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Show In 1963, any lingering doubts about most of the implications of the reservation doctrine as a source of water rights were removed in the Supreme Court's decision in Arizona v. California.5 By analogy to earlier Indian cases, and in partial reliance on the Pelton Dam decision, the Court sustained the conclusions of its Special Master in that case that certain reservations of public domain land for particular purposes, i.e., wildlife refuges, a national forest, and a national recreation area, carried with them an "implied" reservation of sufficient unappropriated water to satisfy the reasonable requirements of those reservations without regard to the provisions of state law. Since then, the Forest Service and the military departments have indicated that they will no longer comply with state law in acquiring rights for the use of water on reserved lands, and will rely on Federal claims arising out of the reservation or withdrawal of the public lands they administer. Other Federal agencies, such as the National Park Service, still have a policy of compliance with state appropriation procedures, but whether this will continue is uncertain. The result has been apprehension in the western public land states that the doctrine will have the effect of disrupting established water right priority systems and destroying, without compensation, water rights considered to have vested under state law. Moreover, the uncertainty generated by the doctrine is an impediment to sound coordinated planning for future water resources development. Legislative proposals that Congress either affirm, abolish, or clarify the reservation doctrine have been the subject of numerous hearings and discussions during the last decade, but Congress has taken no action on the matter. The issue has been one of the most controversial before the Commission. The Commission gave much attention to the question of whether this controversy might be only a doctrinal legal argument with little substantive impact. We conclude it has substance. Although most of the current concern relates to the doctrine's potential future impact, such potential impacts could be major.6 This would be particularly likely on specific streams or systems where water is now virtually completely appropriated under state law. We recommend legislative action to dispel the uncertainty which the implied reservation doctrine has produced and to provide the basis for cooperative 5 373 U.S. 546 (1963). 6 Even though Federal departments and agencies were requested to estimate future water needs for the use in our contract water study, the estimates provided were obviously rough, not all-encompassing, and, therefore, unconvincing. We also note that the needs expressed could not be considered as maximums. 144 water resources development planning between the Federal Government and the public land states. The reservation doctrine has several advantages for the Federal Government. (1) As reservation needs develop, uses under it can expand indefinitely without regard to state water law requirements that water be put to beneficial use within a reasonable time. (2) Vast reserves created around the turn of the century carry advantageous early priority dates vis-a-vis state-determined priorities. (3) The Federal Government need not pay any compensation for divested non-Federal rights initiated after the date of the withdrawal or reservation, however long the water may have been beneficially used. (4) The Federal use need not be "beneficial" under state law if it is within the scope of the purposes for which the reservation or withdrawal was created. While the advantages of the reservation concept to Federal agencies are apparent, there are problems which must also be considered from the Federal standpoint. (1) In Arizona v. California 7 the Master required some evidence of intent for each land reservation before he would sustain an implied reservation of water. It is not clear whether such an intent would be implied for all reservations and withdrawals, although to date it appears this should ordinarily be no problem if water is essential to the express purposes of the reservation. (2) There is some doubt whether any use will be implied other than those expressly stated at the time of withdrawal. (3) It appears that where the purpose of a withdrawal or reservation is changed, the priority date of the new use will be the date of the use change and not that of the earlier use. (4) Without litigation or agreement it is not possible to determine what the maximum permissible amount of water would be for any given use. In Arizona v. California, for example, the amount allowed for irrigation uses was based on irrigable acreage and then current Bureau of the Budget standards of economic feasibility. The effect of future changes in feasibility standards is uncertain. (5) It is not clear what the physical relationship of the reserved land must be to the source of the water supply, i.e., whether a reservation right is available for land outside the natural watershed of the river system from which the water would be drawn. (6) It is not clear whether acquisition of a state appropria-tive right by the Federal Government or its lessees, licensees, and permittees has the effect of waiving any reservation right to additional water for that particular use. (7) It has not been determined whether termination of a land withdrawal or reservation also terminates the reserved water right, even when the particular use continues thereafter. 7 n. 5, supra. |