WSP01131

• File Number: 8067
• Description: Section D General Federal Issues/Policies-Section 7 Consultations
• Date: 11/12/1980
• Title: Federal Water Rights 1973-83-BLM Water Rights Policy and Procedures
• Water Supply Pro - Doc Type: Report/Study

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I. When the Bureau is considering water developments involving
nonreserved water for which a State appropriative water right is required
to protect the Federal investment, Federal funds shall not be allocated
for development or construction unless the Bureau can obtain a State
appropriative water right either solely in the name of the United States
or as a coholder with a private applicant.

J. There is no legal basis for the issuance of Federal water use
permits or leases. Private water rights to nonreserved waters are acquired
pursuant to State law, and BLM has authority only under section 302(b) and
Title V of FLPMA to control and regulate access to the water sources by
right-of-way (R/W) permits, leases, grants, etc. Furthermore, the Bureau
has authority to require information from a R/W applicant, grazing permittee,
etc., on proposed water use and can condition its permits, leases, grants,
etc., to protect land and water resource values on the public lands.

K. In conjunction with its existing permit and leasing system, the
Bureau requires a R/W permit for projects involving the transportation of
water, i.e., canals, ditches, flumes, pipes, pipelines, tunnels, or other
facilities, as well as for the impoundment, storage, or distribution of
the water upon the public lands.

L. The Bureau shall also require that for all proposed water projects
on the public lands, the applicant must file a "Notification of Proposed
Water Use in Conjunction with Application for Righ t-of-Way Permit" (see
Attachment I). The R/W permit issued under this system allows the
use of water on the public water reserves and the unreserved public lands,
but requires that for unreserved waters, a State appropriative water right
be obtained within a reasonable period of time, normally not to exceed one
year from and after the issuance of the R/W permit, with the name of the
United States or the names of the permittee and the United States appearing
on the certificate. A R/W permit issued under this system prohibits the
permittee from claiming, seeking, or acquiring permanent and exclusive
.right to the use of the water and from transferring the State appropriation
to a third party. The R/W permit system does not allow practices by the
permittee that would exclude incidental but necessary water use by the public.

M. If the R/W applicant or the State will not recognize the Bureau as
a coapplicant and/or coholder of a State appropriative water right, then
the R/W grant may be denied since issuance of rights-of-way under Title V
of FLPMA is discretionary with the Secretary. Furthermore, the Bureau can
subject the R/W permit to whatever terms and conditions under section S04(c)
of FLPMA as it deems necessary to adequately protect and manage the public
lands, including protection of water resources, provided that such terms
and conditions are not arbitrary and capricious.

N. The Bureau, as a matter of comity, should inform the State of water
resource uses on the public lands by non-Bureau users. This may be accomplished
by transmittal of a copy of the Notification of Proposed Water Use in
conjunction with Application for Right-of-Way Permit. It is not necessary
for the permittee to notify the State.