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. . O':N:WSlOO . That the solicitor has fashioned a new theory on which to base federal water rights seems clear. No court has ever sanctioned this n~ theory. To the exmtrary, recent SuprertE Court decisions leave no roan for establishment of a ne\~ exception to state jurisdiction over allocation of water resources. While Congress unquestionably has the constitutional pc1Ner to control such allocation, it has wisely deferred such decisions to the states, with the exception of reserved rights and the navigation servifude. At the sane time, Congress has given federal agencies anple authority to ac:ruire water rights for federal purpose~ pursuant to state laws. There is no need to rely on a tenuous theory of a retained pro- prietary right in unappropriated waters, but which only "arises fran actual use," The reasons for developrrent of this n~ theory by the departrrent can also be surmised. The Suprerre Court in the New Mexico case denied the goverr1lD2I1t' s claims to reserved rights for instream uses on forest lands for aesthetic, recreation, wildlife-preservation, and stockwatering privileges. Besides being a vital source of timber, national forest systen lands are considered the nost important watershed areas under any agency of the United States. In the eleven western states, nore than half of the stream flow cernes fran national forests. 117/ Having lost the effort to claim such instream rights through the reservation doctrine, it is not difficult to conceive that federal agencies will try again in light of the SOlicitor's opinion to claim that such instream non-consumptive uses have been "appropriated" by the federal government for congressionally authorized purposes and therefore should te upheld without reference to state substantive law. Such claims could te anticipated not only fran the Forest Service, but also fran the Natiorol Park Service, the Fish curl Wildlife Service and the Bureau of land Management as well. . If such claims were asserted, there would be little consolation in the Solicitor's instruction to the federal agencies to comply with state procedural laws "to the greatest practical extent" and state substantive law "where that law recognizes the federal appropriative rights in all I?ertinent respects." SUch qualifications on the Solicitor's instruuctions Jeopardize even their one useful purpose of providing notice of federal claims. In light of the clear language recently enunciated by the Suoreme Court concerning state-federal relations in water law in general,. and the reservation doctrine in particular, the Solicitor's opinion must be seen as espousing the kinds of hypothetical and theoretical claims which the President denounced in his water policy rressage of June 6, 1978. Such claims must be rejected. . -18- 90.