Good as S. 1275 is in its present form, there are clarifying changes which would be helpful. Paragraphs 3 and 4 of section 1 of the bill make special reference to "consumptive" use of water. The rationale of the argument presented in this statement is equally applicable to consumptive and nonconsumptive uses. While it is likely that other enumerations in these paragraphs broaden the sweep of the bill beyond irrigation and related activities, the deletion of the word "consumptive" would serve to avoid possible problems in construction. Another word which seems to have little point in view of the purpose of S. 1275 is the word "vested" in paragraph 4 of section 1. Any right which is sufficiently a property interest in character should be compensated, if taken. It would seem unfortunate to suggest that the salutary effects of the bill might be made, in certain instances, to depend on procedural concepts of vesting. The National Association of Attorneys General wishes to assure this committee of its wholehearted support of this legislation and its appreciation of its urgency. The association has expressed its views in a resolution adopted at its 1963 annual meeting. A copy of this resolution is attached to this statement and made part hereof. [Enclosure] RESOLUTION IX. WATER RIGHTS Whereas the National Association of Attorneys General, the National Association of Counties, the Section of Mineral and Natural Resources Law of the American Bar Association, and numerous other groups concerned with water resources in the United States have recognized the increasing urgency of a resolution of the Federal-State conflict over water rights; and Whereas there now exists considerable uncertainty as to the manner of establishing property rights in the diversion, use, or storage of surface and underground water in the several States; and Whereas the uncertainty arises from the fact that the Congress of the United States has not clearly manifested an intention to recognize the laws of the several States as to the appropriation, diversion, and use of surface and underground waters; and Whereas this uncertainty gives rise to a clash of interests between the citizens of the several States and the U.S. Government, its agents, and licensees as to the right to divert, use, or store the surface and underground waters within the territorial limits of the said States; and Whereas there is need for an orderly and definite rule and supporting administrative procedure for establishing and protecting valuable property rights in the diversion, use, or storage of the surface and underground waters of the several States; and Whereas S. 1275 in the current Congress would take a long step forward in the resolution of important aspects of this controversy: Now, therefore, be it Resolved, That the 57th annual meeting of the National Association of Attorneys General in Seattle, Wash., July 3, 1963, urges and declares that the Congress of the United States should enact S. 1275 at its current session, and that it should further intensively study the remaining and unresolved portions of the problem, including particularly the sovereign immunity of the United States which is frequently asserted to prevent the judicial resolution of conflicts relating to water rights. STATEMENT OF JAMES H. KRIEGER, CHAIRMAN, SOUTHERN CALIFORNIA WATER CONFERENCE S. 1275 demands no more of Federal officials than is now required of any State or local officials seeking to acquire water rights in any particular State. The bill merely directs the United States to follow the same procedures required by each State to insure the orderly development of that State's water resources. These methods have proved workable in the past. The United States, acting through the Bureau of Reclamation, has for the most part complied with these formalities, and abided by the terms and conditions contained in State permits and licenses to appropriate water. Cooperation and coordination of the water development activities of all units of government has maximized the conservation of this valuable resource for all parties. There is no reason to believe that the United States now needs to exercise a free and independent role in the engineering, construction, and operation of these systems. In the event State imposed conditions are too burdensome to the United States, the latter may still execute her right of eminent domain and take whatever water rights she needs by appropriate legal action. Here S. 1275 directs the United States to do what it should do in the engineering of any water project; namely, determine in advance those rights which it believes will be needed. Instead of forcing an injured party to his uncertain remedy in inverse condemnation, with the attendant risk of bringing his action either too late or too soon, the citizen's property right is either acquired by negotiation or eminent domain in advance of the damage. The Bureau of Reclamation followed this procedure in the Friant Dam case, insofar as negotiated acquisitions were involved. It did not do so as to the nonnegotiated parcels. Under S. 1275 the Bureau would have had to institute condemnation proceedings as to the nonnegotiable water rights, as well. The Friant Dam project would not have been delayed, for the United States enjoys the same right of immediate possession as do almost all public agencies in such public takings of private property. S.1275 also puts to rest those fears and misgivings of local project water users who are constantly reminded by representatives of the Department of Justice that both vested and appropriated rights to water originating on federally reserved lands in the various States may be recaptured or interfered with by Federal agencies under some claim of supremacy. The history of water development in this country is largely one of local enterprise and initiative. Growth has necessitated bigger projects transporting water greater distances. But the projects still serve local areas. And some States, like California, have the demonstrated need for and financial ability to develop their water sources locally. Federal projects have been fitted into these plans so far with ease and harmony. If there is to be Federal regional development these same wholesome and workable principles can and will be followed. S. 1275 has the merit of reaffirming practices found expedient and workable and consistent with the principle that local control is most responsive to the needs and desires of most people. In the interest of