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Show reservation doctrine, its priority date, and the purposes for which the reserved water may be used. (3) Provide that procedures for creation of future withdrawals and reservations require, as a condition to claims of reserved water rights, a statement of prospective water requirements and an express reservation of such quantity of unappropriated water. This would have the effect of requiring an administrative or legislative review of these claims and substitution of express water rights reservations for potential implied claims. Coupled with the previous recommendation concerning existing reserved rights, most of the uncertainty generated by the reservation concept should be eliminated. (4) Require compensation to be paid where the utilization of the implied reservation doctrine interferes with uses under water rights vested under state law prior to the 1963 decision in Arizona v. California." When reliance is placed on Federal water rights impliedly reserved along with the reservation or withdrawal of public lands, the effect may be to displace, without compensation, other non-Federal public and private uses under water rights acquired under state law subsequent to the date when the water was impliedly reserved for the Federal lands, but prior to the date the water was actually put to use by the Federal agencies. This is the principal vice of the doctrine from the viewpoint of individual water users. Prior to the Supreme Court's decision in Arizona v. California cited above in 1963, no water user could have been on actual or constructive notice of the existence of such an "implied" Federal water right. The same is true of the state administrative agencies, since as a matter of formal policy and actual practice, the public land agencies generally adhered to state law in acquiring water rights for reserved lands prior to 1963. As a practical matter, use of the doctrine to cause actual injury to water rights vested under state law without compensation has been rare to date, and the likely future impact is uncertain. However, as a matter of policy Congress has generally provided in the Reclamation Act of 1902 12 and the Federal Power Act of 1920 13 that compensation be provided to holders of water rights vested under state law when they are interfered with by projects authorized or licensed under those two acts. We find no reason for a different policy where public land programs are involved. As a matter of fairness and equity, it is appropriate to compensate holders of vested state water rights whose uses are curtailed through Federal reliance on the implied reservation doctrine. We believe that the potential costs to the Federal 12 43 U.S.C. §§ 371 et seq. (1964). 13 16 U.S.C. §§ 791-825 (1964). Government would be relatively low. In any event, the social costs of displacing existing uses for the benefit of national programs should be borne by the Federal taxpayers, and not by the affected individual users. Watershed Protection and Management The statutory directives dealing with watershed protection and management are very general and concerned primarily with flood control. As practiced by the Federal agencies, primarily the Bureau of Land Management and the Forest Service, the principal watershed programs consist of various practices designed to control erosion, flood water, and sediment damages on the public land watersheds. The principal techniques employed are usually designed to effect soil stabilization and increase grass cover, and are often integral parts of range management programs which benefit domestic livestock and wildlife. The effect of these programs generally is to stabilize or decrease water yield. Another watershed management program, largely experimental, carried out by the Forest Service in recent years is designed to increase water yield through various manipulative techniques, e.g., clear-cutting of forested areas, manipulation of snow packs, etc. No priorities for various program objectives exist and, to a certain extent, they are conflicting. For example, planting vegetation to control erosion usually results in decreased runoff into streams because of increased consumption of water by plants. Similarly, clear-cutting of forests to increase water yield generally produces erosion problems. It is usually assumed that it is in the public interest for these agencies to employ various practices to conserve their watersheds. However, there is little evidence to indicate whether the various programs are producing any net benefits, e.g., whether the improved quality of water made available through decreased sediment loads exceeds the value of the water consumed by the soil stabilizing vegetation, and what the unit costs of any benefits might be. Reported expenditures by Federal agencies for watershed conservation practices (admittedly very rough estimates) have been at the rate of about $.02 per acre per year on all public land watersheds in the 11 western states. Federal assistance for similar practices on all privately owned lands in the same states has also been about $.02 per acre per year during the same period. When the private matching funds are added, the expenditures are twice as much per acre as those on public lands. Even at the actual spending rate reported by the agencies, it will take 100-200 years to accomplish the watershed conservation measures reported to be needed on Forest 149 |