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Show GENERAL 71 the courts have said that the act of withdrawal or reservation im- pliedly reserves sufficient water to carry out the purposes of the reservation. The water so reserved is to come from the surface watercourses arising upon or flowing across the Federal lands set apart for the reservation. The water supply which is subject to reserved rights is that amount which is unappropriated at the date of the reservation; and so reserved rights thus have a "priority" date in much the same manner as appropriation rights. Private appropriation rights which were initiated or perfected prior to the date of the reservation are superior to reserved rights, but private rights initiated after the date of reservation are subordinate to reserved rights. Reserved rights have been very unpopular among private water users in the West. This is so because the pervasive scope of reserved rights was not articulated by the Supreme Court until 1963, and many private appropriation rights were acquired prior to that date but subsequent to the date of Federal reservations which now can claim reserved rights. To illustrate with a hypothetical situation, assume that a forest was created in 1935; that a farmer acquired an appropriation water right in 1939 from a stream flowing from the forest land; and that the farmer then discovered in 1963 that the Forest Service may legally take water for forest purposes and thus deny him the water which he otherwise would receive under his State-created right. Despite conjectures such as these, which have aroused western emotions, there has been little evidence that pre-1963 private rights have been divested by development and use of Federal reserved rights. However, no one denies the potential for such divestment. Another unsettling feature of the reserved rights doctrine is that no one presently knows how much water will be required to satisfy the needs of the Federal reservations. These rights are unquantified. It is difficult to plan water project development, whether on a small scale by a single farmer or on a large scale for a multipurpose reclama- tion project, if there is a realistic possibility that there will be no water available for use under the project. There might be 500 cfs which is not subject to use under existing State-created water rights, but if a Federal reservation shall require 600 cfs for future reserva- tion purposes, then there is no water at all for development-and the other 100 cfs can be taken from existing users for reservation pur- poses if those rights were acquired subsequent to creation of the reservation. A number of bills have been introduced in Congress to eliminate or restrict Federal reserved rights, but none have passed. A number of recommendations have been made for certain legislative reforms which would make Federal reserved rights more compatible with State appropriation systems. These have ranged from suggestions for quantification and recordation of reserved rights to proposals for compensation to persons whose pre-1963 appropriation water rights are subsequently divested by water use under reserved rights. It seems very likely that Congress will sooner or later take some action to clarify, resolve, or adjust the present difficulties stemming from reserved rights. But it is not at all clear what that action will be. |
