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

0100

fulfill a broad range of consumptive and non-consumptive
uses, including, inter alia, conservation of scenery, natural -
and historic objects, frsn-and wildlife; provision for public
recreation and enjoyment; construction and maintenance of
easements, rights-of-way and trails; operation of concession
operations and construction of airports in national parks;
and management of timber, range, agricultural crops and
animals in national refuges. Id. at 616-17. Only in S 8 of
the Reclamation Act of 1902 dio-solicitor Krulitz find a
sufficiently clear congressional directive to require that
water necessary for operation and maintenance of reclamation
projects be acquired pursuant to state law. Id. at 615-16.

2. Martz Opinion

In 1980, Solicitor of the Department of Interior Clyde O.
Martz issued a supplemental opinion dealing with the federal
non-reserved water rights theory. See Dept. of Interior Solicitor's
Opinion No. M-369l4 (Supp.), "Supplement to Solicitor opinion No.
M-35914, on Federal Water Rights of the National Park Service,
Fish & Wildlife Service, Bureau of Reclamation and the Bureau of
Land Management," 88 I.D. 253 (1981) ("Martz Op."). Solicitor Martt
did not disagree with or disavow Solicitor Krulitz's analysis of the:
existence and nature of the federal non-reserved water rights theory,
69/ but concluded that no federal non-reserved water rights could be
asserted under FLPMA or the Taylor Grazing Act. Solicitor Martz
noted that FLP~~ authorizes a wide range of land management activities
that require the use of water, but concluded that the savings '
provision in S 70l(g) of the Act 701 indicates that Congress did

69/ Solicitor Martz reaffirmed SOlicitor Krulitz's conclusion
tnat situations exist in which the federal government has a
legal basis for asserting a federal right to use water in a
manner not conforming to all substantive requirements of
state law, and not available as a matter of a reserved right.
"Federal claims in such cases may be founded on Federal
supremacy if and where clearly mandated by Act of Congress.
Such claims may also be supported by the dominion the United
States has and continues to exercise over unappropriated
waters arising on the public lands." Martz Op. at 256.

70/ Section 70l(g) provides, in relevant part:

Nothing in this Act shall be construed as
limiting or restricting the power and
authority of the United States or (1) as
affecting in any way any law governing
appropriation or use of, or Federal right
to, water on public lands; (2) as expanding
or diminishing Federal or State jurisdiction,
responsibility, interests or rights in water
resource development or control.
43 U.S.C. S l70l(g). .

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