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

0105

State Relations,. su~ra n.6, at 139 (emphasis added). The
reserved right doctrlne does not rest on any ,uni~ue constitutional
basis. Rather:

[tlhe federal functions exercised in the name
of the reservation doctrine rest instead on the
Supremacy Clause, coupled with the power exercised
in making the reservation of land, or with some
other power incidentally exercised on the
reserved 1 and.

Id. 11/

Thus the willingness of the Supreme Court to recognize
federal reserved rights does not, under an exclusio unius
principle, necessarily preclude the federal government from

79/ Similarly, the navigation servitude, which has been
characterized as one of only two .exceptions. to Congress'
deference to state law (see California v. United States,
supra, at 602; Coldiron Op. at 8), is not a unique source of
federal constitutional authority or federal rights. The
navigation servitude is a doctrine which holds that the federal
government is not constitutionally required to pay compensation
if, in the exercise of its power over navigable streams, it
takes, destroys or impairs private property rights that depend
on the use or presence of the water. See United States v.
Rands, 389 U.S. 121, 122-23 (1967); see generally Trelease,
"Federal-State Relations,. supra n.6, at 72, 175; E. Morreale,
.Federal Power in Western Waters: The Navigation Power and the
Rule of No Compensation,. 3 Natural Resources J. 1, 64-65,
74-75 (1963). The navigation servitude stems from Congress'
power to preserve and promote the navigability of waters,
which in turn rests on the Commerce Clause. See, ~.~.,
~ibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); United States
v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 707
(1899); United States v. Grand River Dam Authority, 363 U.S.
229, 232-33 (1960). As with other exercises of constitutional
authority, inconsistent state laws, programs or permit requirements
must fall by operation of the Supremacy Clause. See Oklahoma
v. Guy F. Atkinson Co., 313 U.S. 508,534-35 (l941); First
Iowa Coop. v. Federal Power Comm'n, 328 U.S. l52, 176 (1946).
The analysis of federal water rights under Congress' navigation
power is the same as the analysis of any federal water rights.
Has Congress exercised its power under the Commerce Clause
over navigable waters? If so, what is the scope of the
congressional mandate? Would state law conflict with or
frustrate that mandate?

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