Laserfiche WebLink
<br />0106 <br /> <br />asserting in other circumstances water rights not available <br />under state law or under the reserved right doctrine. The <br />fact that the Supreme Court has never explicitly recognized <br />a non-reserved water right in haec verba does not mean that <br />the Court would not recognize ~federal government's implied <br />rights to unappropriated water, arising from clear congressional <br />intent, in a situation that has not yet been presented to <br />it. 80/ As we discuss below, however, the reasoning used <br /> <br />80/ Although the Court has recognized under specific statutes <br />SUch as the Reclamation Act and the Federal Power Act that the <br />federal government has certain rights to unappropriated water <br />outside of the reserved right doctrine (see pp. 3l-37 supra), the <br />Court has not addressed directly a broad-a5sertion of federal <br />implied water rights such as that asserted by Solicitor Krulitz <br />i.e., that a federal agency may assert a federal water right <br />cased solely on the assignment of land management functions <br />to a federal agency. In Nebraska v. Wyoming, 325 U.S. 589 <br />(1945), an action between Nebraska, Wyom1ng, Colorado and <br />the United States for allocation of wa~er of the North Platte <br />River, the Court specifically declined to rule on an argument;, <br />analogous to that made by Solicitor Krulitz. The United <br />States argued that, given the federal ownership of unappropriated <br />water on federal lands, the federal government could acquire <br />all water necessary to carry out two reclamation projects <br />using water from the river regardless of state law, because <br />"if the right of the United States to the water rights is <br />not recognized [by state law], its management of the projects <br />will be jeopardized." 325 U.S. at 615. The Court declined <br />to rule on that contention, however, as it found that all <br />necessary rights had been acquired by the United States <br />under applicable law. The Court expressly reserved decision <br />on the broader claim: <br /> <br />, <br /> <br />We do not suggest that where Congress has pro- <br />vided a system of regulation for federal projects <br />it must give way before an inconsistent state <br />system. We are dealing here only with an <br />allocation, through the States, of water rights <br />among appropriators. The rights of the United <br />States in respect to the storage of water are <br />recognized. <br /> <br />Id. at 615-16. <br /> <br />-50- <br />