Section 1 contains four subsections. Subsection (1), which appears on page 1, provides that:

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.

The intention of this section is not to deny to the United States the power to research or withdraw the water for use of any Federal reservation. It is directed at the practice of the United States of making withdrawals of land without saying anything at all about the quantity of water required. These withdrawals are made sometimes by statutes, more frequently by executive action, but in either event no one can find out how much water the United States intends to reserve for withdrawal and appropriation by others.

For example, on the Colorado River there are four Indian reservations on the main stream created at various times from 1866 down to about 1910, some by statute, some by Executive order. Nobody knew how much water was in fact required or claimed for those reservations until the case of Arizona v. California was in the course of litigation then belatedly and only in response to interrogatories which the United States resisted answering was it disclosed what the calculation was, indeed what the amount claimed was. In fact the quantities to be claimed were calculated during the course of the litigation with some rather extreme results.

For example, there is one reservation called Chemehuevi on which there are no Indians at all. The bottom lands were purchased from the Indians when Parker Dam was built. They were paid. The bluff lands are all that remain. I do not think anybody ever intended to irrigate them, but in the course of the litigation the Indian Bureau presented maps on which they had drawn lines showing where canals might be built on these uplands.

As a result, the special master directed that water, in a substantial quantity, in excess of 20,000 acre-feet had in fact been reserved when this reservation was created about 1908, and had a priority as of that date.

It is difficult enought ex post facto to fit that kind of a claim into an inventory of the water resources available for use within a State. Had the quanity been large it would have been impossible.

The vice of the reservation theory, as it is practiced, is simply that no one knows, when the land is withdrawn, how much water is intended to be withdrawn along with it. The United States, if this bill became law, could still proceed under section 2(e) on page 3 to initiate a water right independently of State law by reserving or withdrawing that water by a public pronouncement of the quantity. The satisfactory method would be to have the United States report to the Congress, and specifically to this committee the quantities that it was reserving or withdrawing, with adequate time for examination by the Congress of the justification of those quantities.

Senator BURDICK. Pardon me, what page of the bill are you referring to now?

Mr. ELY. I am addressing primarily section 1, subdivision (1) on page 1, but I refer to the unrestricted power of the United States to reserve water by special act on page 3 at line 13. That is section 2(5) (d).

Senator ANDERSON. Since there has been one interruption, may I get to another one?

This Indian case that you mention, the reservation, bottom lands were sold and they now irrigate the bluff lands.

Do you not think it would be desirable for this committee to inquire from the Federal Government on what theory they now seek to irrigate these bluff lands when the lands normally to be cultivated have been sold and disposed of a long time ago?

Mr. ELY. I am sure the answer would have to be that they stand upon the original Indian reservation. The Department contends that all of the lands within that reservation are entitled to have water even thought the official making the reservation may or may not have intended making it so.

Senator ANDERSON. In the case of the Navajo project, with which you are familiar, my State had some grave objections to the plans of the Indian Bureau because they were going to cultivate little fingers of land, narrow strips of land, up and back and forth. I am beginning to find out why they are going to spend $1,750 an acre when they can do a better job with $500 an acre on a flat piece of ground. We finally got rid of some of the fingers of land but not all of them. I am wondering whether the doctrine of the Winter case gives them authority to take any amount of water that they may deem necessary.

Mr. ELY. That is what we discovered to be the claim in Arizona v. California. The quantity of water may change depending upon the change of feasibility standards or indeed on soil classifications.

Senator ANDERSON. If you help phrase the question, it might be sent to the Bureau of Indian Affairs, Department of the Interior. Raise that question and find out on what theory they are doing it. Mr. ELY. I shall be glad to.

Senator ANDERSON. Thank you.

Senator BURDICK. Then since there have been two interruptions, I have one more.

You are familiar with the Hawthorne case?

Mr. ELY. In general, yes.

