Paragraph 3 provides that if the United States claims a water right under State law, it must perfect it under State law.

Paragraph 4 assures compensation for the taking of vested water rights. The word "vested" does not necessarily mean presently perfected rights-State law will, as it should, control in each case. This paragraph also requires affirmative judicial action by the United States. It should prevent acts of seizure by the Federal Government.

Section 2 of the bill includes several saving provisions for the protection of both the Federal interests and State and individual interests in particular circumstances. Paragraph 1 of section 2 provides that if the United States is under statutory limitation to acquiring water rights under State law, such limitation continues in effect. Paragraph 2 preserves the effect of treaties. Paragraph 3 preserves the effect of compacts, adjudicated matters, Indian rights, existing rights of others than the United States, accomplished Federal rights for governmental purposes, and later acquired Federal rights authorized by an act of Congress or State law.

Different from S. 2636, the present bill does not include a provision by which the United States could be unwillingly joined in water litigation between two or more States. Under present law, it is necessary for the Attorney General to intervene on behalf of the United States if the Federal Government is to be bound by such suits. I believe that section 3 of my former bill was a good provision but some objections to it have been raised and, in order to present a bill suited for wide support, I have not included such a waiver of sovereign immunity.

Another difference in this new bill is that we make it clear that in protecting vested water rights we are protecting the beneficial diversion or storage of water, as well as truly consumptive uses.

Other changes from former S. 2636 are minor.

Mr. President, I think this bill we introduce today provides a vehicle for accomplishing many of the aims sought by the Senate Select Committee on Water Resources, on which I was priviliged to serve as vice chairman. At page 65 of our report we asked for "clarification of the Federal position in connection with water rights." I think this bill would go a long way toward providing a sound basis for continued Federal, State, local, and individual water uses. It would also assure a more healthy climate of mutual confidence, respect, and cooperation in which our Federal Government and State and other interests can join in mutual water planning and development for the future.

This bill deserves the wholehearted support of the Congress.

Mr. President, I ask unanimous consent that the bill may remain at the desk through next Wednesday, and I hope that we may be able to obtain coauthorship from Senators on both sides of the aisle.

I also ask unanimous consent that the text of the bill may be printed in the Record.

The PRESIDING OFFICER. The bill will be received and appropriately referred; and, without objection, the bill will be printed in the Record and will lie on the table through next Wednesday, as requested.

The bill (S. 1275) to clarify the relationship of interests of the United States and of the States in the use of the waters of certain streams, introduced by Mr. Kuchel (for himself and Mr. Moss), was received, read twice by its title, referred to the Committee on Interior and Insular Affairs, and ordered to be printed in the Record, as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (1) 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.

"(2) The provisions of section 1(b) of the Flood Control Act of 1944 (Act of December 22, 1944, 58 Stat. 888-89, as amended, 33 U.S.C. sec 701-1 (1958) shall apply to 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 ninety-eighth meridian.

"(3) 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.

"(4) No vested right to the beneficial diversion, storage, or consumptive use of any waters, navigable or nonnavigable, which is 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 authority of the State, shall be taken by or under authority of the United States without compensation; and where such rights are acquired otherwise than by agreement with the owner, they shall be taken by proceedings in eminent domain under the laws of the United States or of the State or States affected.

"SEC. 2. Nothing in this Act shall be construed as-(1) Modifying or repealing any provision of any existing Act of Congress requiring that rights of the United States to the use of water be acquired pursuant to State law; (2) Permitting appropriations of water under State law which interfere with the provisions of international treaties of the United States; or (3) Affecting, impairing, diminishing, subordinating or enlarging (a) the rights of the United States or any State to waters under any interstate compact or existing judicial decree, (b) any obligations of the United States to Indians or Indian tribes, or any claim or right owned or held by or for Indians or Indian tribes, (c) any water right heretofore acquired by others than the United States under Federal or State law, (d) any right to any quantity of water used for governmental purposes or programs of the United States at any time prior to the effective date of this Act; or (e) any right of the United States to use water which is hereafter lawfully initiated in the exercise of the express or necessarily implied authority of 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."

