STATE OF NEBRASKA, In re Federal-State water rights. Chairman, Interior and Insular Affairs Committee, Senate Office Building, Washington, D. C. DEAR SENATOR ANDERSON: I regret that my reply will arrive too late for your hearing but I am sending this letter to express my views on this vital subject. I realize the question of compliance with State water laws by some of the departments of Federal Government has been a serious problem in several of the Western States where the doctrine of appropriation prevails. The problem has become more acute in recent years because of the U.S. Supreme Court decisions in the Pelton Dam case in 1955 and the more recent Hawthorne case which held that agencies of the United States are not required to observe the requirements of State water law where the diversion and use of water takes place on reserved Federal lands. We have not experienced any significant problems with respect to compliance with State laws by Federal agencies operating in Nebraska. We have a relatively small acreage of Federal reserved lands in the State and there is little likelihood of a problem arising in this connection. However, because of the seriousness of the problem in our neighboring States, we have concurred in the position taken by the National Reclamation Association for many years on this subject. I believe that the enactment by Congress of legislation which would provide that the use of water on Federal reserved or withdrawn lands shall be in accordance with State laws would be a big step in the direction of eliminating so-called Federal-State water right conflicts. During the past two or three sessions there have been bills presented known as the Federal agencies bills which would take care of this reserved lands problem to the satisfaction of the Western States and the Federal agencies. I would certainly urge the passage of such a bill in this session of Congress. Perhaps we in Nebraska should be concerned with the theory recently expressed by the Department of Justic in several water right cases where the United States claims the ownership of the water in the public land States. If this theory were to prevail the water rights for some 400,000 acres of land now irrigated in the Platte Valley of Nebraska could be endangered since the greater part of the water supply originates on public lands in Wyoming. A matter we have to be seriously concerned about is the ability of parties to go into the Federal courts with an intrastate water right matter where a Federal interest is involved. A chaotic situation has existed since 1955 in the Loup River Basin as far as the administration of water is concerned. The Federal receiver of the North Loup River Public Power & Irrigation District was able to initiate in 1955 a suit in the Federal district court for a determination of the relative rights of said district and the Loup River Public Power District. The case was finally brought to trial in April 1958 and a decision was handed down in November 1960. The decision was that the Federal court did not have jurisdiction and that the matter should be determined by this department and appropriate State courts. Had the case been pursued according to State law it could have been settled within a year or so. Although I am not aware of any serious Federal-State water right relationships in Nebraska, other than I have pointed out, I would like to urge congressional action which will clearly provide that all Federal agencies shall comply with State laws in acquiring water rights and that all intrastate water right matters involving Federal interests shall be settled in the State courts. Sincerely, FRANK B. MORRISON, Governor. STATEMENT OF Gov. PAUL FANNIN, OF ARIZONA MY DEAR SENATOR ANDERSON: Thank you for your letter of May 16 in which you advise that the Senate Committee on Interior and Insular Affairs will hold hearings beginning June 15 on the subject of "Federal-State Water Rights." I am greatly concerned with the preservation of the integrity of State water laws and with the protection of rights acquired thereunder. It is apparent that the present uncertainties in this important area must be resolved. Such uncer tainties discourage development dependent upon water resources and cast a cloud upon existing economy based upon present water uses. However, the importance of the problem emphasizes that in seeking a solution it is essential that care be taken lest one confusion be traded for another and to make certain that the solution adopted will not create more problems than it solves. The facts pointed out in your letter that the subject of Federal-State water rights has been before (your) committee for a good many years, that various and divergent views have been presented by both the States and the representatives of the Federal agencies involved, and that many different types of legislation have been proposed and considered with no solution to what many westerners consider one of the most important problems they face, indicate the complex nature of these problems and the desirability that sound judgment be exercised in determining how and to what extent they are susceptible to solution by congressional action. In my judgment the States cannot afford to do anything which may be construed as conceding that rights to the use of water must derive only from the National Government. Unless and until the Supreme Court of the