Senator ANDERSON. Mr. Secretary, we are happy to have you with us again. We always enjoy having you and we thank you for coming this morning and hope we have not inconvenienced you.

STATEMENT OF DOUGLAS MCKAY, SECRETARY OF THE INTERIOR

Secretary McKAY. Mr. Chairman, I want to thank you for the opportunity to appear before you today on the very important subject of western water rights.

I approach this appearance with a frank recognition that any discussion of the problems before this subcommittee today involves legal questions of great importance. I am not a lawyer, and I am not purporting to advise this subcommittee on technical aspects of the bill

under consideration.

However, as you may know, I am a native of the State of Oregon. Consequently, as you can well appreciate, I do have strong convictions on the importance and integrity of State water law.

My grandfather arrived in Oregon in 1842. In those days there were no recognized principles of water law or land law. The people who undertook the hazards of making a new life for themselves in the vast western country joined together to set up their own rules and regulations respecting law and order.

My own State of Oregon, unlike most of the other Western States, started out with the traditional concepts of water law developed in the Eastern States. As you know, the coastal belt of Oregon has too much water during certain seasons of the year, and they holler for the engineers, while the eastern portions of the State have far too little water. Even in the western area there are seasons of the year when there is not enough water unless it is stored during the rainy season.

As a matter of fact, I might say that the first irrigation project in Oregon was in 1852 and it was in Jackson County, west of the Cascades. So we do have storage of water even in the humid section. That is not really humid but it has about 25 inches of rainfall a year. Over the years the people of the State learned that the traditional ideas of water law were not satisfactory and eventually the concept of prior appropriation for beneficial use became the established principle in our State.

As a result, it has been possible for arid and semiarid districts to become productive through irrigation. Towns and cities have grown where only sagebrush grew before. This type of growth could not occur in Oregon, or elsewhere in the West, if rights to the use of water were insecure.

I recently had the honor to serve as chairman of the Presidential Advisory Committee on Water Resources Policy. In our report we recognized the vital importance of secure water rights in the economy of the Western States. In that report we said the following:

As expansion continued westward, new conditions were encountered to which the doctrine of riparian rights was not suitable. The arid and semiarid climates of the more Western States made it necessary to store water supplies to meet domestic, agricultural, and industrial needs during the dry seasons. Western mining was also largely dependent on a continuity of water supply. A rule was evolved to meet local customs and comomn interest, that the one who first applied water for beneficial uses, whether for domestic, agricultural, mining, or manufacturing purposes, was entitled to protection of the right of continued use, whether or not he was a landowner adjacent to the stream.

This custom early ripened into the principle of prior appropriation of rights to use of water by which existing beneficial uses were recognized as constituting a prior right to the water of a stream; that first in time of beneficial use was first in right; and that through its beneficial and productive use valid property rights could be acquired.

The agricultural, mining, and hydroelectric power economy of the 17 Western States is largely built upon the recognition of the right to use water as a property right. Large areas of land in our Western States are admittedly of little value if deprived of water. The right acquired by the appropriation of water has been recognized from the beginning of development of the West as a property right, just as valued and oftentimes more so, and just as much protected by the law as the title to the land itself.

The development of our Western economy has been greatly assisted by the Federal reclamation program. But I do not believe that the success of the program requires that the Federal Government should have a paramount right to the use of water without full and adequate regard for local conditions and the integrity of State law. There have been difficulties from time to time and clashes between State agencies and Federal agencies.

It is also true that there is not complete uniformity among the laws of the various States, and the job of Federal agencies in water development is sometimes burdensome as a result of the lack of uniformity in these laws.

As this committee is well aware, the original Reclamation Act was passed in 1902. Section 8 of that act requires the Secretary of the Interior to comply with State laws in carrying out the reclamation program. Thus we have 54 years of history in which the Federal reclamation program and State water laws have developed side by side.

The requirement of conformity to State law was included in President Theodore Roosevelt's original message to the Congress proposing the original Reclamation Act.

I believe the last 54 years have fully demonstrated the wisdom of President Theodore Roosevelt as expressed in his message to the Congress in 1901, in which he said:

There remain, however, vast areas of public land which can be made availáble for homestead settlement, but only by reservoirs and mainline canals impracticable for private enterprise. These irrigation works should be built by the National Government. The lands reclaimed by them should be reserved by the Government for actual settlers, and the cost of construction should so far as possible be repaid by the land reclaimed. The distribution of the water, the division of the streams among irrigators, should be left to the settlers themselves in conformity with State laws and without interference with those laws or with vested rights. The policy of the National Government should be to aid irrigation in the several States and Territories in such manner as will enable the people in the local communities to help themselves, and as will stimulate needed reforms in the State laws and regulations governing irrigation.