establishing these practices as sound guidelines for future development, this bill should be enacted into law. AMERICAN NATIONAL CATTLEMEN'S ASSOCIATION, Denver, Colo., March 12, 1964. Hon. FRANK E. Moss, DEAR SENATOR Moss: The American National Cattlemen's Association would like to endorse S. 1275, introduced by yourself and Kuchel, of California. This bill is in line with the resolution unanimously passed by the American National at their annual convention in Memphis in January of this year. This resolution asked for a clarification of the State's responsibilities to administer water rights, both surface and underground, within their boundaries. We respectfully request that this endorsement and letter be made a part of the record of the hearings held March 10, 11, and 12. Cordially, [Enclosure] C. W. McMILLAN. WATER RIGHTS Whereas in several of the past sessions of Congress various bills have been introduced concerning clarification of the conflict of claims to water rights, both surface and underground, and uses between the Federal Government and rights created under State law; and Whereas the security of water rights is essential to the planning, development, and maintenance of water projects on which the economy depends; and Whereas the States have developed a cohesive and unified body of water law, the object of which is to achieve maximum certainty in the enjoyment and possession of water rights; and Whereas the security of water rights has been challenged by assertions of Federal executive authority: Therefore be it Resolved, That, in accordance with the resolutions of many responsible associations, we proclaim our position that Congress enact legislation which will declare unmistakably that water rights are a species of real property rights under the laws of the respective States. SPORT FISHING INSTITUTE, Washington, D.C., April 1, 1964. Re S. 1275, a bill to clarify Federal-State relations in the use of waters in certain States. CHAIRMAN, Subcommittee on Irrigation and Reclamation, of the Senate Committee on Interior and Insular Affairs, Senate Office Building, Washington, D.C. Mr. CHAIRMAN: The Sport Fishing Institute is the only privately supported. national, nonprofit, professionally staffed fish conservation organization in the United States. Our main objective is to encourage the rapid development and application of sound fish conservation practices in order to improve sport fishing to the fullest. We derive our operating funds from a wide representation of manufacturers of various sorts of equipment used in fishing, related industry and concerned individuals. Mr. Chairman, while we appreciate the desirability of clarifying the respective roles of State and Federal Governments with respect to water resource development, we should like to go on record in opposition to S. 1275. We feel that the sponsors of this bill are fully aware of the far-reaching implications contained therein. Ostensibly, the bill purports to "clarify the relationship of interests of the United States and of the States in the use of waters in certain streams" with the main result being to permit the Federal Government to continue spending large sums of money, to carry out new, complex, and costly reclamation projects and other resources development programs, while subjecting related actions by the Federal Government to the veto of State laws. We see in the enactment of S. 1275 a dangerous loss of control by the Federal Government over water rights related to national forests, national parks, grazing districts, national wildlife refuges, and other Federal lands. It appears to be true in all too many instances, unfortunately, that special interests of narrow purview are able to control some State legislative sessions to the detriment of the broad public interest, as history has verified. Federally subsidized water projects in the Western States are often considered desirable by the Congress but the States want to control the water development. Lacking the added and presently established Federal priority of proprietorship, water rights reserved to meet public needs could considerably be dissipated in circumstances where narrowly construed private interests could possibly acquire control of the situation at times, however, remote this might seem at present. Sport Fishing Institute urges your subcommittee, Mr. Chairman, to oppose S. 1275 and its particular approach to Federal-State relations in water resources development. We feel that the hard-won gains of the past years of constructive legislation in water resources protection, conservation, and development would be virtually eliminated by passage of this bill. We would appreciate your making this letter a part of the written record of testimony on S. 1275. Thank you, Sincerely, PHILIP A. DOUGLAS, Executive Secretary. STATEMENT OF IRVING O. JOHNSON, ALAMEDA, CALIF. The purpose of this bill S. 1275 and the motivating force behind it is to advance California State water plan, this in itself is not what makes the bill bad. We must look behind both programs to see the objective and this becomes very clear. The conflict between State and Federal law is the 160-acre limitation and public power preference. It is common knowledge that holders of large tracts of irrigable land have worked persistently to escape the acreage limitation just as the investor-owned utilities have worked against the consumer utilities owned by the people. Senate bill 1275 is a step by legal counsel, experienced in opposing reclamation law to escape Federal reclamation law and its coverage limitation. In the West, time is running out for us to think small, when it comes to the problem of good pure water. Without Federal jurisdiction over the whole of our water development each State will proceed too late, and with too little to plan other than from panic as California's present plan does. Help under law of the Federal Government, where interstate agreements must be made, can be the only answer to the problem of water in the West. Attached to this statement is a copy of a news item from the Oakland Tribune, Sunday, March 8, 1964, that if read carefully points to many of the small problems invloved in the State water plan. These problems are small for those people who are interested only in the rewards of doubling the irrigated land in the San Joaquin Valley, most of this is in large land holdings. Paragraph 2-17 and 18 of attached news item imply that those people and areas damaged by the flow of polluted water will be