https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2014_08.pdf
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Army Directive 2014-08 (Water Rights Policy for Army Installations in the
United States)
1. Reference Memorandum, Assistant Secretary of the Army (Installations, Logistics
and Environment), 24 Nov 95, subject: Policy Guidance on Water Rights at Army
Installations in the United States.
2. Purpose. The Army requires enough water to carry out its missions without
significant disruptions. This directive, which supersedes the reference, sets policy and
assigns responsibilities for identifying, asserting and preserving the Army’s water rights.
3. Background. Water is scarce throughout much of the Western United States and
becoming scarcer in some parts of the Eastern United States. Increasing demand for
water to support growing populations and economic development places stress on the
same supplies of ground and surface water that Army installations depend on to fulfill
their missions. Over the past decade, several Army installations have become involved
in litigation over water rights. As competition for water increases, more Army
installations are likely to become involved in disputes over water. Consequently, it is
critical that we protect the Army’s water rights and its ability to carry out its missions.
4. Applicability. This policy applies to all Army installations in the United States. It is
not applicable to U.S. Army Corps of Engineers’ Civil Works projects and facilities.
5. Policy. Effective immediately:
a. the Army will acquire and maintain water rights for both ground and surface water
consistent with mission requirements;
b. the Army will identify, assert, defend and preserve its water rights to the
maximum extent possible under State and Federal law to sustain mission capability;
and
c. Army installations will locate, record and retain documentation related to water
rights.
6. Reporting. By 31 December of each calendar year, the Office of the Assistant Chief
of Staff for Installation Management (OACSIM) will report to the Office of the Assistant
Secretary of the Army (Installations, Energy and Environment) on the current state of
the Army’s water rights. This report will include the following topics: an assessment of
the sufficiency of existing water rights to meet mission requirements; the state of
S E C R E T A R Y O F T H E A R M Y
W A S H I N G T O N
SUBJECT: Army Directive 2014-08 (Water Rights Policy for Army Installations in the
United States)
2
documentation to assert, maintain and defend the Army’s water rights; and a current
summary of all legal challenges to the Army’s water rights.
7. Command Policy and Guidance. OACSIM will issue implementing guidance to
execute this policy no more than 180 days from the date of this directive and will
coordinate the guidance with the Environmental Law Division, Office of the Judge
Advocate General, before it is issued. Enclosure 1 contains a legal framework for water
rights to aid OACSIM, commands and command counsel in identifying, asserting and
preserving water rights. Enclosure 2 offers a nonexclusive list of issues to address in
the guidance.
8. Proponent. The proponent for this policy is OACSIM, who will incorporate the
guidance in this directive into the next revisions of Army Regulation 405-80
(Management of Title and Granting Use of Real Property) and Army Regulation 420-1
(Army Facilities Management), as appropriate.
9. Rescission. This directive is rescinded upon publication of the revised regulations.
Encls John M. McHugh
DISTRIBUTION:
Principal Officials of Headquarters, Department of the Army
Commander
U.S. Army Forces Command
U.S. Army Training and Doctrine Command
U.S. Army Materiel Command
U.S. Army Pacific
U.S. Army Europe
U.S. Army Central
U.S. Army North
U.S. Army South
U.S. Army Africa/Southern European Task Force
U.S. Army Special Operations Command
Military Surface Deployment and Distribution Command
U.S. Army Space and Missile Defense Command/Army Strategic Command
U.S. Army Medical Command
U.S. Army Intelligence and Security Command
(CONT)
SUBJECT: Army Directive 2014-08 (Water Rights Policy for Army Installations in the
United States)
3
DISTRIBUTION: (CONT)
U.S. Army Criminal Investigation Command
U.S. Army Corps of Engineers
U.S. Army Military District of Washington
U.S. Army Test and Evaluation Command
U.S. Army Installation Management Command
Superintendent, U.S. Military Academy
Director, U.S. Army Acquisition Support Center
Executive Director, Arlington National Cemetery
Commander, U.S. Army Accessions Support Brigade
Commandant, U.S. Army War College
Commander, Second Army
CF:
Director, Army National Guard
Director of Business Transformation
Commander, Eighth Army
Commander, U.S. Army Cyber Command
Army Directive 2014-08 Enclosure 1
LEGAL FRAMEWORK FOR WATER RIGHTS
A water right is the legal right to use water from a source. Water rights are distinct from
contractual rights of purchase. Federal installations own and can obtain water rights in
support of their missions. The analysis of the status of Army water rights is specific to
each installation, highly specialized and dependent on careful legal review by the
installation’s Staff Judge Advocate.
Army water rights may arise from State or Federal law. State water rights are typically
obtained through acquisition. Although the Army is part of the Federal Government,
many of its installations’ water rights are held pursuant to State law. The character of
these State water rights depends on the legal doctrine each State follows. In general,
the Eastern States assign “riparian” water rights: all landowners whose property adjoins
a body of water have the right to make reasonable use of it. The Western States use a
system called “prior appropriation,” which assigns water rights prioritized by the date on
which a person first put a quantity of water to beneficial use. In these prior
appropriation States, ownership of land is divorced from ownership of water rights.
Some States have hybrids of these two systems. Each State’s specific laws are unique
and should be reviewed by the installation legal counsel.
Federal water rights differ significantly from State water rights and, most critically, take
priority over State rights. Army installations may have obtained Federal water rights in
one of the following ways:
Federal Reserved Water Rights. When the Federal Government withdraws land
from the public domain to establish a reservation or installation, courts infer the
intent to reserve unappropriated water to fulfill the reservation’s established
purpose, both presently and in the future.
