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0233 . . The Opinion also claims that the existence of non- reserved federal water rights is "unanimously recognized by COMnentators and others." 71/ However, the Opinion mis- construes .the statements cited in support of its conclusion, 72/ The thrust of the statements cited in the Opinion is that the United states has ample constitutional pOlver to acquire water it needs to carry out a program authorized pursuant to its constitutional responsibilities. This is clearly true, However, as previously noted, the existence of Congressional power must be distinguished from the exercise of that power. The Supreme Court has stated clearly in my opinion that Congress has deferred to the states the allocation of water~ from state streams, except in the case of reserved rights and as necessary to improve and protect navigation. F. Historical Use I find also no exception to this Congressional deference to state water laws based upon historical use by federal agencies for consumptive beneficial uses recognized by state law but without conformance with state procedural prerequisites. The memorandum issued on January 16th as a supplement to the Opinion justifies this alleged basis for assertion of a federal water right by pointing out that no case "has precluded the exercise of a federal right for failure in the past to meet the filing, permitting and other procedural require- ments of state la,',." 7..1/ Ilgain, this argument misses the point. The Supreme Court has made clear that Congress has relinquished plenary control over all non-navigable waters to the state~, with the exception of rights based on the reservation doctrine. There is no indication in any case or statute that Congress has created another exception to the states control over the allocation of water resources based solely on a history of federal use. without such evidence, such assertions must be considered unfounded. 71/ 7.J:./ 73/ Opinion at 574. It is interesting to note that since the Opinion has been issued, it has been severely critized by commentators, See, e,g., R. A. SillUllS, National Water Policy in the Wake of United States v. New Mexico, 20 Nat. Res. J, 1 (1980): D. Freudenthal, Federal Non-Reserved Water Rights, 15 Land and Water L. Rev. 66 (1980), Memorandum by Clyde O. Martz, entitled, "Supple- ment 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 l1anagement " (Jan. 16, 1981). -19-