Michael, great points. I did some reading. I agree with the basic idea of prior-appropriation water rights. While I acknowledge the right of a State to declare all waters to be publicly owned, I don't think it would be a very competitive thing for a State to do. I also have a problem with declaring non-aquifer and non-tributary waters to be publicly owned. It's one thing if a tributary enter's one's property; it's quite another if an insignificant tributary originates on one's property or if a small pond exists there. Controlling those kinds of waters is the kind of thinking that leads to poor people being prosecuted for gathering rain water off of tin roofs.
It sounds like in the Oregon case the amount of water is insignificant and the tributaries being dammed originate on the property. It also sounds like denial of permit decision may have been made arbitrarily.
I do disagree with the FAA Act declaring, "The United States Government has exclusive sovereignty of airspace of the United States," and the Communications Act and Telecommunications Act granting the U.S. government control over communications. I realize these were all defense motivated, yet I see national defense as a thin justification for the government taking control of areas which are not granted Powers in the Constitution. I do agree with the Interstate Highway system being a facet of defense, and at least in the case of Highways there is the thin justification of postal roads combined with general Welfare.
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