State Groundwater Management and Federal Reserved Rights: What’s Next?

ABA Water Resources Committee Newsletter, March 1, 2018

By Debbie Leonard and Micheline Fairbank

Over 100 years ago in the case of Winters v. United States, 207 U.S. 564 (1908), the Supreme Court first articulated the concept of federal reserved water rights. Establishing what is now known as the Winters doctrine, the Supreme Court held that when setting aside Indian reservations, the United States impliedly reserved sufficient water to fulfill the purposes of such reservations. Subsequently, the Court expressly acknowledged that the reserved rights doctrine includes any reservation of federal land. See Cappaert v. United States, 426 U.S. 128 (1976). Federal reserved rights have two unique attributes that differentiate them from water rights recognized under state law: they vest on the date the reservation was created, and they cannot be lost through non-use.

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