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Abandonment and Forfeiture: How to Hold a Water Right as Development Takes Place

Joseph Novak, Proceedings of 28th Annual Rocky Mountain Mineral Law Institute (1982)

Appropriative water rights may be lost, either in whole or in part, through abandonment, statutory forfeiture, prescription, estoppel, or laches.2 The legal concepts governing loss of water rights through prescription, estoppel, or laches are beyond the scope of this paper and will be referred to only in the context of the beneficiaries of abandonment and forfeiture.3

As a general rule, only completed or perfected appropriative rights evidenced by diligence claims, certificates [1250] of appropriation, licenses, or decrees may be lost through abandonment or forfeiture.4 Inchoate rights evidenced by applications, permits, or conditional decrees may lapse or be cancelled administratively for failure to comply with the statutory procedures and requirements.5

Riparian rights, while subject to loss by adverse use, generally are not subject to forfeiture.6 The early rationale for the rule is that use of the water does not create the riparian right and disuse cannot suspend or destroy it.7

Ancient Hawaiian water rights may be lost by abandonment or through prescriptive use of another for the statutory period.8 There is no statutory forfeiture provision in Hawaiian water law.

Pueblo rights are recognized in California and New Mexico. These rights are acquired by a municipality that succeeded a primitive Spanish or Mexican pueblo and are not subject