When it is desirable that cooperation and coordination of operations exist between the State and Federal Governments in development of water resources of the State, the State-Federal relationship should be clearly stated by contract. Such contracts should provide for the affected State project to store and transfer water, through use of its facilities, for ultimate delivery through facilities of the affected Federal project; and in appropriate instances, for the Federal project, to store and transfer water, through use of its facilities, for ultimate delivery through facilities of the State project.

In the event facilities of the State project are of service to the Federal project, the Untied States should pay an appropriate share of the costs, including capital costs, on a proportionate use basis consistent with other deliveries of the State project. In the event facilities of the Federal project are of service to the State project, the State should pay an appropriate share of costs, including capital costs, on a proportionate share basis, consistent with other deliveries of the Federal project.

The rendering of such reciprocal service by a Federal project to a State project should not subject the State project's water deliveries to Federal laws restricting the use of water. The State should exercise control with respect to the determination and administration of the right to the use of water.

Water rights of individuals must be inviolate. We are opposed to encroachment by the Federal Government into vested water rights, and to the development of Federal water projects not in compliance with State law.

STATEMENT OF LARRY COOK, EXECUTIVE VICE PRESIDENT, OHIO
RECLAMATION ASSOCIATION

My name is Larry Cook. My home is Columbus, Ohio. I am executive vice president of the Ohio Reclamation Association. I am also a member of the Land and Water Use Committee of the National Coal Association, chairman of the Land and Water Use Technical Committee of the American Mining Congress, chairman of the Coal Industry Advisory Committee to the Ohio River Valley Water Association, spokesman for the Industrial Advisory Council of the Ohio Water Commission, chairman of the Water Committee of the League of the Ohio Sportsmen and a member of the water committees of the Ohio Forestry Association, the Ohio Manufacturers Association and the Industrial Development Committee of the Ohio Chamber of Commerce.

The mining industry is engaged in the recovery of natural resources from the earth. By the very nature of these activities, the industry is involved with land and water, their use and the problems arising therefrom. In the field of water, the mining industry has respected the laws on water rights of each particular area in which its operations are conducted. These laws, varying from State to State, and from section to section, have arisen out of the problems experienced and the conditions existing in each particular area since the advent of man, and are as sacred as the Constitution itself.

The Ohio River Valley Water Sanitation Commission, comprised of 8 States bordering on the Ohio River has a record of accomplishment in eradicating water pollution unequaled by any other agency. This commission was established by a compact of the States involved, in which the autonomy in the States in the matter of water laws was clearly set forth. This understanding has unquestionably been the basis for the cooperation enjoyed by the commission with the States and the results which have been accomplished.

The Legislature of Ohio is now in the process of setting up a framework for the establishment of major watershed districts within the State to work out the problems of water supply, water use, and flood control at the local level. The watershed district boards under this act will be empowered to cooperate with the Federal and State Governments, as well as other public and private agencies in resolving the water problems within their jurisdiction. This act is the result of long study by industry, agriculture, municipalities, and the general public, working with the Ohio Water Commission, the Ohio Department of Natural Resources, and the Ohio Division of Water. It will in nowise interfere with the water rights established by the laws of Ohio, but will, as in the past, when the conservancy districts were established in Ohio, protect those laws and base future progress upon the rights those laws establish.

The Industrial Advisory Council to the Ohio Water Commission, in supporting the formation of these watershed districts before the Ohio Water Man

agement Conference last December, made the following statement with regard to water rights laws:

"It should be recognized that every present legitimate water use is entitled to the same protection as any future use. Existing uses and demands must be given full consideration before considering new uses and projected demands." They, therefore, recommended that:

"No change be made in the basic water rights law of Ohio until sufficient knowledge has been obtained to assure the feasibility of such change."

It was further stated:

"Industry is vigorously opposed to any change in the present water rights laws of Ohio. Millions of dollars have been expended by industry, municipalities, and agriculture on the basis of the riparian rights afforded by these laws. Any disruption of these rights might have serious repercussions upon our entire economy."

