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<br />0211 <br /> <br />. <br /> <br />. <br /> <br />To resolve this uncertainty, I am issuing this opinion. <br />To the extent that this opinion is inconsistent with Opinion <br />#M-36914, or the supplement to that Opinion, issued January <br />16, 1981, said Opinion and supplement are hereby modified <br />and superseded. 11/ <br /> <br />II. BACKGROUND <br /> <br />In order to understand that importance of the issue of <br />non-reserved rights raised by the Opinion, it is appropriate <br />to set forth some background concerning state \-Iater laws and <br />the traditional Congressional deference to such state laws. <br />This background focuses on the West because it is predomi- <br />nately in the West where the federal government maintains <br />large tracts of land for which water rights are claimed. 12/ <br /> <br />In vast areas of the West land is virtually worthless <br />without an adequate supply of water, For these reasons, <br />western water laws came to be based on beneficial use of <br />water rather than correlative rights and the appropriation <br />theory rather than the riparian. Under the appropriation <br />approach the first to make a beneficial use of water is <br />protected in that right to the extent of his use. .1:1./ <br /> <br />11/ This opinion is not intended to affirm, modify, or <br />supersede any portion of the Opinion or the supplement <br />to the Opinion dealing with the reserved water rights <br />of the non-Indian land management agencies in the <br />Department, <br /> <br />12/ As a result of federal reservations and withdrawals <br />from those lands open to public settlement, as of <br />June 30, 1963, approximately 48% of the total acreage <br />within those states (wIth the exception of North and <br />South Dakota) included in the Desert Land Act is <br />under the responsibility of federal agencies: a <br />total of 360,789,045 acres in the eleven contiguous <br />western states. Note, Western Water and the Reserva- <br />tion Theory-the Need for a Water Rights Settlement Act, <br />26 Mont. L, Rev. 199, 204-5, n. 31 (1965). Approxi- <br />mately 61% of the total surface water runoff in these <br />states is derived from federally reserved lands. Note, <br />Federally Reserved Rights to Underground Water-A <br />Rising Question in the Arid West, 1973 Utah L. Rev. 47. <br /> <br />13/ For a general description of state water laws, see <br />R. Dewsnup & D. Jensen, A Summary-Digest of State <br />Water Laws (1973) (study prepared for the National <br />Water Commission). <br /> <br />-3- <br />