There is no doubt but what the Western States are very jealous of their prerogatives and rights in connection with water-law matters. But the use of water is a matter of life and death to them, and these factors must be kept closely in mind when the Congress or the execu tive branch of the Federal Government set out to determine national policies relating to water-resource development.

My native State of Oregon has been consistently active in resisting any effort to impose Federal rules relating to water rights which would upset jurisdiction of the State in regard to these matters.

As one example, in 1943 a committee of the National Reclamation Association met with State officials of 13 Western States on this very

question of the integrity of State water laws. Representatives of Oregon actively participated in this conference held in Denver, Colo., and joined in the issuance of a detailed report published that year which discussed at length the legal claims of the Federal Government and their impact on State water-law principles.

As a result of this 1943 report, the legislature of the State of Oregon memorialized Congress as follows:

Be it resolved by the Senate of the State of Oregon, the House of Representatives jointly concurring therein, That it is the determined policy of this State of Oregon to maintain its jurisdiction and control over the rights to the use of the waters in this State, and to protect such rights as have been established under the laws thereof; and be it further

Resolved, That it is the determined policy of this State to protect rights to the beneficial use of water within this State as against threatened Federal usurpation; and be it further

Resolved, That the Congress and President of the United States, by appropriate legislation, renounce forever the threatened usurpation, and confirm to the State of Oregon the sovereign control over the waters of this State, except the control over navigation.

That is the resolution that was submitted in 1943.

It is my understanding that recent decisions of the Supreme Court dealing with the interpretation of certain Federal statutes have caused once again the same fears expressed in the 1943 resolution of the Oregon legislature. Our views on these technical phases of the current situation are quite fully set out in our report to the committee.

As you can readily see from the nature of my previous testimony, I am thoroughly sympathetic with the objectives of the proposed substitute amendment to S. 863. However, in this regard, I am expressing my personal convictions as a native of Oregon and as a cabinet officer responsible for the reclamation program.

I am not familiar with the problems of other agencies and, therefore, concurred in the recommendation of the President's Advisory Committee that a cooperative Federal-State study of improvements in Federal and State laws should be undertaken.

The water resources problems of the Eastern States are so much different from those in the Western States that it seems to me they should be studied separately.

Furthermore, in view of the relatively settled nature of Western water law, I doubt that such a cooperative study for the Western States would require the same amount of time that would be required for a comprehensive study affecting the Eastern States.

In conclusion, I should like to state that, in the event the committee determines to act on S. 863, we would have a number of amendments to recommend, and we stand ready to provide whatever technical assistance the committee might want in this regard.

Senator ANDERSON. Mr. Secretary, when you say if they decide to act on S. 863 you have a number of amendments that you have to recommend, Senator Barrett has pretty substantially modified the original proposal, and are you commenting on the original proposal or the modification? They would be to the modification?

Secretary McKAY. Yes, sir.

Senator ANDERSON. I think, Mr. Secretary, that it would be fair to say that we are very seriously interested in this question and do intend to try to do something about it, and we ought to have the proposed amendments before us now, if you have them.

Senator BARRETT. We have the proposed amendments in the Secretary's letter.

Senator ANDERSON. This, then, is the letter here?

Secretary McKAY. I am talking out of turn. Let the Senator look at it.

Senator ANDERSON. I am informed that this has not been made a part of the record so we will include it at this time. This is the letter from the Secretary of Interior, dated March 20, 1956, addressed to Senator Murray:

This letter is in response to your request for a report on amendments contained in committee print dated August 17, 1955, and intended to be proposed to S. 863, a bill to govern the control, appropriation, use, and distribution of water.

Subject to consideration of the comments herein set forth, this Department favors the objectives of this proposed legislation.

Section 1 of the proposed substitute bill would designate the proposed legislation as the "Water Rights Settlement Act of 1956." It is noted that its provisions would apply only to those States lying wholly or partly west of the 98th meridian. Hence, we suggest that the designation should read "Western Water Rights Settlement Act of 1956."

A brief summary of the unique growth of water law in the Western States should be helpful in appraising the merit of the proposed substitute bill.

Water law in the Eastern States is, for the most part, based upon the common law doctrine of riparian rights. Under these principles rights to use flowing waters are appurtenant to the ownership of riparian lands, and each such owner has, an obligation to return water used to the stream, substantially undiminished in quality or quantity, for the benefit of downstream riparians. As against the rights of others, riparians may not use water on nonriparian lands. Furthermore, upper riparians do not lose their rights through nonuse even though downstream riparians may have put the water to beneficial use for many years. These results were satisfactory at a time when and in a humid region where water could be assumed plentiful for all human needs.

