rights in water supplies essential to municipal growth and survival, and its disregard for the rights our communities have established under State law and custom, have caused a deterioration of Federal-local relations and the mutual trust necessary to carry out our common aims in the maximum development of the Nation's dwindling water supply for the benefit of every American. I am presenting to the Senate, our water problems committee reports for the past 2 years, which give unqualified support to Senate bill 1275, or similar legislation. The makeup of this committee demonstrates that we regard this problem as being no longer confined to the West, with its history of shortage, its impact has hit the East where lack of water has caused suppliers in such States as New Jersey to borrow the irrigation practices born of western drought. You will note that our committee has included municipal counsel from New York City, as well as Los Angeles; from Helena, Mont., as well as Sweetwater, Fla., and San Francisco, as well as Pawtucket, R.I. In the midland States, we find the city attorney of Flint, Mich., in the Great Lakes region, joining with distinguished counsel from Lincoln, Nebr., Safford, Ariz., Louisville, Ky., Enid, Okla., Gallup, N. Mex., and many other widely dispersed municipalities. May I suggest that the record show the representative nature of the committee and the fair cross section it gives of the entire NIMLO membership's support for the proposition under consideration. The special resolutions committee of NIMLO without dissent, approved the resolution and presented it to the conference, which, in turn, unanimously adopted it. You may be interested in knowing that the resolutions committeemen include the corporation counsel of Chicago, New York, Pittsburgh, Dallas, New Orleans, St. Louis, Paterson, N.J., Des Moines, Richmond, Va., Milwaukee, and both Portland, Maine, and Portland, Oreg. The city attorney of that Oregon city, Alexander Brown, was well acquainted with the Pelton Dam case, and pointed up the threat it may pose to municipal water rights geographically located near federally reserved lands. The implications of the reservation doctrine have troubled municipal counsel in every part of the Nation. The Federal attitude that it possesses water rights under State law without being subject to the same restrictions imposed by State legislatures upon non-Federal claimants has offended their sense of fairplay. And the potential reach of the "navigational servitude" theory for taking water rights without compensation has become a matter of deep concern. But fear over encroachments upon water rights has not blinded responsible municipal lawyers to the indispensable contributions of the Federal Government to local areas and the Nation in flood control, water development, reclamation, multipurpose dams, and other achievements of a scope it alone can undertake. The attitude of NIMLO, evidenced by its resolution, is to favor a moderate bill which amply protects the national interest as well as recognizing vital water rights of the more than 1,250 units of municipal government throughout the United States. I believe Senate bill 1275 conforms to the spirit of the resolution adopted in Dallas. At the same time that it alleviates most, if not all of the more aggravated conflicts between the Federal and local governments in water rights, it does not prejudice any valid interest of the United States. As legal representatives of local governments, we welcome the following constructive objectives of the proposed bill: (1) That no water right acquired by municipal government in accordance with State law will be adversely affected by the withdrawal or reservation of public lands. (2) That the consumption of water for beneficial uses, including domestic, agricultural, and industrial purposes essential to municipal development, will have priority over the use of water for navigation. (3) That the United States, when it elects to acquire a vested water right under State law, should comply with the same State procedures applicable to non-Federal agencies seeking such rights. (4) That when the United States takes existing rights, as established under State law, it should pay just compensation for them, and not confiscate them. We believe these essential elements of Senate bill 1275 provide reasonable conditions for the acquisition and exercise of water rights by Federal agencies. These qualifications do not abridge any constitutional power now conferred upon the Central Government. On the contrary, the bill guarantees that only when the United States lays claim to a water right in its proprietory capacity should it be required to conform to the same rules that bind other private and public claimants. But when the Federal Government properly asserts a water right in its sovereign capacity, to carry out vital national interests, this bill will not stand in the way. No function within the scope of the supremacy clause of the Constitution, such as water projects