waters on the national forests should not be construed as limiting the Secretary's authority to regulate the use and occupancy of the national forests or to prevent injury to property of the United States. Where a beneficial use of water on the national forests is made in connection with the use and occupancy of the national forests, the existence and recognition of any water right should not preclude the Secretary from making discretionary determinations in accordance with the rules and regulations for the use and occupancy of such lands. Thus, permits for the use and occupancy of national forest land for grazing or other purposes could be issued, modified, or terminated under the regulations of the Secretary, even though the termination of a permit might result in the permittee being unable to continue the beneficial use of water which he had previously been making in connection with the use of the land under the permit. At the same time, the Secretary must be free to authorize other appropriate uses of national forest lands under the applicable regulations.

Any exercise of jurisdiction by the States over the appropriation and use of water within their boundaries would need to be in such a manner as not to discriminate in any way against the Federal Government. The United States, as the owner of the national forests, must not be denied rights to water needed in connection with the occupancy and use of national forest lands. For example, where national forest lands are used under a livestock grazing permit, the United States must not be denied the water rights for such use.

In the administration of lands in the national forest system under principles of multiple use, water is needed for various purposes. These include ranger stations and other headquarters sites, livestock water developments, recreation developments, wildlife habitat developments, and the various occupancy uses by permittees. The needs for water for all of these purposes should be met with full recognition that each use of water is of significant importance. All should be recognized as beneficial uses of water.

This Department is also concerned that effective multiple-purpose development of our water resources not be inhibited by restrictions beyond those already provided by law. Although the responsibility for comprehensive river basin development is shared with other departments, we represent the interests of farm and rural people whose social and economic well-being is to a considerable extent dependent upon such development. As an example, there is the rather considerable segment of the rural population whose power needs are served by borrowers from the Rural Electrification Administration. Over 100 of these systems receive their power supply from Federal hydroelectric projects in the Western States. Many of them would never have come into being but for the development of these projects and the availability of power from them. Their ability to meet their consumers' power needs of the future may largely be determined by the orderly and timely development of resources as yet untapped. The broad interests of these people in our natural resource development, we feel, should be recognized in approaching this matter of water rights.

Sincerely yours,

ORVILLE L. FREEMAN.

The CHAIRMAN. As we receive additional items of this nature from Government agencies, without objection, they will also be put into the record.

Senator BURDICK. Mr. Chairman, at this point I would like to have a statement by Milo W. Hoisveen, president of the Association of Western States Engineers, placed into the record.

The CHAIRMAN. Without objection, Mr. Hoisveen's statement will appear at the conclusion of the oral testimony and presentations.

Our first witness will be the Honorable Ramsey L. Clark, Assistant Attorney General, Lands Division, Department of Justice.

STATEMENT OF RAMSEY CLARK, ASSISTANT ATTORNEY GENERAL, LANDS DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY DAVID R. WARNER, CHIEF, GENERAL LITIGATION SECTION, LANDS DIVISION, DEPARTMENT OF JUSTICE

Mr. CLARK. Thank you, Mr. Chairman. In the spirit of your request concerning this exploratory hearing, I will make only a general statement concerning the subject of Federal-State water rights. The Attorney General would have me explore with you in an objective effort to see whether any Federal legislation is now necessary, and, if so, what type of legislation.

In 1931, Mr. Justice Holmes said, "A river is more than an amenity. It is a treasure."

Today, our rivers have become the most precious treasure among our natural resources, for they are the provision for our continued development, the fountainhead for our future. In many areas of the Nation we can now see the bottom of this treasure chest.

In other areas, our bountiful treasure is spoiled with contaminants. It is the urgent business of America to see to it that the last full measure of each of its rivers is devoted to the best interests of all its people, to see to it that when the ultimate need for water is realized, the final drop will be available to meet the need.

There should be no misuse, no inefficient use, and no waste. As President Kennedy said in his message on natural resources: Our available water supply must be used to give maximum benefits for all purposes, hydroelectric power, irrigation, reclamation, navigation, recreation, health, home, and industry.

