Leaving out some of these words I thus read that the reservation of public lands shall not affect any right to the use of water acquired pursuant to State law either before or after the reservation. In other words, it seems, according to this proposal, that a person might obtain, under State law, a right to use water within a Federal area of wilderness even after the area had been set up, and if this right involved the construction of a dam or of roads or other facilities it would involve a violation of the wilderness character of the area. It would be contrary to the purpose for which the Federal area of wilderness had been established. I do not wish to be misunderstood as arguing that there can be no circumstances in which there may not be a nonconforming use of a wilderness area for water purposes. The Senate-passed act S. 4, which I support and advocate, does, in fact, provide for such nonconforming use when found to be more in the public interest than the continued preservation of the wilderness-a determination to be made by the President of the United States-in other words, by the highest Federal official. I do wish to urge upon the subcommittee the consideration of the effect of this bill and particularly its language on the preservation of areas of wilderness, and I would suggest that if the bill is to be acted on favorably it include a provision that nothing within it is to be interpreted as authorizing entry into a duly designated area of wilderness for purposes inconsistent with the dominant purpose of the wilderness area. It is always pleasant to appear before the members of the Committee on Interior and Insular Affairs, and as usual, I am today appreciative of the considerate attention I have enjoyed. Thank you very much. Senator Moss. I would ask you if you could perhaps state in just few words the thrust of your statement. a very Mr. ZAHNISER. I wish to point out that whereas in the past areas of wilderness existed simply because nobody could find any use to put them to, more recently preservation of wilderness has been recognized as a desirable human use of areas, and there are at present a number of areas designated for that purpose. In the future it is my conviction there will be no such areas except those that are designated for preservation as such. All of our lands will be put to some human use and the only way in which we shall have wilderness areas will be by recognizing that that is a human use and deliberately designating some lands for that purpose. That recognition of wilderness preservation as a definite use of land emphasizes the importance of considering it in connection with any other use of land, and I do not wish to add to the complexities of the water situation. I have appreciated very much sitting through these hearings these past few days and learning about them myself. Senator Anderson in his statement has raised a question that I wish to refer to. On the other hand, I noted that the National Association of Attorneys General indicated in their statement that the intention of the proposed legislation is in connection with compensation, and Senator Church emphasized that. However. Senator Church also indicated that what counts is the language in the bill, and I read in the first section that the reservation of public lands shall not affect any right to the use of water acquired pursuant to State law either before or after the reservation. I read that leaving out some of it. If this right involved the construction of a dam or of roads or of other facilities, it could involve a violation of the wilderness character of an area that would be affected, and this would be contrary to the purpose for which Federal areas of wilderness have been established. I do not wish to be misunderstood as arguing that there could be no circumstances in which there may not be a nonconforming use of wilderness area for water purposes. The Senate-passed S. 4 which I support and advocate does, in fact, provide for such nonconforming use when found to be more in the public interest than the continued preservation of the wilderness. That is a determination to be made by the President, but I wish to urge upon the subcommittee the consideration of the effect that this bill, and particularly its language, might have on the preservation of the areas of wilderness. I would like to suggest that if the bill is to be acted on favorably it include a provision that nothing within it is to be interpreted as authorizing entry into a duly designated area of wilderness for purposes that would be inconsistent with the dominant purpose of the wilderness area. That is the substance of my statement, Mr. Chairman. It is my understanding that the wilderness may not be invaded in any sense through this bill. I think in some of the questions that Mr. Andrews was putting to Mr. Ely that this was emphasized again. As I recall, the answer of Mr. Ely was that where the Federal Government had a wilderness area that there was no water right below which could be made in derogation of the preservation of the wilderness area as such which would include its character