Senator BURDICK. In the Hawthorne case there really was no case between the naval installation and the town of Hawthorne. Now let us change facts a bit. Let us assume there was not adequate water for both purposes. I believe it was underground water in this case, but let us assume there was not adequate water and there was a contest between the Defense installation and the town of Hawthorne. The Government would then apply to the State of Nevada for a water right.

What would be the outcome of that application? There would be no relief under the section you just quoted.

Mr. ELY. Under this section 1 the mere withdrawal of the desert lands for the creation of an ammunition depot would not automatically reserve under the laws of the United States the underlying water for the use of the reservation.

Had the United States desired to do that, assuming that S. 1275 were law, it would simply proceed under section 2(3) (e) to state that it did reserve the underlying water to the extent of an exact number of acrefeet for the use of this reservation.

My personal view is that a reservation of that character, made under the laws of the United States, if specific, would be operative and that the State of Nevada could not deny the United States the right to use the underlying water for the military purposes of the reservation. But United States would be wiser, in my personal opinion, to proceed under the laws of Nevada rather than under Federal law for the reason that if the underlying water does prove inadequate, it is to the interests of both the Government and the other users that there be some machinery for the allocation of the underground water. There is none. so long as both jurisdictions proceed in separate compartments. As a practical matter, I think the United States, in the case such as you are presenting, would be far wiser to simply acquire its rights under the laws of Nevada and proceed under those laws to insist upon an equitable allocation of the waters between the adjoining landowners and the reservation. But it could, in my opinion, proceed under section 2(3) (e) and disregard the laws of Nevada if it elected to do so. I think it would be unwise but I am not denying the power of the United States constitutionally to do that, nor would I entirely destroy its statutory opportunity to do so.

Senator BURDICK. I have some doubt whether they can do it under subsection (e). If you read the last portion of it it says "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.

Mr. ELY. Yes.

Senator BURDICK. Suppose we have installations installed here next year and it competes with the water in the town in California, let us say. When they apply for that water right to the State of California then they have to weigh the merits of the two claims; do they not?

Mr. ELY. Bear in mind there are two ways of procedure intended to be left open by this act. One is to proceed under the laws of the State, the other is to proceed under 2(3) (e), lines 17 and 18 on page 3, to initiate this Federal right by a reservation under Federal law which states the quantity reserved.

Senator BURDICK. But this town has a vested right.

Mr. ELY. If a town has a vested right and is using underground water, surely the United States should not dry up that town and have the people move out of the area, without compensation.

Senator BURDICK. You understand this is a hypothetical question. Mr. ELY. Yes, of course. Surely the United States is not going to dry up towns that are using these underground waters. If it has to have that water for military purposes, and takes it regardless of consequences, then it ought to pay for it so that these people can turn elsewhere to get a supply. One of the vices of the reservation doctrine is that the United States, without announcing the quantity it requires, creates reservation of land. There then is created a floating mortgage in the sky, uncertain in quantity but with a fixed priority date, the date of creation of this reservation, which, when finally asserted by the United States, has the effect of depriving the communities that have, in fact, put the water to use during this interval, of their water right, and without compensation. I say that that is wrong. I say now what I should have said at the beginning. that the Congress has plenary power in this subject. You are dealing here with the property clause of the Constitution. Later I will refer to the commercial clause. In

both cases your power is plenary. You are not bound by what the previous laws have said or what the courts have said about those laws. The question is, having had a problem exposed to you as these hearings surely have, you are writing on a clean slate. You are deciding what policy should be written on that slate by a body with plenary authority. I say that the result which has been reached, and is in the offing, under the reservation theory goes too far.

I would not go as far as some of my colleagues do, to deny the United States the power to withdraw land or the power to withdraw water. But I say, let us play fair about it and have the quantity of water announced when the reservation is made, so that the related priorities of the reservations and of the State law appropriations are known, so that intervening individuals who risk their whole livelihood on developing these waters are not destroyed.

