Federal Water Rights in the Colorado River

Date01 January 1928
DOI10.1177/000271622813500121
Published date01 January 1928
Subject MatterArticles
/tmp/tmp-17t9TfuBJCC3su/input
Federal Water Rights in the Colorado River
By OTTAMAR HAMELE
Former Chief Counsel, United States Reclamation Service
IT is a common saying of the arid discussion the proposed compact re-
West that no irrigator is so honest
mains unratified.
that he will not steal water in an
THE WAR OF WESTERN WATER
emergency. Like most epigrams, this
saying is not strictly true, but it
This continuous War of Western
emphasizes in a colorful way the high
Water is waged not only on the irriga-
value placed upon that compound of
tion ditch, before the court, around the
hydrogen and oxygen, known to chem-
conference table, and through the
istry as H20, in the great desert regions
channels of publicity, but also in
of Uncle Sam’s far-flung sunset domain.
the legislative hall. One of its major
It also explains in a measure the many
engagements is now being fought out
bitter quarrels, both between individ-
in Congress over the proposal that the
uals and between sovereign states,
United States construct at Boulder
carried on for years over claims to the
Canyon on the Colorado, a great
use of the insufficient discharge of
reservoir, for the fourfold purpose of
Western streams.
controlling floods, irrigating lands,
Notable among such conflicts be-
providing municipal water, and devel-
tween the states were the long fight
oping a huge block of electrical energy.
by Kansas and Colorado relative to
The enactment of the Swing-Johnson
the waters of the Arkansas (Kansmq v.
bill authorizing the building of the
Colorado, 206 U. S. 46), and the equally
Boulder Canyon project probably
earnest contest between Wyoming and
would be followed by litigation.
the Centennial State concerning the
United States Senator Carl Hayden,
Laramie (Wyoming v. Colorado, 259
speaking for the state of Arizona, has
U. S. 419; 260 U. S. 1). Each of these
given notice that if the bill is passed
battles was waged in the United States
Arizona will be compelled in self-
Supreme Court and was carried no
defense to file a suit in the Supreme
further only for want of a higher ap-
Court to restrain construction until
pellate tribunal. In neither instance
the rights of that state in and to the
was either contender satisfied with the
Colorado River are determined. (Con-
result.
gressional Digest, February, 1927, p.
By the Colorado River Compact,
50.)
drafted in 1922 under the able guidance
The silt-laden waters of this great
of Hon. Herbert Hoover, it was planned
stream are clearly not of the healing
to eliminate some of the water con-
variety, and prospects for peace along
troversy on the American Nile, through
its 1700 winding miles appear to be
an agreement between seven states
somewhat remote.
and the Federal Government, allocat-
Any discussion of water rights on
ing rights to the use of the flow of
the Colorado River prepared for the
that turbulent stream. However, af-
consideration of the general reader,
ter more than five years of heated
should be prefaced by a brief explana-
143


144
tion of the doctrine of prior appropria-
Wyoming v. Colorado, supra, first by
tion which obtains under local law
Solicitor General John W. Davis, and
in all of the seven States touched by
later by Solicitor General James M.
the basin of that river. These seven
Beck, but the point was not passed
states are Wyoming, Colorado, Utah,
upon in that case.
Nevada, New Mexico, Arizona and
With unimportant exceptions, the
California.
territory lying in the Colorado River
The riparian water law of the humid
basin was acquired by the United
East has been abrogated in each of
States from Mexico under the treaty
these states, except California, where
of Guadalupe Hidalgo of February
both riparian and appropriation rights
2, 1848, 9 Stat. 928. By that conven-
are recognized. Under the doctrine
tion the United States became the
of prior appropriation, he who first
exclusive and absolute owner, both as
applies water to beneficial use either
a sovereign and as a proprietor, of
upon riparian or nonriparian land,
all of said watershed, the right as a
acquires a vested property right to
proprietor being subject only to vested
such use superior to the claims of all
individual rights and such Indian
subsequent users. Such rights are
rights as might be recognized. This
recognized in the order of initiation
ownership necessarily included both
until all of the water of the stream, if
the land and the water.
unnavigable, is utilized, and may be
Article IV, Section 3, of the Con-
enforced without reference to State
stitution provides that-
lines.
(Wyoming v. Colorado, supra.)
The Congress shall have power to dispose
of and make all needful rules and regula-
THE POSITION OF THE FEDERAL
tions respecting the territory or other prop-
GOVERNMENT
erty belonging to the United States.
What may be called the official
position of the Federal Government
This power to dispose of the public
relative to the ownership of
domain is defined
unap-
by the Supreme
propriated water flowing in the un-
...

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