authorized by that constitutional provision can be blocked by any local or State agency for lack of a special permit. In conclusion, let me refer to the resolution once again, in which NIMLO urges the Congress to consider favorably legislation which will preserve to municipal corporations and the States their historic role in water resource development and protect local water rights. We believe proposed Senate bill 1275 is such legislation. [Attachment] PROTECTION OF WATER RIGHTS Whereas municipal corporations throughout the United States, and all members of the National Institute of Municipal Law Officers, are vitally interested in the protection of water rights for reasonable, beneficial use in the orderly development of municipalities; and Whereas an adequate water supply is essential for domestic, municipal, industrial, agricultural purposes; and Whereas certain jurisdictional conflicts exist between the States and the Federal Government with respect to water rights and resource development which may detrimentally affect many municipalities; and Whereas the Select Committee on National Water Resources of the U.S. Senate has reported, after an exhaustive study, that "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"; and Whereas extensive hearings have been held by the Congress on this subject over the past 6 years with the result that certain problem areas have been brought into clearer focus and various legislative remedies have been proposed: Now, therefore, be it Resolved, That the National Institute of Municipal Law Officers hereby urges the Congress to consider favorably legislation which will preserve to municipal corporations and the States their historic role in water resource development and protect local water rights. STATEMENT OF CLARENCE DAVIS, REPRESENTING STATE WATER BOARD OF MONTANA Mr. DAVIS. I am Clarence Davis, representing the Water Board of the State of Montana. I have a statement that is in the hands of the committee. I am not able to be here tomorrow. I will ask you to put my statement in the record as I assume you will do. Senator Moss. It will certainly be placed in the record. We appreciate your coming this long distance to be with us, Mr. Davis, and wish that we had time to hear you fully. Your statement will be part of the record and will be studied very carefully. (The statement referred to follows:) STATEMENT OF CLARENCE A. DAVIS ON BEHALF OF THE MONTANA STATE WATER CONSERVATION BOARD Mr. Chairman; my name is Clarence A. Davis. I am a lawyer with offices at 1625 K Street NW., Washington, D.C., and I have the privilege of appearing before you on behalf of the Montana State Water Conservation Board. May I say in the beginning that the Montana Water Conservation Board, during its existence, has built 181 projects which store 438,000 acre-feet of water and diverts another 260,000 acre-feet of water from streams to furnish a full or supplemental supply of water to more than 400,000 acres in the State of Montana. All of this has been done by this board without Federal assistance and in cooperation between the State and individual landowners in Montana. The board estimates that there are an additional 1,275,000 acres of new land which can be beneficially irrigated and that there is another 350,000 acres of land which should receive supplemental water. The impact of all this on the economy of Montana is obvious to anyone who understands the West, and for that reason Governor Babcock and this water board have placed themselves squarely in support of S. 1275, believing that its enactment is vital to further water development in Montana and to the stability of the projects which already exist. Mr. Chairman, I have lived with this problem since 1920 when I had the honor to be the attorney general of my home State of Nebraska, I lived with it at much closer range while I was Solicitor and Under Secretary of the Department of Interior under President Eisenhower. I have attended these hearings for several years, sometimes officially and sometimes unofficially. I have listened for hours to the bogymen raised by the Department of Justice and the other Federal agencies who have a direct interest in retaining control of these natural resources. The views of the State Water Board of Montana and my own agree with the views of the other Western States which have long since adopted the appropriation theory of water rights. The appropriations of water secured under the laws of the States have long been regarded as vested property rights just as much as the fee simple title of the land. Therefore, the continuing assertions by the various branches of the Federal Government, ranging as they have in many previous hearings all the way from an assertion of the complete and absolute ownership of all of the waters of the United States by the Federal Government, down through the commerce clause and the war power and the property clauses, and especially those which have been made in the last 10 years amount in effect to a cloud on the title of all