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

'0021

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holes on the
1976 are not
under other,

public domain coming Into existence after October 21,
withdrawn by the April 17, 1926 Order but must be wlthdra.lln
stl I I-existing legislative authority to be effective.

B. other BLM Reserved Rlohts,

..:......;..""

Any other reserved rights which BLM might hold and administer on behalf
of the U. S, mu st have a bas I sin other statutes or or ders .perta I n I ng
to the public lands. Because most BLM-managed lands are by definition
non-reserved public demain, the reserved water rights doctrine Is,
therefore, not generally appllcable.53! Because hundreds of laws and
thousands of executive actions over the years have dealt with BLM lands,
It Is possible that some of these have created reserved rights In
addition to those discussed below; however, the discussion that fol-
lows addresses the Important laws of general applicability. The
approach S6t forth In this opinIon should govern examination of any
other I aws and execut I ve act Ions not spec 1 fica I I y discussed here In.

I. Act of June 16, 1934

The Act of June 16, 1934, 48 Stat. 977, 30 U.S.C. ~ 229a, prevldes 54!
that al I 01 I and gas prospecting permits or leases Issued shal I be SUbject
to the condition that If water Is struck by the permittee or lessee
Instead of 011 or gas, the Secretary, upon finding that the well Is
capable of producing water "of such qualIty and quantity as to be valuable
and usable at a reasonable cost for agricultural, domestic or other
purposes,"55! may purchase the wel I and provide for the use thereof "on
the publlc-rands or dlsposl~g of such water for benefIcial use on other
lands. . . ."56! A previous Solicitor's Opinion held that the United
States must obtain a rIght pursuant to state law In order to use the

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53! The Supreme Court underscored this In the New Mexico case by re-
ferr I ng to the reservat I on of water for I an d wh Ich Is "w I thdr awn
from the public domain for specific federal purposes." 438 U.S. at 698.

54! This Act Initially provided that the land on which such a water
we II I s located "s ha II be reserved as a water ho I e under sect I on 300
of TItle 43," This provision was repealed by FLFMA's ~ 704(a), which
also repealed 43 U.S.C. ~ 300. See note 52, supra.

~! 30 USC ~ 229a(a).

56! ~., subsectIon (cl.

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