by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
A couple years ago, I criticized the Bureau of Reclamation for draining Blue Mesa Reservoir without bothering to warn anyone. I got a little pushback for saying that while the bureau owned the dam, it did not own the water. A close friend and water lawyer told me to be careful, that the bureau does in fact own some water rights in the Gunnison River.
I admit the legal nuance but insist it is a debatable point. Congress did not fund such projects so that the government could own and control western water. The Colorado River Storage Project Act of 1956 authorized the Aspinall Unit (including Blue Mesa), named for the late House Interior Committee Chairman Wayne Aspinall (D-Colo.). He spoke often about water projects, and I was in the room a number of times. He talked about the vital importance of agriculture to the Southwest, and the needs of growing populations. He never talked about flows for endangered fish, and not once did he suggest the bureau should keep people from using the water stored in the reservoirs, much less decide who could use it.
In fact, the same Congress just four years earlier passed the McCarran Amendment, still a primary tenet of federal water law. It waives U.S. sovereign immunity in suits concerning ownership or management of water rights. The Supreme Court has always interpreted it as clear congressional recognition of the primacy of state water laws, even when federal water rights are at stake. McCarran specifies that the federal government cannot claim sovereignty over state water laws, which are adjudicated in state courts. The U.S. government is “subject to the judgments, orders, and decrees…” of the state water courts.
So, who owns the water in federal reservoirs? It is a fascinating debate that has raged for years, and the U.S. Supreme Court may be about to weigh in on it again. A case originating in California has brought the issue back to the forefront of western jurisprudence. The ownership of water rights in federal reservoirs is at the heart of it, and that is no small matter. The bureau owns 338 reservoirs and 10,000 miles of canals across 17 states.
