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<br />0096 <br /> <br />1. Kru1itz Opinion <br /> <br />In his oplnlon, Solicitor Kru1itz set out to-analyze <br />comprehensively the legal bases for the Department of the Interior <br />to assert rights to water on federal lands. In addition to <br />federal reserved rights, Solicitor Krulitz concluded that the <br />federal government has the right to make use of unappropriated <br />water on federal lands without regard to state substantive or <br />procedural law, so long as the water is necessary to carry out <br />'congressionally authorized purposes' or 'uses,' unless <br />Congress clearly and expressly directs otherwise -- the so-called <br />federal "non-reserved' water rights theory. Dept. of Interior <br />Solicitor's Opinion No. M-36914, 'Federal Water Rights of <br />the National Park Service, Fish and Wildlife Service, Bureau <br />of Reclamation and Bureau of Land Management," 86 I.D. 553 <br />(1979) ("Krulitz Op."). Solicitor Krulitz did not elaborate <br />on the scope of 'congressionally authorized purposes' or <br />'uses," but his subsequent discussion of the availability of <br />federal non-reserved water rights under statutes applicable <br />to the Department of the Interior indicates that he thought <br />those purposes and uses should be broadly defined. 64/ <br />Thus, in Solicitor Krulitz's opinion, there are only~wo <br />prerequisites to the existence of a federal non-reserved <br />water right: (1) the assignment of a land management function <br />to a federal agency, ~.~., by statute, appropriation, legislation <br />or acquiescence in long-standing administrative interpretation; <br />and (2) the actual application of water to use. <br /> <br />The non-reserved water right asserted by Solicitor Krulitz <br />is both broader and narrower than the reserved right. It is <br />broader in that it does not depend on a formal reservation <br />of land, and therefore may arise on public domain and acquired, <br />as well as reserved, federal lands. In addition, it is not <br />limited to the specific "primary purposes" for which federal <br />land is managed, but also extends to any management use or function <br />that is permitted by Congress for the land, even if such uses <br />are only incidental to the purposes mandated by Congress for <br />the land, or 'secondary,' in the language of the Court in <br />New Mexico. Thus, under Solicitor Krulitz's formulation, a <br />federal agency may assert a non-reserved right for any <br />secondary use of reserved lands (assuming it has reserved <br />rights covering all primary purposes), and for all permissible <br />uses on acquired and public domain lands, whether characterized <br />8S primary or secondary. In one respect, however, the non-reserved <br />right is narrower than the reserved right, because it is <br />based on the appropriation of water to actual use, rather <br />than on a reservation of land. Thus, the priority date for <br />non-reserved rights is the date the water was first put to <br /> <br />64/ See discussion at pp. 43-44 infra. <br /> <br />- 40 - <br />