WSP03270 - Laserfiche WebLink

Home Browse Search

period of the statute would mean that no suit could be maintained either during or after the three year period lthe usual sovereign immunity of the United States barring suit after the three years.) Thus, a potentially enormous class of unreviewable agency determinations are possibleo.under the bill as drafted. Many more persons will lose vested rights without a meaningful opportunity to test under the procedures outlined here because of the difficulty of ascer- taining federal claims and of calculating the impact on the person's source from yet unexercised federal rights. Notice in the Federal Register is not notice calculated to reach all affected persons. Also, a large amount of investigatory work and expense would be necessary for one to determine how much water was un- appropriated in the source, how much would be appropriated in the future from state sanctioned appropriations, and how much the federal government would actually use out of the amount claimed. Clearly this is a task out of reach of all but the most prosperous water users. This expense coupled with the uncertainty of future federal uses of its claimed portion would lull almost all private users into delaying suit until an actual federal appropriation, which most likely would come too late since it would be beyond the three year statutory period. B. The three year period for judicial review established by the draft bill would create too great a burden on the states to respond to the federal claims. In view of the expense and other difficulties associated with challenging the federal claims, the task of safeguarding against federal bureaucratic over- reaching would most certainly fall upon the states themselves. The states would have the burden of investigating all federal claims and estimates to determine their reasonableness from legal and engineering points of view, and then, assuming that a large number of federal claims would be regarded by the state administrators as inflated, of instituting legal action regarding these claims. Each state must look to its own staff resources, of course, but it is probably accurate to say that many states would not find it possible to test the federal claims within the three-year period. And because a general waiver of sovereign immunity does not accompany this bill, it is patent that many federally exaggerated claims would go uncontested. C. The Justice Department proposal generally does not address the conflict of state laws question where the united States claims a state-derived right diverted in one state and used in another. In establishing a comprehensive inventory and administrative determination procedure for federal water claims, the proposed bill and its explanatory state- ment fail to note the difficulties of filing and adjudicating of federal rights which attach to more than one state.. Thus, the question of which state's law determines the extent of federal claims where water is diverted from one state and applied to use in another is left open by the bill. Where both states follow the same water law doctrine this issue may be unimportant. But several instances can be conceived where this issue is critical. One such case would involve diver- sion from an interstate stream, where the place of taking occurred in a prior appropriation state and the place of use occurred in a riparian state outside the watershed of origin. If the riparian state of use follows the traditional rule that riparian waters must be used on riparian land and cannot be transferred (16)