WSP03365

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 6/1/1979
• Author: WSWC
• Title: Observations of the Western States Water Council concerning the Report of the Federal Task Force on Non-Indian Reserved Rights - Task Force 5A - Presidents Water Policy Implementation
• Water Supply Pro - Doc Type: Report/Study

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in=rporating federal reserved rights into the state systen will likely
vary sanewhat among the states. It is, however, unclear fran the report
exactly what legal significance the Task Force would attribute to the
act of incorporating federal .claims into the state water law systan.

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If, by use of the \"iOrd in=rporate, the Task Force is proposing
that states ac=rd to all federal reserved right claims a status
cCX!lp<3rable to decreed or adjtrlicatEd water rights, the state systEmS
will I:e unable to carply with the proposal. Generally, a notice of a
claim to a \\later right SeIVes as notice to later right holders or
subsequent appropriators am for the state that such a right may exist.
It also provides vital information to the states necessary to assess
current and future water needs. The ultimate existence of a water right
cannot, however, I:e established upon the basis of a claim. IVhether the
right actually exists, am the s=pe am purp:lse of the right, can only
I:e definitely detennined through the adjlrlicatory process.

The Task Force report points out the difficulty en=untered by sore
federal agencies claiming reserved water rights which are later detennined
invalid by the courts. The agency may then be forced to the state
system to perfect a ccmparable water right. The problem described
arises because the priority date assigned to the water right by the'
state may I:e the date of actual filing for a permit in full ccmpliance ."
with state procedure, rather than an earlier date corresponging to the
date of a notice of claim to a reseIVed right, the date of a filing of
notice with a disclaimer, or the date of first use of the water.

The report goes on to describe the disadvantages of receiving a
later priority date, which is that, in low ~later years the available
streamflovl nay l:e fully appropriated by dOlVl1strea'!l appropriators. I.Jhere
the upstream federal use is for minimum stream flow purposes, there
should not be a problem. If the upstream fErleral use requires a di-
version, or if there are other water users upstream fran the federal.
minimum flON use, there may of course be an allocation problem.

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Faced with this problem, the Task Force has set out four alterna-
tive courses of action available to the federal agency to be followed
when a state refuses to grant a priority date as of the date the notice
of claim was filed. The alternatives are as follONS:

(a) Forego the reserved :r:ight claim am file under the
state system in order to obtain a water right with an
earlier priority date;
(b) institute a federal court action to detennine as
prcrrptly as possible whether the reseIVed right exists;
(c) do nothing am leave the priority date to future
litigation; or
(d) avoid, in appropriate circumstances, cutting back on
water use in low flow years in order to avoid losllq
right to Ck:Mnstream users who begin uses after the
date of the federal use.

To Spare a federal agency fran haVllq to resort to any of these
alternatives, the Task Force believes that states should agree to accept
claims to federal reserved rights as adequate to create a water right
with a priority date ccmrensurate with the date of first use or the date

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