2509.21_0_code Page 1 of 3 FSH 2509.21 - NATIONAL FOREST SYSTEM WATER RIGHTS HANDBOOK R2 AMENDMENT 94-1 EFFECTIVE 6/1/94 ZERO CODE 01 - INTRODUCTION. The right to use water, particularly in the arid west, is becoming harder to acquire every day. As the number of uses and the volume of water used increases, the water available for future uses decreases. The Forest Service is faced with the need for water just as any other water users. In the face of the decreasing legally available water supply, it is essential that the Forest Service obtain legally recognized rights to use the water needed for the management of National Forest System lands. National Forest System lands cannot be managed to provide many of the goods nd services they are capable of producing without a dependable water supply. We have some water rights, but we need additional rights. If we are to keep the rights we have and obtain the ones we need, we must have people who understand the water rights system utilized in the various States in the Region. Every National Forest in the Rocky Mountain Region is faced with a water rights problem periodically. Several Forests are currently faced with such problems daily because of ongoing litigation. In most cases, the person on the Forest who is handling the water rights issue is the Forest Hydrologist. In many instances, the Hydrologist is new to the Forest, if not the Forest Service, and is only slightly knowledgeable in the area of water rights. The purpose of this Handbook is to help that person, as well as the Staff Officers and Line Officers who are not totally familiar with water right issues, but are responsible for understanding and guiding the work of the technical specialist. Before using this Handbook, the reader is urged to become thoroughly familiar with FSH 2500, 2530, and 2540, as amended. 02 - OBJECTIVE. (Refer to FSH 2541.02) 03 - POLICY. (Refer to FSH 2541.03) 04 - CLARIFICATIONS. The terms, "Reservation Principle" and "Reserved Rights Doctrine," mean essentially the same thing; that is, when the Federal Government withdraws its lands from the public domain and reserves it for a Federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation, and, in so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. The terms are used interchangeably throughout the literature relating to the subject, and result from judicial rulings by the U.S. Supreme Court rather than from legislation. Litigation, as used herein, refers to proceedings in a court of law rather than administrative activities carried on by the State. Adjudication, as used herein, means the awarding of a water right by Judicial (a court) or administrative (a State agency) means. R2 AMENDMENT 2509.21-94-1 EFFECTIVE 7/1/94 2509.21_0_code Page 2 of 3 An "adjudication date" is the date that administrative or legal action was taken to award a water right. That action also awards a "priority date." The priority date in Wyoming, South Dakota, Kansas, and Nebraska are all fairly similar. If, after applying for a water right, the applicant proceeded with reasonable diligence in the development of the water use and applied the water to the use the application requested, his priority date is the date of his original application. In these four States, administrative adjudications are carried out on a daily basis and the order of priority dates is very straightforward. In Colorado, priority dates are arrived at a little differently. It is comparable to the other four States where due diligence has been shown and the water has been applied to beneficial use. The priority date can be the date the first action was taken to develop the right. That is not, however, always the case because of a basic difference in Colorado water law. Adjudications in Colorado Water Courts occur periodically. The priority date of a water right adjudicated in a given proceeding applies only to the other water rights covered by that particular adjudication proceeding. No right can be senior to a right granted under an adjudication proceeding held in a prior year. The importance of this is shown in the following example. Individuals A and B both started initial action toward developing a water right on June 1, 1960. Both completed the development and applied the water to beneficial use on May 1, 1961. The water court held an adjudication proceeding in September of 1961. Individual A appeared at the proceeding and showed proof of beneficial use. Individual A received a June 1, 1960, priority date. Individual B, for one reason or another, did not appear. Nor did Individual B appear at annual adjudication until 1966. When Individual B showed proof of beneficial use at the 1966 proceeding, Individual B also got a June 1, 1960, priority date, but it was only a priority against the other water rights granted at the 1966 adjudication. It was junior to all the rights granted at all previous adjudications. "Claims," "filings," and "applications" as used herein refer to the same thing; the submission of the paperwork necessary to initiate the action needed to obtain a water right, be it in a court of law or with a State agency. There are different types of water rights in the United States. The original, brought to the eastern part of the country from England is called the riparian right. This provided landowners who were adjacent to a stream or lake the right to make reasonable use of the water. In the arid west, however, this type of system did not work. The water had to be taken from where it occurred to where it was needed. This gave rise to the appropriative right, the "first in time--first in right" type of water right. The first person to divert the water and put it to beneficial use, that is "appropriate" it, had the right to use it. In most cases, an appropriation of water is effected at the time the first step is taken to secure it. What constitutes the first step depends on the facts of each case. During the past decade, a new type of right has been emerging in the western United States. It is called an "in-stream flow right." Colorado enacted in-stream flow legislation in 1973 (S.B. 97). It allows the Colorado Water Conservation Board to obtain a right to in-stream flows required to preserve the natural environment to R2 AMENDMENT 2509.21-94-1 EFFECTIVE 7/1/94 2509.21_0_code Page 3 of 3 a reasonable degree. No other entities or individuals may claim in-stream flows under that Bill. South Dakota recently recognized in specific legislation in-stream flow rights in one specific water use case. Such rights are not, however, recognized in any given statute. Wyoming and Nebraska do not recognize in-stream flows. Kansas has a in-stream flow law, or more correctly identified as a water transfer law. Two conditions are necessary before the transfer is approved: (1) No entity is allowed to remove 1,000 acre feet or more of water in a ten-mile radius from a stream, (2) Removal of this water would not reduce the amount of water required to meet the reasonable needs of present and future water use in the area from which the water is to be transferred. However, transfers will still be permitted even if the two previous criteria are not satisfied if the Kansas Water Authority determines that the transfer is in the best interest of the State. Appeals of their decision can be made to the District Court. The Forest Service's water rights program involves working with the Department of Justice and the Office of the General Counsel. In general, it can be said that the Office of the General Counsel provides us with legal advice regarding water rights in those instances where we are not involved in litigation. When the United States gets served; that is, when made a party to a litigation, the Department of Justice represents the Forest Service. Since Forest Service water rights are actually rights of the United States, they are a part of the package of all of the United States rights the Department of Justice is attempting to obtain. The United States is required to take part in a water right litigation only when it has been served under the McCarran Amendment. The McCarran Amendment was enacted by Congress in 1952. The Amendment reads as follows: (a) Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appreciation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, that no judgment for costs shall be entered against the United States in any such suit. In 1971, the U.S. Supreme Court held that the Amendment applies to reserved as well as appropriate rights.