[Attachment 2]

[From the Congressional Record, Feb. 28, 1964]

REMOVING OBJECTIONS TO REGIONAL WATER PLANNING AND FEDERAL PROJECTS Mr. KUCHEL. Mr. President, earlier in this session a number of Senators introduced S. 1275. A companion bill is pending in the House of Representatives, where it was introduced by a number of the Members of that body.

This bill is of vast importance. It deals with a regrettable, but continuing, controversy in the field of water and water law.

Earlier this month the distinguished minority counsel for the Senate Committee on Interior and Insular Affairs, Richard D. Andrews, wrote an illuminating letter on this subject to James H. Krieger, chairman of the Southern California Water Conference. The letter is an excellent review of the problem involved and of the reasonableness of our legislative vehicle designed to settle a substantial portion of the controversy.

Mr. President, a decade of talk is long enough. The time has come to pass an affirmative piece of legislation in this field so that we can quiet many fears about and objections to broad regional planning and Federal water projects, all with the aim of getting on with the projects. Time taken now to deal adequately and accurately with S. 1275 will be well spent in getting this matter off the list of unfinished business of Congress so that it does not drag on indefinitely requiring effort and time which could be better devoted to harmonious planning and authorization of projects.

As Senator Moss said at the western water law symposium last year, this subject has needed more light and less heat. I hope that Mr. Andrews' letter sheds some light on what S. 1275 would and would not do.

I ask unanimous consent that the entire text of the letter be printed in the Record.

There being no objection, the letter was ordered to be printed in the Record, as follows: "U.S. SENATE, "COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, "February 18, 1964.

"Mr. JAMES H. KRIEGER,

"Chairman, Southern California Water Conference, "Los Angeles, Calif.

"DEAR JIM: I am pleased to respond to your request that I reiterate the essence of the remarks I offered concerning pending water rights legislation when I discussed that and other resource matters at the California State Chamber of Commerce Annual Meeting last December.

"As you know, the bill in question is S. 1275, introduced in the Senate by Senator Kuchel, who has been joined by cosponsors Senators Moss, Jordan of Idaho, Church, and Engle. Identical companion bills in the House of Representatives, H.R. 5914, H.R. 7376, and H.R. 9364, have been introduced by Representatives Hosmer, Hagen of California, and Leggett, respectively. Support for this legislation has been stated by almost every national and California group and individual recognized as responsible authority on matters of this type. Hearings on S. 1275 have been set for March 10 and 11 in Washington before the Subcommittee on Irrigation and Reclamation of the U.S. Senate Committee on Interior and Insular Affairs.

"Though, as indicated, S. 1275 is widely supported, it remains true that some people still express doubts about whether it is necessary or good legislation. However, it appears generally that the very limited number of persons raising objections against the bill have not read what this particular bill itself provides and/or they have a misapprehension as to what its effect would be. Therefore, it is hoped that with their own adequate objective study, and with explanation from proponents of the bill, the few remaining objectors will see that this is necessary, progressive, beneficial legislation.

"I have found it is important to start with what this bill is not, because so many people have an initial reaction of aversion to the whole topic of 'FederalState water rights.' This aversion stems largely from two causes. First, an honest objection to what some completely different earlier bills in this field would have done; and second, a belief that nothing can be accomplished in this field because it has been talked about for so long with nothing having been accomplished.

"Let me deal with the second problem first. Nothing has been achieved heretofore because some of the proponents of legislation in this field have been unwilling to settle for less than all they desired, thus defeating concerted action and their own cause, and because opponents have not actually understood nor have had adequately explained to them just what the more moderate bills heretofore introduced would have and would not have done. This time everyone who believes there is a need for legislation is working in harness and we are trying to demonstrate the virtues of S. 1275 to all who are willing to listen.

"Senator Clinton P. Anderson, former chairman and still a prominent member of the Senate Interior Committee, indicated the generally favorable climate which exists for a reasonable bill when last spring he said, in discussing this matter at the annual meeting between the Senate Interior Committee and the board of directors of the National Reclamation Association:

'We can all agree it is important to get something done. *** The committee is ready to find some place that seems to be a meeting ground. * * * I would like to see this vexing matter settled.'

