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<br />procedures provided by state law for the appropriation of <br />rights to the use of water, and a right to use water, not <br />theretofore appropriated by others and not encompassed by <br />a reserved right to the use of water, which has been <br />appropriated to use by the United States for its authorized <br />activities other than the following procedures provided by <br />state law." <br /> <br />This definition of appropriative rights is remarkably obscure, and little <br />illumination is provided by the explanatory statement prepared by its drafters. <br />Apparently, according to the definition, there exist two categories of "appropria- <br />tive rights"; those rights which are derived under state prior appropriation <br />law, and those rights to previously unappropriated waters claimed by the federal <br />government other than under state law. While there is little problem with the <br />first category, the obscure definition of the second category raises several <br />significant issues: <br />(1) Are federal appropriative rights limited to rights acquired under state <br />law and jurisdictions which follow the prior appropriation doctrine, or might <br />the federal government claim "appropriative" rights in riparian states? <br />(2) To what extent does the federal government hold appropriative rights <br />other than under state law, and what is the origin of such alleged rights? <br />(3) Could the United States claim "appropriative rights" to water developed <br />in federal projects? <br /> <br />Since the proposed bill distinguished between "reserved" rights and non- <br />state derived "appropriative" rights, it is clear that the authors contemplate <br />the existence of some federal common law right of appropriation other than recognized <br />under state water right doctrines. The states seriously question this proposition. <br />Other than the reserved rights doctrine, we know of no common law right for the <br />United States to appropriate water (in prior appropriation or riparian jurisdictions) <br />except in accordance with state recognized doctrines and procedures, or through <br />federal acquisition of state-derived rights via condemnation, purchase, gift <br />or adverse possession. We particularly are aware of any cases recognizing such <br />a federal "appropriative" right in eastern riparian states. "Moreover, numerous <br />state and federal courts have rules that storage of water in and of itself creates <br />no water right. There must be a subsequent use of the water for a right to be <br />claimed or established.. <br /> <br />The states thus are justifiably concerned that the definition contained in <br />Section 2 (c) might be used by federal agencies to assert a novel and expansive <br />category of federal proprietary rights - rights based on the mere application of <br />unappropriated or unused waters to federally authorized activities regardless of <br />state water law or procedures. The range of such claims is beyond comprehension. <br />Such claims may exte~d to a federal assertion of some sort of proprietary "appro- <br />priation" of all waters stored by federal projects, whether such projects were <br />constructed for water supply, flood control, navigation, or recreation purposes. <br />In this fashion, commerce clause projects whose rights rest on the navigation <br />servitude could be converted to federal proprietary claims presumably allowing <br />the United States to sell or transfer the affected waters or apply them to new <br />or different purposes. <br /> <br />A federal "appropriative" right under the present status of law is properly <br />defined as a right of the United Sttaes to divert and apply water to beneficial <br />uses in accordance with the laws and procedures followed in the respective states <br /> <br />(10) <br />