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. . . , . . 0239 mmOOOCTION Under date of June 25. 1979. the Solicitor of the Depart:rrent of the Interior issued an opinion concerning "FEderal Water Rights of the National Park Service. Fish & Wildlife Service. Bureau of Reclamation, and the Bureau of land Management." 1/ The opinion was issuEd in response to directions in President Carter's water policy rressage of June 6. 1978. ~ / In his water policy message. President Carter instructed fEderal agencies to =rk pranptly and expeditiously to inventory and quantify reservEd rights claims. The President directEd the fEderal agencies to "utilize a reasonable standard when asserting federal reserved rights which reflects true federal needs, rather than theoretical and hypo- thetical needs based on the full legal extension of all possible rights." II The President's intention of providing a rreans whereby finality and certainty can be brought to the govenment I s reserved rights claims is laudible. Certainly no other issue has been so controversial in federal-state relations in water law than the govenment's claims under the reservation doctrine. 4/ Such claims deter future water resources planning and developnent. am. pose the threat that new federal uses will be given turn-of-the-century priorities that can take water fran =- rently valuable uses established pursuant to state law without payment of canpensation. ~ However. it is the position of the Western States Water Council that the Solicitor's opinion is in many respects inconsistent with the President's directive to use a reasonable standard in asserting federal rights. Most serious is the Solicitor's assertion of the existence of so-called non-reserved federal water rights. The Solicitor concludes that. since the fEderal governrrent has never granted away its right to make use of unappropriated waters on federal lands, "...the United States has retained its power to vest in itself water rights in unappropriated waters and it may exercise such power independent of substantive state law." y '!'he Suprare Court has never sanctioned such water rights by the fEderal government. Indeed. an objective examination of Supreme Court decisions, particularly its lan:Jrnark decisions in United States v. New Mexico 7/ and United States v. California 8/, reveals that the United States ITUlst canply with state substantive laws in acquiring water, except in the case of federally reserved rights. For these reasons, the Western States Water Council finds it necessary to point out several areas of the opinion which do not ac- a.rrately reflect the state of the law with respect to federal reserved rights. and to refute its assertion of a right on the part of federal agencies to appropriate water without ccrnpliance with state law and without basis in the reservation doctrine. -1- 90.