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

..

.0076

43 U.S.C. S 661 (1976). il/
"In"... .
The~upr~e Court has interpreted these acts
congressional recognition of and acquiescence in
law developed by the western states:
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as expressing
the water rights

Congress intended [by these acts] "to recognize
as valid the customary law with respect to the use
of water ~hich had grown up among the occupants of
the public land under the peculiar necessities of
their condition."

California v. United States, supra, 438 U.S. at 656, quoting
Basey v. Gallagher, 20 Wall. 670, 684 (1875). See also
united States v. Rio Grande & Darn Irriqation Co., l74 U.S. 690,
704 (1899)("The effect of this statute was to recognize, so
far as the United States are concerned, the validity of the
local customs, laws and decisions of courts in respect to the
appropriation of water"). The effect of the acts was not
limited to recognition of rights that had previously vested
under applicable state law or custom:

They reach[ed] into the future as well, and
approve[d] and confirm[ed] the policy of
appropriation for a beneficial use, as
recognized by local rules and customs, and the
legislation and judicial decisions of the arid-
land states, as the test and measure of private
rights in and to the non-navigable waters on the
public domain.

California Oregon Power Co. v. Beaver Portland Cement Co.,
295 U.S. 142, 155 (1935).

In 1877, Congress passed yet a third statute, the Desert
Land Act, supra n.22, which permitted persons in most of the
western states to enter and claim irrigable lands "by conducting
water upon the same. . . [by] bona fide prior appropriation." ~/
In what has become an important proviso, Congress limited the
amount of water that could be appropriated by such entrymen

37/ The legislative history of this prOVISIon of the l870 Act
is sparse, and indicates only that Congress wanted to assure
that water rights vesting under the 1866 Act would not be adversely
affected by the new act. See Grow & Stewart, supra n.36, App.
at 493-94.

38/ The Desert Land Act applies only to California, Colorado,
oregon, Nevada, Washington, Idaho, Montana, Utah, Wyoming,
Arizona, New Mexico, and North and South Oakota. 43 U.S.C.
S 323 (1976). It does not apply to Kansas, NebraSka,
Oklahoma or Texas.

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