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trust powers for public control of a precious resource by the United States is endangered by this kind of attempted legislation. It does not seem to me that it really accomplished anything to encourage persons to look to the Federal Government as well as to the States for development of resources along the lines pointed out to the examiner by the Senate Select Committee.

I appreciate coming here and if I could prepare a written statement, or if the committee would rather have a written statement from me, and I have time to get it in, Mr. Chairman, I would try to do so.

Senator Moss. We would appreciate it if you would prepare a statement, Mr. Clark. We realize you came on rather short notice and we are very pleased to have you come and make the comments that you have today and direct the attention of the committee to some of the things that you have mentioned. I believe it would help us further if upon your return to New Mexico you could take the time to prepare a more complete statement of your views and forward it to us to put in the record. This record will be open for some little time so it does not have to be done immediately but within a reasonable time. If you could sent such a statement, we would include it in the record and would be very pleased to do that.

We do appreciate your coming to testify. There may be further questions.

Senator ANDERSON. I do hope you prepare a statement, but keep in mind the statement that Senator Kuchel has made.

Mr. CLARK. Surely. I am sorry I took that time.

Senator KUCHEL. I am going to ask you one question. You are a good man, I am glad to listen to you. I don't want to do anything to damage my Federal Government. You and I both listened to an able California lawyer here, Mr. Goldberg. I think you will agree with me that his testimony did raise a very serious question with respect to the fact many people in this country have comforted themselves in feeling that they had a vested water right to waters which came from lands owned by the Federal Government.

I want to ask you the same question I asked him. Suppose that the Federal Government withdraws or reserves surveyed or unsurveyed public lands and there are waters arising on those lands which are not necessary-stipulate this-not necessary to the Federal Government's needs but suppose there are people, just plain ordinary people, who need the water. Is it not in the public interest to make that water available to them?

Mr. CLARK. As you ask the question, Senator, I say certainly it would be in the public interest to make it available.

Senator KUCHEL. They are not available today under what Mr. Goldberg and some departmental witnesses have said is the law. Mr. CLARK. The question is need when? When?

Senator KUCHEL. In accordance with State law I would say.

Mr. CLARK. If needed right now, if it is demanded right now, I think in some cases it would not be in the public interest just the same as the Winter's doctrine to the Indians.

Senator KUCHEL. Should we agree that the State is the best judge of what constitutes a beneficial use of water under State law and the State having laid down its decision as to how that need may be met. Mr. CLARK. Most of the time that has been true. In many cases it has not been true.

Senator KUCHEL. And do you mean that because of the fact that in some cases it has not been true we should prevent any acquisition of or any use of the waters arising on the public lands which are reserved or withdrawn?

Mr. CLARK. May I ask a question? Could not the Congress provide for this in specific legislation, Senator?

Senator KUCHEL. Piece by piece?

Mr. CLARK. As was done for reclamation law?

Senator KUCHEL It could.

Mr. CLARK. Would that not be a kind of a pragmatic and traditional way of doing it?

Senator KUCHEL. I don't think so, but anyway, it could. Would you object to it if it were done in that fashion?

Mr. CLARK. In the pragmatic fashion; no. I think that is quite a different approach than this.

Senator KUCHEL. Well, the time is late and I would like to thank

you.

it.

Senator Moss. Let me thank you again, Mr. Clark, we appreciate

I owe an apology to a great number of people that we have not been able to reach today. We are going to continue the hearing over 1 more day. We will come in at 9:30 in the morning. Now, people who are unable to appear tomorrow and who are on the list and who have a statement that they would like to put in the record, that will be acceptable at this point and we will be glad to put it in the record. In fact, we would be very appreciative to have it in the record.

I want to state to all of the witnesses that I appreciate their attendance here and I do regret that the situation on the floor of the Senate makes it impossible to hear in 2 days all who we wanted to hear orally. We will go on tomorrow and try to wind this thing up.

Now, any of you who feel you can't be here tomorrow and would like to put in a statement

may

do so.

STATEMENT OF ED I. MCKINLEY, JR., COMMISSIONER OF SOIL AND WATER CONSERVATION OF THE STATE OF ARKANSAS

Mr. MCKINLEY. Mr. Chairman, I am Ed McKinley of the Arkansas Soil and Water Conservation Commission.

I had furnished a typed statement. Do you have it before you?
Senator Moss. Is Mr. McKinley's statement here?

Mr. MCKINLEY. I have been here 2 days and I would just like to show that I was present and testified. I have to leave this evening. Senator Moss. Thank you.

Mr. McKinley is the commissioner of soil and water conservation commission for the State of Arkansas and he is representing that group in his State. He has his prepared statement here.

Mr. MCKINLEY. In favor of S. 1275.

