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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 />United States yield to immediate development under state <br />law. The people of this land are entitled to a more critical <br />evaluation of the objectives of the reservations for the many <br />purposes of the United States before its valuable rights to <br />use the waters now reserved for its purposes are abandoned by <br />the enactment of legislation so providing." <br /> <br />There is no merit to the argument that the abandonment of future uses under <br />the doctrine would frustrate any federal program or purpose. Anytime the United <br />States needs water to carry out a program authorized by the constitution, it has <br />ample power to acquire it. No state's law can block or limit this power. No <br />theory of federal ownership of the reservation is required. All that would be <br />lost without the doctrine is the power to take water without compensating prior <br />established users for impairment of their supply.28 As previously pointed out, <br />there is no justification for continuing to sanction the use of this power. <br /> <br />The drafters of the bill also contend in their explanation that there has <br />been no "real evidence" of interference with existing state rights by the <br />exercise of federal reserved rights, or if projects based on new appropriations <br />under state law being frustrated because of the existence of unknown and un- <br />quantified reserved rights. There are three answers to this argument. First, <br />it is not factual. ~~ere are documented examples of interference with state water <br />users by the exercise of federally reserved rights.29 Secondly, although it is <br />difficult to prove how many specific projects have been frustrated by the un- <br />certainties the doctrine generates, the doctrine's adverse effects on water <br />resource planning and development are apparent. As the National Water Commission <br />concluded: <br /> <br />II .. the reservation doctrine frustrates sound planning in <br />the public and private sectors of the economy. The prospective <br />claims of the government are highly uncertain as to time, <br />manner and quantity of use. Consequently, no planner or in- <br />vestor can establish a meaningful water budget. It is im- <br />possible to prove how many non-federal projects were not under- <br />taken because of these uncertainties, but statements to <br />the commission reveal profound concern on the part of <br />state officials."30 <br /> <br />Thirdly, conceding that, as yet, the doctrine's threat to deprive state <br />permittees of their water rights without compensation has not been fully realized, <br />this potential is undisputable. <br /> <br />Some state representatives in recent years have advocated federal legisla- <br />tion to inventory and adjudicate federal water rights to remove the cloud on <br />the status of state created water rights imposed by the prospective federal <br /> <br />28. National Water Commission Study at 147m. <br />29. See, i.e., Glenn v. United States, Civil No. C-IS3-61 (D. Utah, Mar. 16, <br />19631. United States v. Cappaert, Civil No. L.V. - 1687 U.S.D. Ct. Nev., <br />filed Aug. 19, (1971). <br />30. National Water Commission, Water Policies for the Future 467 (1973). <br /> <br />(241 <br />
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