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.11 0059 legal basis of the federal non-reserved right theory, a comprehensive resolution of the legal issues involved will go far toward reducing the uncertainty and therefore the tensions among the various federal agencies and between the Executive Branch and the western states. At the outset, it is important to understand what we address in this opinion. First, we are concerned here only with the federal government's right to use unappropriated water -- l.e., water that is not subject to any vested right --=-- - - of. ownership under applicable state or federal law at the time the federal right accrues. We do not deal here with the scope of the federal government's right to acquire, by purchase or condemnation, existing vested ("appropriated") water rights held by private individuals or by the states. Second, the question we address is not simply whether a federal non-reserved right exists in the abstract. The federal government can, and does, acquire rights to use unappropriated water on feneral lands by complying with state procedural and substantive laws. In addition, the Supreme Court has recognized federal "reserved" water rights -- i.e., when the federal government, acting pursuant to congressional authorization, reserves or withdraws public land for a specific federal purpose, such as a national forest, it also reserves sufficient water to accomplish that purpose, regardless of limitations that might otherwise be imposed on the use of that water under applicable state law. See pp. 25-3l' infra. In its broadest formulation, a fenerar-non-reserved water ri ht I!!.lg t lnclude any use oythe federa qovernment of unappropr iated water that is reco nized neither under a licable state law nor un er the reserved right doctrine. Defined this broadly, federal non-reserved water rights would include even uses of water that have been explicitly authorized by Congress, but t~ may not be recognized by state law, such as preservation of a minimum instreamflow in a particular river, 2/ or diversion of a stream and construction of a dam for flood control, improvement of navigation, or production of hydro- electric power. 1/ Although Congress has rarely been explicit ~/ See, ~.g., 16 U.S.C. S 577b (prohibiting any .further alteration of the natural water level of any lake or stream" in the Lake Superior National Forest). 1/ See, ~.g., Oklahoma v. Guy F. Atkinson Co., 313 U.S. SOB, 535 (1941)1 First Iowa Coop. v. Federal Power Comm'n, 32B U.S. 152, 176 (1946), discussed at pp. 3l-37 infra. -3- ,'.