WSP03270 - Laserfiche WebLink

Home Browse Search

riparian owners. Because of these attributes, riparian rights are not susceptible to being fixed by quantification. Nevertheless, the proposed bill would require the "inventorying" of such rights owned by the United States. Section 3 La) (6) provides that "with respect to any right based on state law. . . which is not susceptible of quantification under such state law, the quantity of water encompassed by the right need not be stated" in the inventory. It is assumed that this includes riparian water rights. The states doubt the utility or the desirability of including riparian rights in a federal water rights inventory and determination process. If federal riparian rights cannot be quantified, mere notice that the United States owns land adjacent to particular water courses is of little assistance to state water administrators or private citizens. While information as to present and planned places and amounts of withdrawal and use may be helpful in the state water planning efforts, because of the relative and unstable nature of the riparian rights over time, the mere inventorying of the current use information could not under state law be de- terminative of ~e present and future reasonableness of such usesa Furthermore, if the United States riparian claims are left W1quantified in the inventory, challenge to the federal claims might be virtually impossible. Absent some assertion by the federal government of a present intent to use these rights, it is difficult to see how the naked unquantified claim itself could be "ripell for adjudication or even present a judicially-recognizable "case and con- troversYa" Because the extent of riparian rights is detennined by the reason- ableness of the use compared with the needs of other riparian owners, no con- troversy could ripen until the exercise of a federal claim adversely affected other riparians. Yet, under the terms of the proposed bill, the statute of limita- tions on challenges to federal claims would run three years after publication of the inventory, irregardless of ripeness for review a Thereafter, the statute of limitations and sovereign immunity would preclude challenge to a federal riparian claim when actually exercised a On the other hand, it should be noted that, although the proposed bill does not require quantification of federal riparian claims, it does not prohibit federal agencies from claiming specific quantities of water under the riparian rights doctrine. Indeed, such purportedly quantified riparian claims may be filed not- withstanding Section 3 (a) (6). If federal riparian claims are quantified, the administrative determination procedure established by the bill, as will sub- sequently be more fully explained, would place state and riparian users in a dis- advantageous position to challenge the alleged federal right. The proposed inventory bill also intends to cover underground as well as surface waters. To the extent that groundwater rights might be held by a private person under state law, Section 2 (d) would allow the United States to claim English rule, reasonable use, correlative and appropriative rights to under- ground wate~s under the class of "other rightsa II While quantification of federal groundwater claims under the English rule of absolute ownership or the appropriation doctrine is conceivable, such a task with respect to reasonable use or correlative right may be impossible because the extent of such rights depends on the varying needs and beneficial uses of the competing landowners a Moreover, for states applying reasonable use or correlative rules, inclusion of federal groundwater claims in a federal inventory would create the same broad range of problems raised by the inventorying of riparian surface (12)