Development and Status of Federal Reserved Water Rights:
The mandate regarding Federal rights to water was established in 1908 by Winters v. United States.
When the United States reserves public land for uses such as Indian reservations, military reservations, national parks, forest, or monuments, it also implicitly reserves sufficient water to satisfy the purposes for which the reservation was created. Both reservations made by presidential executive order or those made by an act of Congress have implied reserved rights. The date of priority of a federal reserved right is the date the reservation was established.
Subsequent laws have attempted to water down the original intent. However, in a case in 1999 in Arizona regarding water on BLM land, a Federal Judge reaffirmed the Federal rights are still in tact. The presiding judge wrote, “The [Winter’s] doctrine applies not only to Indian reservations, but to other federal enclaves, such as national parks, forests, monuments, military bases, and wildlife preserves.”
The Federal rights to water in our public lands, including National Forests were reasserted again in the Gila River Adjudication in Arizona:
SUPREME COURT OF ARIZONA
195 Ariz. 411;989 P.2d 739;1999 Ariz.
From Opinion by Judge Noel A. Fidel:
The reserved water rights doctrine provides:
When the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators.
Cappaert v. United States, 426 U.S. 128, 138, 48 L. Ed. 2d 523, 96 S. Ct. 2062 (1976). The doctrine applies not only to Indian reservations, but to other federal enclaves, such as national parks, forests, monuments, military bases, and wildlife preserves. Id. at 138-39;Arizona v. California, 373 U.S. 546, 601, 10 L. Ed. 2d 542, 83 S. Ct. 1468 (1963).