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( 02~~~e lln{X)rtant, haer, than the actual effects ft any instream flow naintenance requirements ~uld be the establishment and inevitable exparision of a new doctrine for acquiring federal water rights outside the state systans for purposes not yet recc:gnized ..j n I a". . -~-::~ It is noted that the discussion in the Task Force re{X)rt suggests following state appropriation procedures where state law recognizes the pro{X)sed federal water use as beneficial. No indication is rrade, however, that the 'fask Force views this as anything more than a mere =urtesy to the states. It may be wondered whether a federal agency having had its application for a water permit appropriately denied under state law ~uld thereafter proceed to exercise its use of the water outside the provisions of state water law. The Task Force identifies three alternatives available to a federal agency in states which do not recognize instream flows as a beneficial use. These alternatives are in effect to (1) ignore the congressional directive to rranage the land in part for instream uses, or (2) establish or claim a \.mter right outside the provisions of state law, or (3) seek to create a land reservation with an accanpanying reserved water right; Absent fran the list is an obvious fourth alternative. It is, sinply, that the agency I1\'lIlage the federal land in part for congressionally- authorized instream flow uses without claiming a proprietary or an appropriative right to the instream flol.,. Frequently, the stream flows to be managed will flCl\v through federal lands located upstream fran any private developnent. This factor, to;Jether with the fact that dO\VIlstream flows nay te fully appropriated, should minimize interference with the federal management objectives. ( Finally, a few practical questions may be raised in response to the discussion in the Task Force re{X)rt. How, for example, Hill it be detexmined when an agency begins "actual use" of a minimum stream flow for a =ngressionally-establishoo management objective? Is it the date of congressional action, the date of notification or application to the state, or, the date the first fish is planted, or the first float trip is . licensed? ( In =nclusion, it may be stated that to the extent that recan- mendation number 5 suggests that the United States nay appropriate non- reserved waters outside the provisions of state procedural and substantive law, it is not acceptable. To the extent that the recamrendation urges federal canpliance with the provisions of state law in appropriating non-reserved water rights, it is to be camended. 6. The first sentence of recxmnendaton number 6 directing federal agencies to give notification to states concerning the identifying an::l quantity of their claimed reserved rights should be encouraged and applauded. The plannin:J functions of state water administrators have long been hampered by the element of uncertainty which is generated by the existence of unquantified reserved water rights. The Task Force re{X)rt suggests that u{X)n notification of the reserved rights claimed by the United States, each state should "incorp::>rate" such rights into its water law system. The procedure for -7- ".-"--- .. -._--~.....-.-..-._---_.. ----..~_.-_. .-_. ,-.------.