"Many of the supporters of S. 1275 have set aside more far-reaching proposals which they have heretofore urged in order to unite behind the moderate S. 1275 so as to present a bill which is within the meeting ground described by Senator Anderson. The proponents are certainly doing their part and it is hoped the previous opponents will give S. 1275 the benefit of their objective analysis and a fair hearing.

"Furthermore, Senator Moss, speaking on this subject at the western water law symposium last March, quoted from the report of the U.S. Senate Select Committee on National Water Resources which acknowledged:

"A solution must be worked out, and worked out promptly, for the preservation of the historic patterns under which our people have grown great.' "And then Senator Moss said:

"As chairman of the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, I pledge myself to do everything in my power to push on to a satisfactory conclusion in this controversial

area.'

"Thus, S. 1275 is not a bill that is not going any place. Its reasonableness and its wide support indicate that it should and it will be enacted into law. This is because it is not a bill which militates against Federal participation in water development.

"That brings me to the first problem in what I call the reflexive aversion syndrome. That problem is the history of bona fide, i.e., studied, objections to earlier bills. I simply point out that this bill must be judged on what it, itself, would do and when that is understood then I think many of the presently hostile forces will have no valid objection to this bill. In this regard, it is important

to point out that S. 1275, 88th Congress, is not like the so-called Barrett bill, introduced by the late Senator Barrett, of Wyoming, in 1955 as S. 863 of the 84th Congress. That bill, as introduced, would have stripped the United States of its sovereign powers in the field of water development and would have made each Federal water project turn on whether some State official or agency granted sufficient water to support the project. It provided, inter alia:

"Federal officers, employees, agencies, and instrumentalities the same as private persons shall proceed in conformity with laws of the State in which the appropriation has been or shall be instituted or perfected, and that each of them shall be governed by the laws of such State in respect to the control, use, and distribution of the appropriated water.'

"That proposed broad relinquishment of Federal powers brought forth a wave of objectors-too many of which continue to assert the same objection to the present S. 1275 though the latter bill contains no such provision.

"The author of S. 1275 has tried to make it clear that he is for Federal participation in water matters and is against stripping the Federal Government of its constitutional powers in this field. Senator Kuchel, in his remarks in the Senate upon introducing S. 1275, said:

"It has been suggested *** that all Federal water activities be subjected to State control. I *** reject this theory. It would unduly impair and cripple the constitutional responsibilities of the Federal Government which, over the years, has constructed important and imposing water projects to serve the people.' "Also, Senator Jordan, in his speech before the National Reclamation Association last October, stressed the essentially affirmative nature of S. 1275 when he discussed it under the title 'Sound Water Rights-The Basis for Sound Water Planning and Sound Water Projects.' At that time he said:

"'S. 1275 would remove many possible doubts which might otherwise exist concerning the far-reaching proposals which we can anticipate will continue to be the rule in the future of water resource development. Enactment of our bill would actually help Federal as well as State and local projects-by clarifying a now too confusing situation concerning Federal authority under Federal projects.' "That S. 1275 is widely considered a potential help, rather than a hindrance, to Federal water projects and broad water resource planning is demonstrated by the fact much support for pending Federal proposals is conditioned upon enactment of S. 1275. For example, the California Supervisors Association has conditioned its approval of S. 1111, the pending water resources planning bill, on enactment of S. 1275 and the Irrigation Districts Association of California has deemed enactment of S. 1275 a prerequisite to approval of a Pacific Southwest water plan.

"This bill is mainly one dealing with property rights. It has very little to do with intergovernmental relations at all. It gives assurances to all nonFederal entities, be they individuals, local districts, State governments or whatever, that water rights these entities otherwise have are not subject to certain defects or other hazards arising because of certain paramount claims which have been asserted on behalf of the United States.

"It is also in some respects a statement of Federal policy by the Congress as to how the Federal Government will exercise its powers in water control and use matters, without relinquishing any of those powers.

"Here are the features of the bill, with some discussion of some of the issues which have been raised.

"Paragraph (1) of section 1 provides as follows:

""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.'

