WSP00250 - Laserfiche WebLink

Home Browse Search

[Vol. '9: Page, ~ht-would be de, \ no agreement the lPportionment ap. Jriation has been a ..tacy has no pOWer leral law, controls by express provi. rn~nts. -ipal points of the n Trelease, whose 1st thoughtful, ex- lake an interstate Can this congres- the answer to this lave or, having it, tionment is e1sy v. California the nanage navigable :ress had declared ,tion.'.' The only 'portionment that ,dment claim for :alifornia because Court defined as ch right has been )f water that has :ipal or industrial the effective date ] excludes rigbts not for couns . . . to oury for the improve- ect will ~nrc the inter- and Congress alone to Xl); Oklahoma ~r r~/. iunal re.aSOD why CoD- III COntrol on Dnigablc .n. Project Act provides n,h4 io punuaD~ of THE COLORADO RIVER 47 ,.:o<<mba' '966 ] 'zrd der state law-for example, a water right for works com- 1'fC'O~ bef un the act took effect and completed with due diligence there- II!"n 5 ch ~rs~ate.created right would not have been a perfected right, be- after. U d'version had taken place by the time the Project Act became QUse no I rf d' h . d' th Lo _n '. So far as appeared, no such un pc ecte ng t elUste m ewer ..,.('Ct1,e. h d f . . Lut if it had the Court would have a to ace two questlOns-ques- tun"'" , ' f . I . , .hich could arise in any urure congresslOna apportIOnment: 1>0-'(;' Aparr from the question of compensability of water rights in navi- Ll' rrc:ams does the fifth amendment protection of "private property pI' e s , . d b . . . t~kcn for public use" extend ~o exp~ctatJons. gener~te y state-pre>- 1n"!....1 invesUDents in waterworks if the Investor IS depnved of water by rortionment bdore the works arc completed? The author would expect Ip ~ffirmati"e answer to this question. State Jaw has validated the expecta- :n Cor it has said the investor has a protected right if he completes his ..orks ~nd puts the water to beneficial use. This would have been done but for the act oC Congress. The Supreme Court has given protection under ....tion 8 of the Reclamation Law to riparian rights that consisted of no more than overflow Crom the annual spring flood oC the San Joaquin Ri"cr.": Similarly, courts regularly protect substantial investments made beforr a zoning change prohibits the proposed use.'.' However, the answer 10 ti,e second question may render the first question moot when the ap- portioned stream is navigable. (2) Is a consumptive water right in a navigable stream, whether the rij:ht is perfected or unperfected, constirutionally compensable when taken in ti,e exercise of the uavigation power? As yet this question has not been an.wered by the Supreme Court, but the existing authority would clearly prrmit a negative answer.'.' The conclusion can thus be supported that Conj:ress has power to make an interstate apportionment of a navigable Ilre~m and thereby divest existing water rights without compensation if it chooses. However, in the one interstate apportionment it has made so far, Congress chose to divest only "unperfected" rights, for which no claims for compensation have been made. ^part Crom the navigation power-which can probably extend to any 1..ly of water Congress would deign to dividem-the spending power, as llon T release notes, also provides a basis for a congressional interstate ap- portionment of a stream.'.' It seems clear that this power permits Congress 19.1. Uniled Slolles v. Gerlach Live Stock Co., 339 U.S. 725 (1950). 19). SN, r.,., Jones v. CilY of Los Angeles, :211 Cal. 304, 295 P. 14 (J930); Gleocl Realry lnrp. ... Wonhin~on. 4 App. Div. 2d 701, 164 N.Y.S.2d 635 (1957). '9.04. Su Vmt~ St.nes v. Twin City Power Co., 350 U.S. 222 (1956). The m.artt'T js fully dis. luMtd In Morreale. lupra note 170, at 63-76. . .195. Su United States v. Grand River Dam Authority, 363 U.S. 221) (1960); Oklahoma t'% rt'l. Phillip" Y. Guy F. Atkinson Co., 313 U.S. 508 (1941); Uni1ed States v. Appalachi:m El~. Powu Cu.. )11 U.s. 371 (1940). IpG. St't'Trd~.supra note 184, at 180-82.