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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 />statutes and their judicial interpretation suggested that the acquisition of <br />water rights was entirely a matter of local law. "The states at this point had <br />every reason to feel secure in their ability to legisl~te as they chose in regard <br />to the non-navigable waters within their boundaries. 112 Now, if the drafters <br />arguments are accepted, many of the water rights acquired in reliance upon this <br />ability may be taken and the land thereby turned from farms and orchards to <br />desert without compensation. <br /> <br />Especially in the West, it is doubtful that anything in federal-state water <br />law relations has caused more controversy than the "reservation doctrine", and the <br />most onerous feature of the doctrine from the viewpoint of the states is its <br />potential to destroy state created rights without compensation. The draft bill's <br />failure to remove this feature is ~~re evidence that its claimed objectives <br />or "coordination" and "cooperationll with state and private water users are spurious. <br /> <br />D. The draft bill, by attempting to settle all future federal water rights <br />immediately, adversely affects the states' ability to reform their water laws. <br /> <br />In many states, state water law is ripe for reform, and such reform should <br />be strongly encouraged. Many cornmon-law doctrines are derived from medieval <br />theories of property, and are based on unscientific (and often mythical) views <br />of hydrology. 11any of the court opinions defining water law doctrines are stale, <br />decided in an era of different water needs and priorities. Particularly in <br />eastern states, a substantial portion of state water laws is based on an outmoded <br />assumption of essentially free and unlimited supplies. <br /> <br />Many jurisdictions have already adopted legislation to modify long standing <br />water law doctrines~ Others, such as Pennsylvania, are in the process of studying <br />and drafting new water codes~ Even in the absence of such statutory reforms, <br />state courts are increasingly re-examining old decisions in the light of modern <br />realities~ <br /> <br />Unfortunately, the proposed bill threatens to seriously impair the ability <br />of states to modify their water law along more rational lines~ The greatest <br />difficulty would arise with respect to riparian and groundwater rights. Reform <br />of existing prior common law doctrines Qay take the form of legislation adopting <br />a comprehensive permit program for future or increased uses~ Typically such <br />legislation provides for the registering of rights vested (that is, actually in <br />use) at the time of the statute's passage. Future riparian or groundwater rights <br />-- to called inchoate rights -- are terminated and new or increased water with- <br />drawals may only be made pursuant to a state permit process. <br /> <br />Before legislative reforms could be adopted, however, the United States <br />could complete the inventory required by the proposed bill. In the inventory, <br />the United States claims not only riparian and groundwater rights currently <br />in use, but also included claims for future uses of a stated or underminate <br />amount. By making such a claim for an inchoate right, the United States might <br />be able to finalize its future as well as vested water rights and thus prevent <br />application of subsequent state law reforms to the federal water uses. This <br />problem would be cm~ounded by the inability, after the three year running of the <br />statute of limitations, to challenge the inventoried federal claim even in the <br /> <br />25. Note, Western Water and the Reservation Theory - The Need for a Water Rights <br />Settlement Act, 26 Mont. L. Rev. 199, 203 (1965). <br /> <br />(22) <br />
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