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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 />6102 <br /> <br />solicitor Coldiron analyzed the question of congressional - <br />intent in much the same terms as did the Supreme Court in <br />California v. United States and United States 'v. New Mexico <br />-- decIsions WhICh SoliCItor Coldiron concluded "defInItively <br />and directly addressed" the issue of federal non-reserved <br />water rights. Coldiron Op. at 9. Thus, solicitor Coldiron <br />interpreted the land management statutes of the nineteenth <br />century, the Reclamation Act of 1902, and other pUblic land <br />use statutes to express congressional recognition of the <br />practical importance of local control of water resources and <br />a general policy of deference to state water law. Id. at <br />6-7. Solicitor Coldiron asserted that only two exceptions <br />have been recognized to this general deference to state <br />water law: the federal navigation servitude and the federal <br />reserved right. Id. at 11. He concluded, drawing on language <br />from California and New Mexico, that Congress has given the <br />states broad power to provIde for the administration of <br />water rights, which can be infringed by the federal government <br />only where necessary to accomplish the original purpose of a <br />congressionally mandated reservation of land, or to protect <br />the navigation servitude. Therefore, in analyzing land <br />management statutes, the presumption should be that "the <br />United States and its agencies must acquire water rights in <br />accordance with state substantive and procedural law unless <br />necessary for the original purpose of a reservation" (or, <br />presumably, unless incident to the federal government's navi- <br />gation servitude). Id. at 12. <br /> <br />solicitor Coldiron did not address the question of <br />what evidence of congressional intent is necessary to over- <br />come the presumption that state law applies. He concluded, <br />without an analysis of specific statutory schemes such as <br />that undertaken by Solicitor Krulitz and Solicitor Martz, <br />that "there is an insufficient legal basis for the creation of <br />what has been called federal 'non-reserved' water rights. . . <br />There is no federal 'non-reserved' water right." Coldiron <br />Op. at 12. This conclusion suggests that, in Solicitor <br />Coldiron's opinion, no existing federal land management <br />statute contains a congressional directive of sufficient <br />specificity to overcome the presumption of deference to <br />state law, and that, unless and until Congress enacts statutes <br />specifically authorizing non-reserved rights or repeals the <br />land management statutes that preserve control over water <br />rights in the states, the only water rights available to <br />federal agencies outside of state law are reserved rights or <br />rights necessary to preserve the navigation servitude. Id. <br /> <br />.' <br /> <br />- 46 - <br />
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