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Chaos in the Making: The Consequences of Failure to Integrate Federal Environmental Statutes With McCarran Amendment Water Adjudications

Bennett W. Raley, Proceedings of 41st Annual Rocky Mountain Mineral Law Institute (1995)

The issue addressed in this article is whether federal agencies may obtain water for use for federal purposes through the exercise of regulatory authority instead of the exercise of a federal water right in priority. The thesis of this article is quite simpleeven the United States is subject to the doctrine of res judicata. Accordingly, federal claims1 to the use of water, whether for national defense, fulfillment of the federal trust responsibility to Indian tribes, ecosystem protection, protection of endangered species, or attainment of water quality goals, must either be asserted in McCarran Amendment2 water adjudications or be subordinated to other rights to the use of water which are established in these proceedings. If sufficient water is not available under the priorities established for those federal rights which are determined to exist, the United States must acquire senior water rights through purchase or condemnation. However, the United States may not, without the payment of just compensation, satisfy unmet federal needs for water by using federal regulatory authority for the purpose of reallocating the needed water from existing water users.

[24-3]

The characterization of federal demands for water as the exercise of regulatory authority instead of the exercise of a water right is an improper attempt to avoid the implications of McCarran, as McC