principles and relationships embodied in these statutes. These principles had their roots in local water shortage or distribution problems. They were accepted and enacted into law by Federal territorial governments. They were transferred intact into early State statutes. They have been expanded from time to time to meet more involved circumstances. These principles have been and are being adapted by other States to meet their own water shortage problems. Until occurrence of the events of the past few years, the principles embodied in the Western States water statutes, apparently, met the requirements for increased Federal programs.

General recognition of the serious nature of our Federal versus State jurisdictions over water and water resources development occurred some 10 years or so ago. Prior rumblings were evident to those in the water business. For instance, we water administrators have never had a proper basis for granting or regulating appropriative water rights when Indian reservations shared the water supply. Also, many of us have never had good answers for the common law riparian rights in water related to statutory appropriative water rights. In addition, Western States water interests have negotiated interstate water compacts containing indefinite controversial provisions concerning Federal-State jurisdictions. These compact provisions again relate to obligations of the United States to Indians on Indian reservations but contain the seeds of the greater scope of present difficulties.

Roughly 10 years or so ago, however, and I believe concurrently with the active stage of multiple purpose water resources developments, the more or less dormant Federal-State controversies began their cancerous growth. State and local interests could not stem the floodflow of the apparently unregulated changes in water supplies and use. Senator Barrett, no doubt, recognized these relationships when he first introduced S. 863 for congressional consideration. Following the Pelton Dam decision by the U.S. Supreme Court, the full issue was finally faced squarely. The arguments are contained in the hearings before the Senate Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs. During this 10-year period we witnessed the attempts of various Presidential committees to coordinate the many diverse congressional authorizing acts and the Federal agencies policies into a national water policy. Volumes of reports have not accomplished the job. Our present water rights recognition difficulties may be considered a part of a uniform national water policy determination.

During this past year we have experienced further complications in the Federal-State jurisdictions over water. The congressional stalemate on the proposed Water Rights Settlement Act, S. 863, continued. We have observed the arguments concerning provisions of S. 863 entering congressional action on the omnibus bill authorizing additional Federal water resources projects. In the various versions of this bill were the controversial conservation storage items for "future use" and "low flow regulations" which may be considered as additions to the scope of multiple purpose developments. Such storage for beneficial consumptive uses are examples of water control and regulation historically administered under provisions of State water statutes.

We have seen the fish and wildlife coordination bill (H.R. 13138, H. Rept. 2183 and S. 3725, S. Rept. 1981) amended with deletion of Senator Watkins provisions for adherence to the water laws of the States. The Secretary of the Interior recommended such deletion urging that the arguments concerning application of State laws be confined to consideration of S. 863. If S. 863 or its equivalent is enacted into law substantially in its present form, such deletion does not seem to be adverse to recognition of water rights acquired under provisions of State laws. However, if S. 863 or its equivalent does not become law, another item has been added to our worries and another tangent has been added to an aimless national water policy.

The Federal departments have proposed a substitute for S. 863. Except for the first section perhaps, this substitute seems to maintain the unsatisfactory status quo.

We have observed the Indian rights versus non-Indian rights, represented in court by the Federal Government, enter the Lower Colorado River Compact case to considerable degree. Very recently, the Hawthorne case sequel to the Pelton Dam decision has been decided in favor of the United States. There are other court actions and decisions which could be cited, I am sure.

Such, very generally, is the present status of our water rights administration. There are no indications favorable to maintenance of State water rights in the

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developments of the past year. What security the thousands of State water right holders may have in water use or investments, except those, perhaps, whose water rights are associated with Federal projects, is more unclear now than before. This Federal-State jurisdictional dispute over water use administration must be settled before a hodgepodge of claims and counterclaims produces situations impossible of equitable settlement.

