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

of riparian rights should obtain . . . the
Desert Land Act does not bind or purport to
bind the states to any policy. It simply
recognizes and gives sanction, in so far as
the United States and its future grantees
are concerned, to the state and local doctrine
of appropr~ation, and seeks to remove what
otherwise might be an impediment to its full
and succe'ssful opera tion.

I
.
I

.,

0078

295 U.S. at 163-64 (emphasis added). The Desert Land Act has
been held inapplicable to federal reserved lands. See
Federal Power Commission v. Oregon, 349 U.S. 435, 4~(1955),
discussed at pp. 26-27, 32-33, & n.52.

Thus, in the Mining Acts of 1866 and 1870 and the Desert
Land Act, Congress deferred to development by the states of
comprehensive water codes and ad@inistrative systems, at least
with respect to rights of private appropriators. Notwithstanding
the broad language in the statutes and in California Oregon Power
Co. v. Beaver Portland Cement Co., supra, it is not so clear, as
we discuss ~nfra, that Congress also intended to subject federal
uses of that water to state water law. In that regard, we must
consider statutes that touch on the federal government's use of
water, including, most importantly, the Reclamation Act of 1902,
supra n.27, the Federal Power Act, supra n.28, passed in 1920,
and the McCarran Amendment, July lO, 1952, 66 Stat. 560, 43 U.S.C.
S 666.

The 1902 Reclamation Act authorized joint federal-state
efforts to construct large-scale reclamation projects on
federal lands, subject to the jurisdiction and oversight of
the Secretary of the Interior through the Bureau of Reclamation.
Several provisions of the Act and subsequent amendments deal
explicitly with the acquisition, use and distribution of water.
Section 8 provides expressly for the application of state law:

[N]othing in [this title] shall be construed as
affecting or intending to affect or to in
any way interfere with the laws of any State
or Territory relating to the control, appro-
priation, use or distribution ,of water used
in irrigation, or any vested right acquired
thereunder, and the Secretary of the Interior,
in carrying out the provisions of [the Act],

39/ (Continued)

it to contiguous owners. See Grow & Stewart, supra n.36,
App. at 495 & n.48. The language quoted above was included
to make it clear that an entryman could acquire only such
rights as are available by appropriation under state law
(i.e, limited to the quantity necessary for actual beneficial
useT. Id.

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