could do in the pursuit of "a highly fictional navigation purpose. It held that Congress had acted pursuant to its constitutional power to promote the general welfare, and concluded that Congress had intended--whether or not constitutionally compelled--that owners of riparian water rights in a navigable river should be compensated for their federal taking.

In 1963, when the Supreme Court wrote its most recent Colorado River opinion 7/ it determined that Congress in 1928 had in fact authorized the Secretary of the Interior to apportion interstate waters stored in Hoover Dam, but the Court found no occasion to address itself to the source of congressional power. As noted in a careful analysis by Dean Frank J. Trelease:

This demonstrates that segregation of legal doctrines according to particular constitutional powers has a limited usefulness. Doctrines which differentiate constitutional powers of the United States based on a particular status or origin of title of federal lands are no more useful. "Reservation doctrine" is a term which has been applied to water rights under federal law relating to waters rising on reserved federal lands, such as national forests. The 1963 Colorado River decision has been cited by the Forest Service as authority for that doctrine, and this is clearly appropriate so long as the question is one of constitutional power of Congress. However, while the Supreme Court in the Colorado River case might have judicially noticed that some Colorado River water doubtless rises on public lands, and some on private lands, the Court had no evidence before it and it needed nonc about the character of the land on which the water rose. The litigation involved rights in the lower Colorado River basin; most of the water for those rights flows from the upper basin about which there was no evidence.

7/ Arizona v. California, 373 U.S. 546.

8/ Trelease, Arizona v. California: Allocation of Water Resources to People, States, and Nation, S. Ct. Review 1963, p. 158, 176.

This study could not wholly avoid questions under the commerce clause. It is prefaced by a brief constitutional analysis which makes an essential point: Except that the fifth amendment of the United States Constitution compels compensation for property ta en by the United States, there are few limits to the power which Congress may exercise in pursuit of water-related programs. Even here, "property" concepts differ depending on navigability. The various reservation doctrines can be considered in isolation for purposes of analysis. However, legislative repeal, modification, or extension of these doctrines could not take place without a marked effect on other federal powers, such as the navigation servitude.

Recognition of the hydrologic cycle is the major advance of the twentieth century in water law. Gradually, recognition that all water is interrelated has made its influence felt in the law. Percolating ground water, water in streams and lakes, and diffused surface waters are all the same water at different points in the cycle. We are likewise coming to recognize that water "on the public lands" and water "on private lands" is the same water, at different locations. If consumed in one place, it cannot be consumed in another. "Navigable water" occurs from the flow of "non-navigable" tributaries or percolating groundwater.

While emphasis of this study is on water law peculiar to federal public lands, matters outside its emphasis should not be ignored. Definitions of navigable waters, compensability for their taking, sovereign immunity, indispensability of the United States as a party to water litigation, the respective jurisdictions of federal and state courts and state water administrative agencies are important as well as intensely controversial. They are not, however, the public "land"-generated issues which the Commission wished the authors to consider.

The physical study first delineates the yield of water from the public lands in the eleven western states by water resource regions in relationship to the total supply for the respective regions as set forth in the National Water Assessment by the Water Resources Council. Second, the study determines the present and projected future uses of water on the public lands for the years 1967, 1980 and 2000. Third, it reviews the extent to which existing or projected management of public lands either enhances or impairs the water resources of the resource region, including analysis of watershed management and rehabilitation programs on the public lands.

The United States Constitution governs the federal system of state and federal governments under which the law and practice pertaining to waters arising on or appurtenant to the public lands of the country have developed since the founding of the Republic in 1789. The study starts with the Constitution because (a) it prescribes the limits on the power of Congress in enacting laws within the subject matter of the study; (b) federal public land laws were enacted by Congress at various times under different interpretations then prevailing of the scope of Congress' constitutional powers; and (c) the constitutional policies evolved by the Supreme Court have provided a source of guiding principle.

(1) The concept of limited and constitutionally delegated powers to the United States. The ninth and tenth amendments to the Constitution reserve all powers not delegated to the United States to the State or to the people. The states, by contrast, reta in all residual powers of government, not constitutionally prohibited or delegated to the United States. Before about 1937, this was very important because of the Supreme Court's restrictive interpretations of the delegated powers. While the supremacy clause of the Constitution makes expressly clear that any conflict between valid state and federal laws must be resolved in favor of federal laws, the frequently troublesome issue was the power of Congress validly to legislate. The issue relating to constitutional powers of Congress has substantially disappeared since 1937 because of the extension of delegations under modern constitutional interpretations.

(a) The commerce power. Congressional power over interstate commerce is broader than any other with respect to navigable waters, primarily because this was one of the earliest clear powers which Congress had available under pre-1937 doctrines. Four fundamentals have developed: (1) Congress may supersede both state law and state generated private rights in navigable waters; (2) In the absence of conflicting federal legislation, the states have a similar supremacy, except in narrow areas of required uniformity throughout the United States; (3) the federal courts within limits so broad they have not yet been located will treat as a navigable purpose anything that Congress legislatively says is a navigable purpose, including the substantial drying up of navigable rivers for consumptive use; and (4) the Constitution does not comp el compensation for taking of what would otherwise be private rights in navigable waters, a subject beyond the scope of this study.