Represented in the Association of Western State Engineers are State officials and representatives with intimate knowledge of that unique combination of engineering, law, and public relations that is water rights administration. Here is maximum recognition of the thousands and thousands of pertinent details conerning water use by individuals. Under their supervision and care are the records which constitute the entire security for the investments made by nearly all of these water users. In our membership is the realization of the practical impossibility of creating like security through adjudication of all of these record rights in the courts. Think of the impossible situations associated with reestablishment of these rights through court action in case State water right records should have no legal meaning. Consider the possible outcome of litigaation under a court policy of deciding those issues in the minimum degree necessary to satisfy the litigants only and decisions that are restricted to only single specific cases. Combine this with interpretations and extrapolations of such court decisions by legal counselors in direct opposition to expressed court policy as bases for other actions in the courts. Think about the magnitude and impracticality of establishing a Federal agency to take over the responsibility of administering water rights under new Federal legislation. And, consider the tangential interrelationships under provisions of our Federal Constitution if the Federal Government usurps responsibility for creation and enforcement of private property rights. Yet as I summarize the situation, all of these possibilities exist within the high level position taken by the Department of Justice. The Association of Western State Engineers believes that it has some "soulsearching" to do. With our intimate knowledge of the detailed factors of water rights administration it seems necessary to do more than merely state that water resources shall be developed by the Federal Government and others "in accordance with State water laws." We know what we mean but few others do. Lack of understanding seems to be the root of the congressional stalemate on S. 863. Lack of understanding may be (I believe it is) a factor in the position taken by the Department of Justice. And, considering some decisions of the courts, lack of understanding of the physical properties of water and its use creates difficulties for all concerned. Our association has a teaching responsibility of explanation. At least we should be able to coin a few new phrases to supplement the single statement "In accordance with State water laws."

To attempt clarification of the present situation, the Association of Western State Engineers appointed two special committees during the annual conference in Rapid City, S. Dak., September 10 and 11, 1958.

One committee was assigned responsibility for drafting water right principles which can be accepted by all States concerned. We have found that applications and coverage of State water rights laws are sufficiently different to require such a statement of principles. We have discovered that rather detailed explanations are necessary among ourselves in order to interpret policies of one State when compared to equivalent conditions in another State. We can agree that water resources developments should be accomplished in accordance with State laws but we have had some arguments when substitute, more detailed language is used to express this objective.

The other committee will participate in discussions concerning organization of a nationwide equivalent of the Association of Western State Engineers. During the past year or so, individual members of the association have discussed State water law with water resources people from Eastern States who have or are considering State water law. They too have a stake in the FederalState controversy. Such State water laws as they may enact will face the same gauntlet that western water laws are facing. Also, joint understandings may do much to alleviate the passive attitude of many eastern Congressmen. Already hopeful progress has been made by this committee.

No one here, or generally throughout the West, wishes to adversely affect Federal or other water resources development. The reverse is true. All that we insist upon really is that (1) public water supplies, irrespective of origin, shall be available for use by all, (2) valid rights in water shall be recognized and protected in the planning, construction and operation of water resources developments, (3) such rights shall not be usurped without just compensation,

(4) new uses shall be limited to unused portions of the water supply as supplemented by lawfully acquired existing rights, (5) unappropriated water supplies available for new uses shall be determined in accordance with State records of valid water rights and (6) that new water rights shall be acquired through procedures prescribed by State statutes and, upon acquisition, the record of such rights shall take their proper place in State records as a basis for further determinations as to unappropriated water. All our State water laws, I believe, contain special provisions under which the United States may act without involving State supervision of Federal activities.

This position does not seem unreasonable.

NATIONAL RECLAMATION ASSOCIATION,

Hon. CLINTON P. ANDERSON,

OFFICE OF SECRETARY-MANAGER,
Washington, D.C., June 15, 1961.

Chairman, Committee on Interior and Insular Affairs,
New Senate Office Building, Washington, D.C.

DEAR SENATOR ANDERSON: It is with sincere regrets that I must advise you that none of the members of the Legislative Committee of the National Reclamation Association will be able to be in attendance and represent our association at the scheduled hearings on Federal-State water rights before the Committee on Interior and Insular Affairs, on June 15.

Two of the members, however, have advised me that, as individuals, they are forwarding statements to you with the request that they be included in the record of these hearings. These individuals are not purporting to represent our association. They are Mr. J. H. Moeur, chairman of our legislative committee, Phoenix, Ariz., and Mr. Burnham Emersen, member of our legislative committee, San Francisco, Calif.

