THE MCCARRAN AMENDMENT AND GROUNDWATER: WHY WASHINGTON STATE SHOULD REQUIRE INCLUSION OF GROUNDWATER IN GENERAL STREAM ADJUDICATIONS INVOLVING FEDERAL RESERVED WATER RIGHTS
Aubri Goldsby
Abstract: All water is connected through the hydrologic cycle.(fn1) When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater,(fn2) the law often treats the two separately.(fn3) The legal choice to ignore the interaction of surface and groundwater is particularly notable in "general stream adjudications." States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source.(fn4) In 1952, Congress passed the McCarran Amendment, which allows states to adjudicate federal reserved water rights in state court in general stream adjudications.(fn5) The United States Supreme Court has interpreted the Amendment as requiring that adjudications be "comprehensive" of all of the rights in a given water source, but has not yet ruled as to whether this requires inclusion of groundwater users.(fn6) The Amendment itself is equally vague on this point. This Comment argues against Ninth Circuit precedent and asserts that for a general stream adjudication to be "comprehensive" under the McCarran Amendment, it must include users of hydrologically connected surface and groundwater.
INTRODUCTION
The federal government has water rights in all waters set aside for a federal purpose.(fn7) Many states seek to delineate the size and scope of these "reserved rights" to determine what waters are available for state users.(fn8) The most common way of resolving federal and state water rights claims is through general stream adjudications.(fn9) General stream adjudications allow states to determine all rights to a given water source in a single lawsuit. In order to make these adjudications more efficient, Congress passed the McCarran Amendment.(fn10)
The McCarran Amendment waives federal sovereign immunity, enabling states to include federal water rights in general stream adjudications.(fn11) In order for the waiver to take effect, however, the adjudication must be sufficiently "comprehensive."(fn12) All claimants to a water source must be included in the adjudication to meet the comprehensiveness requirement.(fn13) The adjudication must be more than a mere attempt by private parties to establish their water rights with respect to the federal government.(fn14)
The United States may challenge a state's general stream adjudication.(fn15) Specifically, the United States may move to dismiss an adjudication on the grounds that it is insufficiently comprehensive to support a waiver of federal sovereign immunity.(fn16) And while the United States Supreme Court has never decided whether an adjudication must include groundwater users connected to a surface water source in order to be considered comprehensive, the Ninth Circuit Court of Appeals has answered this question in the negative. In United States v. Oregon,(fn17) the Ninth Circuit held that a general stream adjudication need not include groundwater users to be comprehensive under the McCarran Amendment.(fn18) This Comment asserts that the Ninth Circuit's decision was incorrect. In addition to being incorrect as a matter of law, the practical consequences that may result argue for the inclusion of both surface and groundwater in general stream adjudications. Because states have the power to determine their own adjudication procedures, Washington should not follow Ninth Circuit precedent when adjudicating federal water rights.
Part I of this Comment explains the doctrine of federal reserved water rights and the rights the federal government and Indian tribes maintain in the waters within a state.(fn19) Part II explains the McCarran Amendment and analyzes the United States Supreme Court's treatment of the Amendment's comprehensiveness requirement. It also details the importance of water to tribal communities and their hesitancy to have their water rights determined in state court. Part III discusses the concept of hydrologic comprehensiveness and the relationship between surface and groundwater. Part IV describes the Ninth Circuit's decision in United States v. Oregon, where the court refused to require the inclusion of groundwater users for a waiver of federal sovereign immunity under the McCarran Amendment. Part V reviews Washington water law, including Washington's recognition of hydraulic continuity(fn20) between surface and groundwater. This Part explains the application of the principle of hydraulic continuity to state water rights conflicts and argues for its incorporation into disputes involving federal reserved water rights. Part V also discusses the general stream adjudication process in Washington. Finally, Part VI argues that the Washington State Supreme Court should require the inclusion of both surface and groundwater rights in general stream adjudications to satisfy the comprehensiveness requirement of the McCarran Amendment.
I. THE FEDERAL GOVERNMENT HAS RESERVED WATER RIGHTS IN LANDS REQUIRING WATER TO FULFILL THE PURPOSE FOR WHICH THE LANDS WERE SET ASIDE
Federal reserved water rights have been recognized since the early twentieth century and form the basis for numerous water rights disputes.(fn21) State adjudications of water rights often implicate federal claims. The reserved rights doctrine was developed in Winters v. United States(fn22) and provides the federal government with a water right at the time land is set aside for a federal purpose-if necessary to fulfill that purpose.(fn23) Modern treatment of the doctrine suggests that it should be extended to groundwater rights.(fn24)
A. Winters v. United States Established the Federal Reserved Water Rights Doctrine, Which Applies to Both Tribal and Non-Tribal Lands
Most federal water rights are secured through the reserved rights doctrine, which the United States Supreme Court established in 1908 in Winters v. United States(fn25) In Winters, the Court held that the Fort Belknap Indian Reservation had an implied water right dating back to the day the reservation was established.(fn26) In determining that an implied water right existed, the Court looked at the purposes of the reservation,(fn27) the practical need for water,(fn28) and Indian law canons of construction.(fn29) The Court held that the government's purpose of moving tribes to reservations in hopes of turning them into a "pastoral" people necessarily required the recognition of water rights.(fn30) Therefore, these rights did not have to be explicit in the treaty creating the reservation.(fn31) The Winters decision assured tribes enough water to carry out the purposes of the reservation, with a priority date(fn32) reflecting the date on which the reservation was established.(fn33) The Winters doctrine allows the federal government to implicitly reserve waters when it enters into treaties with Indian tribes.(fn34) Initially, the Winters doctrine was thought to apply only to Indian lands.(fn35) As a result, although western states recognized the Winters doctrine, they largely ignored it.(fn36)
On the other hand, the U.S. Supreme Court has addressed the merits of the Winters doctrine as well as its application to non-tribal lands. The Court's 1963 decision in Arizona v. California(fn37) answered any questions about the doctrine's vitality by extending the Winters doctrine to other, non-Indian, federal reservations of land.(fn38) Under this framework, if Congress today reserved land for "a park, national forest, wildlife refuge, military base, or other use of public land without explicitly addressing water, the reservation of land implies Congress' intention to reserve water sufficient to accomplish congressional purposes."(fn39) Similar to Indian water rights reservations in Winters, the Court established that the priority date of these non-tribal federal reserved rights is the date when the land is withdrawn from the public domain or reserved for a particular purpose.(fn40)
In addition to expanding the scope of federal reserved water rights, Arizona v. California also established the "practicably irrigable acreage" (PIA) standard.(fn41) This standard quantifies Indian reserved rights for agricultural purposes by looking at the irrigation capabilities of the land at a reasonable cost and allowing for a definite quantification of water rights that can be prioritized within the appropriation system.(fn42) The standard troubled the western states, which contain the vast majority of Indian lands.(fn43) With the large acreage of Indian lands in these states, there was a potential for extensive tribal claims to water.(fn44) The PIA standard thus prompted states to begin large-scale water rights adjudications.(fn45)
B. The Modern Trend Is to Recognize that the Reserved Water Rights Doctrine Applies to Groundwater
The Winters doctrine refers only to surface waters, leaving uncertain whether there are federal reserved rights to groundwater.(fn46) The United States Supreme Court addressed this question in 1976 in Cappaert v. United States.(fn47) In that case, nearby groundwater pumping by farmers decreased the water in a part of Death Valley National...
