If the use is twice that much by sufferance for a period of years, under this theory you have here, then all the parts of the compact that limits a State's use are just tossed out the window, and first in time is first in right, with prior beneficial use as the basis.

Mr. DAIL. I recognize that the courts have looked differently upon that, sir.

The CHAIRMAN. At least you recognize we in the other Colorado Basin States do have some problems as a result of California's need for water.

Mr. DAIL. Certainly.

The issue here is not necessarily between State and Federal water rights; it is between this philosophy of western water law and the competing doctrine of proration, borrowed from the riparian law which prevails in the Eastern States and in England.

With respect to the Feather River supply, we have hopes that this can be rapidly developed by complete cooperation between the Governments of the United States and the State of California.

If we should lose in the Supreme Court, our claims to part of our Colorado River supply, it is quite possible that the size of the Feather River aqueduct will have to be increased; and whether this is either politically or legally possible, I do not intend to say.

San Diego has filed applications under State law for water rights in the Sacramento Delta area, at a point known as Italian Slough. We expect that this water will be transported to us under the auspices of the State of California; failing that, by some other means.

We have been disturbed to have this application called up for a hearing by the State Water Rights Board in supposed conflict with an application by the Reclamation Bureau, also made under State law, for development of its San Luis project. That project will share the use of a reservoir to be built jointly by the United States and the State of California astride the Feather River aqueduct from Northern California to the South.

We are hopeful that this collision can be avoided; our city attorney has filed a brief to that end.

The CHAIRMAN. When the San Luis project was under consideration by the Congress and by this committee, did San Diego file any objections to it that you know of?

Mr. DAIL. I do not recall that we did.

In conclusion, I desire to make one point: The underlying necessity in the field of Federal-State water rights, so far as San Diego's experience shows, is the necessity for certainty. When an appropriation of water is made and perfected under State law by the construction of works and the application of water, a property right attaches, with a definite priority and a specific quantity of water, good against all later comers.

Only in these circumstances can our people safely mortgage their homes and properties to sell bonds to build those works, as San Diego has done. A contract with the Federal Government ought to carry the same assurance.

In making our investments in water rights on which our children will be dependent, there must be one set of ground rules, whether expressed in State law or Federal. This must be so if the West is to be soundly developed, whether that development is carried out by State or Federal agencies.

These ground rules must express the time-tested western law of priority of appropriation. A contrary rule, subjecting our existing uses to proration with claims of others, unknown and unascertainable when our investment was made, but to be created in the unknown future by the decision of a Federal administrator not yet elected or appointed, could produce nothing but chaos. It certainly would inhibit further local financing, and cast all financial burdens for water resource development upon the United States.

I hope that your committee will accept our invitation to come to San Diego, and see for yourselves what it means for a city to be dependent upon a distant water supply that is under the control of the Federal Government. The problems before you are not academic to us; our existence depends upon their wise solution.

Thank you.

The CHAIRMAN. Are there any questions?

Senator KUCHEL. Mayor Dail, I am very glad to have your statement in the record. The record will develop, I think, specifically through appropriate testimony, some of the findings which the special master in the Arizona suit has laid down, in line with the questions which the chairman asked you a couple of minutes ago.

Rather than clutter up the record with any off-the-top-of-my-head recollection of precisely what his conclusions were, I do want the record to be broadened to include appropriate statements from the special master's report, because in my judgment it does bear on the very problem you raised.

Beyond that I do not know what the availability of the committee will be, but I hope that the chairman might consider the possibility of some field hearings sometime later on this year. I recognize the chairman's problems in that regard.

The CHAIRMAN. Well, I do want to say this: that we are not just going to have a couple of days of hearing and then say, "That answers all the questions for everybody. The hearings are now closed."

As an example, Ramsey Clark was here yesterday and Members of the Senate desire to interrogate him. He is tied up today with some hearings and I thought we had better go ahead and take some of these witnesses from out of the city and then get Mr. Clark back again when members of the committee can question him.

