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Water Rights Acquisition and Protection


OVERVIEW

The water rights staff provides technical and policy guidance on securing, perfecting, and protecting U.S. Fish & Wildlife Service water rights for refuges, hatcheries, and research stations.   The Washington office, regional and field office staff, other federal and state agencies, and private entities are regularly contacted to gain information on the current status of water rights issues, federal and state court cases, and new statutes and regulations within the eight-state region, and to update Service personnel and other interested individuals on legal and policy changes.

Water rights specialists/technicians research and document existing rights, ensure that Service water use is reported accurately to state agencies when required, and monitor field station water use for compliance with state law and Service water rights through review of annual water use reports/management plans.   They oversee the collection and analysis of data to support the acquisition and protection of State and Federal water rights.   They design and install water measurement equipment, train field staff in the use of the equipment, and assess and interpret the collected data.  

They also coordinate with field personnel, staff engineers and hydrologists, conservation partners, and other Federal and State agencies to identify the need for new water rights, prepare permit applications, and file documentation supporting timely construction and beneficial use of water.

Water resumes and notices of applications are reviewed to identify proposed appropriations by others which may adversely affect Service rights.   Objections/protests are prepared and filed with State water resources agencies.  The Service attempts to work with applicants to address its concerns, but some protests cannot be settled and must be resolved in administrative hearings.

The Service is actively involved in general stream adjudications in several states.   Water rights/resources staff develops information required to quantify the Service's water rights and support its claims and works closely with attorneys from the Solicitor's Office and Department of Justice to insure that the claims are legally and factually accurate.   Decrees are reviewed and objections filed when appropriate.  These cases are generally resolved by stipulated settlements.   The Service also attempts to settle its own claims for both Federal reserved and State law-based water rights through negotiations with States' personnel and other water users.   Compacts have been negotiated to settle water rights for three refuges in Montana and negotiations are ongoing in Montana and other states.

Water rights staff works with planning and acquisition personnel in the Realty Division to investigate and evaluate appurtenant and/or adjacent water rights for proposed land acquisitions.   The Division works to ensure that water rights/resource issues are identified and integrated into refuge comprehensive conservation plans.

Technical assistance is available from water rights staff for Service programs such as Ecological Services, Fisheries, Federal Aid and Partners for Fish and Wildlife.   Training on water rights topics is provided upon request.

POLICY, OBJECTIVES, and RESPONSIBILITIES

POLICY
It is the Service's policy to comply with State laws, regulations, and procedures in obtaining and protecting water rights, both for Service facilities and for trust fish and wildlife resources on lands not owned by the United States, except where application of State statutes and regulations does not permit Federal purposes to be achieved.  Federal reserved water rights will be quantified and asserted when necessary to accomplish the primary purpose of the reservation. Water rights appurtenant to lands proposed for protection, restoration, enhancement, development or acquisition will be identified and evaluated early in the planning process, and proposed actions will not proceed until water rights have been acquired.   The Service shall cooperate with the States on all matters related to water use and water rights and will seek to resolve conflicts through negotiation, in coordination with the Solicitor's Office, as appropriate.  However, if negotiations prove unproductive, other courses of action, including litigation, will be pursued.

OBJECTIVES
To obtain water supplies of adequate quantity and quality, and the legal rights to use that water, for development, use, and management of Service lands and facilities, and for other congressionally-authorized objectives such as protection of endangered species and maintenance of instream flows.

RESPONSIBILITIES
Each Service organizational level (Director, Regional Director, Assistant/Associate Regional Director, Regional Water Rights Manager and Project Leader) has a degree of responsibility for protecting and/or managing water rights.  The water rights responsibilities of various organizational levels of the Service are:

Director
The Director has the authority to acquire, perfect, and protect water rights pursuant to the provisions of State and Federal law and in conformity with applicable interstate compacts and international treaties, and to take the necessary steps, including litigation, to maintain such water rights in good standing.   The Director's authority regarding water rights is delegated to the Regional Director.

Regional Director
The Regional Director establishes Regional water rights policy. The Regional Director designates a Regional Water Rights Manager who has management responsibility for the water rights program.

Assistant/Associate Regional Director
At the discretion of the Regional Director, the appropriate Assistant/Associate Regional Director provides technical assistance and management support for the water rights management program.   The Assistant Regional Directors for Fisheries, Migratory Birds and State Programs, and Ecological Services and the Regional Chief, National Wildlife Refuge System, ensure that use of water under the Service's water rights is consistent with laws and regulations.

