WSP06802

• File Number: 8062
• Description: Federal Water Rights
• State: CO
• Basin: Statewide
• Date: 6/16/1982
• Author: USDOJ
• Title: Federal Non-Reserved Water Rights
• Water Supply Pro - Doc Type: Report/Study

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approved by a state administrator (often known as the State
Engineer) who has the authority, inter alia, to d~ermine if
there is sufficient unappropriated water-available, if the
proposed use is beneficial and, in some states, if the use
is in the public interest. See Trelease, "Federal-State
Relations," supra n.6 at 135-36: 1 Clark, supra, SS 20-21.
Judicial review of administrative determinatlons, and adjudication
of competing rights are available in each state, often in special
courts or under special procedures applicable only to water
rights. Id. The western states do not generally provide any
explicit exemption from their substantive or procedural require-
ments for the federal government or give any special recognition
to uses of water by the federal government that may have no
private counterpart, such as minimum instream flows necessary
to sustain wildlife and fish or to provide recreational
opportunities. 16/

In addition to statutes providing for the appropriation
of water and enforcement of water rights, most of the western
states have asserted, by statutory or constitutional pro-
vision, some form of "title" to or "ownership" of waters by the
state or the people of the state. 17/ Many of those states

16/ Some states have, however, recognized that state
agencies may have particular interests and rights not avail-
able to private parties. See nn. 13, 14 supra.

17/ See, e.g., Colo. Const. art. XVI, S 5 ("The water of
every naturaT stream, not heretofore appropriated, within
the state of COlorado, is hereby declared to be the property
of the public, and the same is dedicated to the use of the
people of the state, subject to appropriation as hereinafter
provided"): Wyo. Const. art. VIII, S 1 ("The water of all
natural streams, springs, lakes or other collections of
still water, within the boundaries of the state, are hereby
declared to be the property of the state"): N.D. Const. art.
XVII, S 210. States such as California, Nevada and Oregon
have provided by statute that all water within the state "is
the property of" or "belongs to" the public or the people of
the state. See Cal. Water Code S 102: Nev. Rev. Stat.
S 533.025 (1979): Ore. Rev. Stat. S 537.110 (1963). See
generally E. Morreale, "Federal-State Conflicts over Western
Waters -- A Decade of Attempted 'Clarifying Legislation,'"
20 Rutgers L. Rev. 423, 446-59 (1966) (hereinafter cited as
.Federal-State Conflicts").

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