Senator Moss. It will appear in full in the record. (The statement referred to follows:)

STATEMENT OF ED I. MCKINLEY, JR., FOR THE ARKANSAS SOIL AND WATER CON

SERVATION COMMISSION

My name is Ed I. McKinley, Jr., resident of Little Rock, Ark., member of the Arkansas Soil and Water Conservation Commission since its inception some 8 years ago.

I appear here in place of John Luce, of Fort Smith, Ark., chairman of our commission. Mr. Luce underwent emergency surgery last week.

We in Arkansas endorse, without reservation, S. 1275. We respectfully, yet strongly, urge favorable recommendation and final passage of this legislation. It is long overdue.

Even the Old World legal systems protected the landowners' rights to the use of water. The use of water is logically first of local concern.

Historically in America, water rights have been obtained, exercised, and sold according to State law.

No act of any State or of the Congress has changed this basic concept. In fact, only the Federal courts have clouded the issue. The shadowy reasoning the courts have begun to weave into "water rights decisions" makes enactment of S. 1275 an immediate necessity.

These cases which began with the First Iowa case in 1946 will be fully discussed by attorneys during these hearings.

To us in Arkansas, the question is simple. We are asking you, the Congress, to say through S. 1275 that if the Federal Government appropriates water rights or use, in a given area, it must pay those who are damaged.

We are asking you, the Congress, to say through S. 1275 that the Federal Government does not possess any underlying ownership of the Nation's water. That is all there is to S. 1275.

But it is of great moment to the present and future generations of America. While we in Arkansas have a bountiful supply of water for the foreseeable future the effect of S. 1275 is as important to us as it is to any Western State. First, we are interested, as are our sister States to the West in the preservation of an American tradition and legal foundation.

Second, should the shadows of the Federal court decisions be allowed to continue, without definite congressional action our cities could be prevented from expanding municipal water systems due to inability to get financing.

Our farmers, who secure irrigation water from streams, will find their lands less attractive to buyers and less valuable as collateral to banks.

Proponents of S. 1275 ask only that the Congress enunciate the principle of eminent domain and say in simple yet firm language that the Federal Government will abide by this basic American judicial principle and thus clear this shadow that the courts are casting on this issue that will offer another threat to the successful functioning of a healthy private economy.

Thank you, gentlemen.

STATEMENT OF JOHN J. MEEHAN, SECRETARY OF NATURAL RESOURCES COMMITTEE, CHAMBER OF COMMERCE OF THE UNITED STATES

Mr. MEEHAN. I am John Meehan, secretary of the U.S. Chamber of Commerce Natural Resource Department. I would like to file my statement also, please, in favor of S. 1275.

Senator Moss. Mr. Meehan has a statement in favor of the bill before us. He is the secretary of the natural water resources in the Chamber of Commerce of the United States.

Thank you.

Mr. MEEHAN. Thank you. I assume you have copies of our state

ment.

Senator Moss. Yes.

(The statement referred to follows):

STATEMENT OF JOHN J. MEEHAN FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES

My name is John J. Meehan. I am secretary of the Natural Resources Committee of the Chamber of Commerce of the United States, and manager of the chamber's natural resources department.

I am here today to present the views of the national chamber on S. 1275, a bill designed to clarify the relationship of interest of the United States and the States in the use of the water of certain streams.

S. 1275, although not attempting to solve all features of the current FederalState conflict regarding water rights, does provide certain important features designed to mitigate the conflict between the States and the Federal Government. These features are:

(1) The withdrawal or reservation of public lands shall not affect any water right acquired under State law whether before or after withdrawal or reservation;

(2) In the West, consumption of water must taken priority over nonconsumptive use of water;

(3) When the United States acquires a water right under State law, it should comply with procedures specified by State law;

(4) The United States should pay for the water rights which it acquires. One of the greatest needs in the water resources field today is to clarify and resolve the troublesome and complex problems of rights and responsibilities with respect to whether the States or the Federal Government shall control development, appropriation, and use of the waters within State boundaries. It should be noted that, generally speaking, the States have satisfactorily controlled the use, allocation, and development of water resources for more than 100 years.

Because provisions of S. 1275 would provide an encouraging first step in resolving the water rights problem, we urge its enactment. Unless S. 1275 or some similar measure is enacted, confusion and uncertainty about State and Federal authority will continue. This uncertainty stems from a series of important U.S. Supreme Court decisions since 1940 with respect to State water law and individual rights to water. Since Federal court decisions are in conflict with State laws, full economic progress and development must await their reconciliation. Vested water rights are based exclusively on State water law and since there is no body of related Federal water law, there is a considerable doubt as to the certainty of these private rights. Confusion as to water rights is bound to delay additional planning and development because of the large investments involved. In addition, States are not going to accelerate enactment of improvements in water law or procedures for administration of water rights when it is doubtful where the authority of the State ends and that of the Federal Government begins. Individual and industrial planning and investment will not reach their fullest potentials in such an environment.

