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Show CHAPTER VI PROBLEMS AND POSSIBILITIES OF INTRODUCING STATE WATER- USER FEES LEGAL IMPLICATIONS The state must own the water or, at least, have legal control to charge fees for water use. The question of ownership is fraught with uncertainties and complications which may be resolved only through the courts. A brief treatise by Dewsnup and Jensen on the ownership question and other legal aspects of imposing state water- user fees in appropriation states is presented in Appendix E. General reference is made to this treatise in the discussion which follows; however, a number of extensions and additions have been made and these should not be attributed to the authors of. the treatise. Legal problems concerning user fees in riparian rights systems are not within the purview of the appended paper and are not discussed here. OWNERSHIP OF WATER Ownership of navigable waters in the United States developed from the law in England. The ownership rights of the Crown and Parliament of England went to the 13 American colonies as a result of the American revolution. Although the colonies granted the federal government regulatory powers over interstate and foreign commerce, they did not surrender ownership of the waters. The concept of state ownership of navigable waters, though never having been precisely defined, was supported by the Supreme Court as related to the regulatory power and duty to protect public uses of the waters and associated beds and shorelands. There were no public rights to non- navigable waters under the law in England. The waters were considered to be privately owned by riparian land owners. Under the riparian water rights system as developed in England and adopted in the Eastern states of the United States, each riparian owner is entitled to reasonable use of the water to the extent that the flow in the water course is not materially diminished in quantity or quality. In appropriation states, all waters- both navigable and non- navigable- have been deemed to be owned by the " public," and not susceptible to private ownership while flowing in natural channels. When the federal government acquired territory by purchase or cession, it acquired the proprietary and regulatory rights connected with the territory, including riparian water rights along water courses. However, in the late 1800s Congress enacted mining and homestead legislation with apparent provision for acquiring water rights under the appropriation doctrines of the various states involved. The Supreme Court later held that these statutes evidenced a congressional intent that water- use in appropriation states be established pursuant to state systems of water rights. On the other hand, this was not a disclaimer by the federal government of all riparian water rights which it owned. It merely was a declaration that riparian water rights were not conveyed with land patented by the U. S. To obtain water rights, patentees must comply with state laws. Nevertheless, riparian water rights apparently have continued in existence in connection with lands that have remained in federal ownership. A number of court cases beginning with Winters vs United States, 207 U. S. 564 ( 1908) have in effect upheld the concept of " reserved" federal water rights for Indian and other federal reservations. Thus, one of the uncertainties associated with state ownership of water is how ownership rights of the U. S. are to be correlated with state rights. WATER SALES AND USER FEES Legal and quasi legal entities, including municipalities, special districts, and federal agencies, that have acquired appropriation water rights are allowed to sell water or charge fees to users under various arrangements. It appears that a state could likewise charge fees on waters it has appropriated. For example, in Utah the Board ( Division) of Water Resources has acquired water rights through filings 45 |