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In a NutshellThe federal government creates a federal reserved water right (FRWR) when it sets aside land from the public domain—either by congressional intent or by presidential proclamation—for a particular federal purpose such as an Indian reservation or a national park. In doing so, it also implicitly or explicitly reserves the water necessary to enable the purpose of that land reservation.
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unique characteristics |
Federal reserved water rights exhibit several unique characteristics as a result of being su-perimposed on top of state water systems.
• “Beneficial use” or “reasonable use” standards that affect state water users do not apply. • Not subject to state permitting requirements. • Exempt from the state system of prioritizing competing uses. • Cannot be lost through non-use. • Superior to the rights of subsequent water users. |
Constraints |
Federal reserved water rights are constrained by two primary criteria. Firstly, a FRWR is quantified as the minimum amount of water necessary to achieve the primary purpose of a federal land reservation. Secondly, it goes into effect on the time stamp of the federal reservation (e.g., the date that a national park unit or a Native American reservation was created).This means that water rights vested under state law before the FRWR cannot be displaced. Any other arrangement would be a violation of the Fifth Amendment of the U.S. Constitution, a taking of private property requiring just compensation.
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