Much help is and will be needed from the Federal Government in the matter of water. It is essential, however, that the Federal Government clearly establishes that this help will not be in interference with the water rights laws of the areas that seek to aid. The present insecurity in this field is a most disturbing influence upon the cooperation that should be enjoyed between the Federal Government, the States, and the local areas in solving our water problems.

STATEMENT OF EDWIN E. MARSH, EXECUTIVE SECRETARY, NATIONAL WOOL GROWERS

ASSOCIATION

Mr. Chairman and members of the committee, this statement is submitted on behalf of the National Wool Growers Association. Our principal membership consist of 19 State wool growers' associations in Arizona, California, Colorado, Idaho, Indiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nevada, New Mexico, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming, an area where over 70 percent of the Nation's lambs and wool are produced.

At our 96th annual convention in Denver, Colo., held in January of this year, the following resolution was adopted:

"The importance of water in the economy of the West must not be underestimated. We have had long experience in developing and establishing sound water policies. We believe that Federal agencies having responsibility for water programs should abide by the letter ånd the spirit of State water laws and that Congress should pass legislation requiring such compliance. Water rights should be regarded as property rights.

"We emphasize the urgency of acting now on the question of assuring State control rather than Federal control over water rights."

A sheep rancher growing meat and wool in his year-round operation may be grazing his flock part of the year on Federal lands, while during other months he may be on State and private lands. The success of the operation may be dependent on the use of all of these lands. Certainly the success of the operation is dependent on the assurance of an adequate water supply during all seasons of the year. Sheep producers realize that water is the lifeblood not only of their industry but of most agricultural pursuits. They, therefore, believe strongly in wise conservation of our water resources.

Our industry shares the concern of many with regard to growing conflicts between Federal court decisions and State water laws. We believe the rights of the States and the interests of the Federal Government in water resources can and must be reconciled. We believe that reconciliation can come through legislation to clarify this Federal-State relationship with regard to State water laws. We, therefore, urge this committee to hold further hearings to develop legislation which will clarify existing conflicts in this regard. We will welcome the opportunity to present experienced witnesses at that time.

STATEMENT OF THE NATIONAL FARMERS UNION BY ANGUS MCDONALD, ASSISTANT DIRECTOR, DIVISION OF LEGISLATIVE SERVICES

Mr. Chairman and members of the committee, we appreciate the opportunity to present this statement on this most important subject. We are particularly

interested in the area of Federal reclamation laws. During the past few years, attacks on the family farm provision of reclamation law, commonly referred to as the 160-acre limitation, have been increasing in frequency and intensity. In 1959 and 1960, an attempt was made by certain interests in the State of California to exempt areas adjacent to the Central Valley project from the limitation. Fortunately, the members of this committee and members of this body, when the implications of the exemption were brought to their attention, voted to strike section 6(a) of S. 44, the San Luis bill, and thus prevented the State service area from escaping enforcement of reclamation law.

It is interesting and ironical that interests such as the Southern Pacific Railroad and the Kern County Land Co., which have become symbols of agricultural feudalism, deny that they want subsidies from the Federal Government. Yet the unseen hand of these great landed interests has been behind the drive for many years to eliminate the family farm provision of the reclamation law to the end that they may receive vast subsidies at the expense of the general taxpayer.

Senator Engle and other farsighted men of this body have pointed out that the end of the 160-acre limitation will be the end of reclamation in the West. People east of the 98th meridian will not continue to subsidize reclamation development when the subsidies benefit great corporations who are gobbling up thousands of family farms as the trend toward vertical integration accelerates.

In the Ivanhoe decision, which upset the plans of the vested interests in California, the Supreme Court succinctly pointed out the right of the Federal Government to promote agriculture as a valid public and national purpose.

