project under State law by purchase under section 7, or condemnation, or by initiating such rights under section 8. Mr. ANDREWS. And nothing in this bill is intended to place an interpretation on section 8 of the Reclamation Act that prevents the United States establishing a water right under Federal law, if a Federal statute, such as that project act, so authorizes? Mr. ELY. You are correct. Mr. ANDREWS. The only thing that sections 7 and 8 now do is to say that in determining who must be paid when compensating those who have been hurt by reason of a project under the Reclamation Act, you look to State law for the definition of those who have been hurt? Mr. ELY. Yes. Section 8 states that beneficial use shall be the basis, the measure, and the limit of the right. Mr. ANDREWS. Similar to the vested and beneficial qualifications of subparagraph (4) of this section? Mr. ELY. That is right. Mr. ANDREWS. I believe in your formal statement you point out that there have been no horrendous financial calamities come to the United States by reason of having to pay some of the Reclamation Act claims since the Gerlach case. Mr. ELY. That is correct, and that deserves emphasis. The United States in the Gerlach case was called upon by Mr. Justice Douglas to submit a memorandum as to their practice as to acquiring water rights and originating them. That memorandum, which I will supply if you like, is very informative. It disclosed that in every instance on every watershed, whether the stream is navigable or nonnavigable, with the single exception of the lower Colorado River because it is governed by the Project Act, the United States had either acquired or initiated water rights under State laws. If it acquired them, it had to pay for them in accordance with section 7 of the Reclamation Act. It has been doing so for 60 years, always acquiring water rights either by paying for them or by initiating them under State law, as a private party might do. I think the total cost of water rights. for the Central Valley project is less than 1 percent of the project cost, and I do not know of any instance where a project could be rendered unfeasible because the Government would have to pay for the water. Mr. ANDREWS. Now the exception preserved by clause (b) of subsection (3) of section 2 recognizes that Indians, being people, naturally are assumed to have consumptive needs and reservations for their use are, therefore, in a different class from reservations for other purposes, is that correct? Mr. ELY. Well, it is a blanket protection of a different class of beneficiaries to whom the United States owes a particular fiduciary obligation. It admittedly takes out of the scope of the bill a very large block of water and it leaves unsolved many questions that ought to be solved. The effort in this bill, as I understand it, has been to restrict it to the topics upon which there was a reasonably general concurrence. Mr. ANDREWS. That would, in effect, leave standing the decision of the Winters case because that dealt with an Indian reservation. Mr. ELY. That is correct. Mr. ANDREWs. And Arizona v. California was the first time this theory was ever held by the ultimate Court to apply to reservations other than Indian. Mr. ELY. That is right. As far as I know, you are correct. Fish and wildlife reservations and recreation areas in Nevada. Mr. ANDREWS. If subsection (1) of section 1 were now enacted, the contention might be made by some that this bill, in effect, gives new, presently accruing rights to persons who otherwise could have had their rights defeated by the reservation doctrine. But is it not your understanding that subsection (1) of section 1 is not meant to be creating new rights but only removing clouds which would otherwise exist on existing or later accruing rights and this is notwithstanding section 2(3) (c)? Mr. ELY. I think that is correct. You are not creating any new rights, you are simply removing a barrier to the acquisition of them under appropriate laws. Mr. ANDREWS. And confirming those that exist under a common understanding apart from the reservation theory. Now is it not true that even though most of the water in a particular State may already be appropriated, and, therefore, enactment of this bill would have a primary purpose of confirming those rights against the reservation doctrine, it would also be true that enactment of this bill would encourage development of the remaining unappropriated water and also remove deterrents to modernization of works, addition of the new headgates, revitalization of facilities now used to put to work presently appropriated water? Do you get my point? In other words, Senator Kuchel was making the point the other day that by passing this bill we would encourage water being put to use. Now in the State of California it happens that about 90 to 95 percent of the water is already put to use actually or is appropriated under the so-called State filings, but even in California this bill would have the effect of confirming that those people presently using water could