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. . t BACKGRCUND In order to unlerstarrl the importance of the issues raised by the Solicitor's opinion, it is necessary to understarrl sane backgrOl.md. . In vast areas of the West rainfall is slight, and land is virtually worthless without an adequate supply of water. For these reasons, westem water laws came to be based on beneficial use of water rather than correlative rights and the appropriation theory rather than the riparian. Under the appropriation approach the first to rrake a bene- ficial use of water is protected in that right to the extent of his use. y At the time these water laws developed, federal policy stressed disposition of the public danain by encouraging hanesteading and settle- rrent. By a series of acts in 1866, 1870, and 1877, Congress legitimized the appropriation approach practiced in the westem states and declared that the water on public lands was open to use, and water rights thereto were to be obtained under the laws of the states and territories. 10/ It was settled that even government patentees had only received land titles and had to acquire water rights in accordance with state law. 11/ As a result, the states at this point had every reason to feel secure ~n their ability to legislate as they chose in relation to the non-navigable waters within their boun:laries. This feeling of security, however, was soon to be diminished. By the end of the 19th Century, the errphasis on settlerren.t and developIlEl1t of western lands gave way in part to a concern for conser- vation of natural resources resulting in a series of vast federal reservations of what had previously been public lands. Thus, national rronurrents, national parks, national forests, Irrlian reservations and defense establishnents were withdrawn fran those lands open to public settlEment. With respect to the water needs associated with the programs on these lands, luwever, it was custanary for the federal governrrent to appropriate water in accordance with state laws. 12/ Irrleed, despite the increase of federal activity in the western lands, nothing in the federal enact:Irents providing for these programs and projects precipi- tated concern on the part of state legislatures. \'1estern states' congressmen were repeatedly successful in se=ing disclaimers in federal enactrrents of any effect or interference with state laws concerning the control, appropriation, use, or distribution of water, or any vested right ac- quired thereunder. 13/ The 1902 Reclamation Act contained such a disclaimer and further- rrore, in Section 8 directed the Secretary of Interior, in carrying out the provisions of the Act, to proceed in confonnity with such state laws. 14/ Thus, Congress directed that the Bureau of Reclamation in develoPIng water resources in the \'1est respect the states' regulatory authority in securing unappropriated water in the state for developnent of a partiCUlar project. . Despite the clearly evinced policy of Congress to defer to state law with respect to the acquisition, control, and distribution of water, the Supreme Court gradually ereXIed this congressional policy in a series of decisions which were apparently the result of its philosophy that the federal governm::'!nt should control the allocation of the nation' s water resources. . -2- 90.