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<br />2126 <br /> <br />certiorari is now being sought by Nevada in the U.S. Supreme Court. The position <br />of the states is that reserved rights should apply only to surface waters. <br /> <br />Again, with resp~ct to groundwater, the existenCE, extent, and flow of ground- <br />waters underneath the reserved lands could not have been apparent to Congress <br />at the time of the vast majority of the reservations of public domain lands, and <br />it is therefore nnreasonable to impute such an intent to Congress.II Furthermore, <br />construing the doctrine to apply to groundwaters would be especially onerous with <br />respect to private water users. Since surface water moves rapidly over a stream <br />bed, an upstream diversion can affect the downstream user within a matter of hours. <br />Percolating waters, on the other hand, move very gradually through nO defined <br />channel and because of false non-porous materials and other natural factors, it <br />is often impossible to predict the effect of the drawing of groundwaters on other <br />water supplies. Thus, a groundwater user adjacent to a reservation might pump <br />water for years before the total effect of the reservation would be known. By <br />that time, he could have made a substantial investment in the land and water use. <br />Under such circtunstances, application of the reservation doctrine with it's no <br />compensation feature would seem unconscionable.12 <br /> <br />E. The proposed bill fails to deal with the effect of the termination of a with- <br />drawal on the associated reserved water right. <br /> <br />The lengthy study, prepared for <br />as an unsolved issue the question of <br />terminates the reserved water right. <br />observation; <br /> <br />the Public Land Law Review Commission listed <br />whether the termination of a withdrawal also <br />The study, however, made the following <br /> <br />"If a reservation were vacated and the lands returned to <br />public domain or disposed of it would be logical to assume <br />that the reserved water right would terminate. This result <br />would appear to follow from the continued validity of the 1866, <br />1870 and 1877 Acts declaring waters on the public lands as <br />subject to appropriation under state law. Under the present <br />system, however, there are no statutory, regulatory or decisional <br />guidelines to determine how a reserved water right is extinguished <br />upon termination of the land withdrawal.,,13 <br /> <br />The proposed bill is also silent on this issue. It is the position of the <br />states that the termination of the withdrawal should automatically terminate <br />the reserved water rights which would henceforth be unappropriated water subject <br />to control of the states. The states therefore object to the bill 'os failure to <br />so resolve this issue. <br /> <br />F. TI1e proposed bill contemplates federal reserved rights claims in riparian <br />juriSdictions. <br /> <br />.. <br /> <br />11. Note, Federally Reserved Rights to Underground Water - A Rising Question <br />in the Arid West, 1973 Utah L. Rev. 43. <br />12. Id. <br />13. PLLRC Study at 562. <br /> <br />(7) <br />