WSP05797

• File Number: 8067
• Description: Section D General Federal Issues/Policies-Section 7 Consultations
• Date: 6/1/1979
• Title: Federal Water Rights 1973-83-Observations of the Western States Water Council Concerning the Report of the Federal Task Force on Non-Indian Reserved Rights
• Water Supply Pro - Doc Type: Report/Study

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3. The federa,ttovernmeot has nO ri<]hts f. sustain in'!
groundwater levels for general ecosystem ~aintenance. Such a
"",)ter right" is nothing m0r0 then a '.-Iey of articulatin!) e n"Vi
doctrIne of federal do~inion over groundwater. Any Task Force
recom~Qndation which ~ould lend support or credence to such
rights would frustrate feJoral-state relations and undermine the
President's stated objectives.

4. The Task Force recamerrlation is only a statement that federal
agencies cannot perform necessary services and'meet previously identified
carnnitments unless necessary fun:ls are appropriated. It should be
pointed out. however. that scrnetimes it is necessary for the agencies to
do the best possible I~ith fwrls available; for example, when the federal
government is joined by ti1e states in a general adjudication of a stream
under the McCarran Amen:1ment.

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B. Procedures for Integrating Federal Hater Rights in State
Systems

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5. On its face. this recClTl1ll8lXlation may appear to be con-
ciliatory tCMard state water administration systems in that it urges,
"as much as practicable." the use of state lal~ procedures where the
United States is claiming a right to use water other than under a
reserved water right. HCMever, the nature of tile "as much as practicable"
qualification rontained in the recanrrerrlation might as easily signify to
state water administrators that they are witnessing the atterrpted
conception of a quasi-reserved rights doctrine which in potential would
bolster. if not overshadCM, its older brother.

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The second sentence of the recOllTnerrlation suggests that in those
instances where the United States f:U1ds it "not p:ractical" to use state
law procedures, the state should nevertheless be notified of the nature
and extent of the federal water use.

The discussion in the Task Force report follOlving recanrrentaion
number 5 appears to support a conclusion that what is being suggested,
ITOre importantly than integration or cooperation I.n.th state law procedure.
is a legal theory recognizing the establisrrnent of federal non-reserved
water rights outside the provisions of substantive state water law. '!'he
reCCI11ffiendation is an apparent reaction in part to language in the
recent united States SLlpreme Court decision in United States v. New
Mexico, 438 U.S. 696. 702 (1978) stating in effect that rights to the
use of non-reserved waters by the united States lllllst be acquired in the
same l1\3Ilrler as any other public or private appropriation. i.e., through
COIIpliance with the procedural and substantive provisions of state water
law.

Discussion fol1.=ing the recamendation attenpts to soften its
effect by noting that perhaps the oilly purpose for which the United'
States would "appropriate" non-reserved water outside the provisions of
state substantive law is for instream flow maintenance on reserved and
non-reserved federal lands. Limiting such appropriations to instream
flow purposes might lessen their overall effect, but the impact on
potential upstream water uses could still be severe depending upon the
relative location of the federal land tract.

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