The members of our association over a long period of years have recognized the question of Federal-State water rights as an issue of very great importance to the irrigated areas of the entire West. Our association has adopted resolutions on this question from year to year, dating back to about 1937.

Attached to this letter is a copy of two resolutions dealing with this subject, which were adopted at the last annual meeting of our association at Bakersfield, Calif., November 16-18, 1960. These resolutions are Resolution No. 1, "Compliance by All Federal Agencies With State Water Laws," and Resolution No. 2, "Reserved or Withdrawn Lands Legislation."

Having served for 24 years as watermaster on the Boise River in southwestern Idaho, where the question of water rights was before us and in the courts on numerous occasions, I realize fully the importance of this question. I do not believe it is an overstatement to say that the economy of every irrigated area in the entire West is dependent upon the validity of the water rights that are appurtenant to the land of those areas. Practically all of those water rights were acquired in compliance and full conformity with and faith in State water laws, custom and procedure.

It is indeed regretted very much that none of the able attorneys, experienced in water law, who are members of our legislative committee, have found it possible to be present and participate in these hearings.

We do appreciate immensely the very keen interest which you have taken, not only in this important question, but we especially appreciate the leadership which you have shown in advancing the cause of reclamation throughout the entire West.

Respectfully,

WILLIAM E. WELSH, Secretary-Manager.

RESOLUTION 1

COMPLIANCE BY ALL FEDERAL AGENCIES WITH STATE WATER LAWS Whereas the principle of supremacy of State water laws in deriving rights to the ownership, distribution, and use of ground and surface waters has been recognized in States lying wholly or partly west of the 98th principal meridian by both Federal law, State law, and the enabling acts by which many of the States were admitted to the Union; and

Whereas the stability of the economy, the property values, and the continued peace, prosperity, and development of much of the whole United States is dependent on a continued recognition of the supremacy of State water laws and the property rights which have been derived and settled thereunder; and Whereas acts of some of the departments of the executive branch of the Federal Government and even decisions of the judicial branch of the Federal Government have thrown doubt upon the sanctity of these principles and the property and human rights protected thereby; and

Whereas application of the principle of preservation of existing and potential beneficial uses of water by reference to application of State law is beneficial throughout the Nation; and

Whereas application of authority to control interstate commerce or other claimed constitutional authority ought not be used by any branch of the Federal Government to impair or destroy the supremacy of State water laws and the property and human values based thereon: Now, therefore, be it

Resolved by the National Reclamation Association, That the Congress should, at once, enact a law so clear and unambiguous as to be incapable of evasion by either Executive order or judicial interpretation and requiring every agency, permittee, licensee, and employee of the Federal Government, as a condition precedent to the taking or use of any water, to acquire a right to the use thereof in conformity with State laws and procedures relating to the control appropriation, use or distribution of such water; and defining the water affected by such legislation to include all water originating on Federally owned or controlled lands which contribute to flowing or moving surface or ground waters.

RESOLUTION 2

RESERVED OR WITHDRAWN LANDS LEGISLATION

Whereas the National Reclamation Association has repeatedly urged as a basic objective the passage of Federal legislation recognizing the sovereign rights of States to regulate and control the appropriation, distribution and use of water within the States and to require Federal agencies and licensees to acquire rights to the use of water under State laws; and

Whereas the decisions of Federal courts indicate that the most immediately critical area of Federal-State relationships is related to the claims of the Federal Government to the use and control of water which arises upon, or flows over or under, withdrawn or reserved lands; and

Whereas the National Reclamation Association has consistently supported the passage of Federal legislation to recognize the sovereign rights of the States to regulate and control the appropriation, distribution, and use of the waters of the States and to require compliance with such State laws by Federal agencies, permittees, licensees, and their employees: Now, therefore, be it

Resolved, That the National Reclamation Association recommends as an appropriate step toward these objectives, adoption of legislation clearly defining, as a matter of law, that the reservation or withdrawal of public lands has not heretofore and will not hereafter constitute or result in the reservation in or acquisition of any water or water right by the Federal Government.

STATEMENT OF BURNHAM ENERSEN, SAN FRANCISCO, CALIF.

My name is Burnham Enersen. I am a member of the State bar of California, and I practice law in San Francisco. For many years I have been especially interested in water law.

