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

by the Court in shaping the reserved right doctrine is relevant
to an analysis of what other rights the federal ~vernment
may have. See pp. 70-72 infra.

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2. .Ownership" of unappropriated water

Much of the confusion about the federal government's
rights to unappropriated water in the western states stems
from arguments based on "ownership" of the unappropriated
waters on federal lands and the effect of the land management
statutes of the nineteenth century. As we outlined supra,
Solicitor Krulitz's assertion of a broad federal non-reserved
water right, while not clearly stated, apparently rested in
part on the assumption that the United States acquired proprietary
rights to all unappropriated water on public lands at the
time it acquired the territories that became the western
states, and that it has never subsequently granted away that
proprietary interest except to the extent that private individuals,
may have actually appropriated water on those lands. See
pp. 41-42 supra. Some of the western states have argued that
the federal government acquired ownership of unappropriated
water together with the public lands, but ceded ownership of
the water to the states by the acts of admission into the
Union or at least by the passage of the Desert Land Act in
1877, or that the federal government never acquired ownership
of those waters. 811 The contention is made that the states
therefore own those waters and can exercise control over
their use, even if the use is by the federal government.
See, ~.~., Morreale, "Federal-State-Conflicts," supra n.17,
at 446-59; Colum. Note, supra n.5, at 972-74. The only
exception to that control is if Congress withdraws land (and
water) from the applicability of those acts by a formal
reservation.

This proprietary view of western water rights has
significant ramifications both for the federal government
and the states. As Solicitor Krulitz noted, the Supreme
Court has characterized the federal government's control over
the use and disposition of its property as "complete"
and "without limitation," and has stated that an interest in
property of the United States may be acquired only by an
express grant from Congress. See Krulitz Op. at 563;

811 See pp. 12-13 supra.

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