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FEDERAL-STATE WATER RIGHTS

TUESDAY, MARCH 10, 1964

U.S. SENATE,

SUBCOMMITTEE ON IRRIGATION AND RECLAMATION

OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.C.

The subcommittee met, pursuant to call, at 10 a.m., in room 3110, New Senate Office Building, Senator Frank E. Moss (chairman of the subcommittee) presiding.

Present: Senators Frank E. Moss (Utah), Clinton P. Anderson (New Mexico), Frank Church (Idaho), Thomas H. Kuchel (California), Gordon Allott (Colorado), Len B. Jordan (Idaho), and Milward L. Simpson (Wyoming).

Also present: Stewart French, chief counsel; Roy M. Whitacre, professional staff member; and Richard Andrews, minority counsel. Senator Moss. This is a public hearing by the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs to consider S. 1275, a bill to clarify the relationship of interest of the United States and of the States in the use of waters of certain streams.

Without objection, a copy of the bill, in the sponsorship of which I joined Senator Kuchel, and since then Senators Len Jordan, Church, and Engle have also joined as cosponsors, will be included in the record of this hearing immediately following these remarks.

Also, copies of the reports of several agencies which include the Department of Justice, Bureau of the Budget, and the Department of the Interior will be inserted in the record. The Department of Agriculture has also reported, and I have just received a report from the Department of Defense. Those reports will also be included.

The purpose of S. 1275 is to remove the clouds of uncertainty which hang over water rights in the Western States as a result of the conflict between claims made by the United States to sovereign rights to water arising in the Western States, and claims asserted under State law.

The history of this controversy goes back a long time. From time to time the Congress has enacted legislation, such as the Reclamation Project Act of 1902, the Federal Power Act of 1920, and the Flood Control Act of 1944, which have had a bearing on the problem.

It was not until the Pelton decision, in 1955, highlighted the power claimed by the United States over all waters arising from reserved public lands that the need for general legislation to protect water rights obtained under State law became obvious.

The first attempts to resolve this problem were made about 10 years ago through the medium of proposed legislation which would, in effect, have made the United States subservient to the States in its actions in connection with water resource development.

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This proposed legislation aroused a storm of opposition that has continued to swirl around and obscure the issues in any attempt to solve the problems created by this inherent conflict.

The problem was considered by the Select Committee on National Water Resources in its studies of water problems facing the Nation over the next four decades, and the committee concluded that "a solution must be worked out, and worked out promptly, for the preservation of the historic pattern under which our people have grown great." Largely on the basis of that conclusion, Senator Anderson, then chairman of the full Committee on Interior and Insular Affairs, held 2 days of hearings on Federal-State water rights, on June 15 and 16, 1961. A great many constructive statements were presented at that hearing, but at the time it seemed clear that there was insufficient agreement for there to be any hope of a successful legislative enactment in the 87th Congress.

However, on the basis of some of the constructive ideas that were put forth at that hearing, Senator Kuchel and I have continued to nurture the idea of developing compromise legislation which will help to quiet the fears of the westerners that their water rights are in jeopardy.

Just a year ago, March 10 and 11, 1963, in Los Angeles, a symposium on western water law was held in connection with the midwinter conference of the National District Attorneys' Association.

At that meeting, the draft bill which evolved from our work subsequent to the 1961 hearings was discussed and endorsed by resolution of the National District Attorneys' Association, and this draft became the basis for the bill which is now before us.

S. 1275 is a moderate, middle-of-the-road attempt to solve some of the problems which have plagued us. It will, in effect, modify the Pelton decision to provide protection for rights to the use of water arising from reserve public lands of the United States.

It will extend the provision of section 1(b) of the Flood Control Act of 1944, which makes future navigation projects subservient to beneficial consumptive uses of water arising in the Western States.

It will provide that when the United States chooses to act under State law, with respect to water rights, it shall do so in accordance with the provision of that law.

And it shall provide that when the United States takes water rights, they shall be taken and compensated for in accordance with proceedings in eminent domain under Federal or State law.

The bill also contains a number of provisos which limit its effect on existing laws, international treaties, interstate compacts or judicial decrees, and existing rights of the United States, the Indians, and other water uses by Federal agencies.

I believe the time has now come for action in this field. If we do not choose to act at this time, we will gradually force State and private capital out of water resources construction in the West. The job is too big for us to permit this to happen. We need all the resources of Federal, State, and local governments and private enterprise if the overall water resources job is to be done.

Before going on to the witnesses scheduled for this morning, I want to give the other members of the committee an opportunity to make such statements as they desire.

(The bill and copies of the reports referred to follow :)

[S. 1275, 88th Cong., 1st sess.]

A BILL To clarify the relationship of interests of the United States and of the States in the use of the waters of certain streams

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (1) the withdrawal or reservation of surveyed or unsurveyed public lands, heretofore or hereafter made, shall not affect any right to the use of water acquired pursuant to State law either before or after the establishment of such withdrawal or reservation.

(2) The provisions of section 1(b) of the Flood Control Act of 1944 (Act of December 22, 1944, 58 Stat. 888-889, as amended; 33 U.S.C. 701-1 (1958)) shall apply to all works hereafter constructed by or under the authority of the United States with respect to waters arising within States lying wholly or partly west of the ninety-eighth meridian.

(3) Any right claimed by the United States to the beneficial diversion, storage, distribution, or consumptive use of water under the laws of any State shall be initiated and perfected in accordance with the procedure established by the laws of that State.

(4) No vested right to the beneficial diversion, storage or consumptive use of any waters, navigable or nonnavigable, which is recognized by the laws of the State or States in which such waters are diverted or used as compensable if taken by or under the authority of the State, shall be taken by or under authority of the United States without compensation; and where such rights are acquired otherwise than by agreement with the owner, they shall be taken by proceedings in eminent domain under the laws of the United States or of the State or States affected.

SEC. 2. Nothing in this Act shall be construed as

(1) modifying or repealing any provision of any existing Act of Congress requiring that rights of the United States to the use of water be acquired pursuant to State law;

(2) permitting appropriations of water under State law which interfere with the provisions of international treaties of the United States; or

(3) affecting, impairing, diminishing, subordinating, or enlarging (a) the rights of the United States or any State to waters under any interstate compact or existing judicial decree, (b) any obligations of the United States to Indians or Indian tribes, or any claim or right owned or held by or for Indians or Indian tribes, (c) any water right heretofore acquired by others than the United States under Federal or State law, (d) any right to any quantity of water used for governmental purposes or programs of the United States at any time prior to the effective date of this Act; or (e) any right of the United States to use water which is hereafter lawfully initiated in the exercise of the express or necessarily implied authority of any present or future Act of Congress or State law when such right is initiated prior to the acquisition by others of any right to use water pursuant to State law.

Hon. HENRY M. JACKSON,

U.S. DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY, Washington, D.C., March 7, 1964.

Chairman, Committee on Interior and Insular Affairs,
U.S. Senate, Washington, D.C.

DEAR SENATOR JACKSON: This responds to your request for the views of this
Department on S. 1275, a bill to clarify the relationship of interests of the
United States and of the States in the use of the waters of certain streams.
We recommend against its enactment.

S. 1275 would abrogate or weaken principles with respect to use of waters by the United States which have been laid down in a line of decisions of the Supreme Court extending from United States v. Rio Grande Dam and Irrigation Company, 174 U.S. 690, in 1899, to Arizona v. California, 373 U.S. 546, in 1963. Intervening decisions of the Court include:

Winters v. United States, 207 U.S. 564 (1908);

United States v. Chandler-Dunbar Company, 229 U.S. 53 (1913);

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