Recently I have become deeply concerned about the serious problems which have emerged from the conflicting claims of Federal and State governments with respect to ownership and control of water rights. I am particularly disturbed by the effect which these controversies have upon State and local programs for water resource development in the Western States.

Until a few years ago it had been generally assumed that the States had complete jurisdiction of the administration of water rights affecting streams within their own borders, subject only to Federal control over interstate commerce and navigation. Both State and local development of water resources had proceeded for a century or more without interference from the Federal

Government. Billions of dollars of local funds were expended in the construction and establishment of facilities for the conservation and use of irrigation and municipal water supplies in reliance upon water rights granted and administered under State law. During that period there was little, if any, Federal activity in this field except under the Reclamation Act of 1902 which by its express terms (sec. 8) required the Federal Government to comply with State water laws. The Bureau of Reclamation had scrupulously observed the requirements of State water laws in all of its activities, projects, and programs.

It was not until the 1955 decision of the Supreme Court of the United States in the Pelton Dam case that there was any serious attempt on the part of the Federal Government to inject its own power and authority into the field of water right administration on intrastate streams (Federal Power Commission v. Oregon, 349 U.S. 435). In that case the Department of Justice of the United States asserted, and the U.S. Supreme Court agreed, that a licensee of the Federal Power Commission could build and operate a power project on "reserved" Federal lands bordering an intrastate stream in the State of Oregon without observing the requirements of Oregon water law. The implications were immediately apparent to everyone in the West who was familiar with water development problems. It appeared from that decision that the United States, as the owner of vast areas of so-called "reserved lands" such as forest reserves, military reservations, and the like, was "above the law" of the States with regard to the use of water within their borders.

Many persons concerned with this matter found it ominously reminiscent of the famous tideland controversy which had started in the early 1940's as a somewhat unorthodox contention of the U.S. Department of Justice. That contention had not at first been taken very seriously because it seemed contrary to long-established precedent. The coastal States had enjoyed actual control of the lands along their maritime boundaries for many decades and their rights had been clearly recognized and established beyond peradventure of doubt. As everyone now knows, however, the contention of the Department of Justice was eventually upheld by the Supreme Court in 1947 (United States v. California, 332 U.S. 19). Some years later, after a long and bitter controversy, Congress reversed the Supreme Court and restored the States to the position they had held before the Department of Justice challenged their titles.

In the light of the history of the tidelands controversy, the implications of the Pelton Dam decision were especially alarming. It was feared that the Department of Justice would claim, as in fact it now does, that the United States had the right to make use of water originating upon the forest reserves and other reserved and withdrawn lands in such manner as it might see fit, without regard to rights previously established under State law and without following any State laws or requirements with respect to the appropriation or use of water. Since the "reserved lands" of the United States in the western part of the country include most of the mountain areas where almost all of the waters originate in the form of snow or rainfall, it is no exaggeration to say that under this doctrine the Department of Justice claims that the Federal Government has complete and absolute control of a great proportion of the unappropriated water in the Western States.

These contentions of the Department of Justice have been advanced in a number of litigated cases. One is the well-known Hawthorne case in Nevada where the U.S. district court held, upon urging of the Justice Department and in reliance upon the Pelton Dam doctrine, that in operating the Hawthorne Naval Base on reserved lands within the boundaries of the State of Nevada the U.S. Navy is exempt from the Nevada statutes regulating underground water. The State undertook to appeal that decision, but about a year ago Nevada's appeal was dismissed upon motion of the Attorney General on the ground that the United States had not consented to be used and the action was therefore barred by the "sovereign immunity" of the United States (279 F. 2d 699). Thus, not only did the United States ignore and, in effect, nullify the water law of Nevada, but it even refused to permits its own courts to decide whether its action was legal and proper.

This ruling is of paramount importance to all Western States whose water supplies depend to a large extent upon proper conservation and careful use of underground water reservoirs. In order to utilize these underground waters to the best possible advantage many of these States regulate the drilling and operation of water wells so that the water supplies will be carefully managed and not improperly exploited. Such regulations cannot be effective unless they are applied alike to all persons who seek to take water from the same underground