WSP00588

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 6/1/1979
• Author: WSWC
• Title: Observations of the Western States Water Council concerning the Report of the Federal Task Force on Non-Indian Reserved Rights - Task Force 5A - Presidents Water Policy Implementation
• Water Supply Pro - Doc Type: Report/Study

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incorporating federal reserved rights into the state systEm will likely
vary sanewhat among the states. It is, however, unclear from the report
exactly what legal significance the Task Force would attribute to the
act of incorporating federal.claims into the state water law system.

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If, by use of the \'iOrd incorporate, the Task Force is proposing
that states accord to all federal reserved right claims a status
CCX!1parable to decreed or adjtrlicated water rights, the state systems
will be unable to cat1ply with the proposal. Generally, a notice of a
claim to a \-.rater right serves as notice to later right holders or
subsequent appropriators ani for the state that such a right may exist.
It also provides vital information to the states necessary to assess
current arrl future water needs. The ultimate existence of a water right
cannot, however, be established upon the basis of a claim. IVhether the
right actually exists, ani the scope ani purpose of the right, can only
be definitely determined through the adjooicatory pr=ess.

The Task Force report points out the difficulty encolIDtered by sane
federal agencies claiming reserved water rights which are later detennined
invalid by the courts. The agency may then be forced to the state
systEm to perfect a a::rnparable water right. The problem described
arises because the priority date assigned to the water right by the'
state may be the date of actual filing for a permit in full exmpliance ."
with state procedure, rather than an earlier date corresponging to the
date of a notice of claim to a reserved right, the date of a filing of
notice with a disclaimer, or the date of first use of the water.

The report goes on to describe the disadvantages of receiving a
later priority date, which is that, in low water years the available
streamflovl may be fully appropriated by dOlVI1strea'!l appropriators. 1'1here
the upstream federal use is for minirnun stream flol-l purposes, there
should not be a problem. If the upstream fErleral use requires a di-
version, or if there are other \\'ater users upstream fran the federal
rninirnun flCM use, there my of course be an allocation problem.

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Faced with this problem, the Task Force has set out four alterna-
tive courses of action available to the federal agency to be follOlved
when a state refuses to grant a priority date as of the date the notice
of claim was filed. The alternatives are as follows:

(al Fore:Jo the reserved right claim ani file under the
state systan in order to obtain a water right with an
earlier priority date;
(b) institute a federal court action to detennine as
prariptly as possible whether the reserved right exists;
(cl do nothing ani leave the priority date to future
litigation; =
(dl avoid, in appropriate circumstances, cutting back on
water use in lCM flow years in order to avoid losing
right to downstream users who begin uses after the
date of the federal use.

'lb spare a federal agency fran havin:J to resort to any of these
alternatives, the Task Force believes that states should agree to accept
claims to federal reserved rights as adequate to create a water right
with a priority date ccmrensurate with the date of first use or the date

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