All of the States to which the proposed bill would apply are totally or partially arid or semiarid. The land areas of these States vastly outstrip the available water supply. Consequently, the adoption of water law principles by these States was and is a matter of fundamental importance to their deevlopment. Control over the use of water in those States can be a matter of life and death to whole communities, and, in the interests of sound public policy, rights to the use of water must be as free from uncertainty as our legal institutions can make them.

The history of Western water law commenced with the discovery of gold on public lands in the 19th century. These lands at that time were not open to occupation and settlement under Federal law, yet settlers went into these areas and established local rules and regulations to provide a reasonable degree of peace and order. Even before Federal recognition of these rules and customs, State and territorial legislatures and courts enforced and implemented them.

Because of the arid nature of the region it was frequently necessary to divert water from streams and lakes for use in the mining localities. Under local laws and customs water rights were based upon appropriation of water, priority in time, and beneficial use. In some States, such as California, the principle of prior appropriation was superimposed on the riparian system. In others, such as Wyoming and Colorado, prior appropriation was adopted as the exclusive principle of water law. In Colorado and Utah water has been declared to be the "property of the public." [Colo. Constitution, Art. XVI, sec. 5; Utah Code Ann. Sec. 73-1-1.] The Wyoming constitution declares water to be the "property of the State." [Wyoming Constitution, Art. 8. Sec. 1].

Since the United States, through cession, was the owner of the vast public lands in these Western States and Territories, its potential claims, riparian or otherwise, to water rights as appurtenances to its land ownership constituted a definite hazard to the rights of early settlers who had diverted water, conducted it long distances, and put it to beneficial use for mining and agricultural purposes. Desiring to promote the development of the West the Congress enacted a series of acts opening lands to settlement for mining and agricultural purposes. By the act of July 26, 1866 (14 Stat. 251) the Congress confirmed

water rights which had accrued by priority of possession and "are recognized and acknowledged by local customs, laws, and the decisions of courts ***." These possessory rights were further protected by the act of July 9, 1870 (16 Stat. 217) which provided that public land patents "shall be subject to any vested and accrued water rights." See Atchison v. Peterson (87 U. S. C. 507); Basey v. Gallagher (87 U. S. C. 670); Jennison v. Kirk (98 U. S. 453); California Oregon Power Co. v. Beaver Portland Cement Co. (295 U. S. 142).

These statutes were followed by the Desert Land Act of 1877 (19 Stat. 377) which allowed the entry and reclamation through irrigation of desert lands in a Western area which now includes the States of California, Oregon, Nevada, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, North and South Dakota (Colorado was added later). This act contains a proviso that an entryman's right to use water would depend upon prior appropriation for irrigation and that—

all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water sup ply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights (43 U. S. C. 321).

The Reclamation Act of 1902 (32 Stat. 388) provided the basis for direct action by the Federal Government in the construction and operation of irrigation projects. From the very beginning Congress declared that this program must be carried out in conformity with State water law. Section 8 of that act provides:

"SEC. 8. That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State, or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the water thereof: Provided, That the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."

As other Federal programs for resource management have come into existence a number of provisions have been enacted, varying scope and detail, which were manifestly designed to avoid conflict between Federal activities and local water law principles. Among these are the following:

(1) Act of June 4, 1897 (30 Stat. 36), relating to forest reservations. (2) Sections 9 (b) and 27 of the Federal Power Act of 1920 (41 Stat. 1068, 1077).

(3) Section 3 of the Taylor Grazing Act of 1934 (48 Stat. 1270).

(4) Sections 3 (b) and 10 of the Water Conservation Act of August 11, 1939, as amended by the act of October 14, 1940 (54 Stat. 1121, 1125). (5) Section 1 of the Flood Control Act of February 22, 1944 (58 Stat. 887).

(6) The National Parks Act of August 7, 1946 (60 Stat. 885).

(7) Section 208 of the act of July 10, 1952 (66 Stat. 560).

(8) Section 3 (e) of the Submerged Lands Act of May 22, 1935 (67 Stat. 31).

(9) Section 4 of the act of August 4, 1954 (68 Stat. 667).

(10) Section 4 (b) of the act of July 23, 1955 (69 Stat. 368).

Under these statutes, which are built on the principle of comity between the Federal and State Governments in regulating the acquisition of rights to the use of water, thriving communities have been established in States once described as the Great American Desert. Today approximately 27 million acres are irrigated. Of this total about 7 million are the result of Federal projects, and the rest have been subjected to irrigation through local efforts based upon presumed security of property rights to the use of water.

At least with respect to nonnavigable waters, this presumed security of right so necessary to encourage local water development seemed well founded. Federal legislation, particularly the Desert Land Act, described above, appeared to have removed the possibility that Federal public land ownership and water development activities could jeopardize these water rights based upon State