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Show 70 GENERAL 5.4 Interstate Water Eights An interstate stream is subject to water use claims by the States located wholly or partly within the basin. As an interstate stream is developed, it is natural that each State within the basin will seek assurance that it will get its "fair share" of the water. If the stream is not apportioned among the respective States, then there will be a good deal of uncertainty as to how much water any particular State will be entitled to develop and use, and large development projects will be more difficult to plan, fund, and construct. Three basic procedures have been utilized to apportion interstate streams. By far the most common is the interstate compact, where the States within the basin negotiate an apportionment among themselves, and the agreement or compact so negotiated is binding upon the States when approved by the respective State legislatures and by Congress. When States have been unable to agree upon an apportionment, or have made no effort to negotiate, litigation has sometimes resulted, and the Supreme Court has made an "equitable apportion- ment" of the interstate waters among the States. In such a case, it is the judicial decree which operates to control each State's devel- opment and use of the water from the interstate stream. The third procedure for apportioning interstate waters among the States is by act of Congress. The constitutional basis for such con- gressional action is very unclear, and this procedure has only been utilized in a limited manner in one instance, and there Con- gress merely determined how much water each contending State should receive through Federal Facilities operated by the Secretary of Interior. It is important to remember that the apportionment of interstate streams, whether by compact between the States, judicial decree, or act of Congress, is merely a quantification of rights to develop and use the waters of the stream; and these "property rights" remain subject and subordinate to the superior Federal power to regulate navigation on such interstate streams. Thus, Congress may decide at any time that in order to protect navigation on the stream further development and water diversion must stop, even though the States have not fully developed their apportionments. And this is true even though Congress has approved an interstate compact, or has previ- ously apportioned the river by direct act of Congress, and even though the Supreme Court has decreed an apportionment of rights. 5.5 Federal and Indian Reserved Water Rights a. Federal Reserved Rights As distinguished from its regulatory powers, the United States owns in a proprietary capacity a vast but unknown amount of water in the Western United States. These water rights are called "reserved" rights because they arise by implication when Federal land is withdrawn from the public domain and reserved for some specific use or purpose. Even though the statute or executive order creating the reservation makes no mention of water or water rights, |