as far as structures and roads were concerned unless under the terms of the bill you find the overriding requirements and the exceptions made. The other thing that I thought was quite significant was his answer to the question about whether or not in a situation where water had its origin above the wilderness areas and traverse the wilderness area, if the Federal Government must then do one of two things: If in need of the water in the wilderness area, if there was a prior existing right you must condemn it and pay for it in order to come in, and the answer was, "Yes." Or if anyone attempted to perfect the right after the wilderness was in existence, it could enjoin that action, and the answer was "yes" to that. That I think would be the real import of the bill: that a wilderness area does have a use of water; water is part of the wilderness area, and as long as it is set aside for that particular purpose Mr. ZAHNISER. Water in an area of wilderness can hardly be considered as other than part of it. Senator Moss. It is part of the environment. It is neither retarded nor retained artifically, nor is it drained artifically. It is allowed to stay on that wilderness area just as nature would handle it. Mr. ZAHNISER. The wilderness areas do provide valuable protection of watershed and contribute to the conservation of water. I heard the colloquy to which you refer, Mr. Chairman, and it confirmed my impression that this was a matter that was worthy of bringing to the attention of the subcommittee. It encourages me to urge that the subcommittee carefully examine into the matter and consider the importance of adding another provision that will clarify the bill which is intended to clarify. Senator Moss. Well, that will be weighed very carefully, Mr. Zahniser, certainly. I am sure that this subcommittee is most anxious to provide adequate protection to wilderness areas. We in the full committee of course have considered the wilderness in the past here and have considerable familiarity with it and strong support of it. I know that the disposition of the majority of the committee is to assure that the wilderness areas are given adequate protection. Mr. ZAHNISER. As I mentioned in my statement, the author of this bill, Senator Kuchel, and you, Senator Moss, the chairman of this subcommittee, are among the outstanding champions of wilderness preservation in the Senate. On the other hand, Senator Anderson has raised questions about the legislation on wilderness preservation that I have long been glad to follow. I do not wish to complicate the consideration of the legislation but just to make sure that this does not result in any further complications. Senator Moss. Thank you very much, Mr. Zahniser. This phase of the hearings will now come to an end. However, we do expect that there will be some later hearings held, particularly as was announced the first day. I think the subcommittee will want to invite the Government department witnesses to return on a subsequent day when we have had time to examine our transcripts and are able to spend some time in hearings because we would like a number of questions answered. We went rather rapidly over that phase of the hearing. The witnesses presented some excellent statements but we had very limited time for examination of them. I know the committee will want to do that. We are now adjourned, subject to call of the Chair. (Whereupon, at 12:17 p.m., the subcommittee adjourned, subject to call.) APPENDIXES APPENDIX A (Additional statements and communications filed for the record are as follows:) STATE OF UTAH, OFFICE OF THE GOVERNOR, Hon. FRANK E. Moss, Washington, D.C. DEAR SENATOR Moss: I am writing to request that you place in the record of the hearings recently conducted by your subcommittee of the Senate Committee on Interior and Insular Affairs on S. 1275 the following brief statement setting for the position of the State of Utah, which is strongly in support of this bill. It is my understanding that, although the hearings have ended, the record is being held open for this purpose. Utah, along with other Western States, is constantly faced with the fact that water represents the limiting factor on growth and development in a dry climate such as we have, with the exception of a few limited areas, over the western half of this Nation. We have built up over the years a canon of water law and have established under that law a system of water rights that is inextricably bound up with every facet of our economy. If our water laws were invalidated, or if a cloud were cast over our water rights, our entire economy would be seriously jeopardized. It is significant that the Congress has, over the years, clearly recognized these facts, and has repeatedly taken meticulous care to honor and preserve State water laws. On the other hand, the courts have tended to take a view which is almost exactly opposite and which could lead to the overriding of State water law by agencies of the Federal Government, with disastrous results. Unfortunately, some agencies of the executive branch of Government have adopted this point of