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<br />. <br /> <br />. <br /> <br />", l' .....J <br /> <br />, . <br />. . <br /> <br />.~ .<.; <br /> <br />-11- <br /> <br />:'~:.:":"1_9 <br /> <br />Congress has been fut Iy aware of the continuing problem of state-federal <br />relations In this area and even though attempts have been made,171 It <br />has never acted to require compliance with state law In ~very Instance <br />where the United States acquires water rights. In fact, Congress has <br />recognized that the United States could acquire rights to use water <br />In ways other than through state law.~/ Since Congress has not <br />generally directed the Federal Government to comply with state water <br />law, such compl lance Is required only In those specific Instances where <br />Congress has so provIded. But whl Ie Congress has not directed the Federal <br />Government to comply with state water law, neither has It prohIbited <br />the United States from voluntarily complying with such state water laws <br />unless specifically directed. <br /> <br />In summary, sInce the Federal Government has never granted away Its <br />right to make use of unappropriated waters on federal lands, It Is <br />my opInion that the United States has retained Its power to vest In <br />Itself water rights In unappropriated waters and It may exercise such <br />power Independent of substantive staTe law. See United States v. Rio <br />Grande Dam and Irrlaatlon Co., supra; see also discussion at pp. 15-18 <br />below. --- ---- <br /> <br />-:~?:! <br /> <br />171 See, ~'.9.., S. 863, 84th Cong.; 1st Sess. (1955); S. 1275, 88th Cong., <br />2d Sess. (1964); Marrea I e, "Federa I-State Conf I lets Over Western Waters <br />--A Decade of 'Clarifying legislation, '" 20 Rutgers l. Rev, 423 (1966); <br />Corker, "Water Rights and Federallsm--The Western Water Rights Settlement <br />B 11 I of 1957," 45 Ca II f. L. Rev, 604 (1957>. A recent GAD Report sum- <br />marizes some of the more Important leglslatl,e proposals made over the <br />past 25 years. See "Reserved Water Rights for Federal and Indian <br />ReservatIons, A GrowIng Controversy In Need of Resolution" (GAO-CED-78- <br />176, Nov. 16, 1978) pp. 39-50. <br /> <br />~/ See 16 U.S.C. ~ 1284(c). One of the statutes on the list cited by <br />the Supreme Court In United States v. New Mexico. supra, Is the McCarran <br />Amendment, 43 U.S.C. ~ 666.(1970). It Is notewor7hy that thIs provisIon <br />-- which waIves the sovereign Immunity of the United States In certain <br />cases -- refers to the acquisItion of water rights by the United States <br />"by appropriation under State law, by purchase, !21. exchanae, or otherwise <br />. . ." (emphasIs supplied). The Supreme Court relied on The "or otherwise" <br />language In holding the Amendment waived the United States' sovereign <br />Immunity for all federal water rIghts, Including "appropriatIve rights, <br />riparian rIghts. and reserved rights." United States v. District Court <br />for Eaale County, 401 U,S. 520, 524 (1971). <br /> <br />-:0.:. <br />