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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shall proceed in conformity with such Jaws,
and nothing [herein] shall in any way affect
any rights of any State or of the Federal
Government or of any landowner, appropriator, or
user of water in, to, or from any interstate
stream or the waters thereof.

43 U.S.C. S 383. Other specific restrictions on the use or
distribution of water reclaimed in a federal project appear
in S 5, 43 U.S.C. S 431, which prohibits the sale of reclamation
water to tracts of land in excess of l60 acres, and S 9 of
the Reclamation project Act of 1939, 43 U.S.C. S 485h, which
provides for repayment to the United States of funds
expended in the construction of reclamation works and authorizes
the Secretary of the Interior to make contracts to furnish
reclamation water at appropriate rates for irrigation.

The Federal Power Act established a comprehensive licensing
scheme for water power projects constructed by private or
public entities on navigable streams or federally owned land.
The Act contains two provisions referring to the applicability
of state laws: S 9b, which requires an applicant to
present evidence of "satisfactory compliance" with certain
state laws; 40/ and S 27, which expressly saves certain
state laws reTating to property rights in the use of water
from supersedure by the Act. 41/

The McCarran Amendment is not a substantive statute,
but rather a limited waiver of sovereign immunity permitting
the United States to be joined as a party in state general
I stream adjudications. It does not affect the federal government's
substantive rights with respect to water on federal lands.
However, the Act has often been relied upon as evidence
of congressional recognition of the primacy of the western
states' interests in regulating and administering water rights.

40/ Sectlon 9(b) requires an applicant to provide the Federal
Power Commission with "satisfactory evidence that [he] has complied
with the requirements of the laws of the State or States within
which the proposed project is to be located with respect to
bed and banks and to the appropriation, diversion, and use of
water for power purposes and with respect to the right
to engage in the business of developing, transmitting, and
distributing power, and in any other business necessary
to effect the purpose of a license under this chapter.. 16 U.S.C.
S 802(b).

41/ Section 27 provides that . [n]othing herein contained shall
De construed as affecting or intending to affect or in any
way to interfere with the laws of the respective States
relating to the control, appropriation, use or distribution
of water used in irrigation or for municipal or other uses,
or any vested right acquired therein." 16 U.S.C. S 821.

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