(b) Property power. The Constitution expressly delegates to Congress power over federal territory and "property". This power has been asserted with respect to water in a number of ways: (1) A property right in water "appurtenant" to federally owned land; (2) A property right in water arising on federally owned land; (3) A property right to water irrespective of ownership of land, based on the concept that the United States in public land states was originally owner of land and water, and has never parted with water; and (4) A property right to dispose of water or its product (such as electrical energy) based on federal control by a federal dam(which may be const ructed in the exercise under some other power).

Reams of legal literature have been produced with respect to federal powers with respect to water under the property clause, generally complicated by the fact of diverse doctrines in the laws of various states about (a) whether anyone, and if so who, "owns" unappropriated water, and (b) the consequences of that ownership when the United States is identified as an owner. It has never been necessary to resolve the doctrinal arguments, because it is now clear that Congress has the power to accomplish any purpose it is likely to select with respect to the use of water, subject to the constitutional necessity of paying for private rights taken in the exercise of a federal function.

Even the issue of compensation is not exclusively constitutional. It is clear that Congress may treat as compensable property rights related to land or water which are not constitutionally compensable. The principle of avoiding constitutional collisions by not stretching governmental powers to their ultimate limit is as desirable for Congress as it is for the courts.

The war power has been infre(c) The war power. quently litigated in relationship to water. While it might seem that the war power might be farther reaching than the commerce clause, in the cases to date, takings of water power under the war power have been accomplished by payment of compensation. No "navigation servitude" justify an uncompensated taking or anything analogous to it, accompanies exercise of the war power insofar as the decided cases have been established.

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A major constitutional problem of some perplexity would accompany any attempt to replace state law either in whole or in significant part. Experience in all arid regions verifies the necessity of detailed and expert administration of water right decrees. Such administration is a near necessity in the fact finding which precedes the decrees. If the reservation doctrine, which is exclusively a federal law, outgrows its application to Indian reservations and de minimis uses on national forests and national parks, administration beyond both the staff available to federal courts and the present provisions of the judicial code would be necessary. This would mean displacing, paralleling, or supplementing in far reaching fashion state administrative facilities. The constitutional problem, under any alternative short of displacement, is the extent to which Congress or legislatures of the states can by legislation jointly prescribe the duties of administrative officials. This problem, although of central importance to an appraisal of the reservation doctrine, is beyond the scope of this study.

(4) The basic water law questions. Water, unlike land, is not limited to definable geographic boundaries, but flows on the surface or percolates beneath the soil. Water law exists only because what one person or entity does affecting water affects water available to others.

This study relates to water rights of the United States in relation to federal public lands. Courts and writers have classified waters in many different ways: on the public lands ("reserved" and "nonreserved"), not on the public lands; in watercourses; diffused surface waters; percolating ground waters; navigable (defined in at least six different ways for as many different purposes) and nonnavigable. Since most of the different categories under whatever classification are physically interrelated, competing classifications can survive only until there is collision. Law grows out of the resolution--prospectively or after the fact-- of collisons. Resolution takes place by adjudication (judicial or administrative), legislation (federal, state, or local, and including regulations) and by agreement.

In terms of the number of collisions which have been resolved, the federal reservation doctrine is less sophisticated today than western water law was in any state in 1870, two years before its first codification in the California Civil Code of 1872. It has, however, a number of natural advantages.

First, is the supremacy clause of the United States Constitution, aided now and for more than thirty years past by amplified reach of constitutionally delegated federal powers to Congress. The only effective limitation is the due process clause of the fifth amendment, which

in term is vastly limited by the so-called navigation servitude which prevents vested private property rights from arising to the use of navigable waters--unless Congress otherwise legislates.

Second is the doctrine of sovereign immunity. This, coupled with the fact that most federal reserved lands are upstream, giving the United States a superior defensive position enjoyed by the defen"tends to prevent resolution of conflicts by dant with "highority, litigation.

Third is the lack of incentive of most downstream plaintiffs to litigate, even when litigation against the United States is possible. Not only does the United States have the deepest pocket to finance litigation, it has sole practical access to unreported decisions which define and delimit the federal reservation doctrine. Finally, there is every incentive to tend to be reasonable, to avoid litigation by compromise and alternative solutions, and to press for appellate decisions only where the nonfederal plaintiff is peculiarly vulnerable.

These problems involve (1) sovereign immunity of the United States, and its partial waiver by the McCarran Amendment of 1952, and possibly by the Administrative Procedure Act; (2) the navigation servitude, and its corollary limitation on the due process clause of the fifth amendment; and (3) jurisdictional limitations on federal and state and on administrative agencies, most of which are outside courts, the scope of this study.

b. Water law systems.

There are three major classifications of water law systems: riparian, appropriative, and mixed. In general, the principal feature of riparianism is that rights in water arise from, and only from, ownership of land which adjoins or underlies a stream. The right cannot be lost by mere disuse; it cannot be used on other lands; and, as among themselves, riparian holders are usually subject to relative reasonable use, without regard to dates of initiation of use. The riparian system was not generally adopted in the arid west because the need for water was usually unrelated to use on land adjacent to the sources of water. The western United States adopted the system of appropriation, wherein land ownership is irrelevant to acquisition of water rights. A right is obtained by taking water and applying it to a beneficial use, without limitation on the place of use. As between competing appropriators, priority in time is determinative. There are wide variations among the states in the above two doctrines and their applicability to any given situation. Furthermore, in states both west and east of the Rocky Mountain States, whose law is purely appropriative, water rights are both appropriative and riparian.