water rights in the West acquired under the laws of the States. This whole controversy is actually a controversy of constitutional law over the question of the extent of Federal power, but the assertions that have been made as to the extent of that power have been the cause of great alarm. For instance, in previous years the assertion has been made by the Department of Justice, or other Federal agencies, that section 8 of the Reclamation Act which requires the Bureau of Reclamation to secure its water rights under the laws of the States is an unconstitutional statute because it curtails what is alleged to be Federal ownership of waters. It has been contended that the famous Milliken-O'Mahoney amendment which protects consumptive uses of water west of the 98th meridian is also unconstitutional. It is little wonder that the people who have invested millions of dollars of their own money in the development of the West and have relied upon the sanctity of their water rights should be greatly disturbed. After all of the excellent presentations that have been made at this hearing I shall not repeat the arguments. I should like to say to the committee that I did, while Solicitor and Under Secretary of the Interior Department and in a year or two following that period, make what I hope is a comprehensive analysis of the legal situation involving these rights and in which I undertook to answer the numerous contentions of the Department of Justice on this problem. I shall not repeat that testimony here because of its length. I can only say to the committee that the statement has been widely approved by western lawyers. I should, therefore, like to ask the committee to incorporate into my statement at this point pages 159 through 169 of the hearings before the Subcommittee of the House on Irrigation in the 86th Congress, July 20 to 23, 1959, which is a Government document entitled "Federal-State Relations in the Field of Water Rights" and is printed as Serial No. 9 of the Committee on Interior and Insular Affairs of the House. The substance of that statement is that the Federal Government, as a sovereign power, has the unqualified right of eminent domain; that under the eminent domain procedure of the Federal Code the Federal Government can take possession of any water right in the United States on 24 hours' notice by the mere filing of a petition of condemnation; upon which mere filing the title passes. But the vast difference between the proponents and opponents of this bill is that the opponents oppose paying for these State rights which they could secure, but prefer to rest their case on what I call vague constitutional grounds which involve the taking without compensation. I should like to have attached to this statement Resolution No. 938 of the Montana State Water Conservation Board, signed by the Honorable Tim Babcock as Governor of Montana and attested by the secretary of the board. RESOLUTION NO. 938 Whereas the State water conservation board was created in 1934 by the Montana Legislature for the purpose of meeting a statewide need for the conservation and use of water by constructing and operating projects designed for the purpose, and since its creation has built 181 projects to store 438,017 acre-feet of water and to divert 260,563 acre-feet from streams to furnish a full supply or supplemental water to 405,582 acres, and Whereas the board has determined that 1,275,870 additional acres of new land can be beneficially irrigated and 352,730 acres of presently irrigated land require supplemental water, and it appears to the board that the irrigation of said land would be most beneficial to the people and the economy of the State of Montana : Now, therefore, be it Resolved, That the board adopt the following policy: That the State of Montana, its congressional delegation, prevail upon Congress to whatever extent possible so that it shall be declared a policy of the Congress to recognize, preserve and protect to the utmost, the primary responsibilities and rights of the States in the planning for the conservation, development, and utilization of their water and related land resources; be it Resolved, That any right claimed by the United States to the beneficial diversion, storage, distribution or consumptive use of water under the laws of any State shall be initiated and perfected in accordance with the procedure established by the laws of the State; be it further Resolved, That the secretary be instructed to send copies of this resolution to the Montana congressional delegation; to the Honorable Henry M. Jackson, of Washington, chairman of the Committee on Interior and Insular Affairs; Senator Thomas H. Kuchel, of California; and the Honorable Stewart L. Udall, Secretary of the Interior. Attest: MONTANA STATE WATER CONSERVATION BOARD, A. D. MCDERMOTT, Assistant Secretary. Senator ANDERSON. Mr. Davis is an old friend from the Department of the Interior and we all welcome him. Senator Moss. We certainly do. Mr. DAVIS. It might have been refreshing to hear