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Federal-State Problems in Packaging Water Rights

Frank J. Trelease, Water Acquisition for Mineral Development (1978)

In the earlier stages of this program the audience has heard in one paper that water may be obtained from the United States, and in another that water may be appropriated or water rights purchased under state laws. Whenever the same thing is the subject of different laws or the object of different rights, the question arises as to what will happen when the rights conflict or the laws are inconsistent with each other. Which will prevail? Our federated nation has a simple answer in her Constitution: you will do it Mother's way. The “Supremacy Clause” says, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”1

This is a constantly recurring problem, and one may well wonder why it seems to loom so important in the field of water law, how federal-state conflicts arose, and why they persist. The answers are not really unique to water, they are found in the rise of federalism throughout this century and the vast expansion of federal authority and control into several areas once thought to be the exclusive province of the states. Control of water rights is an especially sensitive area, however, since more than mere inter-governmental jealousy is involved. Stat