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UNCERTAIN WATER RIGHTS Justice Department refused to authorize an appeal to the U.S. Supreme Court. More recently, in litigation challenging the destructive flow of agricultural nutri- ent pollution at Everglades, Justice dismissed from the case any claims based on the National Park Service Organic Act, asserting only unexplained "pol- icy reasons" for the dismissal. These and similar problems may be due, in part, to the Justice Department's conflicting roles in representing the Park Service, while also representing other federal agencies whose programs may compete for park waters. In the Everglades litigation, for example, Justice confronted serious potential con- flicts between Park Service interests and those of another client agency, the Army Corps of Engineers, which has played a significant role in constructing and managing the canal systems that have been deliv- ering polluted water to the park. The Justice Department faces similar conflicts between the inter- ests of its client agencies in current litigation chal- lenging the federal government's marketing of peak- ing power from federal hydropower projects on the upper Colorado River system. Conservation organiza- tions filed the suit in an effort to compel the delivery of more natural flows to downstream areas, such as the Green River in Dinosaur National Monument - an objective generally supported by the Park Service. However, the Justice Department represents the Bureau of Reclamation and the- Western Area Power Administration in the case, agencies which tradition- ally have prioritized management of flows for power production and marketing. Finally, both the U.S. Attorney General and the Interior Solicitor have directed federal agencies not to assert reserved rights for Wilderness Areas - a politi- cally motivated policy based on highly questionable legal analysis. Designed to favor water development interests, this policy could seriously compromise pro- tection of designated wilderness areas in national park system units. ^ Problems with other approaches to establish- ing or acquiring park water rights: The above discus- sion emphasizes that federal reserved water rights may not provide adequate protection for national park waters in several significant circumstances. In some instances, state courts may recognize a reserved right but award a quantity of water inadequate to protect park purposes, as at Dinosaur National Monument. In other instances, courts may decline altogether to recognize a reserved right on the ground that a park unit was established by the acquisition or donation of lands (rather than by reservation from the public domain), or because a unit is located in a state that allocates water under the riparian system. The latter problems are most likely to arise in the East and Midwest, -where most park lands were acquired by purchase or donation, and where the riparian system is primarily used. To establish park water rights in these circum- stances, the Park Service must purchase water rights, or seek to obtain a water right under state "prior appropriation" or riparian systems. These avenues, however, are fraught with problems. To begin with, although negotiated purchase of water through water marketing schemes is becoming an increasingly important option, Congress has shown little interest in funding the purchase of water, except to meet minor needs or to fulfill negotiated settlements of disputed rights. For the same reasons, taking of water by eminent domain (i.e., "condemna- tion") has seldom been a viable option. And while water from federally-financed reservoir projects might be allocated by law or contract to meet park water needs, Congress and the relevant federal agen- cies have shown limited inclination to pursue these solutions. Furthermore, under the prior appropriation system of water law common in the western United States, water rights are acquired by claimants based on the chronological order in which water right applications were filed. (Or in some cases, the order in which water was diverted or put to use.) This prin- ciple is often referred to as "first in time, first in right" because a water right will not be awarded if the amount of water or the proposed use will interfere with existing rights previously awarded to chronolog- ically "senior" right-holders. To obtain a right, appli- cants in some states may have to show that water will be put to an economically "beneficial use" (e.g., irri- gation), and upon approval of an application, must divert water from its source for that purpose. It has been difficult, if not impossible, for parks without federal reserved rights to acquire water rights under the prior appropriation system that are ade- quate to protect flows of park waters. Until recently the Park Service seldom filed applications for appro- priative rights (except for common consumptive uses) because, under most state systems, the mainte- nance of instream flows has generally not been con- sidered to constitute a "beneficial use" and does not involve the diversion of water usually required by state law. While many states grant limited water rights for protection of instream flows, these rights typically can be held only by state agencies and only for limited quantities of water necessary to maintain specified resources, such as fish. This makes it diffi- cult for parks to obtain instream flow rights to serve recreation, scenic, riparian and other non-fish values in parks. Even if these obstacles could be overcome, 24