WSP08485 - Laserfiche WebLink

Home Browse Search

0047 . - & - . . Yet Congress has been said, as was earlier referenced, to have concurrently granted "exc.lusive sovere1gnty over appurtenant non-navigable water rights when it granted statehood. In addition to the statehood acts, Congress very early on promulgated legislation which deferred to state control of water usage on the public domain. Specifically, Congress passed two statutes Whi~~, consistent with state law, reco~ni7.ed the tights of prior appropriatots.~ The statutory provisions in the 186b and 1870 Acts had the effect of requiring water rights claimants on federal lands to comply with state water laws. Since the approptiation system grew up partially as a consequence of and in conjunct.1on with western states' miniD6 laws, the statutory acknowledl!Jllent had t he effect of placing the congressional imprimatur upon the water laws of the individual western states.34/ Thus, rather than exerciaing a constitutional prerollstive of establ1Shing a federal hierarchy of water rights and laws, .these two statutes recognized the state substantive and procedural laws for the alloca- tion of water resources on the public domain. This was an early signal to the States and Territories that the Federal government would yield to state water laws and naturally was an incentive to the new states to promulgate and apply their own water laws. Congress reaffirmed and enlarged this implicit grant of bruad control over water sources to the states in passage of the Desert Lands Act of 1877.J5/ That Act provided homesteaders with a right to water, subject to prior appro- priation, for "irrigation and reclamation usages' and further provided that s"rplus water would be available for later appropriation. Ai; the Supreme Court has noted, the Desert lAnds Act severed the water rights from surtace rights3&/ and directed yatentees of federal lands to apply under state law to acquire water rights.lf. . These three statutes, the Desert Lands Act, a8 well as the 18&0 and 1871 Acts, had the effect of severing water from land on the public doma~/, requiring atate laws to be followed and 1Il&1I.1ng all non-navigable water a a part of the 33/ Act of July 2b, l8b&, i ~ (14 Stat. 253), re-enacted at i 233~, R.S. (43 u.-S.C. i &&1, 194& ed.); Act of July 9, 1870, i 17 (1& Stat. 218), re-enacted aa 2340, R.S. (43 U.S.C. . &&1, 194b ed.). 34/ California v. United Statea, supra at &5&. 35/ The Act of Harch J, 1877, . 1, (43 U;S.C. , 321, 1970 ad). 3&/ Federal Power Commission v. Oregon, 349 U.S. 435 (1955). lL/ Cappaert v. United States, 42& U.S. 12ij (1970). 38/ F. Trelease, Federal State Relation in Water Law, at 147d-47(f) (Sept. 7, 1~71) (Legal Study No., 5 prepared for tbe National Water Commission).