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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The United States Is not requlr~d to object to attempts to appropriate
those waters under state law at points off the p~bllc domain. The private
appropriator establishing a right under state law after April 17, 19:26,
acquires his right with constructive notice that, to the extent of the
yield of the reserved source, his rlgh~ would be subject to the prior
rights of the United States, whether exercised prior to or subsequent
to the state-sanctioned private use.51/ This Is, of ccurse, the necessary
result of the general concept of the-reserved right, as recognized
by the Supreme Court. COnsiderations of comity suggest, however, that
the BLM should object to such attempted appropriations of water subjsct
to a reserved right when It learns about them.

6. Summary of the Effect of the 1926 Order

From the dIscussIon above considering the pl~ln Intent and purpose of
the 1926 Executive Order, the congressional acts under which It was
Issued, and the subsequent Departmental Interpretations relative thereto,
I have reached the following conclusions concerning the legal effect
of the 1926 order:

I. I believe the fol lowing definitions are consistent with tpe
Executive Order and the cases construing It; e,g., Santa Fe Pacific Rallroa~
Co., 53 1.0. 210 (1930): For purposes of the Executive Order of Aprl I
17, 1926, the term "spring" means a dIscrete natural flow of watel' emerging
from the earth at a reasonably distinct location whether or not such
flow constitutes a source of or Is tributary to a water course, pond
or other body of surface water. The term "water hole" means a dip or
hole In the earth's surface where surface or groundwater coltscts and
which may serve as a waterIng place for man or animals.

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2.
containIng
existed as
lands.

The ExecutIve Order withdrew, as of AprIl 17, 1926, all lands
Important springs and water holes, as defined herein, that
of that date on vacant, unappropriated, unreserved publ Ie

3. The Order does not affect a valId private right to use some
or al I of the waters of such a source that had vested under the applicable
state laws, custom or usage prior to April 17, 1926.

4. The Order does not withdraw artIficially developed sources
of water or man-made structures for collection of water on the public
domaIn; however, any Interest held In those artificially developed or con-
structed sources or structures passes to the United States upon abandonment
by the developer or his successor In Interest by virtue of the United
States I ownersh I p of the. I and,

~/ See dIscussion at pp. 12-14, suora.

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