MOTION TO PRINT IN JOURNAL Senator Cobey moved that his letter and statement concerning S. 1275, the text of S. 1275, and the following letters of the Legislative Counsel and Attorney General be printed in the Journal. "Hon. GLENN M. ANDERSON, "President of the Senate, "SENATE, March 10, 1964. "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(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 exhaustive consideration which I believe they deserve. "Very truly yours, "JAMES A. COBEY." MARCH 10, 1964. STATEMENT ON BEHALF OF A.J.R. 2 BY SENATOR JAMES A. COBEY, CHAIRMAN, SENATE COMMITTEE ON WATER RESOURCES The purpose of A.J.R. 2 is simply to express the support of the California Legislature for California water rights laws at the time the U.S. Senate Interior and Insular Affairs Committee is considering S. 1275. This bipartisan measure is intended to reconfirm, beyond any further judicial misinterpretation, the 100year-old congressional policy under which the right to regulate and appropriate waters flowing from Federal withdrawn lands, such as national forests and parks, have been vested in the States as are other property laws. Acting under this policy which has been contravened by the Pelton Dam decision (Federal Power Commmission v. Oregon, 349 U.S. 435), the California Legislature over the years has enacted most of our water rights laws, a master plan for orderly and beneficial use of water available in California and has authorized filings by the State to assure optimum water development in the interests of the entire State. Debate over other minor features of S. 1275, such as the best technical procedure for determining "just compensation" when the Federal Government takes or damages water rights, only confuses and obscures the basic issue. On that issue, the only issue embodied in the language of A.J.R. 2, there should be no disagreement by anyone who understands the real need to uphold the water rights upon which most all of the water projects built in California depend. If the contentions of the U.S. Department of Justice are allowed to prevail, all of the water falling upon and flowing from Federal withdrawn lands belongs to the United States, can be exported without regard to State water rights laws or withheld from development. From these Federal lands flows 75 percent of the entire natural water runoff in California. Ninety percent of the State filings are on these unappropriated waters. The Water Committees of the California Legislature have given S. 1275 and A.J.R. 2 careful study. The "reservation doctrine" is not a new problem. The legislature in 1959 adopted a resolution supporting congressional legislation which would have set aside the "reservation doctrine" espoused by the U.S. Justice Department. At a time when California is confronted with regional water plan proposals, it is most important that Congress have the expression of the people of our State through the legislature via A.J.R. 2 restating our firm support for the water laws of the State. Passage of A.J.R. 2 will not be welcomed by representatives of Federal agencies who believe the Federal Government should control all water development and determine who should get the benefits of future water supplies. Passage of A.J.R. 2 is needed to support the large bipartisan group from California now in Washington on behalf of water users in all parts of the State. STATE OF CALIFORNIA, OFFICE OF LEGISLATIVE COUNSEL, Hon. JAMES A. COBEY, WATER RIGHTS-No. 3212 Dear Senator COBEY: You have asked for an analysis of S. 1275 presently before the U.S. Congress. Subdivision (1) section 1 of the act provides that no right to the use of water acquired pursuant to State law, regardless of when acquired, is affected by the withdrawal or reservation of public lands whenever made.1 Subdivision (2) of section 1 provides that section 1(b) of the Flood Control Act of 1944 shall apply to all works hereafter constructed by or under the authority of the United States with respect to water arising within States lying wholly or partly west of the 98th meridian.' Section 1(b) of the Flood Control Act of 1944, referred to, provides that the use for navigation in connection with flood control projects, of waters arising in States lying wholly or partly west of the 98th meridian shall be only such as does not conflict with any beneficial consumption use, present or future, in States lying wholly or partly west of the 98th meridian of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes. The effect of subdivision (2) would appear to be that the use for navigation, in connection with any works hereafter constructed by or under the authority of the United States, of waters arising in States lying wholly or partly west of the 98th meridian shall not conflict with the beneficial consumptive use, present or future, in States lying wholly or partly west of the 98th meridian, of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes. Subdivision (3) of section 1 requires that any right which the United States claims under the laws of any State to the beneficial diversion, storage, distribution, or consumptive use of water must be initiated and perfected in accordance with the procedure established by the laws of that State. STATE OF CALIFORNIA, OFFICE OF LEGISLATIVE COUNSEL, Hon. CARLEY V. PORTER, WATER RIGHTS-No. 2934 QUESTION DEAR MR. PORTER: If S. 1275 presently before the U.S. Congress is enacted as introduced, could the Federal 160-acre limitation be abrogated by State law? OPINION In our opinion the enactment of S. 1275 would not negate the application of the Federal 160-acre limitation. 