2509.21_10
Page 1 of 5
FSH 2509.21 - NATIONAL FOREST SYSTEM WATER RIGHTS HANDBOOK
R2 AMENDMENT 94-1
EFFECTIVE 6/1/94
CHAPTER 10 - RESERVATION PRINCIPLE
11 - EXPLANATION OF RESERVATION PRINCIPLE. The Reservation Principle
and the Reserved Rights Doctrine maintain that whenever land was reserved or
withdrawn from the Public Domain under the authority of Federal law to establish
a Federal reservation, such as a National Forest, enough water to satisfy the needs
of the purposes of the reservation was also withdrawn. The Principle also holds
that the priority date for the withdrawn water is the date of the land withdrawal,
even though the water is not put to beneficial use for many years. The principle
authority for the reservation of the National Forests is the Organic Administration
Act of 1897.
The Reservation Principle applies only to lands reserved from the public domain. It
does not apply to lands that were ever in private ownership. Forest Service lands
that have been obtained by purchase, or trade, or donation, or in any manner other
than withdrawal are not reserved lands, and the reservation principle does not
apply to them.
Many people and States oppose the idea of a reserved Federal water rights doctrine.
They feel that the Federal Government has the same obligation to obtain water
rights from the State as any citizen. Legal history, however, tends to uphold the
Doctrine.
While there is no body of statutory law governing the reservation of water by the
Federal Government for its uses and needs, the principle or doctrine has its roots in
various judicial decisions, mostly by the U.S. Supreme Court. The seven most
important decisions involving Federal Reserved Water Rights that have developed
as case law over several decades are:
1. United States v. Rio Grande Dam and Irrigation Company, 174 U.S. 690
(1899).
2. Winters, et al. v. United States, 207 U.S. 564 (1908).
3. United States v. Walker River Irrigation District, 104 F 2nd 334 (9th Cir.
1939).
4. Federal Power Commission v. State of Oregon, 349 U.S. 435 (1955).
5. Arizona v. California, 373 U.S. 546 (1963).
6. United States v. District Court In and For the County of Eagle, 401 U.S. 520
(1971).
7. Cappaert v. United States, 426 U.S. 128 (1976).
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_10
Page 2 of 5
Initially, the U.S. Supreme Court in United States v. Rio Grande Dam and
Irrigation Company, established the supremacy of the United States as sovereign in
matters of navigable streams based on the Commerce Clause of the Constitution.
In Winters v. United States, the Court held that the right to use the waters of nonnavigable rivers was established for Indian uses by the treaty which established the
reservation.
The decision in United States v. Walker River Irrigation District further broadened
the concept of reserved waters for Indian Reservations even if there was a delay in
using these reserved waters.
The Federal Power Commission v. State of Oregon Court decision expended the
reserved right concept to "reservations" of public lands for power generation uses
and not just limiting these reserved rights to Indian Reservations. It also held that
the provisions of the Act of July 26, 1866, 14 Stat. 253; Act of July 9, 1870, 16 Stat.
218; 43 USC 661; and the Desert Land Act of 1877, 19 Stat. 377, 43 USC 321, did
not apply to Federal reserved land.
In Arizona v. California, the court not only reaffirmed the viability of the Winter's
decision, but for the second time extended its application beyond Indian
Reservations. The Court, by adopting the holdings of the Special Master, upheld
claims asserted by the United States to the waters of the Colorado River and some
of its tributaries for use on non-Indian Federal Reservations such as National
Forests, National Recreation Areas, and National Wildlife Refuges.
In 1971, the Supreme Court further clarified the types of lands for which a reserved
water right may be implied in United States v. District Court in and for Eagle
County. Thus, water rights may have been implied when any Federal enclave was
created or reserved from public domain lands. Here, too, the previous decision in
Federal Power Commission v. State of Oregon was reaffirmed.
Then in 1976, in Cappaert v. United States, the Supreme Court extended the
reserved water rights of the United States to include ground water. The scope of
the reserved right was again reiterated as the amount of water necessary to fulfill
the purposes of the reservation.
12 - MIMBRES DECISION. On July 3, 1978, the U.S. Supreme court handed down
another decision concerning the Reservation Principle. This one, entitled United
States v. New Mexico, 438 U.S. 696, is more commonly known as the Mimbres
Decision. While the Court once again upheld the validity of the Reservation
Principles, it also severely restricted its scope.
The Court held that the National Forests, reserved from the Public Domain under
the authority of the Organic Administrative Act of 1897, were reserved to ". . .
insure favorable conditions of water flow and to furnish a continuous supply of
timber . . .." The Court said that these were the only purposes water was reserved
for, and it specifically excluded recreation, esthetics, wildlife preservation, and
cattle grazing from the stated purposes.
