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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on the questIon of whether water Is reserved for power development on
these lands.661 I am of the opinIon, however, that the uses of these
lands for other purposes under the administration of this Department
do not carry wIth them reserved water rights sImply because of their
reservation as a power site, Even assu~lng there Is a reserved right
for power site purposes, these other uses are clearly secondary, author-
Ized uses of the reservatlon..671 Furthermore, any power development
of these lands In conjunctlon-Wlth a Bureau of ReclamaTion project also
does not entitle the Bureau of Reclamation to assert a reserved water
right because Congress has clearly dIrected the Bureau of Reclamation
to apply to the state for water rIghts for Its projects under sectIon
8 of the Reclamotlon Act of June 17, 1902.681

3. Stock Drlvewavs

Section 10 of the Act of December 29, 1916 (43 U.S.C. 300) authorIzed
the wIthdrawal of publIc lands from entry for drIveways for livestock
or In connection with water holes. The purpose of these withdrawals
was to allow for the unhampered passage of livestock across the public
domain to non-contIguous tracts of both private and publIc domain lands
for. grazIng purposes, and to provide access to those springs and water
holes reserved for lIvestock waterIng purposes. I am of the opinion
that these water sources loccted wIthin stock driveways are reserved
to the extent necessary to provide for stockwaterlng during the process
of movIng lIvestock through these reserv'3d access corridors. Because
FLP~A repealed the authorizIng statute under which these withdrawals
were Issued, water sources on the public domain creat'3d after October. 21,
1976 ere not wIthdrawn under the Act of D'3cember 29, 191~t mUST be
wIthdrawn under other, stll I-existIng legislative authorIty to be
effectIve.

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4. OIl Shale Withdrawals

The BLM manages the use of the 01 I shale withdrawals reserved by
ExecutIve Order 5327 (April 15, 1930), subsequently amended to
allow 01 I and gas and sodium development In Executive Orders 6016
(Feb. 6, 1933) and 7038 (May 13, 1935). The relevant language of
ExecutIve Order 5327 Is as fol lows:

661 That Is, any possible federal claIms for a reserved water right
on lands withdrawn as power sites would appropriately be made by or
through the Federal Energy Regulatory Commission.

671 See United States v. New Mexico, suora, 438 U.S. at 702,

681 43 U,S.C, S 383; California v. United States, supra, 438 U.S.
645.

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