tion on the subject of water rights which was adopted at the association's convention in January 1960 in Dallas, Tex. This resolution said:

"Whereas our Nation's long-established policy has been that water rights are dependent upon and determined by State laws and decisions, and since 1866 Congress has repeatedly recognized such sovereign State rights; and

"Whereas certain established water rights are now in jeopardy because of a Supreme Court decision holding that a Federal agency may disregard State law in its use of water on Federal reserves; Therefore be it

"Resolved, That we urge Congress immediately to enact legislation such as H.R. 5555, which (1) would specifically recognize the rights of the States to control, supervise, and adjudicate the water within their borders, and (2) would require Federal agencies to comply with State water laws or decisions in their use of water in the same manner as any other user of water."

We urge your committee seriously to consider the request contained in the resolved clause of the above resolution, and to inquire into this subject through hearings and such other manner as may be appropriate.

We believe that your committee will find that there is a unanimous feeling among the States that such legislation should be passed by Congress, and we believe this desire exists strongly even in States where there is not a great deal of Federal land as in the West.

In fact, in 1959 and 1960 a score of State legislatures memorialized Congress and the President to settle this question, and included in those States were Alabama, Arkansas, South Carolina, Florida, Mississippi, Tennessee, and Texas. Ever since the advent of the Supreme Court decision referred to above and other decisions casting doubt upon the States' right over their water, there has been a nagging fear that individual water rights acquired under State laws and decisions for use of water having to do with Federal reservations could at some future date be held void.

The doctrine as expressed in the decision could hold that State laws concerning appropriation of water have no application to the waters of withdrawn lands. This is in direct conflict with many congressional acts and Supreme Court decisions that have since 1866 supported State control of water rights.

The more recent decisions referred to have a tendency to create instability among farmers, ranchers, and other water users and adversely to affect the local communities and the tax base dependent upon these operations.

May we therefore again express to your committee the urgent need to settle this problem through such legislation as the above-quoted resolution suggests.

STATEMENT OF THE NATIONAL ASSOCIATION OF MANUFACTURERS

This statement is filed on behalf of the National Association of Manufacturers, a voluntary association of about 19,000 business ventures, some 83 percent of which are small business enterprises. Obviously, our membership is greatly interested in the economic growth of the Nation. It is our belief that the uncertainties arising out of conflicting Federal, State, and private claims to water resources and their utilization interfere with rapid economic growth. Therefore, we urge the committee to formulate recommended legislation which will constitute a clear declaration of States' water rights.

The suggestion that Congress acknowledge the authority of the States relating to the control, appropriation, use or distribution of water is not novel. In fact, it had been supposed for three-quarters of a century and until recent years, that such had already been done by the enactment of a long line of Federal statutes declaring, in effect, that the activity authorized by the respective statutes should not be construed as diminishing, impairing, or interfering with State laws or with rights acquired under State laws, and that Federal acquisition of rights should be in accordance with State laws. Recent court decisions and administrative interpretations, however, have cast considerable doubt upon there being any effective limitation on the extent to which the Federal Government can, as a matter of law, usurp local water rights. They leave in doubt, as well, the policy of the Congress in this regard.

It is not suggested by this association that the Federal Government should or could completely withdraw from activity in the field of water resources. Neither are we suggesting that the declaration of a policy as set out above would permit an upper riparian State on an interstate stream to completely deprive a lower State of the flow of the stream.

What the Congress is being asked to do is to confirm the principle that State rights to administer their own water resources are superior to Federal rights. and to guarantee that State law with respect to acquisition of water rights by the Federal Government will be respected.

The necessity for such a declaration arises from efforts on the part of some to extend unduly the constitutional power of the Congress to regulate commerce and to make rules and regulations respecting the property of the United States without regard to the interests of the States and private citizens.

