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Assembling Water Rights For a New Use: Needed Reforms in the Law

Richard L. Dewsnup, Proceedings of 17th Annual Rocky Mountain Mineral Law Institute (1971)

In a broad sense, the purpose of this paper is to discuss water law doctrines and practices in the West which inhibit acquisition of water rights for new uses. More narrowly stated, this is a discussion of the basic problems ordinarily encountered when a prospective water user (such as an industry) wishes to acquire a dependable water right at the present time and keep it in good standing for an intended future use. Water requirements for prospective oil shale development serve to highlight some of the problems:

The oil shale industry will need substantial quantities of water for retorting processes within five to ten years in the future. The cost of such water and assurance of dependable annual yields loom large in determinations of economic feasibility. Anticipated future requirements must be controlled in advance of material commitments for pilot operations. Most oil shale oriented companies have accumulated conditional storage and direct flow rights for quantities of water substantially in excess of that available from the supply systems. Construction of reservoirs [614] to perfect these rights cannot be justified at the present time and, even with such construction, no present opportunity exists to apply the waters to beneficial use. The conditional decrees for such waters are vulnerable on grounds that use is speculative or uncertain, that diligence has not been