I do hope that these matters can be thrashed out. For instance, many of us thought we were doing a favor by pushing the San Luis project through to completion. It struck me, having looked at it two or three times, as a very worthwhile project and I was very happy to help in every way that I could. Had I known that I was probably jeopardizing the rights of San Diego, the temptation might be to say, "Well, we will let California fight out its own battle and stay away from it." But we do try to get these things underway.

I want to say also to you that the chairman of this committee is going down to Freeport, Tex., on the 21st to watch the opening of that saline water plant. A great effort was made, as I am sure you are familiar with, to establish a saline water plant powered by atomic energy in the State of California very close to San Diego, which would have given you everlasting supplies of water out of a limitless source.

We could not arrange with the State of California to get a right to build it, but there may come a day when we can do that, and when

we do, personally, I place more reliance upon that than I would upon some of the streams that seem to be drying up all over the West.

But we all have problems. We will approach them, I am sure, cooperatively, and we will try to make sure that we do have some hearings and if we do we will certainly understand your problem better than we now do.

Mr. DAIL. Thank you, Mr. Chairman.

I also want to pay my thanks to you for the bill that provided the saline water conversion plant in the city of San Diego, in Point Loma. Thank you.

The CHAIRMAN. Thank you.

Mr. Bennett will be the next witness.

I want to express to Mr. Bennett my thanks personally and I am sure for the other members of the committee for the compilation which he gave us. The testimony in this hearing shows how important this digest of Supreme Court decisions has been to the committee and how necessary to our work.

Since this is becoming a best seller, we hope to be able to have a revision of it including the Ivanhoe case and various other ones. We are very much indebted to you, Elmer, for it.

STATEMENT OF ELMER F. BENNETT, ELY, DUNCAN & BENNETT, WASHINGTON, D.C.

Mr. BENNETT. Thank you very much, Mr. Chairman and members of the committee.

I most sincerely appreciate the invitation of the chairman to discuss today the important subject of legal rights to the use of water. I have always anticipated with pleasure the opportunity to appear before this committee over the past 8 years as a Federal employee.

Certain events of last November have brought about a change in my role, but not in my desire to cooperate with the committee in exploring problems of resource development in the interests of the West and the Nation at large.

Last January the Senate Select Committee on National Water Resources released a report which challenges the imagination and initiative of our people and their institutions to meet the demands of our Nation for water in the years to come. According to that report these demands will almost double by 1980 and will triple by the year 2000. (S. Rept. 29, 87th Cong., 1st sess., p. 4.)

The impact of this gargantuan task is not uniform. America's available water resources are not evenly distributed, with the result that the urgency of water development varies from region to region. The fact that population growth tends to be greatest in water-short areas aggravates the problems involved in achieving our national goal of an adequate water supply to satisfy our economic growth and our population expansion.

The select committee pointed out that of the 22 water regions into which the 48 contiguous States were divided, five would require full development of all their available resources by 1980, and three more by 2000. These five with the most critical needs were listed as the south Pacific, Colorado River, Great Basin, upper Rio Grande-Pecos, and upper Missouri River.

The three requiring full development by 2000 were the upper Arkansas-Red River, western Great Lakes and western gulf areas. You will note at once that seven of these eight critical areas are located in the so-called reclamation West where maldistribution of supply and surging population growth combine to make these problems most severe. (S. Rept. 29, supra, p. 10-11.)

In its report the select committee emphasized the importance of State and local planning and action. The report put the matter convincingly, as follows:

Most water problems are and will continue to be in the nature of local or regional problems rather than national problems as such. Broadly speaking national problems are the sum of large numbers of local and regional problems.. (S. Rept. 29, supra, pp. 47-48.)

In an effort to encourage even more activity at the State and local levels the committee recommended a system of matching grants to the States for the preparation of comprehensive plans for water resource development. (S. Rept. 29, supra, p. 18.)

According to the committee non-Federal sources always have carried the larger portion of the water facility job, and must be expected to do so in the future. Of the total invested in water facilities by 1958, of some $179 billion, $135.5 billion had come from non-Federal

sources.