When Congress first deemed it necessary to legislate with reference to water resources, both in connection with navigation and with U.S. property, it recognized from the outset local laws, customs and rights, and required Federal agencies to comply with State laws relating to the control, appropriation, use, or distribution of water. This principle was enunciated as early as the act of July 26, 1866 (14 Stat. 253), and was followed in at least 15 additional enactments, including the Desert Land Act of 1877 (19 Stat. 377), the Reclamation Act of 1802 (32 Stat. 390), the Federal Power Act of 1920 (41 Stat. 1077) and the act of July 23, 1955 (69 Stat. 368).

In spite of these numerous congressional pronouncements, however, the attitude of the executive branch and certain rulings of the Supreme Court in recent years have cast considerable doubt on the validity of States' water laws.

In 1937, the Government argued that once the United States diverted, stored, and undertook to distribute water under the Reclamation Act, it thereby acquired ownership of the water rights if it had not previously acquired them. The Supreme Court, in Ickes v. Fox, 300 U.S. 82, 94-95, 8 L. Ed. 525, 530 (1937), said:

"Although the Government diverted, stored and distributed the water, the contention of petitioner that thereby ownership of the water or water-rights became vested in the United States is not well founded. Appropriation was made not for the use of the Government, but, under the Reclamation Act, for the use of the landowners; and by the terms of the law and of the contract already referred to, the water-rights became the property of the landowners, wholly distinct from the property right of the Government in the irrigation works."

In Nebraska v. Wyoming (325 U.S. 589, 89 L. Ed. 1815 (1945)), the Government went even further by asserting that it owned all the unappropriated water in even the nonnavigable western streams. The argument runs that such ownership was acquired, not by appropriation, but by virtue of the original ownership of all rights in the water as well as in the lands through purchase or treaty, and that such rights had not been conveyed away. The precise question as to the Federal rights in unappropriated waters was not reached in that case since the Court found that the Secretary of Interior had proceeded in conformity with State water laws, as required by section 8 of the Reclamation Act of 1902. The Court reiterated the principle, however, that "property right in the water right is separate and distinct from the property right in the reservoirs, ditches or canals."

The question of ownership of unappropriated water has yet to be resolved by the Supreme Court. The position of the Government, however, remains essentially the same as that asserted in Nebraska v. Wyoming, supra. The Government's insistence upon this theory continues to be one of the sources of the basic conflict between the States and the Federal Government over water rights. The relative role of the States and the Federal Government in the administration of water resources was further clouded by the decision in First Iowa HydroElectric Cooperative v. Federal Power Commission (838 U.S. 152, 90 L. Ed. 1143 (1946)), by some implications of Ivanhoe Irrigation District v. McCracken (357 U.S. 275, 2 L. Ed. 2d 1313 (1958)), and by the recent decision in U.S. v. Grand River Dam Authority (363 U.S. 229, 4 L. Ed. 2d 1186 (1960)).

The basic issue in the First Iowa case was whether a diversion of water from the Cedar River, a nonnavigable stream in Iowa, could be effected under a Federal Power Commission license without a permit from the State. The Federal Power Act requires a licensee to submit "satisfactory evidence that the applicant has complied with the requirement of the State or States in which the proposed project is to be located with respect to *** the appropriation, diversion, and use of water for power purposes * * *.' The Iowa laws required a permit from the State for the construction of the proposed project.

The Supreme Court, overruling both the Commission and the Court of Appeals, held that to require the applicant for a Federal Power Commission license to secure a State permit would vest in Iowa a veto power over a Federal project

and destroy the effectiveness of the Federal act. It held further than since no State permit could be required, there was no justification for requiring the applicant to go through the "futile" motions of presenting evidence of compliance with State law, despite the specific provision for such in the Federal act.

This very brief history will serve to illustrate the need for a reaffirmation by the Congress of the traditional rights of the States over the appropriation, distribution, and use of water in and flowing through the States, subject, of course, to the overriding Federal power to regulate commerce and to make rules and regulations respecting Government property.