a different voice from the Interior which you would have heard. Senator Moss. Yes, sir. Thank you. Mr. Kennedy. STATEMENT OF HAROLD W. KENNEDY, COUNTY COUNSEL OF THE COUNTY OF LOS ANGELES Mr. KENNEDY. Mr. Chairman, I am Harold W. Kennedy, county counsel of the county of Los Angeles. I am also appearing officially for the National Association of Counties, for the County Supervisors Association of California, for the Southern California Water Conference representing 55 water agencies in southern California and for the Feather River Project Association as chairman of its statewide Federal-State Water Rights Committee. Could I have permission to file statements in behalf of those organizations? Could I also make the suggestion, Mr. Chairman and gentlemen, that others who have not come to the microphone have the general consent of the committee, those of us who are definitely in favor of this bill would like the opportunity to supplement your record? For example, Mr. Rex Goodcell, president of the Feather River Project Association, is here and he would like the opportunity to file in behalf of his association also a full statement. Senator ANDERSON. You would not want to confine it to just those in favor? Senator Moss. Even the sinners may file. Certainly the permission is granted, Mr. Kennedy. You have been in attendance here during the entire hearing and we wish we had time to hear from you orally. We grant the permission and the statements may be filed and may be filed by the others who represent the organizations mentioned or others who are in attendance at the hearing who have not been able to have time orally but would like to place a written statement in the record are given that permission to do so. I think it is apparent to everyone that this committee has a broad problem and we should have before us all of the information that we can possibly have and we welcome the statements of responsible citizens and especially those representing organizations which have taken a point of view on the legislation. Mr. KENNEDY. If I did not make it clear, I want it clear that the great county of Los Angeles officially, after careful consideration, is definitely in favor of this legislation. Senator Moss. Thank you, Mr. Kennedy. We appreciate it very much. Thank you all. (The statements referred to follow :) STATEMENT OF HAROLD W. KENNEDY, COUNTY COUNSEL OF THE COUNTY OF Los ANGELES, REPRESENTING NATIONAL ASSOCIATION OF COUNTIES, THE CALIFORNIA COUNTY SUPERVISORS ASSOCIATION, THE FEATHER RIVER PROJECT ASSOCIATION OF CALIFORNIA, THE SOUTHERN CALIFORNIA WATER CONFERENCE, AND THE COUNTY OF LOS ANGELES Mr. Chairman, my name is Harold W. Kennedy, county counsel of the county of Los Angeles, filing this statement as a part of the record in support of S. 1275. In addition to appearing in my capacity as head of Los Angeles County's legal department, I also appear officially authorized to urge this committee and the Congress to pass this bill in behalf of the following associations and organizations: National Association of Counties; the California County Supervisors Association; the Feather River Project Association of California, where for the past several years I have served as chairman of its statewide Federal-State water rights committee; and the Southern California Water Conference. With respect to my background and experience in the field of water law and water legislation, as county counsel of Los Angeles County I have represented the Los Angeles County Flood Control District and 16 waterworks districts under the jurisdiction of our county. I am a member of the water resources committee of the American Bar Association's section of mineral and natural resources. I worked with Gov. Goodwin J. Knight in the extensive legislative program that reorganized California's water agencies and created the California Water Commission and the State water rights board and served as vice chairman of Governor Knight's water lawyers committee. During the incumbency of Attorney General Edmund G. Brown, by his appointment, I served as a member of the attorney general's water lawyers committee. For the last 3 years I have been chairman of the statewide Federal-State water rights committee of the Feather River Project Association of California and for the past 5 years have been a member of the executive committee of the Southern California Water Conference embracing 55 public and private water groups in southern California. During the past 10 years I have researched and authored a number of papers emphasizing the necessity of clarifying the relationship of water interests of the United States and the States of the Union, particularly those of the 17 Western irrigation States. In 1961, I made an extensive research of the legal aspects of the basic problems involved in this difficult and controversial problem and in a 55-page study entitled "Quieting Title to Western Waters-The Federal-State Water Rights Controversy" presented the same to the annual meeting of the Irrigation Districts |