7791 - Laserfiche WebLink

Home Browse Search

UNCERTAIN WATER RIGHTS to the protection of those rights in resolving disputes over the administration and actual delivery of water. That is a further potential danger because the federal "McCarren Act"10 provides state courts with authority to resolve such disputes. Sixth, there is considerable uncertainty about the availability of federal reserved water rights where national park lands were acquired by purchase or donation rather than by "reserving" the lands from the public domain. Water rights for those parks may be available if the courts accept the thesis of a 1985 Justice Department legal opinionii which argued that implied water rights should be recognized for acquired lands. That opinion contended that pur- chased or donated lands should be entitled to an implied right to water sufficient to serve the explicit purposes specified in any federal legislation providing for the purchase or protection of those lands. Such claims, however, have yet to be asserted for protec- tion of park waters. Seventh, there is unresolved dispute about whether the federal reserved water rights doctrine can be applied in states that operate under a "riparian" system of water law. Thus, it is doubtful that federal reserved water rights are available, or will provide meaningful protection, for park waters in those states. Under riparian systems, all landowners abut- ting astream are generally entitled to a "reasonable use" of water. The amount of their entitlement, how- ever, is subject to reductions where necessary to accommodate new or expanded "reasonable uses" or reduced flows. Federal reserved water rights, in con- trast, establish a right to a specific amount of water, fixed at the date a reservation is established, which cannot be diminished by later claimants. The poten- tial incompatibility between the alterable right of "reasonable use" under the riparian system and the fixed entitlement that characterizes federal reserved rights has not been resolved by the courts. Eighth, both the executive and legislative branches of government have attempted to interfere with, or inhibit, the legitimate assertion of reserved right claims by the Park Service. The Senate Interior Appropriations Committee, for example, has in the past sought to impose restrictive guidelines on the Park Service Water Resources Division designed to restrict the amount of water claimed by limiting the purposes for which claims may be filed.12 The guide- lines directed the Park Service to seek water only for those purposes specifically identified in a park's enabling legislation rather than for the broad conser- vation and "nonimpairment" purposes of the National Park Service Organic Act. Similarly, pressure by high-level officials within the Department of the Interior forced the Park Service to revise its Management Policies in 1988 to discourage the filing of reserved right claims, except as a last resort. The policy statement directs the Park Service to seek water for parks primarily by applying for "appropriative" rights under state systems for administrative allocation of water. At least in the West, these systems generally award water based on chronological order of application, and because most state systems have already over-appropriated avail- able water, little actual water would be available for the parks. In addition, these state systems often severely limit the amount of water that can be pro- tected for instream flow purposes or deny instream flow rights altogether. The Management Policies also improperly seek to limit the amount of water claimed under a reserved right by directing the Park Service to claim water only for the purposes stated in individual parks' enabling acts rather than for the broader pur- poses stated in the Park Service Organic Act. If rigidly applied, the Management Policies statement could severely restrict Park Service assertion of reserved right claims and result in unauthorized abandonment of important park resources. Furthermore, it could unnecessarily and significantly increase the cost of protecting park waters, because the Park Service ulti- mately will be compelled to purchase water rights that might otherwise have been protected under proper assertion of reserved right claims. Although the Director of the Park Service recently asserted that reserved rights will be claimed for parks despite the 1988 Management Policies posi- tion, the Director's statement13 is heavily qualified. The statement indicates that reserved right claims will be made only where "appropriate" as determined on a "case by case" basis - a standard that obviously maximizes agency discretion and, unfortunately, invites political intervention. Moreover, the Director continues to indicate that "in most cases" reserved right claims will be based on the purposes stated in a park's enabling act or proclamation rather than the Park Service Organic Act. In short, the Director's statement fails to give meaningful assurance that reserved rights for parks will be properly asserted and defended. Also troublesome has been the Justice Department's failure to vigorously defend park waters in some key instances - a problem likely to be exac- erbated by the Park Service's 1988 Management Policies statement on reserved rights, as well as by the Director's recent interpretation of that policy. When the Colorado courts denied a meaningful water right for Dinosaur National Monument in 1983, the 23