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Last modified
7/29/2009 7:29:25 AM
Creation date
10/12/2006 5:25:36 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8067
Description
Section D General Federal Issues/Policies-Section 7 Consultations
Date
6/1/1979
Title
Federal Water Rights 1973-83-Report of Federal Task Force on Non-Indian Reserved Rights
Water Supply Pro - Doc Type
Report/Study
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<br />UU1917 <br /> <br />the right was not expressly extended to other. non-Indian federal reser- <br /> <br />~. ; <br /> <br />vatlons until 1963 ~I although. as the Public Land Law Review Commission <br />observed. the Supreme Court foretold that result In a 1955 declslon.il <br /> <br />~ ~ <br /> <br />, , <br /> <br />The federal reserved water rights doctrine has been described by <br /> <br />the courts as follows: <br /> <br />This Court has long held that when the Federal <br />Government withdraws Its lands from the public <br />domain and reserves It for a federal purpose. <br />the Government. by Implication. reserves appur- <br />tenant water then unappropriated to the extent <br />needed to accomplish the purpose of the reser- <br />vation. In doing so the United States acquires <br />a reserved ~ater rIght In unapproprIated water <br />which vests on the date of the reservatIon <br />and Is superior to the rights of future <br />appropriators. Reservation of water Is <br />empowered by the Commerce Clause, Art. I, <br />S 8. which permits regulation of navigable <br />streams. and the Property Clause, Art. IV. <br />S 3. which permits federal regulation of <br />federal lands. The doctrIne applIes to <br />Indian reservations and other federal en- <br />claves. encompassing water rights In navi- <br />gable and non-navigable streams.11 <br /> <br />Reserved water rights are most often created by Implication rather <br /> <br />than by express reservation. The Intent to reserve water "Is Inferred If <br /> <br />the previously unappropriated water Is necessary to accomplish the pur- <br /> <br />poses for which the land reservation Is created." because the courts have <br /> <br />31 Arizona v. California, 373 U.S. 546, 595-601 (1963). <br /> <br />4/ See One-ThIrd of the NatIon's land 1197Q). p. 142; FPC v. Orecon. <br />349 U.S. 435 (1955); see also United States v. Rio Grande Irrlqatlon Co., <br />174 U.S. 690, 706 (1899);lCaTlfornla v. United States, 438 U.S. 645, 662 <br />(1978). <br /> <br />11 Cappaert v. United States. 426 U.S. 128. 138 (1976) (citations omitted). <br /> <br />-7- <br />
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