Consideration of any problem of the Federal Government involving States rights necessitates an understanding of the theory of American constitutional government. The theory of constitutional law as pointed out by John Marshall in McCulloch v. State of Maryland rests on a division of powers between the States and the Federal Government. The States came together in 1789 and agreed to delegate certain powers to the Federal Government; the remaining powers were left to the States, as Marshall pointed out. He said:

"The Government of the United States, then though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."

The great Chief Justice emphasized the independence of the Federal Government. In its sphere of powers he said it was not dependent upon the States:

"No trace is to be found in the Constitution of an intention to create a dependence of the government of the Union on those of the States; for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the Constitution."

From the question of independence, Marshall developed the doctrine of supremacy:

"This great principle is, that the Constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them."

Marshall, in this blunt language, thus delineated the powers of our Federal Government. He was not unmindful, however, that under the American system of government the States, also, have great powers. The Chief Justice succinctly set forth the sovereignty of the States in the following language:

"The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given to the people of the United States, to a Government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them."

The increasing interest of certain groups in States rights seems to stem from their disagreement with certain court decisions. The one most commonly referred to is the Pelton Dam case. This case attracted nationwide attention

because it involved the problem of fish. The Federal Power Commission issued the license to a private utility company to build a dam on Deschutes River in Oregon and because the building of a dam would interfere with migration of fish from the sea up the rivers of Oregon, the State of Oregon tried to bring about invalidation of the license. It may be that the Federal Power Commission acted unwisely in granting this license. However, we should realize that if a State is able to set aside a license granted by a Federal agency, if a State had such authority, every proposed hydroelectric project, both public and private, would be in jeopardy. The question in the Pelton case, we think, was primarily answered by the Supreme Court when it set forth the power of the Federal Government to administer its own property and water flowing through Indian lands.

Other cases which are usually mentioned in colloquies revolving around the Pelton Dam case should also be mentioned. The right of the Federal Government to use water on its own property was challenged in the State of Nevada. The sovereign U.S. Government was told to come to the State engineer, hat in hand, and humbly beg for permission to use water on Federal property. This involves not only a question of consumptive use of water and the right of a State to challange such use but the question of national defense. The question of national defense, we think, also enters into the situation involving the San Diego Naval Base in southern California. In order to provide sufficient water for the operation of the naval base which existed only for purposes of national defense, the Government purchased from a private corporation water rights in the Santa Margarita River and consequently undertook to supply the needs of the military installation. These activities were challenged repeatedly and according to our information, the State of California legalized certain water rights relating to the water purchased by the Federal agency.

In order to understand the implications of such activities, the limitations of State laws in regard to use of water should be understood. A number of State courts have declared that water rights extend to unappropriated water within the State boundary and that beneficial use shall be the measure and the basis for granting the rights. A corollary of this principle is that actual diversion and priority is necessary to firmly establish the water rights. However, State laws are very explicit on this point and once the right is established, it is exclusively its property and it is a vested interest which no one can take away.

Scenic beauty cannot be the basis for a water right. Use of water under State laws can and has destroyed scenic beauty. I refer the committee to the Empire Water and Power Company v. Cascade Town Company (205 Fed. 123, 129; also 181 Fed. 1011). Here is what the Court said in those cases:

"The case before us is exceptional, but we think complainant is not entitled to a continuance of this falls solely for their scenic beauty. The State laws proceed upon more material lines. ***

"If all the water flowing over the falls, directly applied to the lands in the usual way of irrigation, would be required to produce the effect of the distributed mist and spray as now utilized, we think defendants would have no right to divert it for a manufacturing purpose. * * * But the trial court based its decision of this branch of the case largely upon the artistic value of the falls, and made no inquiry into the effectiveness of the use of the water in the way adopted as compared with the customary methods of irrigation."

Continuing, the decision points out:

"It may be that if the attention of the lawmakers had been directed to such natural objects of great beauty they would have sought to preserve them, but we think the dominant idea was utility, liberally and not narrowly regarded, and we are constrained to follow it."

