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WSP05818
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Last modified
1/26/2010 2:20:01 PM
Creation date
10/12/2006 1:17:44 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8062
Description
Federal Water Rights
State
CO
Basin
Statewide
Date
5/1/1981
Author
WSWC Solicitor?
Title
Acquisition of Water Rights by the United States on Lands Administered by the Bureau of Land Management-Water and Power Resources Service-National Park Service-Fish and Wildlife Service
Water Supply Pro - Doc Type
Report/Study
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<br />0227 <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />Substantive rights can therefore only be acquired by fol- <br />lowing specified procedures, and in following successfully <br />these procedures, substantive obligations are imposed re- <br />lated to beneficial use. Thus, requiring federal agencies to <br />comply with state "procedures", but not substantive \vater <br />law would be entirely incongruent with state systems for <br />allocating water in the \~est. 50/ <br /> <br />That the Congress intended no such result is also <br />indicated in the decision which was issued on the same day <br />as the New Mexico case, namely California v. United States. 51/ <br />The Court in the California case rejected a similar argument <br />that Section 8 of the 1902 Reclamation Act merely required <br />the Secretary of Interior to file a notice with the states <br />of its intent to appropriate and to thereafter ignore <br />the substantive provisions of state law. In support of its <br />conclusions, concerning the need to observe state water law, <br />the Supreme Court cited from the Senate report on the McCarran <br />Amendment, 52/ which subjects the United States to state- <br />court jurisdiction for general stream adjudications: <br /> <br />. <br /> <br />"In the arid western states, for more than <br />eighty years, the law has been the water above <br />and beneath the surface of the ground belongs <br />to the public, and the right to the use thereof <br />is to be acquired from the state in which it is <br />found, which state is vested with the primary <br />controls thereof..,. <br /> <br />Since it is clear that the states have the <br />control of water within their boundaries, it is <br />essential that each and every owner along a given <br />water course, including the United States, must <br />be amenable to the law of the state, if there <br />is to be a proper administration of water law <br />as it has developed over the years." ~/ <br /> <br />~/ <br /> <br />w. Hutchins, Water Rights in the Nineteen Western <br />States, Vol. I, 293-343, (1971). <br /> <br />438 U.S. 645 (1978). <br /> <br />51/ <br />~/ <br /> <br />Dept. of Justice Appropriation Act of July 10, 1952, <br />66 Stat. 560, 43 U.S.C. 5666 (1970). <br /> <br />~/ <br /> <br />S. Rep. No, 755, 82d Cong., 1st Sess. 3,6 (1951). <br /> <br />. <br /> <br />-13- <br />
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