"The need for enactment as general Federal law of this widely accepted-to-be salutary rule is that it will state a reassurance to those who fear Federal projects because they might be operated inconsistent with local principles of priority of consumptive use. Its enactment should bring more people to favor Federal projects.

"Paragraph (3) of S. 1275 has been the subject of a great deal of misunderstanding on the part of those who have not studied it carefully. At first reading I misinterpreted it. It provides :

"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 that State.'

"What this means is that if the United States chooses to base its claim to a water right on the State law, rather than on Federal law as it is left free to do, it must abide by that State law. The provision would not require the Federal Government to base its claim on State law. It would simply say that if the United States elects to claim a proprietary right, the same as an individual or non-Federal entity, rather than exercise its sovereign rights, it must play the game by the rules applicable to the acquisition of proprietary rights under State law.

"This provision is aimed at orderly procedure and fair play by assuring that a Federal agency cannot, on the one hand, claim it has a right to water in accord with, rather than by supremacy over, State law and, on the other hand, claim that the statutory and agency-imposed conditions on that right are not applicable. It is aimed at preventing such a claim as is made by the United States in the well-known Fallbrook case, where, waiving sovereignty, the Federal Government says restrictions on its State law water right are mere police regulations inapplicable to the United States. Though rejected by the trial judge in that case, the theory is still advanced by the U.S. Justice Department. Thus, the need for, as well as the wisdom of, this provision of S. 1275 is apparent, too.

"Regretfully, though attempts have been made to keep this point clear from the outset, misconception on the effect of paragraph (3) continue. Some continue to say it would have the effect of the earlier quoted provision of Senator Barrett's first bill. But, as I said at the western water law symposium when discussing Senator Kuchel's draft bill which he later introduced as S. 1275, this provision 'would not require the United States to crawl on its knees to the State agencies to seek the water necessary to carry out congressionally authorized and constitutionally permissible Federal water projects.'

"As Senator Kuchel said, in introducing S. 1275, this provision 'would not deny the Central Government any power it now has to acquire water rights other than by State law. It would only apply when the United States claims an appropriative right under State law.'

"As Senator Jordan said about this paragraph at the time of addressing the NRA, it would simply 'assure that in those instances when the United States claims a water right in its proprietary, as contrasted to its sovereign, capacity it must satisfy the same laws and procedures that would be applicable to you or to me in acquiring a similar proprietary interest in water.'

"Thus, it is clear that paragraph (3) is not intended to strip the Federal Government of its authority under various powers it holds under the Constitution; powers which, when coupled with the supremacy clause of the Constitution, enable the federally authorized project to proceed regardless of whether certain State officials or agencies decide to grant or withold a permit for water necessary to the project. That is why statements are erroneous which claim that S. 1275 would enable State governments to frustrate regional planning and Federal projects. The fact is S. 1275 would not alter the present situation in this regard at all, except to make such planning and new projects more acceptable by confirming the orderly compensability of existing water rights and assuring that consumptive use will be made of the water in question.

"Under existing law, a non-Federal entity such as a State or city government cannot take water from another State except by grace of the latter State's permission. Neither any State nor any of its citizens or political subdivisions is supreme over any other State. S. 1275 would not alter that.

"But the Federal Government, within its constitutional powers, including those which form the basis of its past, present, and anticipated broad activity in water matters, is supreme over States and any lesser entity. It can take the water

if it wishes even if a State law or official should say no. This it does by invoking the supremacy clause, a power uniquely Federal. S. 1275 would not alter that either. Neither paragraph (3) nor any other provision of S. 1275 gives up the supremacy clause or any of the powers it amplifies. Paragraph (3) only applies if the supremacy clause is not invoked.

"Fears have also been expressed by some as to the effect of paragraph (4) of section 1 of S. 1275. It provides:

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'No vested right to the beneficial diversion, storage, or consumptive use of any waters, navigable or nonnavigable, which is recognized by the laws of the State or States in which such waters are diverted or used as compensable if taken by or under the authority of the State, shall be taken by or under authority of the United States without compensation; and where such rights are acquired otherwise than by agreement with the owner, they shall be taken by proceedings in eminent domain under the laws of the United States or of the State or States affected.'

“Here again misconception flows from a misapprehension of what is intended by the provision. Indeed, upon reading this paragraph one would think that it merely states what the law would naturally be under our Bill of Rights. But it is a necessary provision because the judicial branch has ultimately upheld wide authority claimed by the executive branch which most people feel violates fair play. Paragraph (4) is really only what good government should embrace. What this provision is intended to do is to repeal two modes of operation now utilized without impairing the U.S. power to achieve the same results through more acceptable means.

"The theory of navigational servitude or easement has cropped up to the effect water rights held by non-Federal entities can be impaired without compensation in the course of federally authorized work in connection with very broadly defined navigable waters. The first clause of paragraph (4) is intended to assure as to all Federal projects the rule which has been made applicable as to many already—that regardless of the power to do otherwise the Federal authority will pay damages to any water right holder hurt by the project.

