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Show OVERVIEW 9 rights at the time of cession. Since the dates that the various parts of the western territory were acquired, private rights in water have been created, under territorial law prior to statehood and under State law after statehood-all with the express consent of Congress. But where private rights have not yet vested in water, the Federal Government retains a proprietary interest, sufficient at least to enable Congress to withdraw such water from further ap- propriation under State law, and to reserve it for Federal use in connection with Federal lands. When (Federal lands are withdrawn or reserved for specific purposes, either by legislation or Executive order, without any mention of water, unappropriated water will impliedly be reserved in an amount sufficient to satisfy the purposes of the withdrawal or reservation. The water use entitlements of most Federal reservations have not been determined or quantified, and private individuals who have acquired State-created water rights subsequent to the date of Federal reservations are subject to being divested by the prior Federal reserved right. Treaties between the United States and Indian tribes, as well as statutes reserving lands for Indian use, similarly reserve by implication sufficient water for use by the Indians on the reservations. c. General Welfare In addition to the regulatory power and the property rights of the Federal Government, the Constitution authorizes Congress to act in aid of the general welfare. This is, in essence, a spending power, but it authorizes Congress to proceed with any water project or program which-in the view of Congress-will aid or promote the welfare df the people. In so doing, Congress may exercise its sov- ereign power, such as eminent domain, to acquire land and water necessary to complete the project. 1.6 Looking Ahead As noted at the outset, many of the earlier water law statutes, doc- trines, and practices are more interesting as history than they are controlling with respect to future water policies and practices. The American people are now aware of the importance of efficiency in water use, water conservation, water quality, and the water re- source environment. Every State will continue to devise and imple- ment programs in response to the public demand for a more judicious conservation and use of water resources. In so doing, certain problems must be overcome. A foundation re- quirement will be accurate State records which show all significant water rights and uses, since this will aid water rights administra- tion, adjudication and distribution, and will also facilitate water project planning. This will require placing of record not only unrecorded rights created under State law, but also the unrecorded and unqualified reserved rights of the United States and Indian tribes. Of course, these reserved rights can only be quantified and recorded through adjudication or by some affirmative action by Congress which spells out how this is to be accomplished. |