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0223 . . assertion of a federal right; namely "by the historic use of water on public lands for consumptive beneficial uses." 38/ The priority date was to vest as of the historic date of-- fitSt use by the federal agency, III. ANALYSIS A. Constitutional Authority It is clear that the United States has ample constitu- tional power to acquire the water it needs to carry out a program authorized pursuant to its constitutional responsi- bilities. No state law can block or limit the use of water by an agency if a constitutionally enacted statute gives the agency the power to acquire water without reference to state law for any federal function on any federal land in any state. However, the fact that constitutional power exists does not mean that constitutional power has been exercised. The failure to make this basic distinction represents the largest flaw in the Opinion. It is correct to conclude that the United States has not divested itself of its constitutional "uuthority" with respect to unappropriated waters appurtenant to public lands, Hmvever, there must be a further inquiry as to whether Congress has in fact exercised such authority by enpowering federal agencies to put such water to use without regard to state law. I believe that an objective review of Supreme Court decisions leads to the conclusion that Congress has relinquished to the states plenary control over all non- navigable waters, except where Congress has been deemed to have revoked that control through the mechanism of an implied reservation of water to satisfy purposes for which lands have been withdrawn from the public domain. B. Plenary Control In California - Oregon Power Company v, Beaver Portland Cement Company, 39/ the Supreme Court addressed the issue of the effect of theActs of 1866, 1870 and 1877 "'hich disposed of public domain to encourage homesteading and settlement. ~/ Memorandum from Solicitor Clyde O. Martz entitled "Supplement to Solicitor Opinion No. M-36914, on Federal Water Rights of the National Park Service, Fish and Wildlife Service, Bureau of Reclamation and the Bureau of Land Management (January 16, 1981). 12./ 295 U.S. 142 (1935). -9-