(The memorandum referred to follows:) Hon. FRANK E. Moss, DEPARTMENT OF THE NAVY, Chairman, Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs, U.S. Senate, Washington, D.C. MY DEAR MR. CHAIRMAN: This is submitted in response to the request of Senator Kuchel on March 12, 1964, in the course of the hearings before your subcommittee, that I submit a memorandum as to the authority of the Navy to purchase or condemn private water rights in the event of enactment of S. 1275 and more specifically, as to whether S. 1275 would restrict such authority. I find nothing in S. 1275 which would restrict the authority of the Navy to purchase or condemn private water rights except to the extent that the last part of section 1(4) might be construed as precluding exercise of the power of eminent domain by “inverse" condemnation. The bill, however, would add considerable to the cost to the Government since under section 1(1) the Government would have to pay for the private water rights without regard to the senior reserved water rights which the Government now owns on military reservations. More over, even if S. 1275 would not per see curtail the Navy's authority to acquire or condemn private water rights, there is some doubt in my opinion that the Navy's authority to do so would be of the same general scope as its present authority to use the reserved unappropriated water on military reservations. Title 10, United States Code, section 2676 provides that "no military department may acquire real property not owned by the United States unless the acquisition is expressly authorized by law." (See also R.S. 3736, 41 U.S.C. 14.) "A water right is held to be real property, deemed as 'fundamental under the law of riparian rights as under the law of appropriation.'" (Water Resources Law, vol. 3, Report of the President's Water Resources Policy Commission (1950) p. 32, quoting I Wiel, "Water Rights in the Western States" (3d ed. 1911) p. 21.) Accordingly, as a matter of strict logic, the limitations of 10 United States Code 2676 might apply to the purchase or condemnation of private water rights and the Navy could not rely upon its general or implied authority and appropriations, but would have to obtain specific authorization from Congress before it could purchase or condemn such water rights. However, the rather specialized nature of water rights raises doubt whether they are to be treated like ordinary real property in this regard. The Comptroller General does not appear to have issued an authoritative ruling on the question. In one opinion, 11 Comp. Gen. 455, he referred to a water right "as a vested real property right" and recognized that it could be acquired by the Navy pursuant to the act of May 29, 1928, 45 Stat. 908, which authorized establishment of the Naval Ammunition Depot, Hawthorne, Nev., including "the acquisition of land." This would suggest the need for specific authorization. On the other hand, he has also held in another ruling, 1 Comp. Gen. 560, that specific authorization for the acquisition of real property is not necessary to acquire a water right from a State pursuant to State appropriation procedures. In the absence of an authoritative ruling, we cannot be sure what his opinion would be as to the need for specific authorization to acquire an appropriative water right from a private owner. In contrast, under the present law, we already have the reserved water right and need no authorization to acquire it. In any case there would be no problem unless the water right cost more than $25,000. Under 10 U.S.C. 2672, the military departments have continuing specific authority to acquire interests in land not exceeding $25,000 in cost. If the cost exceeded that amount, they would have to anticipate the need and include authorization for the acquisition of private water rights as a separate line item in the annual Military Construction Authorization and Appropriation Acts. This would involve at least some delay and administrative and legislative burden, in addition to raising problems of funding. I shall be pleased to furnish any further information which your subcommittee may deem helpful. Sincerely yours, CHARLES GOODWIN, Assistant to the General Counsel. Senator Moss. Do you have any questions or comments, Senator Burdick? Senator BURDICK. Senator Moss, I would like to ask a legal question. I am interested in the Hawthorne case. The Pelton Dam case was heard on different facts. As I recall, the Pelton Dam case you didn't have involved there the consumptive use of water. As a matter of fact, as I recall the case, it principally turned out to be concerning fish and power; did it not? STATEMENT OF HUGH SHAMBERGER-Resumed Mr. SHAMBERGER. There was a reservation for power and also for the Indian Reservation. Senator BURDICK. But the consumptive use of water was not really used at all in that case? Mr. SHAMBERGER. That is right. The cases are quite dissimilar. The Hawthorne case is ground water and consumptive use. The ground water covers the whole valley. The town of Hawthorne was also appropriating the ground water by wells whereas in the Pelton Dam case the river was a nonnavigable stream and the use was nonconsumptive. Senator BURDICK. If this S. 1275 becomes law and in effect it is related to you, in relation to the question by Senator Kuchel, the Navy could still