The National Association of Manufacturers' Conservation and Management of Natural Resources Committee, composed of some 300 businessmen from all parts of the country, formulated a policy statement on this problem in October 1959. This statement was adopted by a unanimous vote of our association's board of directors, likewise representative of all parts of the country, on December 1, 1959, and reads as follows:

"STATES' WATER RIGHTS

"Adopted December 1, 1959

"There has been a growing tendency on the part of Federal Government agencies to usurp private water rights as established by State authority and to override States' rights and responsibilities in administering the water resources within their respective boundaries. Therefore, legislation should be adopted by the Congress which would acknowledge the authority of the States relating to the control, appropriation, use or distribution of water within their boundaries; require that Federal agencies comply with State laws relative to the use of water; and require that Federal agencies respect private rights to use water established by State authority, recognizing that the right to use water is a property right which should not be taken from any person without due process. of law and adequate compensation."

Therefore, we respectfully urge the distinguished Committee on Interior and Insular Affairs of the U.S. Senate to report a bill which would provide a declaration of States' water rights along the lines which we have suggested. We appreciate this opportunity to submit our views.

CITY AND COUNTY OF DENVER, BOARD OF WATER COMMISSIONERS, Denver, Colo., June 14, 1961.

The Interior and Insular Affairs Committee of the U.S. Senate.

GENTLEMEN: The undersigned are attorneys representing the board of water commissioners of the city and county of Denver, an independent nonpolitical agency, having all the powers of the city and county of Denver with respect to the ownership, management, and operation of a waterworks system which supplies the people of Denver and the major portion of the nearby metropolitan area with water for all uses and purposes normally associated with an urban water system. The water which supplies the system under control of the board is derived from surface streams arising within the State of Colorado on watersheds, substantial parts of which are located within high rugged mountain terrain owned by the United States of America.

Water rights in Colorado are created by appropriation. The riparian doctrine, which prevails in England and well watered sections of the Eastern United States, has no application in Colorado, which in this particular is like other Western States.

The civilization of the Western United States, as it exists today, is dependent upon the stability of the water rights which have been created under State laws. Recent active participation by the U.S. Government in matters concerning the development of remaining water resources and definition of existing water rights have made imperative a consideration by the Congress of the problem of Federal-State relationships in this field.

The most succinct statement of the views of the Denver Water Department, and we believe of the views generally of the people in Colorado, is found in Resolution No. 1 and Resolution No. 2, adopted by the National Reclamation Association at its last meeting helr November 16 through November 18, 1960. These resolutions call upon the Congress to "enact a law so clear and unam

biguous as to be incapable of evasion by either Executive order or judicial interpretation * ** 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 * * * and 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 rights by the Federal Government."

The agencies of the executive branch of the Government may believe that they fully comply with State laws in all their activities and they may express this belief to the committee. Examples without end have been heretofore offered to this committee of failures to adhere to the principles above announced. If it were true that the agencies of the executive branch were, as a matter of practice, adhering to the principles which we believe to be desirable, it would be of no disadvantage to them to have such principles guaranteed to the people of the West by positive declaration of the Congress which will permit such agencies to be guided by a clearly set forth rule of law.

These matters are of vital concern to the people of the Denver metropolitan area and, in fact, to all of the people of Colorado. Much work has been done toward drafting legislation which would be acceptable to the people of the West and consistent with the obligation of those who represent the United States as the owner of property. We have participated in the work which has been done on this matter.

Currently the people of Colorado, through a voluntary organization known as the Colorado Water Congress, and through the official State agency, the Colorado Water Conservation Board, are actively participating in a study of a recent bill on this subject which has been introduced in the current session of Congress. We in Denver are assuming our share of responsibility for these undertakings.

Since we understand that no specific or particular legislation is to be considered at the hearings to be held on June 15, 1961, before the Senate Interior and Insular Affairs Committee, it appears inappropriate for us to comment on any particular legislation at this time. We desire to present our views fully with respect to any specific legislation which is under consideration from time to time and will appreciate an opportunity, as hearings on this subject develop, to be heard both through written representations and the presentation of testimony of witnesses.

