45-188. Future rights acquired through
appropriation; rights within service area of agricultural or
municipal provider
A. Any person who is entitled to divert or withdraw public waters of the state
through an appropriation initiated on or after June 12, 1919 and evidenced by a
certificate of water right issued under article 5 of this chapter, a court decree, or
previous possession or continued beneficial use and who intentionally abandons the use
thereof or who voluntarily fails, without sufficient cause, to beneficially use all or
any part of the right to withdraw for any period of five successive years shall
relinquish such right or portion thereof. The rights relinquished shall revert to the
state, and the waters affected by such rights shall become available for appropriation to
the extent they are not lawfully claimed or used by existing appropriators.
B. Any person who is entitled to divert or withdraw public waters of the state
through an appropriation initiated before June 12, 1919 and evidenced by a notice of
appropriation, a court decree, previous possession or continued beneficial use or any
other action taken in accordance with federal, state or territorial law existing at the
time of the appropriation and who intentionally abandons its use relinquishes that
right. The rights relinquished revert to the state, and the waters affected by those
rights become available for appropriation to the extent they are not lawfully claimed or
used by existing appropriators.
C. Water rights appurtenant to lands within the exterior boundaries of an
irrigation district, water users' association, ditch company or similar provider of water
for agricultural and municipal uses, or within the service area of a municipal provider
or a private water company, are not subject to abandonment or forfeiture if the water
provider and its agents maintain an operable water delivery system within that district
or service area with the total capacity to deliver the amount of water appropriated.
D. If a use or claim is subject to forfeiture by nonuse, failure by the
appropriator to use water within a five year period does not result in a forfeiture of
the associated water right if water use is resumed before the occurrence of the earlier
of any of the following:
1. The initiation of proceedings pursuant to section 45-189 to determine whether
the right has been forfeited or abandoned.
2. The filing by a third party of a statement of claimant in a general adjudication
instituted pursuant to article 9 of this chapter that asserts the right to use water from
the stream in which the subject nonuse has occurred.
3. The assertion by a third party of written objections in response to an
application by the appropriator to sever and transfer the right pursuant to section
45-172.
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