required to pay for the damage while the large landowners causing the damage expect only to benefit. Paragraph 13: This $60 million is to protect the present Central Valley project; of course this is a Federal problem and not a subsidy to the State water plan. Paragraph 15: This of course means that this is a local problem, and not a problem of the State or Federal agencies. Paragraph 17: This solves the problem by forming another local government agency to handle a purely local problem. Paragraph 3: This points out that San Francisco Bay would still be polluted but that problem could be left to an already formed local agency to handle that strictly local problem. Paraphaphs 7 and 8: This points out the demands on the politics of California by powerful interests that seem to be able to execute their plans and objectives, at least, they have the power to stop the programs they do not like. Paragraph 16: Implies that we have a lot of panic in California. From the news article it is hoped some light may be brought forth relating to this, the problem of the bay area, not otherwise presented to the committee. What would have been the progress in California without the Central Valley project, its water and power? This great project development was undertaken pursuant to Federal reclamation law, the 160 acre limitation, public power preference and all. I ask that meetings of the Interior and Insular Affairs Committee be held in central California prior to decision on this bill; if that is not possible, I ask that the bill be defeated. I request that the foregoing statement be printed in the record of these hearings and that a copy of printed record of the hearings be sent to me when printed. [Enclosure] [From the Oakland Tribune, Mar. 8, 1964. Liberty has been taken of numbering the paragraphs.] BAY WARNED ON VALLEY SEWER 1. A big wave of polluted water will flow from the San Joaquin Valley toward San Francisco Bay in 1968, and now is the time to get ready to handle it, warns William E. Warne, director of the State department of water resources. 2. A proposed sewer pipe that would carry this water through Contra Costa County from Antioch to Rodeo would cost $93 million, and it may be necessary to establish local assessment districts to pay the cost, Warne told a State water commission meeting. 3. There is no estimate yet of what the price would be to extend the big sewer through the bay area and out to sea, as proposed by Bay Area Water Pollution District officials. 4. But, it is absolutely necessary that some kind of drainage system be constructed to get rid of the salty, pesticide-laden scum producing waste water that will be a byproduct of California water plan irrigation of the valley, he said. 5. Originally the cost of this big sewer was included in the $1.75 billion State water bonds voted in 1960, but the State department of water resources changed its mind after the election, Federal officials charged. 6. Controversy over the proposal reached a head at the water commission meeting in Pittsburg Friday. 7. Charles Bates, secretary manager of the Central California Irrigation District, demanded immediate construction of part of the big sewer system, which, under present plans would be dumped into the upper reaches of the bay system at Antioch. 8. Bates represents owners of arid land who plan large scale cultivation when State and Federal sections of the California Aqueduct start delivering water to the west side of the San Joaquin Valley in 1968. IRRIGABLE LAND 9. Potentially, there are 8 million acres of irrigable land in the valley, Warne said. About 3.9 million acres are now irrigable to convert to crops requiring more water when aqueduct flows start. 10. Ground water flowing out of the newly irrigated fields will in many cases approach the salt level of sea water, Federal officials told the commission. 11. These waste flows will also carry pesticides and the chemical nutrients that produce algae and scum, they said. 12. If no drainage system is built, this waste water will either pour down the San Joaquin River to destroy the delta region farmlands, or else convert the San Joaquin Valley farmlands into a salt-soil desert region Warne warned. DRAINAGE AREA 13. A proposed $60 million Federal project-the San Luis drain—would drain the region from Los Banos to Antioch; Warne favors a $79 million, 290mile conduit flowing from Bakersfield to dump into the upper reaches of the bay at Antioch. 14. The combined flow of these sewage projects would equal the summertime flow of the Sacramento River. Extensions of the big sewer downstream to Port Chicago, Martinez and Rodeo are being studied. 15. Extension of the big sewer downstream from Antioch would add $46 million if extended to Port Chicago, $66 million to Martinez and $92 million to Rodeo on the shore of San Pablo Bay, Warne said. 16. The big sewer could be financed through the sale of California water project general obligation bonds, Warne said, but, “On the matter of repayment, general thinking has not crystallized." ASSESSMENT PLAN 17. Warne said his department favors repayment of sewer costs by "authorizing establishment of assessment zones and subzones in the district for the purpose of levying and collecting assessments on lands served by the drain." 18. He didn't expand on the question how much of the cost would have to be borne by Contra Costa County. GEORGETOWN, IDAHO, Re Senate bill 1275, a bill to clarify the relationship of interests of the United States and the States in the use of waters of certain streams. Hon. FRANK CHURCH, Senate Office Building, Washington, D.C. DEAR SENATOR CHURCH: We of the Bear River Protective Committee heartily and strongly endorse this bill, and we strongly urge that every effort be made to promote its passage through Congress and its signing by the President. We feel that without it reclamation and conservation will be impeded to the point that the future can become very dim. Now with any proposed conservation measure, the Western States, where the water originates, are immediately on the defensive for they have no protection whatsoever under the various bureaus, commissions, and the Pelton decision, for protecting their water rights if it becomes a policy of one of the enumerated agencies under the various decisions to take these water rights. With the extension of conservation and reclamation projects to the Central and particularly the Southern States, undoubtedly these areas also will become very conscious of their water rights. |