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_10
Page 3 of 5
In-stream flows needed to insure favorable conditions of water flow, a reservation
purpose upheld by the Court, will be claimed under the Reservation Principle. The
reason for this is that insuring those favorable conditions requires the maintenance
of sufficient flows to prevent the accumulation of sediment and debris that would
cause unfavorable conditions. These flows are also important to insure the
availability of water for firefighting, and the maintenance of riparian vegetation
which acts as a firebreak and provides protection to stream banks. This
unfavorable condition would develop when a stream's energy (that is, the ability to
transport its sediment load) is reduced by diversion to a point where gradient,
channel for, and scouring and depositional patterns are adversely affected.
The Court also addressed the Multiple Use, Sustained Yield Act of June 12, 1960.
It mentioned in dicta, that while that Act did broaden the purposed for which the
National Forests had been administered, it did not reserve additional water as of
the original reservation date. However, since the Multiple Use-Sustained Yield Act
was not at issue in the case, the Court did not rule on whether a reserved water
right could be claimed under that Act with a priority date of 1960 or later.
13 - PURPOSES. Forest Service policy governing what the two "purposes" include
was established by the Chief in a September 18, 1978, 2540 memorandum. It
stated:
Reserved rights originating from the 1897 Organic Act include
water necessary for the maintenance of favorable conditions of
water flow and the production of a continuous supply of timber.
There should be no question that the following types of water
needs, consumptive or non-consumptive (in-stream flows),
directly related to securing favorable conditions of water flows
and to furnishing a continuous supply of timber are sustainable
under the reservation doctrine as reserved water rights:
a. Domestic water needed at Ranger Stations, Fire Stations, work
centers, housing, and other facilities constructed and maintained for
administering the National Forest System that include programs of water
shed protection and timber production.
b. Water needed in connection with fire protection and control.
c. Water needed in connection with the construction and maintenance of
roads used as access for activities such as timber harvesting, timber
stand improvement, fire prevention and control, watershed
rehabilitation, and reforestation.
d. Water needed for irrigation of tree nurseries, seed orchards, and other
facilities devoted primarily to the support of a continuous supply of
timber or to watershed protection.
e. Water needed to maintain Forest Service riding and pack stock,
including the irrigation of pastures, used in the administration of the
National Forest System for the purposes recognized above.
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_10
Page 4 of 5
f. Water needed in connection with special uses where the permittee is
engaged in activities carried out for watershed protection or timber
production on National Forest System lands. This includes water for
logging camps, insect and disease control work centers, work centers set
up to carry out flood prevention and control programs, and so forth.
In addition, reserved rights may be the basis for claims for water for other purposes
when these other purposes are specifically enumerated in the documents that
withdrew the reservation from the public domain or where authorized by other
legislation such as the Multiple Use-Sustained Yield Act of 1960. Such claims shall
not be made without prior consultation with the Washington Office and the Office of
the General Counsel.
At this time, we will not exercise reserved rights derived from the Multiple UseSustained Yield Act except on those reservations created after passage of the Act
(June 12, 1960).
The policy is now stated in the FSM 2541.1.
14 - STATE NOTIFICATION. The Rocky Mountain Region has been notifying the
States of our reserved rights for several years. The States have been given the
water use inventory Automatic Data Processing printout showing our current and
foreseen uses on reserved lands. Those printouts listed all of our water uses. Water
for recreation, livestock, and other uses not now regarded as reservation purposes
was shown. In the future, the States will be notified of reserved uses only.
The Regional Office will reach an agreement with each of the States regarding what
format will be used for the notification. In some instances, an Automatic Data
Processing listing similar to what we have used in the past may be acceptable; in
others, a case-by-case notification may be desired by a State.
The notification will not include uses being made under the reservation principle
that are included in ongoing litigation, unless previously approved by Office of
General Counsel and the Department of Justice, since they are a part of the United
States claims in those cases.
The use of the inventory printout as a vehicle to notify the States or our reserved
rights uses is not its only use. It has been used and will continue to be used as a
method of filling out claims with the various water courts we are dealing with. It
shows the uses we are claiming water for, the location of those uses, the amount of
water involved, and other items. This use of the inventory printout is the use that
makes it imperative that the inventory be as complete and accurate as possible.
When completeness and accuracy can be demonstrated in a courtroom, the
credibility of our data is enhanced. If, on the other hand, the opposition can show a
lack of completeness or accuracy, a shadow of doubt is cast over the entire United
States case. When a water court accepts the inventory printout and rules that it
constitutes the water rights of that particular National Forest, that is the end of it.
Any additional water needed in the future will have to be obtained through State
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_10
Page 5 of 5
procedures and, thereby carry a very junior priority date, or it will have to be
purchased.