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02~7 The feU8ral'overnment hilS no rigilts i'sustaining groundwater levels for general ecosystem ~aintenance. ~uch a 1'~/'Jter rj~~h"l:l is nothinrJ morr] than a \'.'2,/ of articulatinq a IHHI doctrine of federal dominion over grourd~ater. Any Task Force recommendation which would lond support or credenco to such rights would irustrate federal-state relations and undermine the President's stated objectives. 4. The Task Force reccmner.dation is only a statement that federal agencies cannot perfonn necessary services and.rreet previously identified ccmmitments unless necessary furds are appropriated. It should be pointed out, however, that scrnetimes it is necessary for the agencies to do the best possible \~ith furds available; for example, when the federal goverrurent is joined by the states in a general adjudication of a stream under the McCarran Arren:1ment. B. Procedures for Integrating Federal Water Rights in State Systems 5. On its face, this recrnurerdation may appear to be con- ciliatOlY tONaId state water administration systems in that it urges, "as nmch as practicable," the use of state law procedures where the United States is claiming a right to use water other than under a reserved water right. However, the nature of the "as much as practicable" qualification contained in the reccmren:lation might as easily signify to state water administrators that they are witnessing the attempted conception of a quasi-reserved. rights doctrine \~hich in potential would bolster, if not overshado.v, its older brother. The secorrl sentence of the recomrerdation suggests that in those instances where the United States finds it "not practical" to use state law procedures, the state should nevertheless be notified of the nature and extent of the federal \'iater use. The discussion in the Task Force report f:oll~~ing r.ecammentaion number 5 appears to support a conclusion that what is being suggested, more importantly than inte::jration or cooperation with state law procedure, is a le::jal theory recognizing the establishnent of federal non-reserved water rights outside the provisions of substantive state water 1a\~. The recanmendation is an apparent reaction in part to language in the recent United States Supreme Court decision in Unitgd States v. New .' Mexico, 438 U.S. 696, 702 (1978) stating in effect that. rights to the use of non-reserved waters by the United States must be acquired in the same Il'aIll1er as any other public or private appropriation, Le., through canpliance with the procedural and substantive provisions of state water law. Discussion following the rea:mrendation attempts to soften its. effect by noting that perhaps the only purpose for. which the united States would "appropriate" non-reserved water outside the provisions of state substantive law is for instrearn flow llBintenance on reserved and non-reserved federal lands. Limiting such appropriations to instrealll flow purposes might lessen their overall effect, but the impact on potential upstream water uses could still be severe deperrlin:! up:m the relative location of the federal land tract. -6- I I \ i i i I , I ! ....