1, providing that nothing in this bill would repeal any act of Congress requiring that rights of the United States to the use of water be acquired pursuant to State law. Thus, section 8 of the Reclamation Act of 1902, for example, would not be affected. Subsection 2 reaffirms the existing law that a treaty made by the Government is the supreme law of the land and all rights to international streams are not interferred with in any way. Other provisions of the final saving clause would protect the water rights of Indian tribes, make it clear that the bill would not alter any heretofore made judicial decrees, such as that by the Supreme Court in Arizona v. California, with respect to the allocation of certain quantities of water, nor valid water rights heretofore acquired by others than the United States under either Federal or State law. Section 2, subsection (3) deals prospectively with valid future water rights that may be acquired for Federal projects through congressional authorization so long as such rights have ripened prior to the acquisition by others of intervening rights under State law. Such a principle reaffirms the true concept that it is important to protect the priority of water rights, within the corridor of western water law as it has generally when known and understood for the last century. THE COUNTY SUPERVISORS ASSOCIATION OF CALIFORNIA CONSISTENTLY HAS SUPPORTED A SERIES OF CONGRESSIONAL ACTS AND LEGAL PRINCIPLES SUSTAINING THE ACQUISITION OF WATER UNDER THE LAWS OF APPROPRIATION While the State of California also has a modified rule of riparian rights controlled since 1926 by a constitutional amendment designed to force the beneficial use of water and discourage the waste of water, and also to encourage "due diligence" in the requiring of diligence in perfecting water rights, it strongly supports the above principles contained in this statement. As early as 1954, as a member of the State-Wide Committee on Water Problems of this association, I researched and presented a compilation of congressional statutes and leading water law cases dealing with the fundamental policy and the legal aspects in the solution of California's water problem. 16 THE FUTURE STABILITY OF WATER PROJECTS FINANCED BY BOTH PUBLIC AND PRIVATE CAPITAL, DEMAND PASSAGE S. 1275 Some Government lawyers and some opponents of S. 1275 assert that those of us who urge its passage have overstated the urgency of securing congressional approval to this bill. Specific inquiry and challenge have been made as to the conditions which will exist if Congress fails to adopt such legislation. Such challenges have been publicly and adequately met by one of California's most widely known and highly regarded water engineers, Mr. Harvey O. Banks, now vice president, Leeds, Hill & Jewett, Inc., consulting engineers, San Francisco, Calif. He served as director of the department of water resources for the State of California. For the past several years, in papers prepared for water organizations and agencies, he has alerted the people of California that if under our free enterprise system the several States and their agencies and citizens are to go forward and plan with confidence the development of water resources, independently of Federal subsidies or in cooperation with the Federal Government, that it is important that this longstanding and much talked about controversy be both clarified and settled. Mr. Banks, in a recent public statement supporting S. 1275, against the background of his extended experience as a water engineer and as an administrator, stated: "*** If this is not done, the lower levels of government and private entities will be forced out of the water development field. "The uncertainties as to the ownership of much of the water resources of any State, having any substantial amount of federally reserved or withdrawn land, have rendered State water laws and the State administration of water rights largely ineffectual. The Federal Government has no body-of-water law or policy, or any procedures for the administration and allocation of water resources to replace these historic State responsibilities and functions. The political process involved in the authorization of Federal projects and the Fed 16 See "Reasonable Use by Reasonable Men," by Harold W. Kennedy, county counsel, county of Los Angeles, presented to the annual convention, County Supervisors Association, Los Angeles, September 1954, printed and distributed as an additional service by Irrigation Districts Association of California, 821 Market Street, San Francisco, Calif. eral courts will become the mechanisms for administration of the Nation's water resources, a rather inadequate substitute. "To justify any substantial investment in water development, a public agency or private entity must have reasonable assurance that there is and will continue to be water available for the project. Under the reservation doctrine, in its fullest implications, there can be no such assurance. "*** The Federal Central Valley project diverts from the Sacramento-San Joaquin Delta to which all the streams of the great Central Valley are tributary. Thus the United States is in a position to claim ownership, under the reservation doctrine, and to take physical control of most of the State's water resources. The water supply for many local projects, large and small, will be in jeopardy should the United States decide to assert that ownership and control.” THE NATIONAL