For example, a great deal of attention was paid here by the Government witnesses to the situation of the city of Denver. They asked whether it would be fair to wipe out what they called the reservation made by the city of Denver for water in the mountains. The great difference is that Denver, proceeding under the laws of Colorado, was required to state the quantity as well as the date of priority.

But a Federal reservation of withdrawal states no quantity of water at all.

Furthermore, there was due process in the case of Denver. Anyone who objected to the appropriation made by Denver could appear before State tribunals and have the matter fought out, what its quantity ought to be and what the relative priorities ought to be.

Not so with respect to Federal reservation; it is made in an administrative agency downtown. No announcement at all is made of the quantity of water, or, sometimes, what they intend to do with it. Ten, twenty, fifty years later a successor says, retroactively, what quantity of water was reserved decades ago, and this cuts off all intervening rights. That is not fair.

I will proceed, because of the time problem.

Section 2 of the bill simply makes applicable the provisions of section 1(b) of the Flood Control Act of 1944:

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 98th meridian.

That language has been in each flood control act since 1944. It has thus been reenacted a dozen times by the Congress. It is a wise statutory provision. It got into the 1944 Flood Control Act on the recommendation of Secretary Ickes. He wrote the Senate Committee on Commerce, which had under consideration the bill which became that Flood Control Act, proposing language which was not quite like this but about which he said this:

In the absence of any general statute affording adequate protection for the beneficial consumptive use of water in the West, a proviso such as the foregoing constitutes in my judgment the very minimum of protection required for the States of the Upper Missouri River Basin.

Senator ANDERSON. Is that what is called the O'Mahoney-Milliken amendment?

Mr. ELY. Yes.

As a result of this action by Secretary Ickes the O'Mahoney-Milliken amendment was put in the Flood Control Act of 1944.

Now it is either a good law or a bad one. It is a good one, we think. The effect is to protect consumptive uses against the exercise of the navigation servitude for construction in the Western States. This should be remembered in connection with subsection (4) of section 1, which provides that

vested rights to the beneficial diversion, storage, or consumptive use of any waters, navigable or nonnavigable, 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 use of the State, shall be taken by or under authority of the United States without compensation.

The intention of both of these provisions is to protect the user of water against the exercise of the navigation servitude, without compensation.

Let me describe what I am talking about. There is confusion about the navigation "power" of the Congress, which is a segment of the commerce power, and the navigation "servitude." The commerce power, including the power to improve navigation, is plenary. The navigation servitude subjects interests in navigable waters to be taken by the United States without compensation.

The navigation servitude, I am told had its origin in Magna Carta, which provided that certain dams in a section of the Thames should be taken down, as impediments to public navigation. This mandate applied to the King as well as to the nobles and its effect was to protect unimpaired the right-of-way, the use of the rivers by the public. That was all of its purpose. It applied to the tidal waters because those were the navigable waters in England. In this country the navigation power, taken along with the corollary navigation servitude, has been applied to streams that are not tidal. Indeed the effect of the Supreme Court's opinion in the Appalachian case has been to extend to commerce power of the Congress to virtually all of the streams of the United States, navigable or nonnavigable, because the Congress can assert its power to improve navigable streams by protecting the inflow from their nonnavigable tributaries.

There is scarcely a fork of the creeks that is not subject to the Federal jurisdiction under the Appalachian case.

It has been seriously suggested that the irrigation rights, rights to consumptive use from both navigable and nonnavigable streams, are subject to the exercise of the navigation servitude by the United States. Subsection (2) of section 1, like the O'Mahoney-Milliken amendment, simply provides that improvements for navigation-that is, not just flood control projects, but all projects built under the navigation power-shall, with respect to the area west of the 98th meridian, be built without reliance upon the navigation servitude.

If you are going to take rights to the use of water in this part of the United States, where consumptive use is a predominant interest, you shall not destroy them without compensation. That is the whole effect of the language.

Subsection (3) provides that:

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 laws of that State.

I should emphasize, Mr. Chairman, that this does not direct that the United States shall acquire water-rights only by proceeding under