1 Cf. Federal Power Commission v. State of Oregon (1955), 349 U.S. 435 (the so-called Pelton Dam case). 2 The 98th meridan runs through North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texas. 3 Cf. the reply brief of the United States in City of Fresno v. State Water Rights Board (No. 105245, Superior Court in and for the County of Fresno), in which it is contended that the United States need not obtain a permit under State law since it already owns all of the unappropriated water of the San Joaquin River. ANALYSIS Subdivision (3) of section 1 of S. 1275 reads as follows: "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." The Federal 160-acre limitation is contained in section 5 of the Reclamation Act of 1902 (43 U.S.C. 431) and reads as follows: "No right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one landowner * * *." In our opinion the quoted language of S. 1275 relates to procedures by which the Federal Government may perfect certain water rights which it claims. On the other hand, the 160-acre limitation relates to the operation of Federal projects. The question presented here is similar to one presented in the case of Ivanhoe Irrigation District v. McCracken (1958) 357 U.S. 275, 2 L. Ed. 2d 1313. It was there contended that State law rather than the Federal 160-acre limitation was applicable to contracts whereby the Federal Government was to furnish water from Federal reclamation projects. The contention was based on section 8 of the Reclamation Act of 1902 (43 U.S.C. 383) which provided that the act is not to be construed as interfering with State laws "relating to the control, appropriation, use, or distribution of water used in irrigation." The Supreme Court rejected the contention that section 8 made section 5 inapplicable. The Court stated at 2 L. Ed. 2d 1325: “As we see it, the authority to impose the conditions of the contracts here comes from the power of the Congress to condition the use of Federal funds, works, and projects in compliance with reasonable requirements." The Court further stated "As we read section 8, it merely requires the United States to comply with State law when in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must not be confused with the operation of Federal projects" (2 L. Ed. 2d 1325). We believe that subdivision (3) of section 1 of S, 1275, like section 8 of the Reclamation Act of 1902, relates to the acquisition of water rights and would not be construed to overrule the long existing policy of the Federal reclamation program with respect to the 160-acre limitation. Very truly yours, Senator Moss. Mr. Howard Zahniser, Wilderness Society, is our next witness. Mr. Zahniser, we appreciate your staying. A. C. MORRISON, By DON VICKERS, STATEMENT OF HOWARD ZAHNISER, EXECUTIVE DIRECTOR, THE WILDERNESS SOCIETY Mr. ZAHNISER. Mr. Chairman, you have a better judgment of the stringency of the time limitations than I do. My statement is brief and I should be glad to present it in full and answer any questions. If in your judgment it would be better to have it put in the record as though read while the members of the committee skim it, I would answer any questions. I should be glad to do that, too. Senator Moss. Thank you. That is very cooperative of you. You may read your full statement if you think best. Mr. ZAHNISER. Mr. Chairman, my name is Zahinser-Z as in Zebra, A, H, N, I, S, E, R-my first name Howard. I am executive director of the Wilderness Society with headquarters at 2144 P Street NW., Washington, D.C., and editor of the quarterly magazine, The Living Wilderness. I should like to suggest some possible wilderness aspects of the legislation being considered by the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs "to clarify the relationship of interests of the United States and of the States in the use of the waters of certain streams," the bill, S. 1275. It is not my intention to become involved in the perplexities with which the subcommittee is dealing in its consideration of legislation on this important subject, nor to add to the confusions to be clarified by such a bill, but rather to suggest considerations that may avoid further complication in connection with policies and programs to preserve some of the areas of wilderness still in public ownership and within our Federal lands. I came to these hearings at their beginning on Tuesday of this week, on March 10, having read the bill but having no clear understanding of its implications, and I have listened with great interest and with benefit for my own understanding of the problems involved. As a result of what I have heard and of my further consideration of the bill in the light of the many excellent statements made and the colloquies that have followed them, I have prepared the