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<br />QI03 <br /> <br />III. ANALYSIS <br /> <br />A. Constitutional Basis for Federal Claims <br /> <br />1. Congressional authority to preempt state water laws <br /> <br />As a matter of constitutional law, Congress clearly has <br />the power to preempt state law governing the use and disposi- <br />tion of unappropriated water by federal agencies on federal <br />lands. That authority arises from the constitutional provisions <br />authorizing the federal government, for example, to regulate <br />interstate commerce (Art. I S 8), to provide for a common <br />defense (Art. I S 8), to enter into treaties (Art. II S 2), <br />to manage federal property (Art. IV S 3), and to provide for <br />the general welfare (Art. I S 8). 73/ In the exercise of its <br />constitutional authority under the-Commerce, Property or <br />General Welfare clauses, or under its treaty and war powers, <br />Congress has the power to authorize the appropriation of <br />unappropriated water by federal land ~anagement agencies. <br />If Congress exercises that power, by operation of the Supremacy <br />Clause such an exercise preempts inconsistent state laws. <br />See United States v. Rio Grande Darn & Irrigation Co., supra, <br />174 U.S. at 703; Oklahoma v. Guy F. Atkinson Co., 313 U.S. <br />508, 534 (1941). <br /> <br />Congress may, for example, authorize a comprehensive <br />interstate plan for control and disposition of water res urces <br />that preempts inconsistent or duplicating state regulation; 2!/ <br />provide for maintenance of instream flows without regard to <br /> <br />73/ For the most part, the authorizations to federal agencies <br />that are of concern here are based directly on the Property <br />Clause, which grants Congress the power "to dispose of and make <br />all needful Rules and Regulations respecting the Territory or <br />other Property belonging to the United States." Art. IV S 3. <br />As we discuss at pp. 51-56 infra, we believe the proper <br />analytical approach is to consider that the "property" that <br />is subject to federal control in this context is not the <br />unappropriated water arising on federal lands, but the lands <br />themselves. See generally Kleppe v. New Mexico, 426 U.S. 529, <br />537-39 (1976). <br /> <br />74/ See, ~.~., Arizona v. California, 373 U.S. 546 (1963) <br />(Boulder Canyon Project); Oklahoma v. Guy F. Atkinson Co., <br />313 U.S. 508, 534 (1941) (navigation and flood control project). <br /> <br />-47- <br />