The current uncertainty in Federal-State relations could, in time, be clarified on a case-by-case basis by the courts. This process, however, might extend into the indefinite future. In the meantime, without positive, unmistakable clarification by the Congress, the continuing doubts as to vested water rights and State responsibility and the resultant economic loss are unpardonable.

If the claims of those supporting the view that the Federal Government has primary water rights are sustained, and water, for instance, originating on Federal lands is owned and under the control of the Federal Government, then many of the existing State water rights will be subordinate to Federal development and use of water. This would also apply to those potential rights that might be issued by a State for development of presently unappropriated water.

The seriousness of the conflict between the States and Federal Government over water rights and the need for clarification of the Federal position have been highlighted by the report of the Senate Select Committee on Water (S. Rept. 29, Jan. 30, 1961). The language of the report indicates the need for immediate attention to the problem as follows:

"With demand for water far outreaching increases in present sources of supply, conflicts between the States and the Federal Government over the control and use of water are growing sharper and more serious. The problem is a national one, but its threat is especially grave in the public-land States of the semiarid West, where not only is water even more scarce than elsewhere in our country but where Federal ownership of millions upon millions of acres of land give the Federal Government an asserted basis for claiming proprietorship, 'paramount rights,' or title in fee simple absolute to all unappropriated waters in many of our States.

"Inevitably, such sweeping claims by the Federal Government might retard State plans and projects for development of their own water resources to meet local needs and conditions for their own citizens in accordance with their own local law and custom. As a result, all of our people everywhere are the losers.

*

*

"The broadening pattern of these conflicts is conclusive proof of the urgent need for clear-cut, definitive action on the part of Congress to work out with the States a redefining of Federal-State powers and responsibilities for control, use, and development of water resources. The Federal Government should not hamstring the States in the States efforts to develop their water resources to meet the needs of their people. Neither should the States hamstring the Federal Government in its efforts to fulfill its functions within the Constitution."

The passage of S. 1275 will not prejudice any legitimate rights of the United States. First, there are express safeguards set forth in the bill. For instance, the language of the bill does not mention the issue of the supremacy of Federal powers. The bill does recognize, however, the existence and compensable character of rights generated under State law which may be taken in the exercise of the Federal powers.

Second, Congress can at any time alter, amend, or repeal all or any part of S. 1275 if it is found to be unworkable or adversely affecting the national interest.

Third, Congress can with respect to any specific project provide for any exception to S. 1275 deemed necessary or desirable. And the bill would not interfere with regional or basin planning or development under present or future legislation.

In summary the national chamber advocates enactment of legislation that will fully clarify the relationship of the States and the Federal Government in the matter of water resources, development, appropriation, and use of water within State boundaries. We believe S. 1275 is a step in the right direction and should be enacted into law.

Senator Moss. As far as I am concerned we could do this on Friday. We will be in touch with you as to the time when you can appear. Mr. Anderson would like to hear you orally.

VOICE. Thank you.

STATEMENT OF EDWARD F. TAYLOR, CHAIRMAN, WATER PROBLEMS COMMITTEE, REPRESENTING MUNICIPAL LAW OFFICERS OF THE UNITED STATES

Mr. TAYLOR. Edward F. Taylor, chairman of the Water Problems Committee of the Law Officers, representing 1,250 cities and other municipalities throughout the United States. I have a statement on behalf of that organization in support of S. 1275.

Senator Moss. Thank you, Mr. Taylor. Your statement will appear in the record. We appreciate it.

(The statement referred to follows:)

STATEMENT OF EDWARD F. TAYLOR, CHAIRMAN, WATER PROBLEMS COMMITTEE, NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS

My name is Edward F. Taylor, a partner in Taylor & Smith, attorneys at law, and chairman of the Water Problems Committee of the National Institute of Municipal Law Officers. I have been requested to give testimony on behalf of NIMLO, an organization of lawyers representing more than 1,250 municipalities throughout the United States, with headquarters in Washington, D.C.

On October 9, 1963, during NIMLO's 28th annual conference at Dallas, Tex., NIMLO unanimously adopted the resolution which is attached to this statement as exhibit A.

This resolution emphatically supports the principle of Senate bill 1275 as introduced by Senators Thomas T. Kuchel, of California; Frank E. Moss, of Utah; and Len B. Jordan of Idaho. NIMLO's definite position in favor of such legislation follows the recommendation of the water problems committee, which has reaffirmed the need to clarify the status of local and Federal water rights in special reports issued in each of the past 5 years. The committee annually has expressed alarm over the misunderstanding and fears that have sprung from the lack of a clear-cut definition of national and local rights to our most vital natural resource-water. The Federal Government's claims of paramount

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