Selected Problems in the Law of Water Rights in the West

Excerpts from the report Preface: Publication of this study of selected problems in the law of water rights in the Western States is rooted in the needs of the Department of Agriculture. For some time the Department has been concerned with this field of the law, particularly in its work in irrigation, drainage, and forest conservation. More recently, in undertaking extensive operations in the control of soil erosion, the stabilization of watersheds in aid of flood control, and the promotion of soil and water conservation, the Department has found these programs to be conditioned to a considerable extent by those legal institutions of the Western States which control the acquisition and exercise of rights to the use of water. Still more recently, in an act approved on August 28, 1937, the Congress charged the Department with responsibility for aiding in the development of facilities for water storage and utilization in the arid and semiarid areas of the United States. Problems in the law of water rights are today familiar grist in the mill as the Department administers its land and water utilization and conservation programs. There is, however, an additional consideration which influenced the launching of this study. Section 4 of the 1937 Water Facilities Act mentioned immediately above provides that, "as a condition to extending benefits" under the act within any State, the Secretary of Agriculture may, insofar as he may deem necessary for the purposes of the act, require "the enactment of State and local laws providing for soil conserving land uses and practices, and the storage, conservation, and equitable utilization of waters." It is generally agreed in the West that some of the provisions of the State water codes, particularly as interpreted and supplemented by judicial decisions and administrative interpretations, stand in the way of efficient and equitable conservation and utilization of waters