Sec 45-188. Future rights acquired through appropriation; rights within service area of agricultural or municipal provider

A. Any person who is entitled to divert or withdraw public waters of the state through an appropriation initiated on or after June 12, 1919 and evidenced by a certificate of water right issued under article 5 of this chapter, a court decree, or previous possession or continued beneficial use and who intentionally abandons the use thereof or who voluntarily fails, without sufficient cause, to beneficially use all or any part of the right to withdraw for any period of five successive years shall relinquish such right or portion thereof. The rights relinquished shall revert to the state, and the waters affected by such rights shall become available for appropriation to the extent they are not lawfully claimed or used by existing appropriators.

B. Any person who is entitled to divert or withdraw public waters of the state through an appropriation initiated before June 12, 1919 and evidenced by a notice of appropriation, a court decree, previous possession or continued beneficial use or any other action taken in accordance with federal, state or territorial law existing at the time of the appropriation and who intentionally abandons its use relinquishes that right. The rights relinquished revert to the state, and the waters affected by those rights become available for appropriation to the extent they are not lawfully claimed or used by existing appropriators.

C. Water rights appurtenant to lands within the exterior boundaries of an irrigation district, water users' association, ditch company or similar provider of water for agricultural and municipal uses, or within the service area of a municipal provider or a private water company, are not subject to abandonment or forfeiture if the water provider and its agents maintain an operable water delivery system within that district or service area with the total capacity to deliver the amount of water appropriated.

D. If a use or claim is subject to forfeiture by nonuse, failure by the appropriator to use water within a five year period does not result in a forfeiture of the associated water right if water use is resumed before the occurrence of the earlier of any of the following:

1. The initiation of proceedings pursuant to section 45-189 to determine whether the right has been forfeited or abandoned.

2. The filing by a third party of a statement of claimant in a general adjudication instituted pursuant to article 9 of this chapter that asserts the right to use water from the stream in which the subject nonuse has occurred.

3. The assertion by a third party of written objections in response to an application by the appropriator to sever and transfer the right pursuant to section 45-172.