Regional Water Rights Manager
The Regional Water Rights Manager is appointed by the Regional Director.  The Regional Water Rights Manager is responsible for managing Service water rights in the Region.  Duties may include:

  • Providing guidance on policy and technical issues that may affect the Service's water rights
  • Coordinating water rights issues with the Solicitor's Office, Federal and State agencies, and private entities
  • Providing the Solicitor's Office and Department of Justice with water rights data for administrative proceedings, litigation, and negotiation as needed
  • Representing the Regional Director in meetings, hearings, and negotiation sessions on water rights issues
  • Identifying and quantifying Federal reserved water rights, in consultation with the Solicitor's Office
  • Filing applications required to obtain new water rights or make changes on existing water rights administered under State law
  • Filing objections and protests with the appropriate authority when others file applications for new water rights or changes to existing water rights that may adversely affect Service water rights
  • Reviewing annual water management plans and other reports, as necessary, to ensure that water use at Service facilities is in accordance with each facility's water rights
  • Recommending changes in water management practices, as appropriate
  • Preparing and/or reviewing and submitting all legally required water rights/use reports, documents, and data
  • Identifying and evaluating water rights proposed for acquisition

Project Leader
The Project Leader is responsible for the management and documentation of all water use applicable to, or on, the field station (and at research laboratories).  The Project Leader:

  • Advises the Regional Water Rights Manager, and the appropriate Assistant Regional Director, of the need for new water rights, the need to change existing rights, threats to the facility's water rights or water supply, and any other water rights activities which could impact the facility's water resources.

  • Maintains records of water use sufficient to document beneficial use of water.

  • Ensures that water use is in accordance with the terms of the water right.

  • Submits an annual water use report and management plan to the appropriate Assistant Regional Director.   The Regional Water Rights Manager reviews the report/plan to ensure compliance with the facility's water rights.

  • Submits draft water rights applications, State-required water use reports and other water rights documents, through the appropriate Assistant Regional Director, to the Regional Water Rights Manager.

AUTHORITIES

Numerous laws and court cases provide the authorities under which the Service acquires, manages, and protects its water rights.

FEDERAL LAWS
Service facilities, and their associated water rights, have been established and administered under various Federal laws, in addition to Executive orders, public land orders and administrative regulations.  Five of the most important laws are:

Fish and Wildlife Act of 1956 (16 U.S.C. 742-742j), as amended, authorizes the Secretary of the Interior to take steps "required for the development, advancement, management, conservation, and protection of fish and wildlife resources including, but not limited to, . . . acquisition by purchase or exchange of land and water or interests therein".

Fish and Wildlife Coordination Act [16 U.S.C. 661-66c (1934)], as amended, authorizes Federal water resource agencies to acquire lands or interests in connection with water use projects specifically for mitigation and enhancement of fish and wildlife, and provides for management of such lands by the Service or by State wildlife agencies.

Migratory Bird Conservation Act [16 U.S.C 715-715r (1929)], as amended, establishes a Migratory Bird Conservation Commission to approve acquisition of land, water, or land and water, recommended by the Secretary of the Interior as suitable for use for migratory birds.   The act also authorizes appropriation of funds for the construction of dams, dikes, ditches, flumes, spillways, buildings, and other necessary improvements.

Endangered Species Act of 1973 (16 U.S.C. 1531-1543), as amended, provides for the conservation of threatened and endangered species of fish, wildlife, and plants by Federal action and by encouraging the establishment of State programs.

The McCarran Amendment [43 U.S.C. 666 (1952)], waives the sovereign immunity of the United States and permits State courts to adjudicate all Federal water rights where there is a general adjudication designed to establish all rights in a watershed and the United States is properly served.

The National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd et seq.), amends the National Wildlife Refuge System Administration Act of 1966 to improve the overall management of the Refuge System, to include a unified System mission, to implement a new process for determining compatible uses and to require preparation of Refuge specific comprehensive conservation plans.

JUDICIAL DECISIONS
A number of judicial decisions have defined and affected the water rights of the Service.  Three of those decisions concerning the "Winters Doctrine" or the doctrine of Federal reserved water rights, are:

In Winters v. United States (1908), which involved the rights of an Indian tribe, the Supreme Court determined that when the Federal Government withdraws land from the public domain for a particular purpose, by implication it also reserves whatever unappropriated water is necessary to accomplish that purpose.  That reserved right carries a priority as of the date of the reservation, regardless of when the water is actually put to use.

In Arizona v. California (1963), the Court found that the principle underlying the reservation of water rights for Indian reservations was equally applicable to other Federal reservations, including wildlife refuges.

In United States v. New Mexico (1978), the Supreme Court reaffirmed the doctrine of Federal reserved water rights but narrowed its parameters by differentiating between primary and secondary, or incidental, purposes.   The Court ruled that a reserved right exists only for the primary purposes of the reservation, and that water rights for secondary purposes must be acquired in compliance with State law.

Definitions of water rights terms used above


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