view, in spite of the clearly expressed intent of the Congress, thus posing a severe and increasing threat to the welfare of the States. It appears that the only effective remedy to meet the existing situation, and to give the Nation's economy and those of the respective States reasonable protection in the future, is the passage by the Congress of legislation so specific that it cannot be ignored or misinterpreted. S. 1275 would work to this end without in any way interfering with the proper exercise of Federal authority or endangering the ability of the Federal Government or any of its branches to obtain needed water under the established water laws of any of the States. S. 1275 would merely require agencies of the Federal Government to follow the established procedure of eminent domain in acquiring water in the various States-which simply means that the Federal Government would pay for what it gets and that the property owner would be compensated for his loss, both firmly established principles of our way of life. For these reasons, the State of Utah strongly urges favorable action on S. 1275. Yours sincerely, GEORGE D. CLYDE, Governor. 287 Senator FRANK E. Moss, OFFICE OF THE MAYOR, Chairman, Irrigation Subcommittee of the Interior and Insular Affairs Committee, U.S. Senate, Washington, D.C. DEAR SENATOR Moss: I would like to add my support to the expressions of firm support you have already received from many water serving agencies, and representatives of business, legal, and governmental organizations of many States asking favorable consideration and action of your subcommittee on behalf of Senate bill 1275. This measure has long been seriously needed, not only in the West but also in the other States throughout the Nation, to clarify and bring order out of the present chaotic situation which exists as between Federal water rights and those rights to use water acquired under the laws of the several States. At present, Federal representatives claim that they have the authority to take water, the right to the use of which has been acquired under State laws, and to develop such water for the Government's purposes whenever the need arises without compensation. Senate bill 1275 would require the Federal Government to proceed by the orderly and equitable route of condemnation to acquire such water rights, which have vested under State law and to pay just compensation therefor. The sweeping effect of the Federal Government's present doctrine of reservation to itself of rights to water originating on Federal lands or withdrawn lands is dramatically illustrated in California, and in the other Western States where the Government has large land holdings. In California, approximately onehalf of the State's 100 million acres is federally owned, and about three-fourths of the natural water runoff of the State is from federally reserved or withdrawn lands. I do not agree with the fears expressed before your honorable subcommittee by the deputy director of the State department of water resources, who appeared at the direction of Governor Brown and opposed Senate bill 1275 on the grounds that it would hamper the U.S. Government in water development. I share the views, as stated by Attorney General Mosk and supported also by the U.S. Chamber of Commerce, the California State Chamber of Commerce, the American Bar Association, the American Farm Bureau Association, the National Supervisors' Association, the National Institute of Municipal Law Officers, and other closely familiar with the problem, that this bill is urgently needed, and that it will neither interfere with the Federal Government's legitimate activities nor hamper the Federal development of water resources. Senate bill 1275 will not solve all of the problems but it will represent an important forward step toward removing many of the doubts and uncertainties in the present conflicting situation between Federal and State water rights, and I commend it to your consideration. Cordially, Hon. FRANK E. Moss, SAMUEL WM. YORTY, Mayor. STATE OF OREGON, STATE WATER RESOURCES BOARD, Salem, March 16, 1964. U.S. Senator, Committee on Interior and Insular Affairs, Senate Office Building, 'Washington, D.C. DEAR SENATOR Moss: I was in Washington, D.C., on March 11, 1964, prepared to testify in favor of S. 1275 in my capacity as chairman of the Interstate Conference on Water Problems, executive secretary of the State Water Resources Board of Oregon, and on behalf of the Honorable Mark O. Hatfield, Governor of Oregon. The Governor and the State water resources board specifically endorse the testimony that was prepared for presentation on behalf of the Interstate Conference on Water Problems. It is our understanding that copies of the conference statement will be included in the record even though time did not permit oral presentation of this to your committee. On behalf of the aforementioned, we strongly support and concur in the statement of the Interstate Conference on Water Problems. Thank you for your courtesies. Sincerely yours, (The statement referred to appears on p. 183.) DONEL J. LANE, Executive Secretary. |