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<br />2131 <br /> <br />out of the watershed of origin, a conflict would arise between the appropriation <br />law of the state of taking and the ripariml law of the state of use. A similar <br />question would arise if the state of origin's law required return of the water to <br />the original watershed (in order to maintain interstate stream flows) I but the law <br />of the state of use does not impose such a requirement. The principles applicable <br />to resolving such a conflict of laws in the water field are not settled. Some <br />states have adopted special laws dealing with interstate transfers, but the majority <br />of jurisdictions have not addressed the question. Yet without sufficient guidance <br />from state legislation or court decisions, it is difficult to imagine how federal <br />agencies could administratively determine their state "created" water rights in <br />multi-state situations. The tendency, surely, will be for the federal agency to <br />select the view of that state (place of origin or use) which most benefits the <br />federal claim. Thus, the draft bill's failure to deal with these issues is yet <br />another of its drawbacks. <br /> <br />D. The draft bill places determination of the validity of claims based on state <br />law exclusively in the federal agencies and the federal judiciary and thus pre- <br />cludes the states from initially interpreting and harmonizing their own state <br />laws. <br /> <br />The proposed legislation provides that after the initial inventory is com- <br />pleted by the federal agencies, the matter may be reviewed in the appropriate <br />federal district court. The waiver of sovereign immunity presently existing via <br />the McCarran Amendment, 43 V.S.C. 666, is not mentioned in the bill itself, but <br />the conunents thereto suggest that the McCarran Amendment will not be suspended <br />during the three years of federal district court jurisdiction. Nevertheless, <br />the effect of the bill would be to repeal the McCarran Amendment as to those rights <br />which are subject to adjudication under the proposed bill. Challenges to such <br />rights would have to be brought, if at all, in the appropriate federal district <br />court within three years after completion of the inventory. The bill thus strongly <br />asserts that all rights claimed by the federal government and subject to adjudica- <br />tion under the bill are federal rights which are appro~riately adjudicated only <br />in a federal forum. <br /> <br />The provisions that determine the forum in which the inventoried claims <br />would be adjudicated are perhaps the most egregious in the bill from the states' <br />viewpoint. It should be noted that while the federal reservation doctrine is <br />clearly a question of federal law, the vast majority of proprietary rights which <br />will be inventoried are rights based on state law. Further, challenges to the <br />federal inventory will come from those asserting rights based on state law. Never- <br />theless, neither state administrators or state courts will have any voice in the <br />determinations that are to be made under the bill's provisions. <br /> <br />The most obvious adverse result of this procedure would be that the states <br />may lose control over their own water laws; the federal courts in the process of <br />deciding between the federal claims and the competing state and private claims <br />founded on state laws would be in the position of building up a substantial body <br />of case law giving their own interpretation to the laws of the states. Any hopes <br />the states may have of maintaining uniformity of interpretation concerning their <br />own laws could thus be dashed. Especially in riparian jurisdictions, the questions <br />of "beneficial use" and IIreasonable amounts" could become either matters of federal <br />interpretation (with the federal courts striving for wliformity of their own <br />decisions with each other and thereby building a federal conunon law of water <br /> <br />(17) <br />