Conditional Water Rights in the Western United States: Introducing Uncertainty to Prior Appropriation?

Abstract

In the prior-appropriation water rights regimes that prevail in the arid western United States, claims to annually variable surface water flows are fulfilled based on the order of their establishment. The two-step process used to establish an appropriative water right in all 17 conterminous western states creates a temporary phase, or conditional water right, which has a priority date but no actual water use. We provide a review of the legal basis for these conditional water rights and demonstrate the potential uncertainty they introduce to current water users. We then present a complete census of conditional water rights in Colorado, including their amounts, ages, and uses. At the end of 2012 there were a large number of conditional water rights in Colorado (some over 90 years old) equal to 61% of the perfected water rights. Many of the controversial conditional water rights in Colorado have been associated with unconventional oil production in the northwestern portion of the state; however, conditional water rights are ubiquitous across the state and across many use types. In several basins, their existence can introduce uncertainty to some of the most senior water rights holders. Nevertheless, in most of the state, the effects of conditional water rights are restricted to a relatively junior class of water users. This work quantifies for the first time the result, in one state, of a peculiar aspect of water law common across all western prior-appropriation states.