WSP03920

• 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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and provide forage for their livestock; and (2) water for flood. sol I,
fIre and erosion control, the control of which ~~s essential to protect
the public and to allow the new patentees and settlers on the public
domain to make a viable living In this arid and semi-arid region of
the Nation where, for example, an uncontrolled prairie fire could com-
pletely destroy a home, life, belongings, livestock and forage.33/

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There are two additional questions closely related to the purposes of
the withdrawal. These are: (I) What quantity of water was withdrawn
at each loc;atlon by the 1926 Executive Order? and (2) Where may the
waters so withdrawn be put to use for the stated purposes?

On the first quest!on, It Is clear that the 1926 Order was directed not
so much at reserving 160-acre parcels of land as It was at preventing
private acquisition of these scarce water resources.34/ It Is therefore
my opinion that the quantity of water reserved at each public water hole
or spring Is the total yield of each source. To claim less than that
quantity would allow private rights to Interfere with the public uses
In derogation of the clear Intent of the withdrawal. This Is not to
say, however, that the BLM may not make such reserved water available
to private users of the public land under permits or licenses; rather,
It means only that the BLM must decide whether and the extent to which
such private use Is compatible with the purposes of the withdrawal, and
federal land management policies generally.

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On the second question, there Is no Indication that the purposes for
~hlch the water was reserved were to be exclusively accomplished within
the confines of the'relatlvely small tracTs of land withdrawn. Such a
conclusion Is, In fact, absurd In view of the thousands of acres of public
lands which then and even now surround these public water sources and
of the surrounding private' lands that were homesteaded and patented under
the 1916 Act, the full use of which were and stll I may be dependent
upon the water reserved by this order. The withdrawal order cannot be
reasonably Interpreted to prevent the use of these reserved waters on
nearby public or private lands beyond the area of land reserved. Con-
sidering that the purpose of the withdrawal was to fulfil I a great public

33/ These purposes are somewhat broader than those contained In
the Master Referee's Findings In Colo. 4, 5, 6, which were confirmed
by Judge Stewart. Partial Master Referee Reoort Coverlna All of the
Claims of the United States of America, Water Dlvs. 4, 5, 6, Colo.,
38-42, but.1 believe are justified given the history and manifest
purposes of the 1926 Order,

34/ See discussion, supra, pp. 21-23,

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