Clear as Mud: Recreating Public Water Rights That Already Exist

Abstract

The federal government has a history of deferring to state water law even in federally owned territories, a deference memorialized in statutes such as the Desert Lands Act of 1877, the Reclamation Act of 1902, and the Federal Power Act. However, in certain circumstances, the federal government continues to assert its primacy with respect to water through reserved land, for federal purposes. Most prominently, the federal government has overriding plenary authority to protect, maintain, and improve navigation for interstate commerce in navigable waters, an authority that gives rise to the federal navigation servitude and that overrides both state and private property interests. Moreover, when the federal government reserves public lands for particular purposes, it impliedly reserves water rights sufficient to support those purposes. Such federal reserved water rights, or Winters rights, ensure as a matter of federal law that tribes, national parks, national forests, and other specifically reserved federal areas have legal rights to the water that they need.