FLOOD05728

• County: Statewide
• Community: State of Colorado
• Basin: Statewide
• Title: Water Quality/Quanity Relationships
• Date: 6/1/1989
• Floodplain - Doc Type: Educational/Technical/Reference Information

1989]

WATER RIGHTS PROTECTION

ment and use (including restoration, preservation, and enhancem
of land and water resources.""J9 In the closing'sections of the I
Act, Congress provided: "Except as expressly provided in this ,
nothing in this Act shall. . . (2) be construed as impairing or in
manner affecting any right or jurisdiction of the States with respec
the waters (including boundary waters) of such States.""o ContI
to section 10 I (g), the right of states to allocate their waters woul,
superseded, abrogated, or impaired if federal clean water progr:
were utilized to impose different allocation systems upon them, c
the water rights confirmed by the proper state forum could nOI
exercised because of federal regulation.
The second sentence of section 101(g) provides that "it is the
ther policy of Congress that nothing in this Act shall be construe.
supersede or abrogate rights to quantities of water which have t
established by any State." 111 This sentence is meant to protect w.
rights established under state law. There are four essential element
an appropriative water right,112 and this provision of section 10
intends that federal agencies will give effect to them. In parts III
IV of this article, we analyze the "bundle of sticks" that constitut
water right and argue that a taking of property requiring just com(
sation may result if the second sentence of the Wallop Amendmer
not followed by federal agencies.
The third sentence of section 10 I (g) requires that "[f]ederal al
cies . . . cooperate with state and local agencies to develop comprel
sive solutions to prevent, reduce and eliminate pollution in con,
with programs for managing water resources."'13 This sentence
received scant attention, but it is the key to implementing the fed,
water quality and wetlands protection mission in a manner that c<
plements and supports the exercise of water rights.
In his floor statement regarding section 10 I (g), Senator Wa
said that Congress did not intend to "prohibit those incidental effel
that could occur in connection with "the use of water under an i1
vidual water right."'14 This language has been rationalized as eXI
ing any effect on a water right that might result from regulation un
the Clean Water Act, so long as the primary aim is to protect w:

109. 33 U.S.c. i 1251(b) (1982).
110. Id. i 1370.
II\. Id. i 1251(g).
112. See infra part IILA.
113. 33 U.S.c. i 1251 (g).
114. Remarks of Sen. Wallop, supra note 92, at 39,212,