The CHAIRMAN. If I may stop you there, I will say that I have introduced a bill that carries out one of the recommendations contained in the Senate report. We are having a little trouble with it because there seems to be a small amount of jurisdictional conflict. Mr. BENNETT. Senator, I was aware of that bill and it seems to me a very worthwhile contribution. I would like to state on this point that much of the difficulty in connection with the question of State water rights has come about over the years, I think, because many, many people have been in a position where they had to rely on Federal planning and Federal development due to the rather spotty capability of some of the State and local organizations to carry out a water planning job.

It may well be that a measure of this kind will contribute greatly to a better performance by State and local organizations and more reliance on State and local organizations, and, therefore, more sympathy for the position of the States in desiring to maintain a more complete control over the acquisition and use of water rights.

In the irrigation category, the non-Federal investment by 1958 had been $10 billion and the Federal, $3.5 billion. Of the 30.5 million acres irrigated in the 17 Western States, about 6.5 million acres were served by federally developed projects. The great importance of the Federal projects lies in the fact that they have been based primarily on storage rather than natural flow or ground water pumping. Of the 190 million acre-feet of storage related to irrigation, 170 million were in Federal projects (S. Rept. 29, p. 96).

Even though storage will become more and more important, nonFederal sources are expected to pick up the greater share of the waterfacility burden between now and 1980. The committee's estimates called for a non-Federal investment of $173.5 billion on a national scale out of a total of $228.2 billion by 1980.

In the irrigation projections the Federal share is $2.3 billion compared to $6.7 billion of non-Federal investment (S. Rept. 29, p. 41).

These data demonstrate conclusively that the massive job of water development ahead truly is a job for all of us and for all our institutions, Federal, State, and local.

At this point, Mr. Chairman, I would like to add some rather interesting information. I asked for some information from my home State of Colorado on what had been done in recent years from the point of view of local and State development, and what was expected in the next few years ahead.

I learned from the State agency responsible for collecting data of this kind, that in the past 10 years alone, local and private agencies have expended $120 million in the development of new water supplies. This did not include money for extension of distribution facilities or the ordinary supply of water to citizens for their own use. This involved only the development of new water supplies.

In the next 20 years I am advised there are already on the planning boards of State and local and private agencies in the State of Colorado plans for some $75 million worth of new facilities. In addition to that, there are many others that haven't reached the planning board stage and are being developed but have not reached the actual stage of engineering expenditure.

This is only one example from one of the smaller States. The same story, I am sure, is true everywhere in the United States.

If these tasks are to be performed, then we can ill afford governmental conflicts to test the full range of constitutional powers of one level of Government against another. Lawyers tend to see these problems in the abstract. To me it seems Congress should adopt policies which will have as their first objective the accomplishment of national goals, and then deal with abstract issues.

In this spirit, I submit that something should be done to lift the uncertainties which face non-Federal agencies seeking to do their part in the water development field. If these agencies are to participate as expected, they must have legal rights adequate to justify the financing for which they assume responsibility.

To begin with, I think from the constitutional standpoint one should keep in mind that the measure and extent of property rights in general is a matter of State law reserved to the States by the 10th amendment to the Constitution. The fifth amendment right of just compensation is ordinarily applied by the Department of Justice to those rights recognized as property by State law.

"Rights to the use of water are one form of property. In the West, as this committee is well aware, a very substantial portion of the land area is owned and controlled by the Federal Government. That, of course, creates a question whether the land ownership of the Federal Government changes in any way the ordinary rules of property as they apply to the use of water.

Water supply in the West is extremely inadequate when compared with the acreages of land that are available for development either for agriculture or for municipal and industrial purposes. Consequently, the legal practice and policy in the West has been to permit the free movement of water from the streams in which water is found to those areas where the people live.

The traditional common law rule of water rights is known as a riparian doctrine in which the right to the use of water is part and parcel of the ownership of the land. There have been distinct limita