WSPC12525 - Laserfiche WebLink

Home Browse Search

002248 LEGAL MATTERS OF THE UNITED STATES AND MEXICO J 1M LOCHHEAD BROWNSTEIN HYATT & FARBER, P.C.: Since one theme of the conference is that hydrologic systems are interrelated, Mr. Lochhead said it is as important to have an understanding of the allocations and administra- tion of water at the upper end of the Colorado River system - the Upper Basin - as it is of the Delta region. Water rights in the Upper Basin were devel- oped before statehood by irrigators and miners in the region, under a system known as /I prior appropriation./I This is the law of first-in-time, first-in-right priority. The first water user to divert and use water from a stream has the first right to use that water as against subsequent (.ppropriators on that stream. Upon statehood, title to water and the bed and banks of navigable streams and rivers was , removed from the public or federal domain and \was vested in each state. As a result, each state owns, controls and manages the water resources within its borders, subject to prior appropriation by its citizens. Though states have individual water laws, there are elements of prior appro- priation that are common. For example, water rights are based on a right of use, not ownership of the water itself. A water right is a property right to take water and use it for a beneficial purpose, at a particular locale and with a given priority. Water rights can be created for uses that are not yet vested. An unperfected right is a property right under state law. Individual states also can create in-stream flow rights for environ- mental and recreational purposes. States can approve changes in water rights to new points of diversion, places of use or types of use. Gener- ally, changes are granted as long as they do not injure other water rights. Under the Compact Clause of the U.S. Consti- tution, states can apportion water amongst themselves. (The United States Congress and the U.S. Supreme Court also have the power to pportion water between states.) Since com- pacts are adopted by state legislatures and approved by Congress, they are both state and federal law. The first interstate equitable appor- tionment of water by a compact was the 1922 Colorado River Compact, which apportions the right to consumptively use the water of the Colorado River between the Upper Basin and the Lower Basin. A primary concept of the compact is the individual sovereignty of each state to own, regulate and manage only water apportioned to that state. Under the Compact, the Upper Division states (Colorado, Utah, Wyoming and New Mexico) must not deplete the flow at Lee's Ferry, Arizona below 75 million acre-feet over a rolling lO-year average period. The Upper Basin also may not withhold water from the Lower Basin if the Upper Basin is not using it. For the Upper Basin, the 1922 Compact serves as a defined apportionment of water to allow for future development and prevent the application of prior appropriation on an interstate basis. It also affirms individual states' rights to control appropriation of water and water rights within their borders. Under the Compact, the Upper Division States may not sell, lease or transfer water to a Lower Division State. The U.s. government has certain rights, both reserved rights and rights appropriated under state law, to water associated with federal land such as national forests and Bureau of Land Management (BLM) land. There are many issues associated with these rights, including how much water is needed to meet the purposes of the federal reservations. Indian Tribes also have reserved water rights, many of which remain unquantified. Quantifi- cation is based on practicably irrigable acreage, the needs of the reservation and also on specific treaty requirements and obligations. COLORADO RIvER DELTA BI-NATIONAL SYMPOSIUM PROCEEDINGS ENGLISH 27