WSP04842

• File Number: 8067
• Description: Section D General Federal Issues/Policies-Section 7 Consultations
• Date: 7/14/1976
• Author: Frank E Maynes
• Title: Federal Water Rights 1973-83-A General Discussion of the Federal Reserved Rights Doctrine
• Water Supply Pro - Doc Type: Report/Study

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Left Hand Ditch Co., 6 Colo. 443 (1882). Basically prior appropriation

means that a person who first puts water to beneficial use has a right

to water in times of water scarcity prior to all other beneficial users.

This priority can be transferred separate from the land, can be owned by

one who does not own land adjacent to the water supply, and can be

compensated if its use is damaged by those outside or subsequent in the

chain of appropriation. Priority claims are usually filed with a state

water engineer and are controlled through a series of head gates and

ditch riders.

This system of prior appropriation has been adopted at least in

part throughout all of'the western United States, The water users and

state governments were lulled into a secure feeling that all water

rights adjudicated under state law were the epitomy of water claims and

there was no higher authority to control water application. It was in

this setting that the case of Winters v. United States 207 U.S. 564

(190B) undermined the sanctity of state decreed water rights.

The reserved rights of the Indians to water was first recognized

in Winters. that suit by the United States to restrain the construction

of a dam on the Milk River in Montana which prevented the water from

flowing to the Fort Berthold Indian Reservation. The reservation was

created by a treaty or agreement between the United States and the Indians

with the approval of Congress. The reservation lands "were arid and,

without irrigation, were practically valueless." Ibid. at 576. The

Court said, Ibid at 577:

The power of the Government to reserve the waters and exempt
them from appropriation under the state laws is not denied, and

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