WSP05818

• 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

. 0222

.

.

Just prior to these Supreme Court decisions, President
Carter announced his proposals to reform national water
policy. 35/ In his water policy message he instructed
federal agencies to work promptly and expediously to inventory
and quantify reserved rights claims. The President directed
the federal agencies to "utilize a reasonable standard when
asserting federal reserved rights which reflects true federal
needs, rather than theoretical and hypothetical needs based
on the full legal extension of all possible rights." ~/

Pursuant to the president's directive, a task force was
established with leadership delegated to the Solicitor of
the Department of the Interior. 37/ One of the tasks as-
signed to each member agency of the task force was to de-
scribe the reserved rig~ts claimed by the agency. In
response, the Solicitor issued an Opinion on June 25, 1979
(M-36914), identifying and explaining the legal basis for
the water rights for lands managed by the Parks Service,
Bureau of Land Management, Fish & Wildlife Service, and the
Bureau of Reclamation.

The task force stated its conviction that it could not
fully carry out its responsibilities without addressing
generally the mechanisms by which the federal government
secures water rights to carry out congressionally-mandated
management programs on federal lands. Therefore, the
Opinion not only identifies and describes reserved rights
for the respective federal agencies, but also so-called non-
reserved federal water rights, These rights exist, accord-
ing to the Opinion, because the federal government has never
granted away its right to make use of unappropriated waters
on federal lands, but retains its power to vest in itself
water rights in unappropriated waters. This power may be
exercised independen.t 'of substantive state law.

On January 16, 1981, a memorandum was issued as a
supplement to the Opinion, The supplemental memorandum
reaffirmed the legal basis for the assertion of non-reserved
water right claims and provides further information con-
cerning the procedures under which such rights could be
asserted. It also set forth an additional basis for the

35/

Public Papers of the president's of the United States:
Jimmy Carter, 1978 Vol I. 1043-51 (June 6, 1978).

36/

Water Policy Message; Detailed Background 18 (issued
by the White House, June 6, 1978),

37/

U.S. Dept. of Interior, Second Progress Report on
the Implementation of the Presidents's Water Policy
Initiatives 15 (Jan, 23, 1979). Establishment of
Task Force mentioned on 1050 of Carter's Water
Policy Statement.

-8-