"The second clause of paragraph (4) is meant to assure that this will be done in an orderly manner. Even in cases where compensation is presently required, the power now exists for Federal authorities to seize water without agreement with those otherwise entitled to its use and without first instituting condemnation proceedings. The victim of such a seizure is presently left to speculate as to whether or to what extent his rights are being impaired. He is left to originate a suit, often unknowing of the Government's claims, in the unfamiliar and often remote tribunal of the U.S. Court of Claims.

"S. 1275 would simply require that when the Federal authority, let us say the Secretary of the Interior, determines that it is necessary to impair some existing water rights in order to implement a project, and he has not been able to negotiate compensation, he must institute a condemnation proceeding in the local court, as he would for a post office site, effect immediate control over the water, and proceed to litigate the issue of compensation unless ultimately settled.

"What some objectors have read into this provision of S. 1275 is a risk that one who had not been contracted with or joined in the condemnation proceeding could enjoin work on the project. I do not see any such effect intended or resulting from S. 1275.

"All that it appears to require is that the Secretary make a bona fide determination as to whom he is hurting and to what extent, and then settle with or sue those people accordingly. Thus, if the Secretary decides that A, B, and C would be hurt by the project but D would not be, he need only sue A, B, and C and the project can proceed even if D claims he, too, is hurt and should have been joined. D would have the right to assert his own claim by suit in inverse condemnation, perhaps joining the already pending case. But S. 1275 is not intended to permit a litigant or even a judge to second-guess the Secretary to the extent of stopping work on the project.

"Nor should one who was not sued and who did not appear to have been harmed at the outset of the project have his later appearing claim cut off by relation to the date of a suit against others. The accrual of his cause of action should continue to be determined by other rules of law.

"Because of its fairness and because an objectionable course of action is possible under existing court decisions, paragraph (4) is, therefore, both good, and necessary.

"Section 2 of the bill contains many saving provisions which are self-explanatory. It provides:

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'Nothing in this Act shall be construed as

"(1) modifying or repealing any provision of any existing act of Congress requiring that rights of the United States to the use of water be acquired pursuant to State law;

"(2) permitting appropriations of water under State law which interfere with the provisions of international treaties of the United States; or

"(3) affecting, impairing, diminishing, subordinating, or enlarging (a) the rights of the United States or any State to waters under any interstate compact or existing judicial decree, (b) any obligations of the United States to Indians or Indian tribes, or any claim or right owned or held by or for Indians or Indian tribes, (c) any water right heretofore acquired by others than the United States under Federal or State law, (d) any right to any quantity of water used for governmental purposes or programs of the United States at any time prior to the effective date of this act; or (e) any right of the United States to use water which is hereafter lawfully initiated in the exercise of the express or necessarily implied authority of any present or future act of Congress or State law when such right is initiated prior to the acquisition by others of any right to use water pursuant to State law.'

"Thus, the bill would not upset things. It would mainly assure that water right holders cannot be upset. By giving such assurance it would thereby facilitate sound water planning and sound water projects by the Federal as well as by the State, local government, special district and private entities.

"The bill has been set forth in its entirety in this letter. An objective study of S. 1275 itself, unclouded by bugaboos left over from different bills or imagined into S. 1275, should reveal that its enactment would not hinder Federal water projects. Rather, it would make them more acceptable to many. It would not frustrate regional planning. It would make this more acceptable, too. It would not give State authorities control over the United States as to the appropriation of water except in those cases where the United States finds it is best to submit to such control. Supreme powers to avoid doing so would remain unimpaired. It would not hold up projects awaiting litigation over water rights. Rather, it would provide a more orderly and illuminated procedure than groping and thrashing around in a purely inverse condemnation proceeding. It would result in a more beneficial allocation of water. It would assure fair play to the rank and ile water right holder throughout the United States. It would be an affirmative, progressive step forward in water resource matters-substituting certainty and the basis for cooperation in place of doubt, opposition, litigation, and delay in putting our water to work.

"In other words, the issue presented by S. 1275 is not whether to have Federal projects, regional planning and other water progress. It is whether to have to force it in an atmosphere of mistrust and confusion wrought by extreme Federal claims or to achieve it more readily in an atmosphere of cooperation and certainty. The proponents of S. 1275 favor the latter course, which S. 1275 would go a long way to assure. It is therefore believed that, given a fair chance, this bill will be enacted into law.

"Very truly yours,

"RICHARD D. ANDREWS,
"Minority Counsel."

Senator Moss. Senator Anderson has a statement for this point in the record.

STATEMENT OF HON. CLINTON P. ANDERSON, A U.S. SENATOR FROM THE STATE OF NEW MEXICO

Senator ANDERSON. Mr. Chairman, well, here we go again on that old whipping boy in the field of water rights, the Government of the United States.

In refreshing my recollection for these hearings, I find that during my time in the Senate this is the eighth or ninth bill, at the least, that has been before this committee on the same subject of Federal-State water relationships. I recall that in 1953—some 10 years ago—the late

Senator Frank Barrett, of Wyoming, sponsored S. 2096 in the 83d Congress. This bill would have required all Federal agencies to conform to State laws in water resource development projects. Although both the administration and the Congress were Republican in the 83d Congress, this measure went nowhere.

