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

0098,

activities are immune from state regulation unless
there is a .clear congressional mandate,. or
.specific congressional action,. providing-for state
control.

Id. at 564 (citing Kern-Limerick, Inc. v. Scurlock, 347 U.S.
ITo, 122 (1954); Paul v. Unlted States, 371 U.S. 245, 263 (1963);
Hancock v. Train,~ U.S. 167, 178-81 (1976); EPA v. State
Water Resources Control Board, 426 U.S. 200, 2l~217, 221
(1976)).

Under either theory, the conclusion reached by Solicitor
Krulitz as to the applicable legal analysis is the same:

[T]O the extent Congress has not clearly granted
authority to the states over waters which are
in, on, under or appurtenant to federal lands, the
Federal Government maintains its sovereign rights in
such waters and may put them to use irrespective
of state law.

Id. at 563. Krulitz concluded that neither the equal footing
aoctrine 66/ nor the Acts of 1866 and 1870 67/ and the
Desert Land Act 68/ constituted the necessary clear grant
of authority over-unappropriated waters on federal lands to

66/ Solicitor Krulitz concluded that the equal footing
aoctrine (see p. 15 supra), which is generally relied on to
support state claims of ownership of unappropriated waters,
did not divest the United States of its ownership inter.ests
in unappropriated waters, because (1) the state acts of
admission into the Union contained no express grant of ownership,
such as is required when the United States divests itself of
its property rights; and (2) state ownership of unappropriated
water at the time of admission into the Union is "difficult
to square with the reserved rights doctrine . . . as applied
to reservations of land in a state after statehood.. Krulitz
Op. at 564.

67/ Solicitor Krulitz interpreted the 1866 and 1870 Mining
Acts to waive the United States' .proprietary and riparian rights
to water on the public domain [only] to the extent that water is
appropriated by members of the public under state law. . . ."
Krulitz Op. at 565. By negative implication, because the
acts did not deal with the federal government's rights to
use that water, they recognized the United States' "inchoate
water rights to unappropriated water that exist at any
point in time." Id. at 565-66.

68/ Solicitor Krulitz interpreted the Desert Land Act as a
statute of limited applicability that .does not directly address
federal rights to use water for congressionally authorized pur-
poses on the federal lands, but instead is aimed at appropriation
and use 'by the public.'. Krulitz Op. at 566-70.

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