ASSOCIATION OF COUNTIES, WASHINGTON, D.C.; THE COUNTY SUPERVISORS ASSOCIATION OF CALIFORNIA, SACRAMENTO, CALIF.; THE FEATHER RIVER PROJECT ASSOCIATION OF CALIFORNIA, LOS ANGELES, CALIF.; THE SOUTHERN CALIFORNIA WATER CONFERENCE, LOS ANGELES, CALIF.; AND THE COUNTY OF LOS ANGELES ALL OFFICIALLY PETITION PASSAGE OF S. 1275 The above National and State organizations have long been deeply concerned over the question of the proper and true legal relationships existing between the Federal Government and the States. They recognize in common with the findings of the Senate Select Committee on National Water Resources that the planning, financing, and construction of greatly needed water facilities desperately required in the near future to meet the West's explosive population growth, are quite dependent on the equitable solution of this vexing and involved problem of the West. In their name and in their behalf, the passage of S. 1275, authored by Senators Kuchel, Jordan of Idaho, Moss, Engel, and Church, is respectfully requested. THE FEDERAL GOVERNMENT AND ITS AGENCIES HAVE THE RESPONSIBILITY TO BE JUST TO ITS CITIZENS A part of the stability of our great national economy has been predicated upon a governmental philosophy that private property rights are and must be recognized. In addition to individual personal rights due process of law demands the protection of private property rights. Since the time of Justinian in the early Roman law, this has been so and deep in the common law of England and later formalized in Anglo-American jurisprudence the lowliest and least vocal person who owned property has been protected in that ownership. Emphatic in the law and on the highest plateau is the assurance that private property shall not be taken for a general public use without just compensation. This distressing conflict over water rights unless resolved will dim the image of one of the strongest pillars that has from colonial times been a part of American history, tradition, and law. Those of us who are proud, such as I am, both as an American citizen and a public law officer for more than a third of a century, believe it is most important that Congress pass this bill. We distinguish it from that great volume of legislative requests which do not strike at the fundamentals of our society and we identify S. 1275 as politically just, legislatively wise, and in the corridor of the Federal Government's desire to be fair to its citizens. Senator Moss. We will resume at 9:30 in the morning. We have about six or seven witnesses to be heard in the morning. Thank you. (Whereupon, at 12:28 p.m., the hearing in the above-entitled matter was adjourned, to reconvene at 9:30 a.m., Thursday, March 12, 1964.) FEDERAL-STATE WATER RIGHTS THURSDAY, MARCH 12, 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 recess, at 9:40 a.m., in room 3110, Senate Office Building, Senator Frank E. Moss (chairman of the subcommittee) presiding. Present: Senators Frank E. Moss (Utah), Quentin N. Burdick (North Dakota), Thomas H. Kuchel (California), and Len B. Jordan (Idaho). Also present: Stewart French, committee counsel; Roy M. Whitacre, professional staff member, and Richard D. Andrews, minority counsel. Senator Moss. The subcommittee will come to order. We have several very important witnesses that we have not been able to hear in the first 2 days and we want to get on with the hearing and complete this record. Before I call the first witness, Mr. Goldberg has received a telegram that is pertinent to the information before the committee and I believe it should be placed in the record so that it will be available to us. I would ask Mr. Goldberg if he would like to place that telegram in the record. STATEMENT OF ABBOTT GOLDBERG, DEPUTY DIRECTOR, CALIFORNIA STATE WATER RESOURCES COMMISSION, REPRESENTING HON. EDMUND G. BROWN, GOVERNOR OF CALIFORNIA-Resumed Mr. GOLDBERG. Thank you very much, Senator Moss. Late yesterday afternoon I received the following telegram which is pertinent to the testimony which was given here yesterday by Mr. Carley Porter, a member of the assembly from California. The telegram is addressed to me and I will quote the pertinent parts of it. The following letter is printed in the Senate Daily Journal, 1964 regular-budget-session, dated March 10, 1964, page 1311. Hon. GLENN M. ANDERSON, President of the Senate, Senate Chamber, Sacramento. DEAR MR. PRESIDENT: My vote for Assembly Joint Resolution No. 2, 1964 regular-budget-session should not be construed as an unqualified endorsement of S. 1275 in its present form. I think the Congress should consider amendments 181 which generally (1) would make the protection of the acreage limitation policy explicit; (2) would limit section 1 of the bill on nonnavigable streams; (3) would preserve the right of the United States to proceed by means of inverse condemnation proceedings; (4) would limit the requirement of compensation for vested water rights acquired involuntarily by the United States to those protected by the private amendment of the Federal Constitution. Whether the just suggested amendments should be adopted in whole or in part is up to the Congress, which will have the time and resources to give them the exhaustive consideration which I believe they deserve. Very truly yours, JAMES A. COBEY. The telegram was sent to me by William E. Warne, Director of the Water Resources of California. For the record, James A. Cobey is State Senator Cobey, of Merced County, Calif., the