The river is no respecter of State borders nor the laws of man. It follows the single mandate that it shall seek its level. Nor is the river a respecter of man's person or his property. It rises to flood crest, carrying death and destruction in its broadest reach, and it percolates and evaporates to leave dust and death in its place.

That is the nature of the water problem with which the Federal Government of the United States, the individual States, and the local political subdivisions must deal.

Supreme over the lands on which our rivers run is the U.S. Constitution, delegating certain powers over those rivers to the Federal Government, while reserving the remaining powers to the States and to the people. It is within this framework that governmental powers, Federal and State, must be exercised to achieve control of the rivers, to bend them to man's purposes, to harness their powers, and to use their waters.

The Federal Government, within its sphere, the States within theirs, must so exercise their respective powers as to fully dedicate the waters of these rivers to their highest and best uses.

Simultaneously, the integrity of the Federal system must be preserved. For some few years now there have been efforts to subject,

in varying degrees, Federal projects for storage, diversion, or development of water resources to State law. This proposed subjugation would involve the Federal agencies constructing and operating such projects, at Federal expense, and the immediate beneficiaries of the projects, requiring both to proceed to a greater or lesser extent in conformity with the laws of the 50 different States.

Generally, we do not believe that national policies can be accomplished by indefinitive subordination of national power to State authority.

The congressional purpose for authorization of Federal water projects should not be impaired or frustrated by inconsistent and sometimes conflicting State laws. On the other hand, broad areas of doubt as to the appropriate field of State regulation should not be created or left remaining in doubt. We have seen too much fruitless and disquieting litigation of this sort.

At the same time, such accommodation by the Federal Government to State laws and interests as are in harmony with Federal purposes should be considered. Should need exist, Congress can delineate or provide for delineation by responsible Federal executive officers the degree to which State laws should apply to persons and actions involved in Federal projects. The delineation should be precise. It should not impair the vitality of the Federal system of National and State Governments which is fully effective to fulfill the needs of all the people in the rivers of the Nation.

As to the Federal Government, more is involved than its constitutional powers. The Federal Government has, in addition, a substantial bundle of property rights derived from its ownership, both original and acquired, of very substantial areas of land, including the public domain, public lands, withdrawn and reserved lands, and acquired lands.

As Senator Miller has observed, it is perhaps more meaningful, more beneficial, in this exploratory hearing, to ask what the law should be rather than argue over what the law is.

Congress has the power to make the laws under the Constitution, and we can appropriately consider here what the law should be.

Much of the water flowing in the streams in the western portions of the Nation starts its journey on the public domain.

There, only a small portion of the water that might be beneficially used is taken from the streams. The waters flow onto lands of different ownership to be used, wasted in some instances, carried to the borders of neighboring nations for delivery pursuant to treaty, or to flow into the sea.

Should the United States permit unused portions of the waters it owns to be appropriated by citizens of the several States for use in conformity with the laws of their States, vesting in the appropriators property rights for the deprivation of which they would be entitled to compensation? That is perhaps the major question involved in this subject.

The issue has been before Congress in the form of proposed legislation continuously since 1955. Actually the issue is much older. The proposed legislation goes far beyond treatment of rights of the unappropriated, non-navigable waters on the public lands not reserved for particular purposes. Such water rights have been available

for such appropriation since 1877 in the western States involved in the Desert Lands Act.

The nature and extent of these Federal property rights has been the subject of much heat and little light. That rights exist and that they are substantial cannot be denied in view of the great body of Supreme Court cases treating of them. That they have not been clearly delineated is equally clearly attested to by those same cases.

Sufficient witness to the existence of these rights are the very bills which would permit their appropriation pursuant to State law. Power to permit such appropriation or to otherwise dispose of these property rights, is expressly conferred on the Congress by the Constitution, as is the power to make all needful rules and regulations respecting such property.

The question is, then, how shall Congress permit appropriation or otherwise provide for disposal of the Nation's unused waters? We would doubt the wisdom of any indiscriminate abandonment of such extremely valuable properties.