acquire the water rights and it would have to condemn them and pay for them. Mr. SHAMBERGER. The same as they have been doing. Senator BURDICK. Then how does it change the present situation? Mr. SHAMBERGER. It just firms it up and it takes away that question of what could happen under the reservation doctrine if the agencies presently under the doctrine claim all of the unappropriated water that falls on reserved lands. They could completely ignore State law all the way through. This would merely firm up to a great extent, as far as my State is concerned, what they are doing right now. Senator BURDICK. Thank you. Senator KUCHEL. Is that not the crux of this whole problem? Senator KUCHEL. I think that is a most important point. This is with respect to unappropriated waters in the area that we are talking about and the desire by a local agency to utilize those waters for beneficial uses. Dr. WENDELL. I think that this point could be put another way. As you all know, in courts it has been recognized for a long time that there are circumstances when a declaratory judgment is the most useful thing. Even though it may be argued that an injury has not yet been done or claims that indicate that the injury may well be done, then in some circumstances even courts recognize that it is desirable to set the controversy at rest before it actually occurs. Now there are not yet too many actual events, if any, in this particular field but there has been a change in law and a change in announced policy on the part of at least some of the Federal agencies. In this particular instance for procedural reasons it is not the courts that can set the matter at rest; in fact, the courts have in some instances been producing some of the uncertainty at the instance of some plain tiffs. It is instead in this instance the Congress that is the most appropriate mechanism to produce certainty in the situation. Senator Moss. That is a very fine statement, too, Dr. Wendell. I think that does summarize it. Senator BURDICK. In other words, this would not change the fact, it would not change the outcome of the Hawthorne case if this were law at the time; would it? The only thing is, as you have just said, it may clarify what may be anticipated sometime in the future. Dr. WENDELL. It would not have changed the outcome in the sense that it would not have changed the accessibility of water to the Federal Government. It would have changed the outcome, or it might conceivably have changed the outcome, in a slightly different set of circumstances than occurred in the Hawthorne case in the sense that if somebody else had already put to use the water that the Navy Department wanted it would have been clear that the Navy Department would have had to pay for it, whereas under present circumstances that may not be as certain. Senator Moss. Thank you, Mr. Shamberger and Dr. Wendell. We appreciate it. The statement of Donel Lane for the Interstate Conference on Water Problems has been ordered included in the record. We appreciate your staying with us for the third day of this hearing. That is longer than we had anticipated. Our next witness will be Mr. John Taylor, who represents the American Farm Bureau. I am well acquainted with Mr. Taylor, who is Assistant Budget Director and who meets with this committee on many occasions. We will be glad to have your testimony this morning, Mr. Taylor. STATEMENT OF JOHN TAYLOR, REPRESENTING THE AMERICAN FARM BUREAU FEDERATION Mr. TAYLOR. Thank you, Mr. Chairman. The subject of water rights has long had the interest and consideration of the American Farm Bureau Federation. The more than 1,628,000 farm family members in the 2,700 county Farm Bureaus, the 49 State Farm Bureaus, and the Puerto Rico Farm Bureau are vitally concerned with any legislation which deals with such an important element of their farming operation as water and the right to the use of water. We appreciate the opportunity to appear and express our views in support of S. 1275 and to urge its favorable consideration by this subcommittee, by the full committee on Interior and Insular Affairs, and by the Congress. The history of water and water rights throughout the world is, practically speaking, the résumé of the rise and fall of many nations. It is the history of the control of water, hence the control of the right to produce. We hold that such control or authority should be near the source in the State of origin. For over a hundred years of our national life, the Congress recognized this authority of the States in many laws dealing with the subject. The courts have upheld such laws time after time. We have no desire to review these laws and court decisions at this time. However, in the past few years, several court decisions have taken another turn; and what had been considered by many to have become "settled law" was upset. These decisions have created uncertainty in established water rights and even in the authority of the States to grant such rights. Only definitive legislation by the Congress can firmly establish these powers in the States, and we believe such legislation should be passed. We are convinced that in the current proposed bill a sincere effort has been made to weld together many different viewpoints in regard to water rights. We commend the authors for putting together language on a subject