go ahead and spend money to revitalize their works, et cetera. Mr. ELY. If I understand you correctly, I agree. The shocking thing to me in the last few days' hearings is to discover the philosophy expressed in a number of ways, which is the diametric opposite of the philosophy and purpose of the Federal statutes ever since 1866. The uniform policy of the Congress for a hundred years has been that private citizens shall be encouraged in putting to use the water reSources of the country, by their own initiative and investment. Where these undertakings surpassed the ability of the private citizen, the reclamation law was created to make Federal financing available to do that very thing. But that same law stipulates that water rights shall be appurtenant to the land irrigated as the statute says in section 8. The individual, the landowner, is viewed as the person for whom this reclamation law makes water available by way of a right that is appurtenant to his land. The Desert Land Act, the Homestead Acts, the whole philosophy of these laws, has been to put the Nation's resources to work and not to lock them up. Now if I understand correctly what the Government witnesses have been telling you for the last few days, their proposal is that from now on, there shall be reserved for a decision by Federal administrators, the question of how all of the waters originating upon the withdrawn Federal lands and bear in mind they are all withdrawn-shall be put to use. That is another way of saying anybody from now on who attempts to put to use water which is derived from any Federal lands does so at his peril, with the advance knowledge that at some future time, x years from now, a Federal administrator may determine on a better use of that water and take it away from him and do so without compensation. The fears generated by the Pelton decision, that I thought were exaggerated, have been amplified and confirmed in this room. What the Government witnesses propose is a complete reversal of the administrative policy of the Congress for the last century. Mr. ANDREWS. Pardon me, Senator, for taking longer than I expected. I am going to have to step aside because of the time and the need to hear from other witnesses. Senator Moss. Yes, we are pushing against our limitation of time and we do have two witnesses yet to hear. I think you have done a fine job. Mr. ANDREWS. I wonder if permission could be granted to build a record with Mr. Ely later? Senator Moss. Yes. Perhaps you could submit interrogatories to him if he would be willing to answer specific questions. I think it is important. The record can get the answers to anything that is left in doubt or that is left open here, and Mr. Ely is certainly one that can do that because of his long experience and his knowledge of water law. I don't want to build just a repetitive record. I think we have a pretty good one at this point. Yes, you can have that permission with the cooperation of Mr. Ely either to do it in written form or if the reporter could stay here for a brief time, but I do need the open hearing to hear two others. Thank you, Mr. Ely, for a very excellent job. We appreciate your appearing here to testify. You certainly have given us a great deal of help. Mr. ELY. Thank you, Mr. Chairman. I am honored. Senator JORDAN. May I ask about the time? The Chair has now passed the hour when the Senate convenes. Senator Moss. We might fudge a little bit. Senator JORDAN. Is it the intention of the chairman to conduct hearings on this bill on Saturday or next week? Senator Moss. No, this will finish today. We may open another day but not Saturday. Senator JORDAN. Will we have a chance to propound questions to the administration witnesses either in writing or orally? Senator Moss. Yes. We expect at a later date when we get our transcript in hand to then have a time when we can talk with the Government witnesses. Senator JORDAN. I thank the Chair. Senator Moss. Mr. Porter, who is the chairman of the Water Committee, California State Assembly, asked to be heard further very briefly this morning. He appeared before us yesterday. Mr. Porter. STATEMENT OF CARLEY PORTER, CHAIRMAN, WATER COMMITTEE, CALIFORNIA STATE ASSEMBLY-Resumed Mr. PORTER. Mr. Chairman, Senator Jordan, thank you very much. For the purposes of the record my name is Carley V. Porter. After the hearings of this Senate committee have concluded, the testimony of the witnesses during the past 4 days will be the only material upon which and with which your expert staff will work. I am concerned today, however, about the order and sequence of some of the testimony from my State of California. You will recall that Mr. Abbott Goldberg and I testified on Wednesday, March 11, with Mr. Goldberg against S. 1275 and with me presenting Assembly Joint Resolution 2 asking the Congress to approve S. 1275 or similar legislation. You will recall also that the attorney general of our State, Stanley Mosk, spoke in favor of S. 1275. I was informed when I entered the room yesterday a little bit late that Mr. Goldberg