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Last modified
1/26/2010 12:49:31 PM
Creation date
10/11/2006 11:37:51 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8062
Description
Federal Reserved Water Rights
State
CO
Basin
Statewide
Date
5/1/1975
Author
ICWP
Title
Final Report of the Interstate Conference On Water Problems - Special Task Force on the Proposed Federal Water Rights Legislation
Water Supply Pro - Doc Type
Report/Study
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<br />land is situated.8 Despite this government contention, there is no firm precedent <br />in the law for so interpreting the scope of the doctrine. Furthermore, .there are <br />important legal and policy considerations which militate against such a construction. <br /> <br />The great bull: of reservations of public domain lands came around the turn <br />of ti,e century. At this time, surface waters flowing through or by reserved <br />lands should have been apparent to Congress at the time of the withdrawal; thus, <br />courts could reasonably assert that Congress had "impliedly" reserved this surface <br />water for use all reserved lands. However, in the caSe of surface waters which <br />do not traverse or border the reserved lands, such an intention cannot be fairly <br />implied. <br /> <br />There are also other fundamental differences. In the case of surface waters <br />which neither traverse nor border reserved lands, interpreting the doctrine to <br />apply to such waters would create an unconscionable burden on those who have <br />appropriated such waters pursuant to state law. Even as to those waters which <br />traverse or border reserved lands, no water user prior to the Supreme Court's <br />decision in Arizona V. California in 1963 could have been on actual or constructive <br />notice of the existence of such implied rights. liThe same is true of the state <br />administrative agencies, since as a matter of formal policy and actual practice, <br />the public lalla agencies generally adhered to state law in acquiring water riyhts <br />for reserved lands prior to 1963.,,9 The injustice of curtailing or destroying <br />the rights of such state water users without compensation is even more pronounced <br />in the case of waters which neither flow nor border on reserved lmlds. <br /> <br />The states also reject the proposition that the reservation doctrine sanctions <br />the use of water on lands other than those for which the water was reserved. <br />Such a proposition conflicts with the purpose of the doctrine to reserve water to <br />facilitate the purposes of the withdrawal. Since such an interpretation would <br />expand significantly the uses which the doctrine authorizes, "it would only <br />exacerbate the problems the doctrine creates. <br /> <br />Because of its ambiguity on the above issues, the bill could be so construed <br />as to allow what the states feel to be unjustifiable extensions of the reserva- <br />tion doctrine. In the state's view, therefore, the bill's ambiguity is objectionable. <br /> <br />D. The Justice Department proposal sanctions reserved rights claims to ground <br />waters. <br /> <br />Although there is no indication under the definition of ureserved right" <br />of whether such rights could be applied to groundwaters, from the definition <br />in the bill of "water" to include wldergrowld as well as surface water, under- <br />ground waters would apparently be encompassed by the term "adjacent". The <br />general application of the doctrine to ground waters has not been firmly established <br />by the cases. A reserved right has been applied to ground water in a select and <br />specific instance involving the protection of an endangered species.10 A writ of <br /> <br />8. W.H. Veeder, Pelton Decision: A Symbol - A Guarentee That the Development <br />and Conservation of Our Nation I s Resources Will Keep Pace With Our national <br />Demands, 27 Mont. L.Rev. 137, 170 (1965). <br />9. Public Land Law Review Commission, One Third of the Nation's Land 149 (1970). <br />10. U.S. v. Cappaert, 508 Fed. 2d 313 (9th Cir.). <br /> <br />(6) <br />
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