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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and reservoirs. See, e.g., First Iowa Cooperative v. Federal'
POwer Comrnission,~8 U.S. 152, 176 (1946); Federal Power
COmmiss1on v. Oregon, 349 u.s. 435, 445 (1955);-city of
Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 340 (1958).
Although some of the language used by the Court in those
decisions suggests that state law or permit requirements do
not apply to federally licensed projects even if they are
consistent with the authorization of the project, 51/ in each
case application of state law would have prevented-Construction
of the project. 52/ Given a direct conflict between federal
authorization and'state requirements, the Court held that the
state law must fall, even though the Federal Power Act contained
savings provisions reserving traditional control over ~ater
resources to the individual states. See First Iowa Cooperative
v. Federal Power Commission, supra, 3~U.S. at 176; City of
Tacoma v. Taxpayers ot Taco~a, supra, 357 U.S. at 340; Federal
Power Commiss10n v. oregon, supra, 349 u.S. at 445.

51/ For example, 1n Flrst Iowa Coop., the Court, discussing
toe effect of the savings provisions of the Act, noted broadly
that "in those fields where rights are not thus 'saved' to the
states, Congress is willing to let the supersedure of the
state laws by federal legislation take its natural course..
328 U.S. at 176. See generally Federal Power Comm'n v.
Oregon, supra, 349~S. at 444-45 ("There thus rema1ns no
quest10n as to the constitutional and statutory authority of
the Federal Power Commission to grant a valid license for a
power project on reserved lands of the United States, provided
that, as required by the Act, the use of the water does not
conflict with the vested rights of others. To allow Oregon
to veto such use, by requiring the States' additional permission,
would result in the very duplication of regulatory control
precluded by the First Iowa decision") (citations omitted).

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52/ In First Iowa Coop., the power cooperative's development
PIan requlred d1verS10n of the Cedar River into another basin in
order to get a greater drop and head for water power. That
plan would have been barred by an Iowa statute requiring that any
water taken from a stream for power purposes be returned to the
same stream at the nearest practicable location. See 328 U.S.
at 166. In Federal Power Comm'n v. Oregon, the State of
Oregon sought to prevent construction of the dam because it would
cut off anadromous fish from their spawning or breeding grounds.
349 U.S. at 449-50. City of Tacoma involved a conflict between
the terms upon which the FPC issued a license to the City to
construct a power dam on the Co~litz River, and a Washington
statute prohibiting the construction of dams over 25 feet in
height on the Cowlitz or other state streams tributary to the
Columbia, for protection of salmon. See 357 U.S. at 328 n.ll.

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