where originally there had been such a wide divergence of views. We feel that these ideas are adequately set forth in S. 1275. It contains language suggested by the consideration of former measures. It places the responsibility for proper water allocation and adjudication in the States where it properly belongs. Its operation will require close cooperation between State and Federal Governments which we believe is as it should be. It will not allow usurpation or undue confiscation by the Federal Government; and no State, working under it, should act against its own interest by denying necessary rights to the Federal entity for sound and sufficient reasons. The voting delegates of the American Farm Bureau Federation at our latest meeting held in Chicago, Ill., on December 12, 1963, adopted the following resolutions: We favor legislation to require Federal agencies to comply with State laws relating to the use of water and to respect private rights to use water established under State law. As a step toward this, we recommend legislation (1) to require licenses of the Federal Power Commission to comply with applicable State laws; (2) to provide that water flowing from "reserved" lands shall be subject to State authority in the same manner as water flowing from other Federal lands; and (3) to provide just compensation if a Federal project adversely affects a private right established under State law. While this bill does not grant the entirety of this resolution we feel that it is a good start in the right direction and does contain the basic premise of our ideas. Briefly, the bill does four things which we believe are fundamental. It provides: (1) That the withdrawal or reservation of public lands shall not affect any water right acquired under State law either before or after withdrawal or reservation; (2) That consumptive uses of water shall take priority over nonconsumptive uses in States lying wholly or partly west of the 98th meridian; (3) That when the United States claims a water right under State law, it shall comply with State procedures; and (4) That the United States shall pay for the water rights which it acquires. Section 2 of the bill contains safeguards which are right and proper to protect the United States. We feel the enactment of this legislation should not act as a deterrent to the use of water by the United States, but should this occur in specific instances, the Congress could act to protect any legitimate Federal interest. We urge your favorable consideration, your concerted action, and your speedy approval of this measure. As representatives of the sovereign States, we know you will wish to protect the rights and promote the interests of the several States. On the other hand, we know you are seeking to outline the proper role of the Federal Government. We believe your support of this bill, S. 1275, will allow you to discharge both duties while injuring neither and, at the same time, place the subject of water rights and water allocation in its proper perspective. The opponents of this legislation attempted to make the point that "the Federal Government owns all the water of the Western States." This is the theory of Federal supremacy, and is a statement with which we do not agree. This is a moot question and has been for many years. The real issue involved in this hearing and which is covered by this bill, S. 1275, is whether or not the Federal entity is to control the waters of the Western States or whether the use of water shall be allocated by the States. We are convinced that the Congress and only the Congress can settle this issue. We think further, it is time for the Congress to review its policies with regard to Federal lands; the buying of private lands to add to the public holdings, and the delegations of authority which the Congress has made to buy land without congressional review, such as is the case under the Weeks Act or under the authority granted to the Fish and Wildlife Service. In witnessing as we have in this hearing, the Department of Justice, the Department of the Interior, the Department of Agriculture, the Department of Defense and the Federal Power Commission, joining hands in opposition to this bill, convinces us that it is time for the Congress to move in to curtail the power of the executive branch of the Government in the field of water rights by enacting S. 1275. We are very disturbed at these trends in Government and only the Congress can correct them. The Congress is the best avenue of redress of the people in this situation; and this legislation will probably have to be passed over the objections of the executive branch; and, if necessary, we hope you will do just that. We sincerely recommend that you support and pass this bill as it is written. I planned to make just a few comments on a question asked by my good friend, the Senator from New Mexico, and I wish he were here. I think that since he is not here I will not make those comments. However, I was going to make them in regard to a question he asked. Senator Moss. Well, if you would care to do that at some time when Senator Anderson is available, I am sure he would be interested in listening to the colloquy. Senator Anderson is not able to be here today. Mr. TAYLOR. Since he asked the question, Senator, I would prefer that he were here. Senator Moss. Fine. |