In the 84th Congress, the late Senator Barrett sponsored his widely known and highly controversial bill, S. 863. This measure would have, to adopt the words of the senior Senator from California, Senator Kuchel:

Required the United States to crawl on its knees to the State agencies to seek the water necessary to carry out congressionally authorized and constitutionally permissible Federal water projects.

The Barrett bill was the subject of very spirited hearings in which J. Lee Rankin, then Assistant Attorney General of the United States in President Eisenhower's administration, stalwartly maintained opposition to the measure. Late in the session, a modified version of S. 863 was reported to the Senate by our committee with dissenting views, but no action on it was sought.

Again in the 85th Congress Senator Barrett introduced his States rights water bill, obtaining for it the same number, S. 863. This time, the bill did not even get out of committee. In its unfavorable report on S. 863, 85th Congress, the Interior Department proposed a substitute measure which had the concurrence of the Departments of Agriculture, Justice, and Defense, as well the Bureau of the Budget. This is what was and is known as the "agency bill." The provisions of this "agency bill" are those of subsection 1 of section 1 and section 2 of the bill now before us, S. 1275. The agency bill never was introduced-it never has been sponsored in the Senate-but in the next Congress, the 86th, the late Senator O'Mahoney, of Wyoming, did sponsor a measure, S. 851, based on it. S. 851, 86th Congress, however, went substantially farther than the agency bill in that it would have added to the exemptions water rights asserted by a State in its congressionally approved constitution. Because of this addition, S. 851 likewise went nowhere.

Then in the 87th Congress in 1961, we had our hearings on FederalState water relationships in general. These hearings were highly constructive, clarifving issues and views. In them, I asked a question to which I received no responsive answer, and which I shall ask again in these hearings. That question was, and is "Just who has been hurt, and not compensated, by assertion by the Federal Government of a water right in defiance or contravention of State law?" That is, wherein has our present system worked a not-compensated-for wrong on any individual or entity?

During the course of the 1961 hearing, not a single specific case was cited to me.

But to continue, briefly, with the history of the fight against what seems to be a strawman: Out of the hearings in the last Congress came Senator Kuchel's S. 2636, based in large part of the agency bill of the 85th Congress, but again going substantially farther.

The measure before us today, S. 1275, is likewise based on the agency bill, but it goes farther, much farther, than did the recommendation of the administration in the 86th Congress. Subsections (2), (3),

and (4) of section 1 are entirely new with respect to the agency's bill and contain some very far reaching and, I believe, potentially troublesome and dangerous provisions.

Mr. Chairman, I am not a lawyer and I am certain the very complicated legal aspects of the bill will be discussed or already have been discussed by the distinguished lawyers on the committee, such as my good friends Senators Kuchel, Allott, Moss, Church, Simpson, and Bible, to name only a few, as well as by the able counsel for the Federal Government, Ässistant Attorney General Clark, Solicitor Barry, John Mason of the Federal Power Commission, and others. Also, I am certain that there will be learned counsel among the outside witnesses who have unquestioned expertise in water rights law.

Rather, Mr. Chairman, I would like to raise some factual and policy questions concerning the practical effects and results of the proposed legislation. First, it should be observed that although the title of S. 1275 states its purpose is to "clarify" the relationships of the States and the Federal Government, the so-called clarification seems to consist primarily of a gift of property rights, power, and authority by the Federal Government to the States. Nowhere are the States called upon to do anything, nor recognize in any way any rights of the Federal Government, even under the "savings clause."

By subsection 1, the United States gives up proprietorship of water rights in lands it owns which it has set aside or withdrawn for a particular public purpose. The Supreme Court of the United States has held that a withdrawal or reservation of lands of the United States does establish proprietary rights in the Federal Government to the waters in that reservation or withdrawal. Thus, clearly the Federal Government is giving away valuable property rights belonging to all of the people of all of the States. What is it getting in return?

Subsection 2 subordinates the Federal Government's constitutional authority over navigation to non-Federal consumptive uses on all water projects, not just flood control ones. Is there any quid pro quo? Subsection 3 would require the Federal Government to follow to the last procedural and substantive detail the 50 different laws and regulations of the 50 or more different bureaus of the 50 States if it asserts a right under State law, regardless of whether a State requirement might conflict with Federal law or policy.

Subsection 4 would place new and additional burdens of compensation and procedure on the Federal Government.

Nowhere in S. 1275 does the Federal Government get anything in return for all it is giving up, and for the new burdens placed upon it. As I say, the States are not even called upon to recognize any Federal rights or prerogatives except the right to pay a major portion of the costs of the projects affected by the bill.

Such "clarification" is reminiscent of the way the Tasmanian settlers "clarified" their problems with the bushmen. They liquidated them down to the last man.

Now to touch upon some of the practical aspects of S. 1275. First of all, it would increase the costs of water projects by requiring the Federal Government to buy back water rights the Supreme Court has said it now possesses. Costly developments unquestionably would take place using these water rights, making compensation very expensive indeed. All of us, I think, are deeply concerned about the costs