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<br />025;7 The fed8ral'overnment has no rights f'sustainin>J <br />groundl<atcr levels for gen"ral ecosysteCl c:aintenance. Such a <br />"lw/.Jter riSlhi":! is nothing mor~ than a \'.'cy of articulatin9 a 1l1J'y! <br />doctrine of federal dominion over ground'"at')r. Any Task Force <br />rccomf'18ndation which ,.Iould lend support Qr cr8dence to such <br />rights would frustrate federal-state relations and und8rmine the <br />President's stated objectives. <br /> <br />4. The Task Force recanrrerrlation is only a statement that federal <br />agencies cannot perform necessary services an:! .rreet previously identified <br />ccmnitments unless necessary funis are appropriated. It should be <br />pointed out, ho.vever, that sanetimes it is necessary for the agencies to <br />do the best possible \~ith funis available; for example, when the federal <br />governrrent is joined by the states in a general adjudication of a stream <br />tU1der the McCarran Arren:1ment. <br /> <br />B. Procedures for Integrating Federal Water Rights in State <br />Systans <br /> <br />I <br /> <br />\ <br />I <br />\ <br />I <br />I <br />I <br />I <br /> <br />5. On its face, this recanmerrlation may appear to be con- <br />ciliatory tCMard state water administration systems in that it urges, <br />"as much as practicable," the use of state law procedures where the <br />United States is claiming a right to use water other than under a <br />reserved water right. lJo..iever, the nature of the "as much as practicable" <br />qualification contained in the recamendation might as easily signify to <br />state water administrators that they are witnessing the atteIl'flted <br />conception of a quasi-reserved rights doctrine \~hich in potential would <br />bolster, if not avershado.v, its older brother. <br /> <br />." <br /> <br />The second sentence of the recorrtrendation suggests that in those <br />instances where the United States finds it "not practical" to use state <br />law procedures, the state should nevertheless be notified of the nature <br />and extent of the federal water use. <br /> <br />The discussion in the Task Force report follcMing r.eccmrentaion <br />number 5 appears to support a conclusion that what is being suggested, <br />more importantly than integration or cooperation with state law procedure, <br />is a legal theory recognizing the establishnent of federal non-reserved <br />water rights outside the provisions of substantive state \-tater law. The <br />recamnendation is an apparent reaction in part to language in the <br />recent United States Suprerre Court decision in Unitgd States v. New <br />Mexico, 438 U.S. 696, 702 (1978) stating in effect that rights to the <br />use of non-reserved waters by the United states must be acquired in the <br />same manner as any other public or private appropriation, i.e., through <br />canpliance with the procedural an:! substantive provisions of state water <br />law. <br /> <br />Discussion follo.ving the rea::mrendation attempts to soften its_ <br />effect by noting that perhaps the only purpose for. which the United <br />states lNOuld "appropriate" non-reserved water outside the provisions of <br />state substantive law is for instrearn flow m:lintenance on reserved ani <br />non-reserved federal lands. Limitin;J such appropriations to instreillll <br />flow purposes might lessen their overall effect, but the impact on <br />potential upstream water uses could still be severe depeD:li.n:] UJX>n the <br />relative location of the federal Ian:! tract. <br /> <br />-6- <br />