There is a bill currently pending before the State Legislature which proposes to make a significant change in the law concerning forfeiture of water rights. Under the existing law, there is an automatic forfeiture of water rights upon 5 years of non-use. This means, for example, that a farmer with an old, turn-of-the-century water right that he acquired in 1945 and has used consistently for the next 50 years, may find the validity of that water right being challenged because of an alleged 5½ year period of non-use in the 1920s. This type of problem is very troublesome because it is difficult to establish either use during every 5 year period or non-use during a specific 5 year period after the passage of so much time. Not surprisingly, allegations of forfeiture for early periods of non-use are common in protests filed with the State Engineer. This situation also makes it very difficult to obtain clean title opinions on the more senior and therefore more valuable water rights.

The proposed legislation, H.B. 209 sponsored by Melvin R. Brown, adds a new provision to the forfeiture statute that prevents forfeiture if full beneficial use of water is resumed by the water right holder at any time after a 5 year period of non-use so long as it is before someone makes a formal claim of forfeiture in a civil lawsuit. This effectively changes and limits the issue to whether there has been full beneficial use in the 5 year period immediately preceding the filing of a civil lawsuit claiming forfeiture. Proof of use or non-use becomes much more readily established because witnesses can testify from recent personal knowledge and other contemporaneous evidence is available. Such evidence and testimony would also make title opinions on water rights much more meaningful because it would eliminate the need for reservations concerning the potential that the water right was forfeited at some early date.

This proposed legislation, however, could cause numerous problems for those with junior water rights who have depended on such unused water for years in a fully or over appropriated stream. The junior water user may not be aware that he or she is currently using water subject to an inactive senior water right. Therefore, this situation could continue for many years with the junior water user operating under a false sense of securing, seeing no need to perfect his or her water right by filing a lawsuit asserting forfeiture. Then, after substantial financial investment and many years of use by the junior water user, the senior water user could simply resume use of the water and the junior water user would be without recourse.

The proposed legislation shifts the burden of protecting water rights from the subject water right holder to junior water right holders. Such junior water right holders would essentially need to perform a private stream adjudication to determine if they are relying on any unused water under more senior rights. The junior water right holders would have the responsibility of taking affirmative action to file the necessary lawsuit.

This proposed change to our forfeiture law is a mixed bag of benefits and burdens but, if passed, its impact any particular water user will likely be either a significant positive impact or a significant negative impact rather than offsetting impacts. Therefore, this will be a hotly debated issue and water users should let their representatives know how it will affect them and the position that their representatives should take concerning this legislation.

Your comments and questions are welcome. The author can be reached at (801) 413-1600.

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