As the natural resources of the Nation diminish, as available lands for national parks and forests become scarce, as hydroelectric power and reservoir sites become more expensive and fewer, as the demand for water exceeds in some areas and approaches everywhere the available supply, Congress can only proceed cautiously before divesting the United States of valuable properties of all the people, for the benefit of an unknown few.

It would be somewhat anomalous for Congress, anticipating future needs for reservoir sites, to reach out years in advance to acquire those sites, obtaining them before inconsistent developments and rising land prices make them too costly, while at the same time, abandoning its rights to waters with which to fill those reservoirs.

If there is to be a national policy, if the Federal Government is to exert itself in historic fields of flood control, water conservation, watershed management, land reclamation, hydroelectric power and related areas, it cannot afford to abondon now its water rights except in a definitive nature.

If it does, the economic feasibility of needed projects may be doubtful because the United States would have to buy back the very water it would now give away.

The vendor, the person from whom the United States might have to purchase this water, may well be the fortuitous owner of an appropriative right who made no substantial beneficial use of the Federal gift and whose lands will prosper from the very project which deprives him of his unused water rights.

Nor does this mean that individuals, cities, agriculture, commerce, or industry, must suffer while the waters of the United States, unknown in amount, and unused, are wasted.

If necessary and proper, Congress might provide for a special study of all Federal claims to waters in streams where there is need for this knowledge. This would give the States and their citizens information of waters normally available for their use.

To settle title questions and the use of unappropriated waters not claimed by the United States, Congress could, again, if necessary and proper, provide for its appropriation in accordance with State laws. Where desirable, Congress could authorize the sale, lease, permit, or grant for the encouragement of agricultural commerce or industry,

of temporary rights to Federal waters, pending realization of the Nation's need.

The importance to our people of this most valuable natural resource in the years immediately ahead requires careful study, such as will be given here, and, if legislation is necessary, a meticulous and definitive treatment. Thus can we disprove Fuller's thesis that we never know the worth of water until the well is dry.

Those are the remarks that we wished to make in an exploratory fashion. They are general, as we took your request to be, sír.

Senator METCALF (presiding). Anyone who has read the cases in the State of Montana knows what a complex and difficult problem this problem of water law is. I want to say that I think that Senator Miller has expressed my views completely. This is an informative and exploratory hearing. We want to find out what the law should be, where we should go, in this Federal-State relationship. I have absolutely no preconceived thoughts as to this problem, although I have participated in several other hearings as a Member of the House.

I welcome you here, Mr. Clark, and hope that we will be able to go forward in finding out where we are going in our Federal-State relationships on this important problem.

The Senator from Idaho.

Senator DwORSHAK. Mr. Clark, is it the position of the Department of Justice that the United States own title to the water rights of natural streams on public lands?

Mr. CLARK. A general answer to that question would probably not be fair to the United States or to this committee, sir.

Senator DwORSHAK. It is basic to this subject, isn't it?

Mr. CLARK. The starting point, to my mind, in looking forward and not backward, is the recognition of the fact that the United States does have some substantial property rights in unappropriated waters of these streams where it owns large areas of public domain and reserved lands.

Senator DwORSHAK. That would be on nonnavigable streams as well as navigable, all streams on public lands?

Mr. CLARK. There may be streams flowing over public lands as to which, under prior legislation of this body, the Congress, there has been an appropriation and there would be no remaining waters in which the Federal Government had property rights. I know of no such situation. There may be many.

Senator DwORSHAK. I realize you can't make a specific answer to that question. If you contend that the United States does own these water rights, where did the United States acquire those rights?

Mr. CLARK. This is, too, a theoretical question in a sense. I want to give you the best answer that I can. We know this, that the Supreme Court in a number of cases has spoken of the rights of the United States in the waters of these streams. To me that is a sufficient starting point for the purposes of this exploratory hearing.

The water rights were not created by the Supreme Court in those opinions. They were found to exist at that time. Perhaps they come from sovereignty of the soil. To be meaningful in this, again, we might have to look into the manner in which the water came under the sovereignty of the United States, the manner in which it came into the Union.