Wednesday, August 4, 2021
Introduction
In the western United States, water law developed around two main principles: (l) the goal of full beneficial use of water, and (2) the need to afford vested water right holders certainty as to their rights. At the time western water codes developed, these goals were seemingly in harmony—rewarding those who needed the water and invested in infrastructure for water use with rights that were enforceable against subsequent appropriators. Over the decades, as water needs and demands were reshaped by changing land use priorities, economics, and technology, these principles began to conflict with each other. Water right holders who had initially beneficially used water, and thus were afforded certainty regarding their future water use through water rights, no longer consistently used the water to which they were entitled. Thus, state water regimes were adjusted to enforce beneficial use requirements through abandonment and forfeiture laws that strive to return to the available “pool” the water rights of those that failed to timely make the investments needed to make or maintain their water use. The obligation to show continuing beneficial use of water to avoid relinquishment and abandonment of water rights slowly undermined the certainty of vested water right holders in their water rights and water infrastructure investments.