Abstract
Conditional water rights within Colorado can create uncertainty for other water users within the prior appropriation system. These issues stem from recent treatment of conditional rights as akin to a vested property right, rather than a placeholder pursuant to which an applicant hopes to be awarded a vested right. Conditional water rights provide a degree of water security for a specifically identified future use by authorizing an applicant to reserve a place in line within Colorado's priority system for a water right to apply to such use. However, to protect the integrity of the priority system, an applicant's right to reserve a priority date is contingent upon the applicant's obligation to prove its continued "non-speculative" need, and that it "can and will" apply water to the identified use. In practice, these rights have fundamentally changed the application of speculation and abandonment standards because conditional rights-especially those associated with municipalities or oil shale development have exceeded these standards as a matter of practice. Particularly, conditional rights have been granted statutory protections that courts have interpreted as allowing appropriators to hold their place in the priority system indefinitely despite their failure to demonstrate a specific intent or ability to apply water to a non-speculative beneficial use. These interpretations (or mis-interpretations) of statute have resulted in the continuation of speculative conditional rights that, rather than promoting certainty by reserving a place in the priority system for non-speculative water projects, create uncertainty by allowing holders of conditional water rights to continue to claim senior priority dates for nonspecific, speculative uses, potentially interfering with water availability for those who have developed their water rights in a timely fashion. Fixing the myriad problems stemming from judicial misinterpretation of the law governing conditional rights will require legislative fixes to ensure Colorado can make maximum use of the scarce water resources within the state.
First Page
175
Custom Citation
Andrew Teegarden, Uncertain Future: How Conditional Water Rights Have Created Unintended Consequences in Colorado, 28 U. Denv. Water L. Rev. 175 (2025).