4FEDERAL PREEMPTION AND STATE WATER LAW

A conspicuous federal presence can be detected in almost every aspect of natural resources use and development in the United States; from surface mining reclamation requirements in the coal fields of Indiana to protection of wild horses and burros on grazing ranges in Nevada to setting the terms of timber sales in the massive federal forest holdings in Alaska and the rest of the Pacific Northwest. The presence of the federal government is also apparent in the realm of water resources, from the TVA to Grand Coulee Dam, with Federal Energy Regulatory Commission (FERC) licensed facilities seemingly present on nearly every flowing stream in the country; and national water-based recreation areas ranging from ponds the size of football fields to Lake Powell. But while the historical pedigree of the federal presence on our waterways is impeccable (the Army Corps of Engineers has existed since before the adoption of the United States Constitution), and the acknowledged authority of the federal government over at least navigable waters vastly predates the New Deal and the coming of the modern regulatory state (Gibbons v. Ogden in 1824), one cannot fairly say that federal rules dominate in the field of water law. Indeed, while the United States ’ interest in harbors, canals, bridges, piers and other structures that relate to the public ability to engage in waterborne transportation has been a universal constant since the days of the Revolution, its interest in water for consumptive uses such as irrigation is only about a century old. Hydropower regulation has been the object of federal attention for slightly more than three quarters of a century, and federal water quality laws are largely a product of the last quarter century. In this absence of any congressional interest in establishing a legal regime for water allocation during the decades of western expansion in the 1800's, the States took it upon themselves to choose which theory of water rights, riparianism or prior appropriation, best suited their needs; a practice that Congress did not choose to disrupt retroactively, and tha