EP 1165-2-1
30 Jul 99
riparian landowner without unreasonably impairing other riparian
owners. Appropriation systems, predominant in the western states,
permit use of a carefully designated amount of water, regardless of
land ownership or place of use. Allocations among users are made by
temporal priority. Differences between the two basic systems,
however, are being overshadowed by state permit systems which require
all water users to obtain finite determinations of their water rights.
b. Effects on Projects. States have wide powers to legislate
the use of property within their borders, except these powers are
restricted by several paramount Federal powers granted under the
Constitution. Civil Works water resource projects are built under
Congressional authorization and usually are not subject to concurrent
authorization by state agencies. In particular cases, such as those
involving inter-basin transfers, interstate compacts, or Supreme Court
allocations, projects must be designed to recognize water rights
claimed by the residents of an affected state. Congress has also
established policies which protect and recognize certain state-created
rights, such as Section 1 of the Flood Control Act of 1944, which
subordinates use of water for navigation purposes to beneficial
consumptive uses of the streams in the western states. Water rights
may also be affected by authorized projects in which Congress has made
a quantified allocation of waters between the involved states.
c. Effects of Regulated Flows. Water resource projects, by
their very nature, often have significant effect on the quantity and
timing of flows in a river system. Whether such actions constitute an
injury to private water or other property rights for which the Federal
Government or a non-Federal project sponsor must pay compensation
depends on whether its actions come within the Government's rights
under the navigation servitude. This will depend on the degree of
interference, the navigability of the stream, and other related
factors. Careful consideration is given to the existence of lawful
water uses in the downstream areas. Encroachment on those uses is
avoided as much as possible.
d. Acquisition of Water Rights. Downstream waters made
available by a project are subject to allocation under state laws.
The parties desiring to use the waters impounded by a reservoir must
acquire the necessary water rights under the provisions of state laws,
and regulations, and resolve conflicts among users at the local or
state level. The Corps provides flow regulation service or storage
space within the reservoir to water users as authorized and is not
involved in adequacy or timing of the acquisition of water rights.
e. Legal Sources. United States v. Cress, 243 U.S. 316(1917);
United States v. Kansas City Life Ins. Co. 339 U.S.799 (1950); Wyoming
v. Colorado, 353 U.S. 953(1957); Arizona v. California, 373 U.S.
546(1963); Turner v. Kings River Conser. Dist. 360 F. 2d184 (9th Cir.
1966).
18-5.
Emergencies.
a. Water Supply. Section 5 of Public Law 77-228, as amended
by Section 82 of Public Law 93-251 provides the Chief of Engineers
with discretionary authority to provide emergency supplies of clean
water, on such terms as he determines to be advisable, to any locality
which he finds is confronted with a source of contaminated water
causing or likely to cause a substantial threat to the public health
and welfare of the inhabitants of the locality. Work under this
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