appeared again and read into the record a telegram which I feel may be misinterpreted, a message over the signature of State Senator James A. Cobey, from California. This message from Senator Cobey is no afterthought of the senator's. He is a coauthor of the Assembly Joint Resolution No. 2 and I am the principal author; he is chairman of his water committee, I am chairman of mine. We work closely. At the time he presented and debated the subject of S. 1275 on his senate floor he referred to each of the four points presented as additional testimony by Mr. Goldberg on Thursday, March 12. I appear briefly to set in proper focus today the history of the California State Senate when it debated Assembly Joint Resolution No. 2 or S. 1275 on Monday and Tuesday of this week. That senate approved it by a vote of 29 to 9. I would request that the Senate Journal of March 10, 1964, of the California Legislature be made a part of your committee record. I received it by airmail special delivery last evening. Especially I refer to that part of the Senate Journal commencing on page 131. I have a copy of it here. Senator Cobey made six documents a part of that day's official record. No. 1, the telegram received and entered yesterday and five others. The telegram was sent to Mr. Goldberg by Mr. William Warne, our State director of the department of water resources, who is also against S. 1275. I am apprehensive lest the time and manner of its insertion in your record be misinterpreted. Had Mr. Goldberg asked me, I would have joined him in making Senator Cobey's letter a part of your record. I have now done so in a manner in which I hope expresses the cooperative willingness of the California State Legislature to work out any desirable amendments, and you have referred to many of them today. The six documents which Senator Cobey inserted in our senate history immediately upon concluding the second day's debate on Assembly Joint Resolution 2 were: No. 1, the statement contained in the telegram that he and I had prepared-he prepared it and I agreed to it-before he took the measure up on the floor of the State senate. No. 2, he inserted and had printed in our journal his floor explanation of S. 1275 and Assembly Joint Resolution 2. No. 3, he had printed in our journal a copy of S. 1275 as you gentlemen have it. No. 4, he inserted an analysis of S. 1275 by our legislative counsel. There are no opinions in that but it is a factual analysis of the bill. No. 5, he inserted in our journal a legislative counsel opinion answering questions which I had propounded to that body: "If S. 1275, presently before the U.S. Congress, is enacted as introduced, could the Federal 160 limitation be abrogated by State law?" Our opinion and answer is very brief: "In our opinion the enactment of S. 1275 would not negate the application of the Federal 160 limitation." No. 6, he inserted as a part of the record of that day's business the statement of the attorney general of our State which you already have in other parts of your record. I wanted to set this in the proper sequence as it happened, and that is the history of it. I concur with many of the suggestions of the witnesses and committee members of the possible need for amendments. That is the true legislative process and we have agreed on much of it. Thank you very much. Senator Moss. Thank you, Mr. Porter. Those items that are not in our record already will be inserted. The ones that already appear in the record will simply be referred to and the page number given where they do appear in the record, such as the attorney general's statement, for instance, that we have in full. Mr. PORTER. It will also be my pleasant task upon returning to California to tell the people how long and how hard and how diligently the Senate of the United States conducts its hearings. You have devoted a tremendous amount of time to this one bill. Senator Moss. Well, I thank you. It is a very important matter and we certainly are trying to make the best record we can. Mr. PORTER. Thank you. (The data referred to are as follows:) CALIFORNIA LEGISLATURE 1964 Regular (Budget) Session SENATE DAILY JOURNAL [Eighth Legislative Day-Eleventh Calendar Day] IN SENATE SENATE CHAMBER, SACRAMENTO, * CONSIDERATION OF DAILY FILE THIRD READING OF ASSEMBLY BILLS Assembly Joint Resolution No. 2: Porter, Collier, Williamson, Flournoy, Ashcraft, Belotti, Cologne, Frew, Garrigus, Henson, Johnson, Lanterman, and Monagan (Coauthor: Senator Cobey)-Relative to Federal and State water rights. Resolution read, and presented by Senator Cobey. The roll was called, and the resolution adopted by the following vote: AYES Senators Backstrand, Begovich, Bradley, Burns, Christensen, Cobey, Donnelly, Farr, Gibson, Grunsky, Holmdahl, Lagomarsino, Lunardi, McCarthy, Miller, Murdy, Nisbet, Petersen, Pittman, Quick, Rees, Regan, Schrade, Stiern, Sturgeon, Symons, Way, Weingand, and Williams--29. NOES- Senators Arnold, Geddes, McAteer, O'Sullivan, Rattigan, Rodda, Sedgwick, Short, and Teale-9. Resolution ordered transmitted to the Assembly. |