I
105TH CONGRESS
2D SESSION
H. R. 3557
To subject the United States to payment of fees and costs in proceedings
relating to State water rights adjudications.
IN THE HOUSE OF REPRESENTATIVES
MARCH 25, 1998
Mr. SMITH of Oregon (for himself, Mr. SKEEN, Mr. CRAPO, and Mr.
HASTINGS of Washington) introduced the following bill; which was re-
ferred to the Committee on the Judiciary
A BILL
To subject the United States to payment of fees and costs
in proceedings relating to State water rights adjudications.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Water Adjudication
Fee Fairness Act of 1998.’’
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Generally, water allocation in the United
States is based upon an appropriation system, under
which water users’ rights are quantified under State
law. These rights carry designated priority dates
which establish the relative right to water from a
source. Most States, especially in the West, have de-
veloped judicial proceedings, known as general
stream adjudications, to quantify and document
these relative rights, including the rights to water
claimed by the United States Government.
(2) State general stream adjudications are typi-
cally complicated, expensive civil court actions that
can involve hundreds or even thousands of claim-
ants. However, such adjudications give certainty to
water rights, provide direction for water administra-
tion, and reduce conflict over water allocation and
water usage. Those claiming and establishing rights
to water, including Federal agencies, are the pri-
mary beneficiaries of State general stream adjudica-
tion proceedings.
(3) The Congress recognized the benefits of the
State general stream adjudication system, and by
adoption of section 208 of the Department of Jus-
tice Appropriation Act, 1953 (43 U.S.C. 666, popu-
larly known as the ‘‘McCarran Amendment’’), re-
quired the United States to submit to State court
jurisdiction and to file claims in State general
stream adjudication proceedings.
(4) Water rights claims by Federal agencies are
typically the largest and most complex claims in
State general stream adjudications. However, the
United States Supreme Court, in the case United
States v. Idaho, 508 U.S. 1 (1992), determined that
under the McCarran Amendment the United States
is not required to pay administrative fees or judicial
costs in State general stream adjudication proceed-
ings.
(5) Some Federal agencies, realizing they are
not required to pay State fees, may file numerous
water rights claims to either improve their negotiat-
ing position or to so increase the adjudication bur-
den that the State must terminate its adjudication
rather than attempt to deal with the avalanche of
United States claims.
(6) Since Federal agency water rights claims
are among the most difficult to adjudicate, and since
the United States is not required to pay the fees
paid by non-Federal claimants, the burden of fund-
ing these proceedings unfairly shifts to the private
water users and State taxpayers. The requirement
that States process Federal Government water
rights claims without reimbursement constitutes an
unfunded mandate on States.
(7) The lack of Federal Government funding to
support State water rights adjudications in relation
to the complexity of the claims involved has pro-
duced significant delays in completion of State gen-
eral stream adjudications. These delays inhibit the
ability of both the States and Federal agencies to
protect private and public property interests. Also,
failure to complete the final adjudication of claims
to water restricts the ability of resource managers to
determine how much unappropriated water is avail-
able to satisfy environmental and economic develop-
ment demands.
SEC. 3. APPLICATION OF FEES AND COSTS FOR FEDERAL
WATER CLAIMS IN WATER USE RIGHTS PRO-
CEEDINGS.
(a) IN GENERAL.—In any administrative or judicial
proceeding for the adjudication or administration of rights
to the use of water in which the United States is a party,
the United States shall be subject to administrative fees,
claiming fees, and the imposition of judicial costs to the
same extent as a private party to the proceeding.
(b) APPLICATION.—Subsection (a) shall apply to pro-
ceedings pending on, or initiated after, the date of enact-
ment of this Act.
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