Indian Reserved Water Rights Under the Winters Doctrine: An Overview

Congressional Research Service (CRS) | June 8th, 2011

Although the federal government has authority to regulate water, it typically defers to the states to allocate water resources within the state. The federal government ma

Although the federal government has authority to regulate water, it typically defers to the states to allocate water resources within the state. The federal government maintains certain federal water rights, though, which exist separate from state law. In particular, federal reserved water rights often arise in questions of water allocation related to federal lands, including Indian reservations. Indian reserved water rights were first recognized by the U.S. Supreme Court in Winters v. United States in 1908. Under the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation. As the need for water grows with the development of new industries and growing populations, the tension arising from the allocation of scarce water resources highlights the difficulties that often surround reserved water rights, particularly in the western states. Western states generally follow some form of the prior appropriation system of water allocation. The prior appropriation system allocates water to users based on the order in which water rights were properly acquired. Because Indian reserved water rights date back to the government’s reservation of the land for the Indians, these water rights often pre-date other water users’ claims. Although the prior appropriation system’s reliance on seniority provides a degree of certainty to water allocation, Indian reserved water rights may not have been quantified at the time of reservation. Because Winters did not dictate a formula to determine the quantity of water reserved, courts apply different standards to quantify tribal reserved water rights. As a result, other water users may not know whether, or the extent to which, Indian reserved water rights have priority. Because of these uncertainties, Indian reserved water rights are often litigated or negotiated in settlements and related legislation. This report will examine the creation of Indian reserved water rights under the Winters doctrine. It will analyze the scope of the doctrine, including the purposes for which the water right may be claimed and the sources from which the water may be drawn. It will also discuss various quantification standards that courts have used in attempting to clarify Indian reserved water rights. Finally, it will examine the effect of the McCarran Amendment, through which Congress extended jurisdiction to state courts to hear disputes involving Indian reserved water rights.

Indian Water Rights in the West

Western States Water Council | December 1st, 1983

Indigenous communities, groundwater opportunities

American Association for the Advancement of Science (AAAS) | August 3rd, 2018

Instead of managing fresh water as one integrated resource, laws frequently treat groundwater separately from more visible, monitored, and managed surface waters. One und

Instead of managing fresh water as one integrated resource, laws frequently treat groundwater separately from more visible, monitored, and managed surface waters. One under-recognized consequence of such legal fragmentation has been uncertainty about whether water rights for indigenous communities, which have been addressed in many countries to varying degrees for surface waters, apply to groundwater. In late 2017, the U.S. Supreme Court left standing a lower court ruling endorsing priority groundwater rights for Native American tribes by denying an appeal in Agua Caliente Band v. Coachella Valley Water District. This ruling establishes a new standard throughout nine western states within the lower court's jurisdiction and establishes persuasive, although nonbinding, legal precedent for the rest of the United States. To evaluate the ruling's broader potential impacts, we present new data cataloging existing Native American water rights and mapping unresolved tribal groundwater claims across the western United States. No court considered such a regional or national quantitative catalog or map. Drawing lessons from past U.S. experience, we then discuss how tribal rights may offer new opportunities to achieve sustainable groundwater management for society at large, with implications beyond the United States. *The full text of this paper is behind a Science Magazine pay wall at a single-issue cost of $15. It should be available for free through research portals at universities, and may be accessible through public libraries with Science Magazine subscriptions. A free summary is contained by the August 3, 2018 Stanford News report "Stanford study reveals the changing scope of Native American groundwater rights – and opportunities for better freshwater management."    

Information Pertaining to Water Rights in California

California State Water Resources Control Board (SWRCB) | January 1st, 2000

A handbook on water rights produced by the State Water Resources Control Board, dated January 2000. TABLE OF CONTENTS Introduction General Information Pertaini

A handbook on water rights produced by the State Water Resources Control Board, dated January 2000. TABLE OF CONTENTS Introduction General Information Pertaining to Water Rights Appropriative Rights Initiated Prior to December 19, 1914 Appropriative Rights Initiated Subsequent to December 19, 1914 Loss of Appropriative Rights Riparian Rights Prescription Vested Appropriative and Riparian Rights Not Affected by Filing an Application Disputes Over the Use of Water Public Trust Determination of Existing Rights Appropriation of Underground Water Spring Water No Assistance Rendered in Securing Right of Access to Point of Diversion or Right-of-Way Patents and Homesteads Supervision Over Dams Provision of Fish and Game Code Statements of Water Diversions and Use Stockpond Rights General Information Pertaining To Applications For Permits To Appropriate Unappropriated Water Who Should File An Application Who Should Not File An Application Purpose of Filing When to File Unappropriated Water and Responsibilities of Permittees Outline of Essential Steps Preparation of Applications Changes In Ownership Appendix - Table of Equivalents

Introducing Time-Limited Permits to California’s Riparianism

University of California, Davis (UC Davis) | December 1st, 2023

Joint Report to the Legislature on the Department of Fish and Wildlife and State Water Resources Control Board pilot project to address the Environmental Impacts of Cannabis Cultivation (Watershed Enforcement Team)

California State Water Resources Control Board (SWRCB) | March 16th, 2015

This report is in response to the 2014-2015 Supplemental Report for item 3600-001-0001-Department of Fish and Wildlife (Department or CDFW), which provides the following

This report is in response to the 2014-2015 Supplemental Report for item 3600-001-0001-Department of Fish and Wildlife (Department or CDFW), which provides the following directive: “The Department of Finance shall report, on behalf of the Marijuana Task Force, on or before January 10, 2015, to the Assembly and Senate budget committees, on its recommendations to require marijuana producers growing under Proposition 215 protections, to comply with regular permitting, and with any need for regulatory changes to allow law enforcement to accompany regulators for site visits.” In this report, the Department and the State Water Resources Control Board (Water Board)1 provide an overview of the joint pilot project to address environmental degradation resulting from marijuana cultivation, a discussion of the agencies’ interaction with other state agencies, and a discussion of the program’s outcomes between August 2014 and February 1, 2015. This report also describes that the CDFW and the Water Board intend to require that marijuana producers growing on private lands comply with CDFW’s and the Water Boards’ existing and soon-to-be adopted permitting programs and current environmental protection laws. There is no need for a regulatory change that would allow law enforcement to accompany regulators on site visits as that authority currently exists.

Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can two wrongs make it right?

Harvard University | December 19th, 2015

Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987, whi

Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987, which questioned the way that some public interest advocates were enlisting Sax’s seminal work on the public trust doctrine to champion environmentalist causes. In our last conversation not long before his passing, Joe asked me whether I still believed now what I wrote in 1987 with the benefit of almost three decades of hindsight. This essay expands on the answer I gave Joe that evening. The essay first acknowledges the significant ways in which I clearly fell short in anticipating trends in environmental law, and for that reason, I agree that my original thesis warrants revision—especially with regard to the role of the public trust doctrine as a viable basis for defeating regulatory takings challenges. Next, the Essay discusses how, by contrast, I would not change my thesis in other respects and why, for that reason, I question the efficacy of relying on atmospheric trust doctrine theories in litigation to address the pressing issue of global climate change. The Essay is especially critical of atmospheric trust doctrine advocacy that relies on unduly harsh and demeaning criticism of existing environmental law and the career public servants who strive for its effective implementation.

Kaweah Subbasin Probationary Hearing Draft Staff Report

California State Water Resources Control Board (SWRCB) | May 2nd, 2024

The State Water Board recognizes that local public agencies in the Kaweah Subbasin have made significant efforts since the passage of SGMA to form three groundwater susta

The State Water Board recognizes that local public agencies in the Kaweah Subbasin have made significant efforts since the passage of SGMA to form three groundwater sustainability agencies (GSAs) and then develop detailed technical and other information supporting the adoption and implementation of three groundwater sustainability plans (GSPs) for the subbasin. Despite those efforts, in January of 2020, DWR reviewed the three GSPs to determine if the GSPs met SGMA’s requirements and found the GSPs to be incomplete. Following revisions made by the GSAs in the subbasin, DWR reevaluated the GSPs in March of 2023, determined the GSPs to be inadequate, and referred the subbasin to the State Water Board, as required by SGMA. Consistent with SGMA, the State Water Board may now consider whether to designate the Kaweah Subbasin as a “probationary basin,” a term that is used in SGMA to describe a basin in the first stage of state intervention.  Click here for Water Board updates on hearings. A January 5, 2025 has been cancelled to allow more time to review updated groundwater sustainability plans.

Kaweah Subbasin Staff Assessment

California State Water Resources Control Board (SWRCB) | October 14th, 2025

The Kaweah Subbasin is managed by three GSAs: East Kaweah GSA, Greater Kaweah GSA, and Mid-Kaweah GSA (collectively, the Kaweah GSAs or GSAs). Each GSA wrote their own GS

The Kaweah Subbasin is managed by three GSAs: East Kaweah GSA, Greater Kaweah GSA, and Mid-Kaweah GSA (collectively, the Kaweah GSAs or GSAs). Each GSA wrote their own GSP, East Kaweah GSP (EKGSP), Greater Kaweah GSP (GKGSP), and Mid-Kaweah GSP (MKGSP). The three GSPs are tied together by a coordination agreement. The primary use of groundwater within the subbasin is irrigated agriculture; in 2020, irrigated agriculture used more than 94 percent of the groundwater in the subbasin (2024 Coordination Agreement, Appendix 1, p. 27). The subbasin is critically overdrafted, which means that groundwater is pumped out of the subbasin faster than it is recharged by precipitation and other sources. On average, the amount pumped from the subbasin in a year is 104,000 acre-feet greater than the amount recharged (2024 GKGSP p. 1-1). Overdraft can cause the land surface to sink, potentially damaging infrastructure and reducing aquifer storage. In addition, overdraft threatens groundwater levels and drinking water quality and could have disparate impacts on communities that rely on shallower groundwater levels. Due to historic and political factors, many of these are economically disadvantaged and communities of color. As of 2022, the subbasin has an estimated population of 296,632 people with most of the population being Hispanic or Latino (60.6%) followed by white (31%) (American Community Survey, 2022). The average annual household income within the subbasin in 2022 is $71,000, which is significantly less than the state average of $91,551 (ibid.).

Kern County Subbasin Probationary Hearing Final Staff Report

California State Water Resources Control Board (SWRCB) | January 21st, 2025

The State Water Resources Control Board (State Water Board or Board) staff developed the Probationary Hearing Final Staff Report (Final Staff Report) for the Kern County

The State Water Resources Control Board (State Water Board or Board) staff developed the Probationary Hearing Final Staff Report (Final Staff Report) for the Kern County Subbasin (subbasin) to help inform the Board’s decision pursuant to the Sustainable Groundwater Management Act (SGMA or Act) as to whether to designate the Kern County Subbasin a probationary basin, as defined in the Act.   Companion information and documents: Kern County Subbasin State Water Resources Control Board Update Page Final Staff Report: Executive Summary Appendix A: Summary Table of Proposed Deficiencies and Potential Actions Appendix C: Public Process, Tribal Consultation, and Engagement; Draft Staff Report Comments Appendix D: State Water Board Review of the 2020 Groundwater Sustainability Plans and DWR Incomplete Determination