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WSP06802
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Last modified
1/26/2010 2:24:25 PM
Creation date
10/12/2006 1:52:55 AM
Metadata
Fields
Template:
Water Supply Protection
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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<br />. <br /> <br />0088 <br /> <br />a coherent theory of water rights comparable to the reserved <br />right theory, there is a common thread: when th~ federal <br />government, in the exercise of its constitutional powers, <br />for example under the Commerce or Property Clauses, authorizes <br />a project requiring the diversion or use of water, state <br />laws that would effectively prevent the project from being <br />built or operated under the conditions and terms and for the <br />purposes prescribed by Congress must fall under the Supremacy <br />Clause. <br /> <br />The Court has consistently held that a state cannot <br />block construction or operation by the United States or its <br />licensee of dams and reservoirs for flood control, improvement <br />of navigation, power production, or reclamation. 50/ For <br />example, in Oklahoma v. Guy F. Atkinson Co., 313 U:S. 508 (194l), <br />the Court held that Oklahoma could not block construction by <br />the United States of a dam and reservoir for purposes of <br />flood control and improvement of navigability on the Red <br />River in Oklahoma and Texas. One of the objections raised by <br />Oklahoma to the federal project was that construction of the <br />dam and impoundment of the waters would be inconsistent with <br />the state's water resources program. The Court rejected that <br />argument, finding that: <br /> <br />[T]he suggestion that this project interferes with <br />the state's own program for water development and con- <br />servation is likewise of no avail. That program must <br />bow before the .superior power" of Congress. <br /> <br />" <br /> <br />313 U.S. at 534-35 (citations omitted). <br /> <br />Similarly, in cases involving federal licenses to <br />construct hydroelectric projects awarded under the Federal <br />Power Act, the Court has consistently rejected state attempts <br />to block authorization of the construction of project facilities <br /> <br />50/ The Supreme Court has recognized that Congress' consti- <br />tutional authority to construct or license such projects can <br />stem from any of several constitutional grants of power, such <br />as the Commerce Clause, which provides the basis, inter alia, <br />for regulation and promotion of the navigability of streams; <br />the property Clause, which authorizes Congress to manage <br />federal lands, or the General Welfare Clause. See, e.g., <br />Oklahoma v. Guy F. Atkinson Co., 313 U.S. SOB, 534 (T941) <br />(flood control and navigation project authorized under Commerce <br />Clause); First Iowa Coop. v. Federal Power Comm'n, 328 U.S. <br />152, 176 (1946) (hydroelectric project on navigable stream <br />authorized under Commerce Clause); Federal Power Comm'n v. <br />Oregon, 349 U.S. 435, 445 (1955) (hydroelectrIc project on <br />non-navigable stream authorized under Property Clause, because <br />project to be constructed on federal lands); United States v. <br />Gerlach Live Stock Co., 339 U.S. 125, 131-38 (1950) (reclamation <br />project authorized under General Welfare Clause). <br /> <br />- 32 - <br />
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