Maintenance of Water Rights over Time under Model State Water Code

Abstract

The Model State Water Code establishes procedures for definition of water rights and their maintenance over time. Provisions for maintenance become increasingly important with passage of time, as a higher portion of a state's water is subjected to initial allocation. The code presents two distinct options for water-allocation systems that handle water-rights maintenance differently. In the option based on prior appropriation, water rights are issued for an unspecified duration, are not subject to significant governmental restriction while in effect, and are transferred to new water uses by market transactions. In the option compatible with water-use permitting in the eastern United States, permits are subject to specified terms, administrators impose restrictions during permit terms, and transfers to new uses are accomplished primarily by governmental reallocation. Adoption of these fundamentally different approaches is a consequence of recognizing two distinct allocation theories within the Model Code, a decision based on the belief that a significant number of states will continue to rely on each of the two major doctrines for the water-allocation function.