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Last modified
1/26/2010 3:17:35 PM
Creation date
10/12/2006 4:59:53 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8062
Description
Federal Water Rights
State
CO
Basin
Statewide
Date
10/25/1979
Author
WSWC
Title
Response to the Solicitors Opinion on Federal Water Rights of June 25 1979
Water Supply Pro - Doc Type
Report/Study
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<br />0244 <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />The same rationale is applicable to the Solicitor's argwrent. The <br />1916 National Parks Service Act is a general provision establishing a <br />new agency with duties that would inclu:J.e the operation of national <br />parks, national rron\.lI1'j2nts, ani national historic areas, each having a <br />distinct public purpose warranting protection. The language cited was <br />rrerely a sunmary of the separate purposes. But even assuming the 1916 <br />National Parks Service Act expanied the reserved water rights of the <br />United. states, such rights must b2 considered subordinate to any appro- <br />priation of, water urrler state law prior to 1916. 72/. <br /> <br />(b) National Monurrents <br /> <br />The National Parks Service Organic Act of 1916 also carmot have a <br />retroactive effect, as the Solicitor suggests, so as to allow reserved <br />rights to b2 asserted for the purposes enunciated in the Act, but with <br />pre-1916 priority dates. The legislation actually authorizing the <br />,withdrawal of public lanus for national rronurnents, the Act for the <br />Preservation of American Antiquities Act of 1906, 73/ specifically <br />refers to withdrawals of public land for "historic"- and "scientific" <br />purposes, "the limits of "hich in all cases shall b2 confined to the <br />smallest areas compatible with the proper care and ffi3l1agerrent of the <br />objects to be protected." 74/ There is no evidence in the language of <br />the Act to indicate that Congress intended the national rronurrent lands <br />to serve the much broader purposes nOl, asserted by the Solicitor. <br />But again, even if the 1916 National Park Service Act is considered to <br />have broadened the reserved rights of the United States for national <br />rronuments, the respective priority dates cannot be prior to 1916. <br /> <br />. <br /> <br />II. NCN-RESER\IED WATER RIGID'S <br /> <br />Most egregious fran the viewpoint of the states is the Solicitor's <br />assertion of a neIV basis for federal water rights. The Solicitor con- <br />cludes that, "Since the federal govemrent has never granted aIVay its <br />right to make use of unappropriated waters on federal lands,... the <br />United States has retained its fCMer to vest in itself water rights in <br />unappropriated water and it rray exercise such fCMer independent of <br />substantive state law." 75/ ' <br /> <br />Such water rights are available to fulfill authorized congressional <br />purposes on the public demain, reserved and acquired lands, according <br />to the Solicitor. Such uses rray be consurrptive or non-consurrptive uses <br />such as for "fish and wildlife, scenic values, and areas of critical <br />environmental concern." 76/ The priority date is the date of initial <br />use, ani the quantity of the right is detennined by the requirerrents <br />necessary to carry out "congressionally authorized ffi3J1agenent objectives <br />on federal lands." 77/ The Solicitor admits that the Suprerre Court has <br />never sanctioned such rights by the federal governrrent, but rather refers <br />to "inconsistent dictum" on this subject. 78/ <br /> <br />The Solicitor thus derronstrates little respect for the rrost <br />recent decision by the Suprerre Court concerning the reservation d=trine, <br />United States v. New Mexico. 79/ After noting traditional congressional <br />deference to state water law, the Court found that where water is <br />necessary to fulfill the very purposes for which a federal reservation <br /> <br />. <br /> <br />-11':: <br /> <br />90. <br />
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