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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narrow. In Ivanhoe, for example, the Court stated that S 8
"merely requires the United States to comply with state law
when, in the construction and operation of arec~mation
project, it becomes necessary for it to acquire water rights
or vested rights therein." 357 U.S. at 291. The Court
suggested in Fresno that state law would not control even
the acquisition of water rights when the United States exercises
its power of eminent domain, but instead would only determine
the "definition of the property interests, if any, for which
compensation must be paid." 372 U.S. at 630. In Arizona,
the, Court endorsed its broad holdings in Ivanhoe and Fresno,
noting "[t]he argument that S 8 of the Reclamat10n Act requires
the United States in the delivery of water to follow priorities
laid down by state law has already been disposed of by this
Court. . . ." 357 U.S. at 586.

However, in California v. united States, supra, decided
the same day as Un1ted States v. New Mex1co, the Court made
clear that its deC1S1ons 1n Ivanhoe, Fresno and Arizona could
be read only to hold that state laws governing the appropriation,
use, control or distribution of water do not control federal
uses if they are inconsistent with specific congressional
directives, for example S 5 of the Reclamation Act or S 9 of
the Reclamation project Act of 1939. California v. United
States involved construction of the New Melones Dam in California,
part of the mammoth Central Valley Reclamation Project,
which has spawned much of the case law under the Reclamation
Act. 55/ The California State Water Resources Control Board,
upon application by the Bureau of Reclamation, authorized
the impoundment of water for the project, but imposed several
conditions on the use of that water. The Bureau of Reclamation
then sought a declaratory judgment that the United States
could impound whatever unappropriated water was necessary
for the project without complying with state law.

"

The District Court held that the United States must apply
to the State Board for an appropriation permit as a matter of
comity, but that the Board must issue the permit without condition
if there is sufficient unappropriated water. United States v.
California, 403 F. Supp. 847 (E.D. Cal. 1975). The Ninth Circuit
afflrmed, but held that S 8 of the Reclamation Act of 1902,
rather than comity, required the United States to apply for the
permit. United States v. California, 558 F.2d 1347 (9th Cir.
1977). In the Supreme Court the United States argued for affirmance
of the decisions below on the ground that a state may not impose
any conditions on a federal reclamation project, whether or not
they may be consistent with authorization for construction and
operation of the project. See Brief for the United States at

55/ See, ~.~., United States v. Gerlach Live Stock Co., 339
TI7S. 725 (1950); Ivanhoe Irr1gation D1str1ct v. McCracken, supra;
City of Fresno v. California, supra; Dugan v. Rank, 372 U.S.
609 (1963); C1ty of Fresno v. Cal1forn1a, supra:--

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