Despite our interest in any further hearings which may be held we wish to emphasize our position that positive legislation along the lines above indicated is urgently needed to insure the continuing economic development and stability of the western part of the United States. Respectfully submitted.

GLENN G. SAUNDERS,

JACK ROSS,

Chief Counsel. Assistant Attorney.

Hon. CLINTON P. ANDERSON,

WILDLIFE MANAGEMENT INSTITUTE,
Washington, D.C., June 21, 1961.

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

DEAR SENATOR ANDERSON: Conservationists are hopeful that adequate provision will be made for fish, wildlife, and recreation in any water rights legislation that may be considered as a result of the committee's recent hearing. The increasing public demands for these necessary, beneficial uses of water have shown serious inadequacies in applicable State and Federal laws. Time and time again, the Federal agencies have reported that their need for basic Federal authority has prevented the realization of maximum fish, wildlife, and recreation benefits at various projects.

These inadequacies stem, in large part, from the prevailing doctrine of prior appropriation of water in the West. Enacted many years ago, the State water laws no longer are adequate in terms of present requirements. Moreover, the attempts to amend State water laws usually have been frustrated by the preponderant representation in State legislatures of interests who gained priority use of water initially.

The emerging and important requirement for the allocation of water for fish, wildlife, and recreation largely has not been met. There is little hope that these needs will be accommodated under the present situation that exists in most States, particularly in the West where the conflict is acute.

The problem is further complicated by the situation in some States where the Federal land-management agencies are denied use of waters arising or flowing through their lands except for administrative or domestic purposes. A further requirement is that any such water must be developed immediately. Serious situations have arisen where the privileges of a few are impeding the development and maintenance of public land resources to meet legitimate uses. Conservationists realize that the Congress is not unmindful of these difficulties. They have been discussed in great detail in many of the debates, and are documented in the committee prints and in the excellent report of the Senate Select Committee on National Water Resources.

Many State water laws give no recognition to the beneficial use of water for fish, wildlife, and recreation. Claims that are being made for water resources developed as a result of Federal projects also show that the public interest will not be served unless Congress insists that these beneficial uses of water be recognized. The Federal Government must not abrogate its responsibility to all of the people whenever water and associated land resources are developed or enhanced by the expenditure of public funds.

We would appreciate having this letter made a part of the hearing record. Sincerely,

C. R. GUTERMUTH, Vice President.

STATEMENT OF THOMAS L. KIMBALL, EXECUTIVE DIRECTOR, NATIONAL WILDLIFE FEDERATION

Mr. Chairman, it is a privilege for the National Wildlife Federation to be able to express these brief remarks on Federal-State water rights.

A private, nonprofit organization dedicated to the attainment of conservation goals through educational means, the National Wildlife Federation is composed of 50 affiliates in 49 States and the District of Columbia. The estimated 2 million people who constitute these affiliates or otherwise support the National Wildlife Federation represent a fair cross-section of the American public.

The National Wildlife Federation generally supports the suggestion that individuals who have obtained water rights under the prior appropriation doctrine should have those rights recognized and protected by appropriate law. Experience has explicitly demonstrated that in most Western States the use of water for recreation, specifically fish and wildlife, has received less than scant attention. Again most of the Western States do not recognize fish and wildlife as a beneficial use of water and it is respectfully requested that the Federal Government assume the responsibility for maintaining and enhancing wildlife values on water projects involving the expenditure of Federal funds. The great multiple-use doctrine frequently used to sell expensive water development programs would have a very hollow sound if State water laws prevented consideration and inclusion of sound fish and game programs. Where tax revenues are used to finance and develop additional supplies of water the use of a portion of water produced to maintain conservation pools, minimum flows to protect fisheries values, and seasonal water supplies commensurate with the biological needs of wildlife species involved is generally in the public interest. Since the benefits to be derived from federally financed water projects come as a result of the expenditure of public funds every possible public use should be given consideration.

The enactment of legislation which would make such consideration impossible would not, in the opinion of the National Wildlife Federation, be in the public interest.