chairman of the senate water resources committee, a cosponsor of Assembly Joint Resolution No. 2 and the principal senator responsible for its handling on the floor of the California Senate. Senator Moss. Thank you very much. Mr. GOLDBERG. I will give the original to the counsel. Senator Moss. If you will. This will be part of the record and we are glad to have it. Thank you, Mr. Goldberg. (The telegram is as follows:) R. B. ABBOTT GOLDBERG, Washington, D.C.: SACRAMENTO, CALIF., March 11, 1964. The following letter is printed in the Senate Daily Journal, 1964 regularbudget-session, dated March 10, 1964, page 1311: "Hon. Glenn M. Anderson, president of the senate, senate chamber, Sacramento: Dear Mr. President: My vote for Assembly Joint Resolution No. 2, 1964 regular-budget-session should not be construed as an unqualified endorsement of S. 1275 in its present form. I think the Congress should consider amendments which, generally, (1) would make the protection of the acreage limitation policy explicit; (2) would limit section (1) of the bill to nonnavigable streams; (3) would preserve the right of the United States to proceed by means of inverse condemnation proceedings; (4) would limit the requirement of compensation for vested water rights acquired involuntarily by the United States to those protected by the fifth amendment of the Federal Constitution. "Whether the just suggested amendments should be adopted in whole or in part is up to the Congress, which will have the time and resources to give them the the exhaustive consideration which I believe they deserve. Very truly yours, James A. Cobey." WILLIAM E. WARNE, Director, California Department of Water Resources. Senator Moss. Our first witness this morning is Hugh Shamberger from Nevada, our good neighbor out there. Mr. Shamberger is president of the National Reclamation Association and this morning he will also be representing the Colorado River Water Users Association. In this committee we know Mr. Shamberger from his excellent work in the field of water resources development over a long period of years. We are pleased indeed to have you this morning, Mr. Shamberger. STATEMENT OF HUGH SHAMBERGER OF NEVADA, PRESIDENT OF THE NATIONAL RECLAMATION ASSOCIATION, ALSO REPRESENTING THE COLORADO RIVER WATER USERS ASSOCIATION; ACCOMPANIED BY DR. MITCHELL WENDELL, COUNSEL FOR THE COUNCIL OF STATE GOVERNMENTS Mr. SHAMBERGER. Thank you, Mr. Chairman and members of the committee. Senator Moss. Dr. Wendell is also at the table. We are glad to have you back, Dr. Wendell. Mr. SHAMBERGER. My name is Hugh Shamberger, and I am director of the Nevada State Department of Conservation and Natural Resources. I have been connected with the office of the State engineer of Nevada since 1935, and was State engineer from 1951 to 1957 when I assumed the position I now occupy. I am president of the National Reclamation Association, an organization that you are well acquainted with. My appearance before your committee is partially in that capacity. As the request of Mr. Dallas E. Cole, president of the Colorado River Water Users Association, my statement will also extend to that organization which is representative of the seven States within the Colorado River basin. I had the honor of serving as president of that association a number of years ago. Also, Mr. Chairman, I was requested by Mr. Donel Lane, chairman of the Interstate Conference on Water Problems, who was here the past 2 days, to place in the record the statement of that committee. I think you have that testimony before you. I was advised by Mr. Lane that this statement of the Interstate Conference on Water Problems has the endorsement of Governor Hatfield of Oregon and the State of Oregon and by Mr. Sam Thompson, that this statement has the endorsement of the State of Mississippi, and also from Mr. Harold Wiel, of the department of conservation, New York State, that this statement has the endorsement of the State of New York. Senator Moss. Thank you very much. That certainly will be made a part of the record. I am aware that Mr. Lane was here. I am sorry that we could not call him personally, but his statement will be in the record in full. (The document referred to follows:) STATEMENT OF THE INTERSTATE CONFERENCE ON WATER PROBLEMS As a national association of State officials concerned with all phases of water development, conservation, administration, and use, the interest of the Interstate Conference on Water Problems in S. 1275 is obvious. The most recent annual meeting of the conference, held in Chicago in December 1963, adopted a resolution which summarizes our position on water rights legislation and is appended to this statement. Aside for several saving provisions which merely mark out areas not affected by the bill, S. 1275, would: (1) Make it clear that a reservation or withdrawal of public land of itself would not affect water rights, (2) confirm the water use priority system as to Federal projects already established for waters rising in States wholly or partly west of the 98th meridian; and (3) deal with the question of compensation for the taking of water rights. The first two of these matters are of principal interest to the Western States. The interstate conference supports these provisions as desirable reaffirmations and restorations of situations as we believe Congress has always intended them to be. Of even greater importance is the fact that S. 1275 is of nationwide significance. |