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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.
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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
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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.