United States should clearly hold that the rights of the Federal Government in the field of water are superior to the rights of the States to legislate in that field, it seems most inadvisable to seek to preserve the integrity of State water laws through congressional legislation which assumes or implies that the rights of the States in the field of water are solely dependent upon Federal grant. The case of Arizona v. California now pending before the Supreme Court involves a number of questions in the field of Federal-State water rights that are of immense concern to the Western States. The decision of the Supreme Court regarding these questions should be of great value in determining the extent to which congressional legislation can be expected to solve the problems of FederalState water rights. I suggest, therefore, that your committee may wish to defer action with regard to proposed congressional legislation in this field until there has been full opportunity to analyze the disposition made by the Court of the questions before it in that case. ARIZONA GAME & FISH DEPARTMENT, Phoenix, Ariz., June 12, 1961. Senator CLINTON P. ANDERSON, Chairman, Senate Committee on Interior and Insular Affairs, DEAR SENATOR ANDERSON: We wish this letter to be considered as a statement of our department at the hearing before your Committee on Interior and Insular Affairs relatives to proposed Federal and State water rights legislation. Our department and many in Arizona interested in the conservation of our natural resources concur in the belief there is need for some type of legislation which will clearly define and specify the extent of Federal interest in water resources within State boundaries. We believe, however, that in considering such legislation Congress must carefully analyze existing Western State water laws, the history of their enactment and the general lack of consideration of modern national demands of water resources. Only 3 of the 11 Western States, California, Oregon, and Washington, have made any recent major revision in their water laws. The water laws of the other Western States were enacted when mining, agriculture, and livestock were the major activities of the West and are woefully obsolete. They are neither adequate for present-day use nor for the future development of the region. We invite your attention to a report by L. C. Binford, a well-known Portland, Oreg., water law attorney, contained in the 1959 hearings before the House Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs, Serial No. 9, pages 304 to 312. Mr. Binford has been active in seeking congressional action to reaffirm Western States control over their waters. In his studies of western water laws he was, in his own words, "shocked to discover that most of these States have laws very unfavorable to recreation, fish, and wildlife." In his report Mr. Binford pointed out that, under western water law concept, all waters are subject to appropriation for specific uses, usually with priority given to irrigation and livestock watering, and that to perfect such appropriation the water must be diverted or subjected to some physical act. The owner ship of the land on which the water arises, or through which it passes, does not grant such landowner any right to water use. Thus western water laws provide for the appropriation of all waters on all of the public lands of the West without any regard for the public use of these lands. From his studies Mr. Binford states that in the West "With only one, possibly two, exceptions, water laws of the Western States are unfavorable to public uses (recreation, fish, wildlife, polution abatement, scenic attraction). "In several States constitutional changes would have to be made to give fish and wildlife uses equal status with present preferred uses. “*** only a few (Western States) are likely to give recreation, fish, and wildlife equal status with other uses, as their legislatures are mostly dominated by the agriculturists and the stockmen. "There has been an acceleration of filing under State laws for water rights to springs, seeps, swamps, natural lakes, etc., located on Federal lands. Most such waters are essential to wildlife uses. Ownership of the water by an individual may deny the public rights of recreation, fish, wildlife, scenic attraction, and make the use of the public domain subject to the will of the owner of the water right. Control of the water would give control of the public domain, for it would have no use except to the owner of the water. "*** there clearly can be no multiple use, comprehensive development of water resource which would give consideration to all beneficial uses, including fish and wildlife." In Arizona it has been ruled that neither the U.S. Forest Service nor the Bureau of Land Management can file on water on Federal land for livestock, wildlife or anything other than administrative or domestic use, and then only when the waters are to be developed immediately. No reservations for future needs can be made. Our department has filed occasionally for water for a small fishing lake and recreational facility to be developed on Forest Service land. Water is asked only for first filling and evaporation losses. Frequently protests are made by downstream water users, some 20 to 50 miles down a streambed which carries no water except at floodtimes. Some protesters have been Forest