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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incorporating federal reserved rights into the state systEm will likely
vary sanewhat among the states. It is. however, unclear fran the report
exactly what le;jal significance the Task Force would attribute to the
act of incorporating federal claims into the state water law system.

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If, by use of the \'IOrd incorporate. the Task Force is prop::>sing
that states accord to all federal reserved right cla:ims a status
ccr.lparable to decreed or adju:Hcated water rights, the state systems
will be unable to catl>ly with the proposal. Generally, a notice of a
claim to a water right serves as notice to later right holders or
subsequent appropriators ani for the state that such a right my exist.
It also provides vital information to the states necessary to assess
current and future water needs. The ultimate existence of a water right
cannot, however. be established upon the basis of a claim. IVhether the
right actually exists. an::l the scope ani purpose of the right. can only
be definitely detennined through the adjwicatory process.

The Task Force report points out the difficulty encountered by SCIlE
federal agencies claiming reserved water rights \~hich are later determined
invalid by the courts. The agency may then be forced to the state
systEm to perfect a CCIlparable water right. The problem described
arises because the priority date assigned to the water right by the'
state may be the date of actual filing for a pemit in full canpliance . .,
with state procedure, rather than an earlier date corresponging to the
date of a notice of claim to a reserved right, the date of a filing of
notice \dth a disclaimer. or the date of first use of the water.

The report goes on to describe the disadvantages of receiving a
later priority date. which is that. in low water years the available
streamflow nay be fully appropriated by dOIVl1strea'1l appropriators. \'1I1ere
the upstream fEderal use is for minimum stream flo\~ purposes. there
should not be a problem. If the upstream federal use requires a di-
version. or if there are other \~ater users upstream fran the federal
minimum flow use. there may of course be an allocation problem.

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Faced with this problem, the Task Force hilS set out four alterna-
tive courses of action available to the federal agency to be followed
when a state refuses to grant a priority date as of the date the notice
of claim was filed. The alternatives are as follows:

(a) Fore;jo the reserved right claim an::l file tmder the
state system in order to obtain a water right with an
earlier priority date;
(b) institute a federal court action to detemine as
prcrnptly as possible whether the reserved right exists;
(c) do nothing ani leave the priority date to future
litigation; or
(d) avoid, in appropriate circumstances, cutting back on
water use in low flow years in order to avoid losing
right to downstream users who begin uses aft:el: the
date of the federal use.

To spare a federal agency fran having to resort to any of these
alternatives. the Task Force believes that states should agree to accept
claims to federal reserved rights as adequate to create a water right
with a priority date camrensurate with the date of first use or the date

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