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WSP03270
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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 />~l~J3rights. Issues of ripeness for challenge, uncertainty of claims and impacts, <br />and the inability to fix future rights are equally present with regard to ground- <br />water claims in reasonable use or in correlative rights jurisdictions. Inclusion <br />of such rights in the suggested inventory together with the administrative deter- <br />mination procedures of the bill would surely result in distortion or complete <br />disregard of state water laws. <br /> <br />B. The draft bill could result in seriously undermining the administration of <br />state permit programs. <br /> <br />Presently, comprehensive water allocation permit schemes are present in all <br />but three western states. In addition, a number of eastern riparian jurisdictions <br />have also adopted water rights permit legislation in recent years. The proposed <br />federal inventory bill would include federal "rights" acquired under state permit <br />systems within the scope of "other rights" as defined in Section 2 (d). How- <br />ever, unlike most of the claims inventoried under the bill, federal claims to <br />permit rights are not subject to challenge in the federal courts. Section 5 (a) <br />of the bill, which provides for court review of the federal administrative deter- <br />minations within three years of inventory publication, specifically excludes <br />from review those claims evidenced by a permit license, certificate or other <br />instrument issued under authority of state law. II This exclusion raises several <br />important questions. <br /> <br />The bill does not explicitly require, for example, that federal agencies <br />submit to and comply with state administrative requirements relating to initia- <br />tion, perfection, and administration of permit rights. If the United States <br />fails to comply with permit conditions or state law in an eastern state, for <br />instance, sovereign immunity could still preclude effective enforcement by state <br />authorities ,or other affected water users. The McCarran Amendment17 fails to <br />waive federal sovereign immunity for judicial actions which do not adjudicate <br />water rights on an entire watershed. Since most eastern riparian states, including <br />those having adopted permit schemes, have not established "general adjudication" <br />procedures of the type contemplated by the McCarran Amendment, the United States <br />may not be amenable to suits to enforce state permit programs. <br /> <br />A similar problem could occur if federal claims contained in the inventory <br />exceed amounts set forth in a state permit or if the stated conditions are mis- <br />interpreted. Such claims may be "evidencedll by a state-issued permit, and thus, <br />challenge to the inventoried claim in federal court would be precluded under <br />Section 5 (a) and challenge in state court or administrative proceedings hindered <br />by sovereign immunity. The anomaly thus created is intolerable from both the <br />standpoint of efficient water administration and basic fairness to all affected <br />water users. <br /> <br />, <br /> <br />In any event, the basic issues pertinent to federal water rights in permit <br />jurisdictions are not addressed in the proposed bill. To the extent that the <br />federal government has applied for and received state permits, an inventory is <br />unnecessary. State administrative agencies presumably already have a record of <br />permits which have been issued to federal entities. Thus, a federal agency's <br />preparation and publication of a list of such permits would not be particularly <br />helpful to state water planners or other water users. <br /> <br />" <br /> <br />17. 43 U.S.C. 666. <br /> <br />(13) <br />
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