WSP08485

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 9/16/1981
• Author: USDOI
• Title: Federal Non-Reserved Water Rights - United States Compliance with State Law
• Water Supply Pro - Doc Type: Report/Study

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hensive analysis of the history of federal deference to state water law and in
tllis regard quotes avprovingly, the opinion of experts that the states, by
Constitution or statute, gained absolute dominion over their non-navigable
w"ter upon their admission to the Union. The Court went on to not" that:

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Congress 'effected a severance of all water upon the
public domain not theretofore appropriated from the
land itself'. ... The non-navi~able waters thereby
severed were reserved for the use of the public under
the laws of the states.~1 (citation omitted)

The Court thus held that the United States water use is limited until it reserves
the water or complies with the various state laws to appropriate that water, in
the same manner as any other individual.

The Court also cited with approval its earlier opinion that a state has total
control of water, limited only by the two exceptions, reserved rights and the
naVigation servitude:

The Court [in Rio Grande Dam] noted that there are two
limitations to the states' exclusive control of its
streams--reserved rights 'so far at least as may be
necessary for the beneficial use of government property'
and the navigation servitude.5HI

In addition to the legal basis for its opinion, the Court also acknowledged
the practical necessity of having federal appropriation comply with local law
in order to avoid "confusion" and "conflict. "'2:!./ '

The New Mexico v. United States~~/ opinion reaffirms and expands too strong
statements made in California as to the scope of federal water rights. Specifi-
cally, a congressional grant of "exclusive sovereignty" to the State of all non-
navigable waters (not formally reserved) is once again acknowledged by tne ~
Mexico opinion. The New Mexico case analyzed the United ~tates' power to claim
reserved water rights in a national forest for other than an "original" purpose
of the national forest. The Court initially noted the deference usually pro-
vided in the area:

Where Congress has expressly addressed the question of
whether federal entitiea must abide by state water law,
it has almost invariably deferred to the Itate law;6ll

~I Id. at 657-5H.
5bl 43~ U.S. at 6p2.
~/ Id. at 667-011.
601 Supra, ot. 53.
bll 4JH U.S. at 702.