brief statement that I should now like to make to the committee for its consideration and for inclusion in the printed record. To a great extent the areas of wilderness that we are privileged to have with us are in existence now because of the nonuse of the lands involved for any of the many purposes that have changed so much of our land from the wilderness that it once was to the marvelous civilization that we enjoy. In the past, in other words, areas of wilderness remained because our pioneers and their successors found nothing that they could do with them. Now, on the other hand, we have such areas specially designated for preservation because there has developed a positive understanding of their human values as wilderness. In the future, it is my conviction, we shall have these and other areas of wilderness remaining for ourselves and for those who will follow us only to the extent that we do deliberately put them to use, a positive, now recognized use, in the preservation of the wilderness. All of our lands, I am convinced, are destined to be put to some human Those that are perpetuated as wilderness will be only those that are put to use as wilderness and protected as such. use. The change from wilderness as lands with no use to lands put to this clearly recognized public use emphasizes the importance of considering wilderness preservation as one aspect of a total land management program that meets all our needs. Certainly the need for water is the one dominant need in many of our areas. Watershed protection is one of the multiple uses that wilderness preservation serves. We should do everything that we can to avoid conflicts between water needs and wilderness needs. Similarly, it would seem sound public policy to make every effort to consider wilderness preservation needs in connection with programs involving water resources. I am sure that I am speaking for sympathetic ears when I say this here. The sponsor of the bill being here considered and the chairman of this subcommittee, Senator Kuchel and Senator Moss, are among the champions of sound wilderness preservation policies and programs in the Senate, and Senator Anderson, who has been raising the questions with regard to the legislation, is a wilderness preservation leader whom I have long been glad to follow. I am sure that the members of the subcommittee will appreciate my interest both in avoiding involvement as a representative of the Wilderness Society in any controversies with regard to water rights as such and also my concern that the effects of legislation with regard to water rights be carefully considered in connection with our developing national policy and program for wilderness preservation. Senator Anderson, in a statement with regard to this bill, S. 1275, has raised the question as to whether there is danger that the divestment of proprietorship in water rights on withdrawn or reserved lands might result in defeating the purpose for which the withdrawal or reservation was made. Senator Anderson said that his immediate concern is related to the program and policy that will be established when the Wilderness Act already passed by the Senate has become law, but he commented also that the same possible danger might conceivably threaten our national parks, national forests, national grazing lands, and the like. National parks, national forests, and grazing lands all are withdrawn or reserved areas in which, according to Senator Anderson's interpretation and statement, this bill (S. 1275) would say, "in effect, that the Federal Government has no proprietary water rights as against State law." Senator Anderson concluded the paragraph in his statement regarding this aspect of our consideration here with the question: Is it a clearly established fact that the Federal Government does not need control over the waters of the areas in order to carry out their purposes? I, like Senator Anderson, Mr. Chairman, would raise this question. I, in Senator Anderson's words, would "urge the subcommittee to give most careful consideration to the answer." I also was specially impressed with the comment in the statement of the National Association of Attorneys General that, and I quote from its sixth paragraph the merit of S. 1275 is that it centers on the key issue: compensation for rights taken by government. No one contends that the United States should be obstructed in its efforts to perform its governmental functions. this statement went on to emphasize. In the colloquy that followed the presentation of this statement Senator Church said with regard to the two sentences that I have quoted that "this is the intention of the proposed legislation." This statement, with Senator Church's emphasis with regard to it, is reassuring. As Senator Church commented at another time in these hearings, as I recall his remark, it is the language that becomes the law, and accordingly it is the language of the bill with which I presume I should be most pertinently concerned, and in this connection I should like also to note a question that seems serious to me. In the first sentence of the bill, in section 1(1), I read 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. 36-961-64--19 |