This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects state law unless a project cannot comply with both a state and federal law or the state law is clearly inconsistent with a federal reclamation goal. Section III then turns to three specific questions left open in California: (1) whether state water law provisions other than those involving appropriation may be applied to federal projects; (2) whether changes in state law may affect a completed federal project; and (3) whether a state law may block construction of a federal project. The Note concludes that although California does not foreclose all future disagreement, it provides a coherent model for analyzing disputes between the Bureau and the western states.
Michigan Law Review,
State Control over the Reclamation Waterhole: Reality or Mirage,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol78/iss2/4