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<br />'l UI04 <br /> <br />whether such flows are recognized under state law; 751 <br />authorize federal agencies or licensees to divert streams for <br />the construction and operation of hydroelectric projects <br />without regard to state restrictions on such diversions; 761 <br />place limitations or conditions on the use or disposition-of <br />water from federal projects that are inconsistent with st~te <br />laws governing the use of such water; 771 or impliedly <br />reserve water necessary to carry out sper.ific feoeral pur- <br />poses at the time land is withdrawn from the public domain. ~I <br />The question, therefore, is not generally whether Congress <br />has the power to establish feder.al rights to unappropriated <br />water, but whether it has exercised that power. See united <br />States v. New Mexico, supra, 438 U.S. at 698. <br /> <br />It is important to understand that any water rights that <br />may be asserted by the federal government outside of state law <br />whether called reserved, non-reserved or by some other <br />name -- rest on this same constitutional basis. Thus, federal <br />reserved rights are not a unique species of federal rights <br />that arise directly out of the reservation of federal lands, <br />so that, absent a reservation of land, no federal water rights <br />can exist. As one commentator has noted, "the reservation <br />doctrine is not a source of federal power." Trelease, "Federal- <br /> <br />75/ See, e.g., 16 U.S.C. S 557b (prohibiting any "federal alter- <br />ation of the natural water level of any lake or stream" in <br />the Lake Superior National Forest) <br /> <br />761 See, e.g., Ashwander v. Tennessee Valley Authority, 297 u.S. <br />288, 350 T1936); Flrst Iowa Coop. v. Federal Power Comm'n, 328 <br />U.S. 152, 176 (1946); Federal Power Comm'n v. Oregon, 349 U.S. <br />435, 445 (1955); Tacoma v. Taxpayers of Tacoma, 357 U.S. <br />320, 340 (1958); Unlted States v. Grand Rlver Dam Authority, <br />363 U.S. 229,232-33 (1960). <br /> <br />771 See, e.~., Ivanhoe Irrigation District v. McCracken, 357 U.S. <br />275 T1958T; City of Fresno v. Callfornla, 372 U.S. 627 (1963); <br />California v. United States, 438 U.S. 645 (l970). <br /> <br />781 See, e.g., Cappaert v. United States, 426 U.S. l28 (1976); <br />Unit~States v. New Mexico, 438 U.S. 696 (1978). <br /> <br />-48- <br />