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A Survey of Water Rights Title Review in Six Western States

Carolyn F. Burr, Proceedings of 52nd Annual Rocky Mountain Mineral Law Institute (2006)

There's gold in them thar hills—but is there water? A reliable water supply is often an indispensable component of a viable mineral development project. In the West, securing water that is both [26-3] sufficient in quantity and sufficiently reliable to meet project demands year in and year out, even during a drought, takes planning and a lot of leg work. Since unappropriated water is frequently unavailable and new appropriations are generally unreliable, most new projects will need to acquire water from those with existing, senior rights to ensure a water supply that will be reliable enough to support operations. Unlike purchasing land, which is subject to relatively uniform legal principles from state to state, the laws governing water rights transactions may vary significantly from one jurisdiction to another and often have evolved substantially over time within a particular jurisdiction. This article explores some of the differences and similarities amongst Arizona, Colorado, Montana, Nevada, New Mexico, and Wyoming when it comes to one element of the due diligence process for a water rights transaction—title examination. This article is designed to provide basic tools and a starting point for a water rights purchaser to complete, or oversee the completion of, an effective water rights title examination.
§ 26.02 Shared Foundational Principles
Each of the six states