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UU~II..sl , . Hare :imp:lrtant, h!lver. than the actual effects :In any instream flow naintenance re:;uirenents l'iOuld be the establishment and inevitable expansion of a new doctrine for acquiring federal water rights outside the state systens for purp:>ses not yet reco:Jnized . i n I a 1'1 . ( -'~-~-~~ It is noted that the discussion in the Task Force report suggests following state appropriation procedures where state law reCCXjl1izes the proposed federal water use as beneficial. No indication is made. hCMever, that the 'fask Force viel'ls this as anything more than a mere courtesy to the states. It may be \>londered whether a federal agency having had its application for a \>later permit appropriately denied un:ier state lalv I>.uuld 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 reCXlSJl1ize instream flOW's as a beneficial use. These alteJ:Tlatives are in effect to (1) ignore the congressional directive to nanage the lan::l in p3rt for instream uses. or (2) establish or claim a I'later right outside the provisions of state law, or (3) seek to create a land reservation ,-lith an accCIl\panying reserved water right. Absent frem the list is an obvious fourth alternative. It is, simply, that the agency rrenage the federal land in part for congressionally- authorized instream flow uses without clairr.i.ng a proprietary or an appropriative right to the instream flOlv. Frequently, the stream flolvs to be mmaged will flmv through federal lan::ls located upstream fran any private develoflllent. This factor, tCXjether with the fact that da.mstrearn flerds nay b= fully appropriated, should minimize interference with the federal nanagement objectives. ( Finally, a few practical questions may be raised in response to the discussion in the Task Force report. How, for example, will it be detel.mined when an agency begins "actual use" of a minif'lum stream flow for a con;rressionally-established managerrent 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 conclusion, it nay be stated that to the extent that recan- rrendation number 5 suggests that the United States may appropriate non- reserved waters outside the provisions of state procedural an::l substanti.ve law, it is not acceptable. To the extent that the recanrrendation urges federal a:rnpliance with the provisions of state law in appropriating non-reserved water rights" it is to be ccmrended. ( 6. The first sentence of recarrnendaton number 6 directing federal agencies to give notification to states concerning the identifying an:l quanti~ of their claimed reserved rights should be encouraged and applauded. The plannirq functions of state water administrators have long been hampered by the elanent of uncertainty which is generated by the existence of unquantified rese:rved water r.ights. The Task Force report suggests that upon notification of the reserved rights claimed by the United States. each state should "incorporate" such rights into its water lalv system. The procedure for -7- --,..- . ~-- . '....._~~___. __" .__._~_____, __ _.__ ,._ _____-=-._v~._ _--.::--_____.._.:: _______