Service permittees who stated their major objection was not to the use of water for the lake but to the people who would come onto and use the Federal land around the lake and be a bother to them. Such protests are entirely in order under present western water law concepts.. Therefore, water arising on public land cannot be put to beneficial use for recreational purposes, although it is drastically needed by the public who owns the land, and the economy of the area and the State would be benefited by such use. It is generally accepted, and it has been upheld in Federal courts, that when Indian reservations were established, there was reserved to the Indian tribes the water presently needed for their reservations and also water which they might reasonably need in the future.1 Should not the public who owns the public lands be given some comparable consideration for the public need on these lands? 2 It has been calculated that there are 48 million acres of publicly owned land that can be considered of value for recreational purposes. We respectfully submit that Congress, in the public interest, must not grant to the States the sovereignty over the waters of the public lands without reserving as beneficial uses the rights of the public to water for recreation, fish and wildlife, and pollution abatement, now and in the future. Surely these public rights must be protected by statutory provisions equal in effect to those of appropriations for other uses. In addition to the above considerations we believe Congress should provide for the requirement that water for recreational use at Federal water construction projects shall be a prerequisite to the approval of the expenditure of substantial public funds on such projects. Multimillion-dollar flood control projects have been authorized and are in the planning stage which provide only for ungated outlets, for no permanent pool of water and no multiple use. The Federal construction agencies point out, rightly, that under present interpretation of the 1 "Current Developments in Water Law," Edward W. Clyde, attorney, Salt Lake City, Utah, before the Conference on Water Resources, Washington, D.C., May 23, 1958. 2 "The Crisis in Open Land," American Institute of Park Executives, Inc., Wheeling, W. Va. State water laws, all the water on the drainage is appropriated for other uses, and, therefore, none is available for fish, wildlife, and recreation. Large expenditures of public funds are always involved. Great benefits always result to a small group of residents of the vicinity. Their contributions, usually in the form of easement rights, seldom make up a very large portion of project costs. It seems only reasonable, therefore, that the great segment of the residents in the project area who would use a recreational facility in connection, or who would benefit economically from a recreational facility, should be provided a relatively small permanent water pool. Increasing interest is being evidenced in Federal streambed and drainage area manipulation projects which will eradicate water transpiring vegetation, including historical wildlife cover, in order to conserve water and for flood. control. Primary beneficiaries are local water users who have established water rights on the drainage or in the vicinity. It has been a matter of precedence that all water resulting from such watershed management practices is considered already appropriated. We would like to submit the contention that such water resulting from channelization and vegetation control operations is, for the most part, new water which has not been available to those who have established water rights. It is, we contend, the same as new water that might be brought from another drainage as a result of a Federal water project which constructed a diversion canal or tunnel from another drainage. As such, at least a small portion of the new water thus created with public funds should be available for the great majority of taxpayers who would benefit from its use in an impoundment for fish, wildlife, and recreational purposes. Legislation might stipulate that in connection with such Federal construction projects, water will be made available for limited use for recreational purposes in the same manner that certain laws now stipulate access and land easements must be provided by local primary beneficiaries. We are fully aware of pressures which will arise throughout the West against provisions proposed above in any congressional act. It required great congressional fortitude and inspirational leadership at the turn of the century to enact laws which prevented the stripping of the great timber and forage resources from the public lands of the West, thus permitting the best management, in the national interest, of these essential renewable resources, and the watersheds on which they depend. We are convinced that Congress today will exercise the same diligence and fortitude in providing for the proper multiple-use management for future generations of our most important and increasingly critical renewal natural resourcewater. Sincerely, Hon. CLINTON P. ANDERSON, R. J. SMITH, Director. By O. N. ARRINGTON, Lands Division. SOUTH DAKOTA, Chairman, Senate Committee on Interior and Insular Affairs, DEAR SENATOR ANDERSON: I am pleased to respond to your letter of May 16, 1961, requesting my views on the important subject of Federal-State