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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the Court considered whether a state agency could deny permission
to a federal licensee under the Federal Power Act to construct
a hydroelectric dam on lands of the United StateS-that had
been reserved for that purpose. The state argued, relying on
the Court's broad language in California Oregon Power Co. v.
Beaver Portland Cement Co., (see pp. 21-22 supra), that by the
Desert Land Act of 1877 Congress had expressly conveyed to
the states the power to regulate all unappropriated water
within their borders, and that therefore, in the exercise of
its police powers, Oregon could deny use of those waters to an
individual, even if the federal government had otherwise licensed
the use. The Court rejected the state's arguments on the
ground that the Desert Land Act applies only to public domain
lands and does not apply to lands that have been reserved by
the federal government, even if the land was reserved after
passage of the Desert Land Act. See 349 U.S. at 448. Although
the Pelton Darn decision did not involve directly the federal
government's right to use water because the licensee was a
private party, the Court's holding implies that the licensee
was exercising some right of the United States to use water
that had been reserved from state control at the time the
United States reserved the dam site. See, e.g., Cappaert v.
United States, supra, 426 U.S. at 144 n.lO;-Federal Power
CommIssIon v. Oregon, supra, 349 U.S. at 453 (Douglas, J.,
dIssentIng).

The applicability of the reserved right doctrine
to all federal reservations was confirmed in Arizona v.
California, 373 U.S. 546 (1963). There, the Court upheld,
with lIttle discussion, a Master's award of reserved rights to
the United States in several national wildlife refuges and the
Gila National Forest: '

The Master ruled that the principle underlying
the reservation of water rights for Indian
Reservations was equally applicable to other
federal establishments such as National Recreation
Areas and National Forests. We agree with the con-
clusions of the Master that the United States intended
to reserve water sufficient for the future requirements
of the Lake Mead National Recreation Area, the
Havasu Lake National wildlife Refuge, the Imperial
National Wildlife Refuge and the Gila National Forest.

373 U.S. at 601.

The scope of the reserved rights doctrine on non-Indian
land remained somewhat uncertain until the Supreme Court's
decisions in Cappaert v. united States, supra, and United
States v. New MexIco, supra. In Cappaert, the Court unanimously
held that the reservation of Devil's Hole as a national monument
under the American Antiquities Preservation Act, supra n.25,

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