| OCR Text |
Show 8 OVERVIEW or should have, a right to maintenance of artesian pressures of under- ground water levels. Another is the extent to which ground water basins should be "mined" or depleted, or even exhausted, and the ex- tent to which this does or does not unlawfully interfere with the earlier rights in the basin. A third is the extent to which ground water and surface water supplies can be integrated for management purposes, so that interconnecting sources of supply can be utilized for a fair administration of existing rights, and so that the total water supply can be used to better advantage in providing for op- timal use. 1.2 Federal Role in Water Resources While State rules of water law define the nature and limit of water rights, the Federal role in water resources cannot be ignored. In many instances, Federal powers or property rights take precedence over water use rights created under State law. a. Federal Regulatory Power Under the commerce clause of the Federal Constitution, Congress has the power to regulate interstate and foreign commerce. This power has two aspects. First, the Supreme Court has held that navigation is a function of commerce, and commerce on all waters which are navigable interstate are subject to regulation by Congress. This regulation extends not only to vessels, but to dredging or excavat- ing in such waters, to the construction of wharves, piers, and docks, to the discharge of pollutants, and to flood control projects and measures to regulate stream flow. Even further, Congress can regu- late the nonnavigable flow of tributaries which contributes to and sustains the flow of the navigable waters, because if the tributaries were seriously depleted, downstream navigation might be endangered or impaired. Thus, with the possible exception of the great basin (a closed basin that does not drain into an ocean), most surface waters are subject to congressional regulation in aid of navigation. The second aspect of the regulatory power of Congress over water relates simply to commerce, and not at all to navigation. Under this function of the commerce power, Congress can regulate any activity which touches upon or affects interstate commerce. Congress has never exercised this power to the hilt, but, if it should, it seems likely that every water use could affect interstate commerce-however remote or indirect-and would be subject to congressional controls. b. Federal Proprietary Rights In the Eastern States, where the Federal Government owns land bordering water, it also owns riparian rights in accordance with the laws of the respective States. In the West, the Federal property interest is much larger. The Western States were carved from public domain which the United States acquired by purchase and cession. WTien the United States acquired this territory, it obtained owner- ship of all land, minerals and water, subject only to vested private |
