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Last modified
1/26/2010 12:52:49 PM
Creation date
10/12/2006 12:02:25 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8062
Description
Federal Water Rights
State
CO
Basin
Statewide
Date
6/22/1979
Author
WSWC
Title
Solicitors Opinion Concerning Federal Reserved Water Rights
Water Supply Pro - Doc Type
Report/Study
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<br />. <br /> <br />. <br /> <br />l 0011 <br />, <br /> <br />-12~ <br /> <br />I I I. RETENTiON AND ACQUISITION OF WATER RIGHTS BY THE UNITED STATES <br /> <br />TtLlL!Ln.tted S~a:tes reta I ns water rIghts by reserv I ng f edera I I ands and <br />waters necessary to fulfllrl specified purposes and oDt2l1~s wafer rights <br />by UJ-Ji.jloroor I Ion of water and app I I ca71 on to""those uses auth"" I,Ad <br />- -- <br />~y. C n ress to carr out congress ona y-authorlzed pro rams on the <br />public domain, reserved an acqu red an s; and (2) acquls on of <br />water rights through purchase, exchange or condemnatlon;'~ <br /> <br />. ~.;..; <br /> <br />A. Reserved Rlohts Doctrine <br /> <br />The federal reserved water rights doctrine is a judicial creation t91 <br />which holds: <br /> <br />that when the Federal Government withdraws <br />..its ands -{rem the ub 11 c doma I n and reserves <br />J.Li..QLa federa I purpose, the_GoYJlcnmen, ,.-W <br />.-c- <br />~I Icatlon. reserves apPurtenant water then <br />unappropriated to the extent needed to <br />accomp 11 sh the purRose of the reservaTf on. <br />'I n do I ng so the Un I ted States acqu I res-a <br /> <br />~ <br /> <br />191 Federal reserved water rights were first explicitly recognized In <br />a-case Interpreting an agreement between the United States an an Indian <br />tribe. Winters v. United States, 207 U.S. 564 (190S). In Winters, <br />the Court relied In part on Congress' Inferred Intent In the For7 Beiknap <br />Agreement to transform the Indians Into a "pastoral and clvl I Ized people," <br />the need for Irrigated water to make the reservation lands productive, <br />and the construction rule resolvlng ambiguitIes In the favor of Indians, <br />to find that the undeniable "power of the Government to reserve the <br />waters and exempt them from appropriation under the state laws" had <br />been exercised In this case. Id. at 576-577. <br /> <br />The concept of federal reserved water rights was first expressly extended <br />to non-Indian federal reservations; I.e., wi Idl Ife refuQes, national <br />recreatIon areas, natIonal forests, In Arizona v. California, 373 U.S. <br />546 (1963), though the Court had Intimated that 7he doctrine would <br />be so extended several years previously. See Federal Fcwer Commission <br />v, Oreoon, 349 U.S. 435 (/955). In Arlzonav, California, 7he Court <br />expressly held that the "principle underlying the reservaTion of water <br />rights was equally applicable to other federal establishments." Id, <br />at 601. Subsequently, numerous cases have appl led the reserved water <br />rights doctrine to withdrawals and reservations under the jurisdiction <br />of NPS, FWS and BLM. See for example Caopaert v. United States, suora; <br />In the Matter of the United States of America, Water Division's <br />4, 5 and 6, Civil Nos. i'i-425 etc., (Colo. D.C., ~1arch 6, 1975), appeal <br />pendlnQ (Nos, 79-SA99 and laO, Colo. Sup. Ct. l. <br />
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