhancement of natural vegetation over the more traditional practice of uprooting natural vegetation and replacing it with sod, rose bushes, and fruit trees. Our notion of beneficial use should not be so rigid as to favor one landscaping preference over another. Thus, I do not look askance at the idea that natural vegetation can be productively watered and that doing so may well qualify as a beneficial use.

1 62 While at first blush it may seem otherwise, irrigating "natural" vegetation at water levels beyond what nature would itself provide is not a contradiction in terms. In our arid climate, especially during periods of drought, leaving natural vegetation alone-letting nature run its course-may well leave vegetation that is stunted and dry, resulting in a veritable tinderbox that is far from desirable in areas of human habitation. In contrast, watering such vegetation may permit it to grow and thrive, which may thus be beneficial in a utilitarian as well as a purely aesthetic sense. I gather that a more natural approach to landscaping, if done correctly, also results in reduced water consumption compared to the water required to sustain more traditional residential landscaping, thus paying broader societal dividends of conservation. -It is not really much of a stretch at all to view such a use of water as constituting a valid beneficial use.

T 63 Having disqualified themselves, Chief Justice DURHAM, Associate Chief Justice WILKINS, and Justice NEHRING do not participate herein; Court of Appeals Judges PAMELA T. GREENWOOD and GREGORY K. ORME, and District Judge MICHAEL G. ALLPHIN sat.