"It would deny that a reservation or withdrawal of Federal lands affects rights to water. The theory has been advanced by the executive branch, and has been significantly accepted by the judicial branch, that whenever land is set aside by the Federal Government for any of various purposes there is ipso facto reserved at that time any water appurtenant to that land. S. 1275 would disclaim that any such setting aside of land also denies to upstream and downstream water users the right to acquire the right to use water merely because it arises on or flows through or by such withdrawn or reserved land.

"There are good reasons for Congress, the branch of Federal Government in which such matters are reposed, to speak on this subject and to speak as proposed in S. 1275. Some action is necessary because a long line of statutes make

it highly questionable whether the reservation theory has a sound basis in statutory authority-indeed, whether it is not actually largely precluded already. Because of the confusion raised by recent court decisions, paragraph (1) of section 1 is therefore, needed.

"The law ought to be as provided in said paragraph because (1) the reservation theory impairs otherwise valid water rights unjustly and (2) the reservation theory works unwise allocations of water.

"Historically, it has been assumed that one acquired a valid water right by proceeding in accord with State law, regardless of whether the source or course of the water involved federally owned lands. To now have such rights rendered junior to paramount Federal claims to the water appears to most people to be an unfair and unnecessary way for the Central Government to deal with its citizens or State and local governmental entities which have planned and invested in reliance on the continuance of a supply of water which can now be denied without compensation under the reservation theory. Since the Federal Government has ample authority to acquire all the water it needs for its legitimate Federal functions by appropriating, contracting for, or condemning the necessary rights, and thus spreading the cost over all the project beneficiaries or the taxpayers as a whole, I do not see how anyone can justify foisting the entire burden of this particular aspect of a public purpose upon one or a few who would have the rug pulled out from under them by assertion of the reservation theory. The extent of this problem is related to the vast amounts of Federal land, mostly withdrawn and/or reserved, often at rather ancient dates, which largely constitute the watersheds in many of our States.

"The reservation theory works unwise allocations of water because it puts on the shelf, as of the time of the reservation or withdrawal of the land, many of which, as indicated, date from away back, an unascertainable amount of water for possible future use in purposes which might prove to be not as high as others. This prevents an accurate inventory of water available for appropriation. It prevents harnessing water for public benefit presently. It permits taking water away from existing uses for new uses without an adequate evaluation, at the right time, of which are the highest in public benefit.

"Clear renunciation of the reservation doctrine by S. 1275 would thus not only confirm appropriations of water under State law which have already been perfected, but it would assure the availability of unused water for reliable appropriation currently without having a valuable resource otherwise go unused under the deep freeze of the reservation theory. Again, the ultimate legitimate Federal need for the water can be carried out, after examination at the time in question to be sure it is the highest of the competing needs, through purchase or condemnation of water rights intervening since the setting aside of the land as well as those existing before the withdrawals or reservation. In the meantime, the use of waters under appropriation might well generate sufficient gross product and service, and taxes, to more than make up for the Federal cost of acquiring the rights.

"Therefore, it appears that paragraph (1) is both necessary in clarifying the existing law and is beneficial in assuring the maximum use of our water resources with resultant public benefit, without impairing any Federal power to make other use of the water when a higher use is found.

"Paragraph (2) of section 1 of S. 1275 states a rule with which I have heard no dispute. It provides:

""The provisions of section 1(b) of the Flood Control Act of 1944 (act of Dec. 22, 1944, 58 Stat. 888-889, as amended; 33 U.S.C. 701-1 (1958)) shall apply to 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.'

"The provisions described state that, as to waters arising within States lying wholly or partly west of the 98th meridian, consumptive uses shall be given priority over nonconsumptive uses. S. 1275 would not distinguish within consumptive or nonconsumptive uses. It would apply only to water projects constructed after enactment of the bill. This happens to be the State law in most of the area involved. It has repeatedly been found a proper rule for Congress to apply to individual Federal reclamation projects. It is the general Federal law as to flood control and navigation projects in the West, by virtue of the 1944 Flood Control Act provision which S. 1275 would now make general Federal law as to all new federally operated or licensed waterworks in the West.