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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 />2134 <br /> <br />light of modifications through the state law under which the United States pur- <br />portedly claims its right. Nowhere in the bill does the federal government <br />commit itself to comply with subsequently adopted state water right registration <br />or permit legislation. Hence, by means of the proposed inventory, the United <br />States could accomplish what no other water user may do; that is, fix the law <br />applicable to its future uses and settle its future claims under current doctrines. <br />This potential to hinder or impair state efforts to reform their water laws is <br />one of the serious drawbacks of the federal proposal. <br /> <br />E. The draft bill would provide no finality of reserved water riqhts because <br />it allows for declaration of additional purposes, publication of supplemental <br />inventories, and future reservations of water. <br /> <br />A major benefit of a bill inventorying and quantifying federal reserved <br />rights claims would presumably be to bring finality and certainty to such claims <br />and thus end the deterrent to future planning and development caused by their <br />threat to give turn-of-the-century priorities to new federal uses that can take <br />water from currently valuable uses established pursuant to state law without <br />paying compensation. This potential benefit, however, is completely negated by <br />the provisions of Section 3 te) and Section 4 (b) of the proposed legislation. <br />Section 3 le) provides for "supplemental inventories" containing claimed rights <br />IIcoming into existence II since the preparation of the inventory and any "changes" <br />or "corrections" to previously inventoried rights. Section 4 (b) provides that <br />the quantification in the inventory of a reserved right may later be set aside <br />by Congress declaring that a greater amount of water shall be claimed under the <br />reserved right. Section 4 <b) also provides for the declaration of "additional <br />purposesll for the reservation or withdrawal. <br /> <br />In the first place, with respect to the provision allowing purposes to be <br />added to the reservation, it has not yet been decided whether this is possible <br />under the reservation doctrine. The thorough legal study prepared for the <br />Public Land Law Review Commission concluded that the following issue, among others, <br />was as yet unresolved: "Whether the original purposes for reservation of water <br />may be expanded by the subsequent addition of new purposes or new programs. ,,26 <br />Thus, the draft bill again seems to be an attempt by its drafters to cement <br />into statutory law what has not yet been established in the cases. <br /> <br />With respect to new reservations of water, the states concur with the <br />recommendation of the National Water Commission that future uses in connection <br />with reserved or withdrawn lands of the United States with the exception of <br />Indian reservations, "should be made in conformity to state law, . .. .. and the <br />priority date of the water right for such use should be the date of the initiation <br />of the use by application for permit or otherwise as determined by state law."27 <br />The drafters of the proposed bill respond to this recommendation by echoing <br />the traditional government objections against limiting the doctrine. Thus, <br />on pages 24 and 25 of the explanation, the drafters defend future uses under <br />the doctrine by stating that: <br /> <br />"It would seem clear that the public interest does not <br />necessarily require that all future development under the <br /> <br />26. PLLRC Study at 136 <br />27. National Water Commission, Water policies for the Future 466 (1973). <br /> <br />(23) <br />
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