water rights for consideration during the informative hearing by your Senate Committee on Interior and Insular Affairs, 10 a.m., June 15, 1961. Much as I would like, I shall be unable to attend your hearing in person. Unfortunately, J. W. Grimes, executive officer, South Dakota Water Resources Commission, will be away on serious personal business. However, I quote here from a memorandum prepared by Mr. Grimes. I concur in the views expressed. As I consider the existing Federal-State water rights problem, it seems that the conflicting positions result, primarily, from a philosophical-legal argument as to constitutional intent and degrees of sovereignty, Federal versus State. Both Mr. Grimes and I believe that there is opportunity for solution of these controversies from a practical viewpoint, thereby avoiding in large part the rather "ivory tower" positions expressed during past hearings before your committee. To quote Mr. Grimes: "We consider section 1 of the so-called Federal agency substitute bill of a few years ago as a compromise to the original S. 863, was such a practical approach, Congress itself has provided a practical approach through limitations of expenditures in appropriation acts wherein requirements were specified to the effect that Federal agencies or Federal project sponsors shall obtain water rights as required by State law before obligation of appropriated moneys could be made. No hue and cry resulted from these appropriation acts provisions to the effect that Congress by so doing was transferring its constitutional powers. If Congress can so guide executive agencies in annual appropriation acts year after year, it seems logical and proper to combine such principles in more general legislative acts. Construction of Federal projects involving interstate streams can be conditioned upon negotiation of interstate compacts, preferably with the Federal Government a party thereto. Water supply developments exclusively for use of the United States, defense installations for instance, can be premised upon just compensation being paid to holders of valid water rights under State law. There is no more question of sovereignty involved in an inquiry to a State agency for information as to valid water rights or availability of unappropriated water than is involved in a search of court records for decisions establishing individual property rights in water. In fact, State records contain much vital information for the security of water supplies to such Federal installations including large savings in cost. "These instances of practical solution, and many others, seem possible of expression in congressional acts without involving the constitutional and sovereignty questions which have stalemated confirmation of the vast traditional body of law which has been so successful during the past century in providing Federal-State-local cooperation in Federal water resources development and which has justified the millions of dollars spent by State government in the unspectacular chore of routine regulation of water, security for investments in water use facilities by individuals and groups, and the other stabilizing influences in the water use field." Your committee may be interested in a presentation by Mr. Grimes before the National Reclamation Association in Houston, Tex., November 21, 1958. A copy of this presentation is attached. I am sorry that time does not permit documenting these statements. However, I hope that they may be helpful to your committee. Sincerely, ARCHIE GUBBRUD, Governor. REPORT FROM ASSOCIATION OF WESTERN STATE ENGINEERS BY J. W. GRIMES, PRESIDENT As in prior years, the efforts of the Association of Western State Engineers has been irrevocably linked with the intensification of Federal-State controversies concerning administration of the development and use of the public water supplies. The jurisdictional arguments-they are no longer discussions and the implications of recent U.S. Supreme Court decisions have affected the work of the administrators of State's water rights statutes, individually and collectively, to a degree that other problems seem simple by comparison. Let me review somewhat. The provisions of each of our State's water rights statutes offer opportunities for creation of property rights for beneficial use of public water supplies. They promise protection for investments in water-use facilities. They provide a basis for evaluation of the risk and the worth of developing public and private water supplies in advance of commitments. They contain the means by which water shortages may be equitably shared. They are adapted to meet the uniquely different and changing local conditions of water supplies and water needs. These same provisions have been generally accepted over a long period of time as a part of our western way of life and as bases for solution of problems before the facts of serious controversy with or damage to neighbors. We administrators of water rights statutes know these relationships intimately. We include all of these beneficial effects when we take the often repeated position that all water resources developments, public or private, local, State or Federal, should be accomplished in conformity with "State water laws." We administrators of Western States water rights statutes have studied, observed, and experienced the historical, practical development of the water use |