Neither can fish or ducks be associated with a water right. The courts have rejected, except for commercial purposes, a vested right to the use of unappropriated water for fishing. In regard to the wildlife refuges, the Utah Supreme Court said that water may not be appropriated for the propagation of wildfowl: "To our minds it is utterly inconceivable that a valid appropriation of water can be made under the laws of this State (for wild waterfow), when then beneficial use of which, after the appropriation is made, will belong equally to every human being who seeks to enjoy it. It would be little short of an anomaly in any system of jurisprudence that would authorize the restraining of a person from diverting water used solely for the propagation of ducks, and then deny injunctive, or any, relief against the same person if he should enter upon the land irrigated, shoot the ducks ad libitum, and appropriate them to his own

use. If the beneficial use for which the appropriation is made cannot, in the nature of things, belong to the appropriator, of what validity is the appropriation? The very purpose and meaning of an appropriation is to take that which was before public property and reduce it to private ownership. The whole procedure under our statute, relating to an appropriation of water, is a series of steps to that end. ***

"It certainly must be conceded that the purpose of the law is to endow the appropriator of the water with all the insignia of private ownership. The certificate is his deed; his evidence of title, good, at least against the State, for all it purports to be, and good as against everyone else who cannot show a superior right" (Lake Shore Duck Club v. Lake View Duck Club, 50 Utah 76, 166 Pacific 309, 310, 311 (1917)).

The Court further stated:

**

66* * * contemplated in making the appropriation of water must be one that inures to the exclusive benefit of the appropriator*** accordingly * water cannot be appropriated for the purpose of cultivating food for wildfowl on public land * * *"

I bring these decisions as examples of problems arising from Federal versus State water rights, not with a suggestion that we have reached a dogmatic conclusion on all of these matters. However, we do feel that a determination must be made by our Government whether it will continue to operate as a sovereign government and as a world power or go back to the days of Articles of Confederation with all of the different entities pulling against each other. We also suggest that the Government of the United States as represented by this committee, this Congress, the Supreme Court and the executive department is truly responsive to the needs of all our people. We suggest that family farmers may put just as great if not a greater reliance on our Government in Washington for the encouragement and protection of agriculture as State governments which may be dominated by special interests. It seems to us that Federal Government, and especially the Senate of the United States, nearly always acts in the public interest. Members of this committee as well as other Senators undertake to consider all points of view and arrive at decisions which will benefit the greatest possible number of people. The fact that the chairman of this committee called this hearing on no one particular piece of legislation but attempted to bring in all facts and opinions on Federal versus State water rights is an indication of his objectivity and his desire to sponsor or bring about enactment of legislation in the public interest.

Finally, I wish to point out to the committee certain paragraphs in the bill, S. 284, which authorizes the construction of the Frying Pan-Arkansas Project in Colorado. We support this legislation wholeheartedly and have long worked for its enactment. However, we object to the language in section 5(e) on pages 10 and 11 which would allow any State in the Colorado River Basin to entertain an action in the Supreme Court against the Government to force the Secretary of the Interior to comply with the laws of a State and which would further invite any person or entity whose rights might be affected to bring action against the United States in the U.S. District Court in the District of Colorado. If this language is retained, harassing suits may be brought by power companies or any person or corporation who imagines that construction of the project might injure him. This language would constitute a precedent and encourage its inclusion in other legislation.

It is a well known fact that individuals and corporations have attempted in many instances to prevent the building and operation of rural electric power projects and Federal power projects in the Tennessee Valley and other areas. We urge that section 5(e) be deleted from S. 284.

STATEMENT OF THE AMERICAN NATIONAL CATTLEMEN'S ASSOCIATION, BY C. W. MCMILLAN, EXECUTIVE VICE PRESIDENT

The American National Cattlemen's Association is made up of 33 State cattlemen's organizations and 118 breed, regional, and local cattle associations, as well as thousands of individual cattlemen members the country over.

The American National Cattlemen's Association at a number of its past conventions has expressed concern over State control of water rights. At its convention in Salt Lake City, Utah. last January it reaffirmed a previous resolu