Cession. On land ceded to the Federal Government, the cession authorization
may include water rights.
Preemption. When Congress has clearly and specifically preempted State water
law, either expressly or by necessary implication, on lands that are not reserved,
the Federal installation will have senior water rights.
For Federal reserved rights, uses of water to fulfill the “primary purpose” of the
reservation or installation include all municipal and industrial uses of water necessary to
sustain a self-contained community, including water adequate for the morale and
welfare needs of the Army community. Federal reserved rights may also change over
time, depending on the installation’s future needs.
A final significant difference between Federal and State water rights is that Federal
reserved water rights clearly may not be lost by nonuse. Under the law of some prior
appropriation States, a long period of nonuse may raise a rebuttable presumption of
intent to abandon a State right. Reserved rights are not subject to abandonment. It is
Army Directive 2014-08 2 Enclosure 1
not clear, however, whether other water rights owned by the United States are subject
to State laws on abandonment.
Although the Federal Government is generally immune to lawsuits from the States, the
McCarran Amendment, Title 43 United States Code section 666 (1988), provides a
limited waiver of sovereign immunity for “general stream adjudications.” In this
situation, individual States can require the United States to quantify, assert and define
its water rights. During an adjudication, a court will consider evidence to establish the
existence of water rights within a watershed or basin. The result of the adjudication is a
decree fixing the amounts, relative priorities and specific details of water rights.
However, even when such rights have been fixed, Federal reserved rights may still
trump State water rights, and the appropriation of water may have to be revisited,
depending on the Army’s needs.
Timely and thorough identification and characterization of an installation’s water rights
are important. State water rights must be preserved to prevent arguments that they
have been abandoned. Generally, State adjudications of water rights also require the
assertion of water rights claims to be brought within a certain timeframe. If the Army
fails to assert or preserve its water rights in a timely manner, it may be in jeopardy of
losing those rights.
The policy in this directive requires that the Army identify, assert, defend and preserve
its water rights to the maximum extent possible under State and Federal law. The
complexity and diversity of water rights means that installation commanders must
consult with their Staff Judge Advocates to determine what legal rights and limitations
apply at their specific installation to ensure continued access to a sufficient water supply
to carry out the Army’s missions. The Office of the Judge Advocate General,
Environmental Law Division is available to coordinate guidance at the command level
and specific implementation instructions at the installation level.
The assertion and defense of Army water rights must be coordinated, through the
installation and land holding command’s Office of the Staff Judge Advocate or legal
office, with the Chief, Environmental Law Division, U.S. Army Legal Services Agency.
The Environmental Law Division represents the Department of the Army in litigation
(and some administrative proceedings) involving water rights and other environmental
and natural resources matters. The U.S. Department of Justice has the primary
responsibility for representing Federal agencies in litigation. Consequently, the
Environmental Law Division will coordinate as necessary with the Justice Department
and Office of the Army General Counsel on all matters related to Army water rights.
Army Directive 2014-08 Enclosure 2
ISSUES TO ADDRESS IN GUIDANCE
Here is a nonexclusive list of issues the Office of the Assistant Chief of Staff for
Installation Management (OACSIM) will include in its water rights guidance to
commands. Commands may issue further guidance to aid in local implementation as
they deem necessary. Local implementation should also address any additional
Federal, State or regional issues that may be unique to the command’s particular
missions and circumstances.
1. Importance of the Army Water Rights Policy. Each command must emphasize the
critical importance that sufficient water rights and access to water may have on the
command’s ability to continue to carry out its missions in the future.
2. Assignment of Responsibilities. Each command must clearly establish who is
responsible for collecting and maintaining records; analyzing current and future water
needs and supply; analyzing water rights necessary for continued access to a sufficient
supply of water; and asserting, maintaining and defending water rights and access.
3. Federal and State Water Rights Laws. OACSIM’s guidance should include a
summary of Federal and State water laws, and also direct appropriate legal counsel to
supplement this summary with State and regional laws and issues that may be pertinent
to each installation or activity. The guidance should discuss potentially relevant Federal
laws, such as the Endangered Species Act of 1973.
4. Analysis of Existing Water Rights. All installations or activities must analyze the
adequacy of their current and future water supply needs, rights and access. Such rights
and access should be sufficient to continue essential activities under drought or other
shortage conditions and to support increased demand due to mobilization, contingency
operations or increases in population or missions. Attention should be paid to actions
necessary to maintain existing water rights, including planning and continued beneficial
use to avoid abandonment or loss. Likewise, any privatization of Army-owned water
systems must be accomplished in such a manner as to not jeopardize the Army’s water
rights. If additional water access or rights are necessary, the analysis should also
include what other sources of water are available and how to acquire the rights or
access to that water.
5. Identification of Supporting Data and Records. The guidance should address the
importance of collecting and maintaining sufficient evidentiary records to assert,
maintain and defend the Army’s water rights. Guidance should be provided on how to
locate, record and retain existing and future water rights documentation. As applicable,
this documentation should include information concerning the dates, locations, means,
rates of diversion and uses of water, as well as documents establishing the acquisition
and history of all water rights acquired (for example, executive orders, decrees or
permits).
Army Directive 2014-08 2 Enclosure 2
6. Maintenance of Records. OACSIM should require commands to initiate procedures
for permanently maintaining such records. These procedures should clearly identify
who is responsible for the maintenance, how the maintenance will be monitored to
ensure that it is carried out, and how such records will be passed on to successors.
The transfer of documents is especially important given the indefinite number of years
during which the Army will need to assert, maintain and/or defend its water rights.
Effective retention of information collected, now and in the future, will be key to
protecting the current and future property interests of the United States Army.