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STATEMENT OF HAROLD H. CHRISTY, SUPERINTENDENT OF POWER
AND WATER DEPARTMENTS FOR THE COLORADO FUEL & IRON CORP., PUEBLO, COLO.
Mr. CHRISTY. Mr. Chairman, my name is Harold H. Christy.
Mr. Chairman, for the purpose of identification, I am superintendent of power and water departments for the Colorado Fuel & Iron Corp., Pueblo, Colo. I am also a member of the natural resources committee of the Chamber of Commerce of the United States. I have been a member of the executive committee of the Arkansas Valley Ditch Association since 1929 and the Colorado director of the National Reclamation Association since 1952. Today I am speaking in the interest of the Colorado Fuel & Iron Corp.
We are very much of the opinion that legislation such as S. 863 should be enacted by the Congress in order to remove all question of doubt as to the jurisdiction of the water resources in the 17 Western States.
The Colorado Fuel & Iron Corp. is the successor in interest to an integrated steel plant which was located at Pueblo in the late 1870's. One of the major factors determining the plant's location was availability of water supply from the Arkansas River and its tributaries.
The water supply for a steel plant represents one of the major natural resources required for its existence. The water supply for the steel plant at Pueblo has been developed over the past 80 years on the basis of State water laws.
At the start the water was supplied by a ditch, carrying rights from a tributary of the Arkansas River, said rights being perfected under the Colorado law. Subsequently additional rights which had been established by the Colorado courts were purchased to meet plant expansion. During the late 1890's, to meet further expansion, the corporation elected to construct what is known as Sugar Loaf Reservoir on the head waters of the Arkansas River. The reservoir site was located on lands withdrawn by the Federal Government for power purposes. Subsequently a release of the reservoir site was obtained and the land patented in the name of the corporation.
The decreed rights in the above-mentioned Sugar Loaf Reservoir were perfected under the Colorado law and carry priority date of 1902. I am sure that the Reclamation Act of 1902, which recognizes the rights of the State to issue decrees for water rights, gave assurance to the corporation's officials that they were proceeding in the right courts in perfecting title to this important natural resource. I might add here that this reservoir is completely surrounded by the public domain, namely, the national forests.
As planned expansion continued, additional water rights were aequired by purchase and transfer under the Colorado courts to the corporation's point of beneficial use. The latest facility in connection with expansion was the construction of the Winnegua (anal, some 46 miles in length, carrying water from the Arkansas River to two reservoirs immediately south of Pueblo and the steel plant.
In late 1952, petition was entered in the District Court of the 11th Judicial District of the State of Colorado, setting within and for the county of Fremont, known as case No. 6913, in order to perfect rights in the Minnequa Canal by reason of construction. Shortly thereafter, upon petition of other water users and the Federal Government, the petition for the adjudication of priorities of rights to the use of water in water district No. 12, of the State of Colorado, was entered requesting a general adjudication. This necessitated the readvertising and serving of notices on all water users on the Arkansas River.
Subsequently, the hearings before the court were delayed to permit the Federal Government to complete their testimony and submit filings and claims on behalf of its Bureau of Land Management, Department of the Interior and its Forest Service, and the Department of Agriculture.
After several months' delay awaiting the convenience of the Federal representatives and filing of claims, and so forth, notice was received by the court from a special assistant to the Attorney General that the United States of America was withdrawing all of its claims heretofore filed in this case.
All of the above filings covered the use of water on a public domain. Under Colorado law, in order to obtain a final decree, testimony must be presented to the court definitely establishing that the water represented by the claims has been put to beneficial use by the claimant. This would indicate that all of the structures on which filings and claims were presented by the Federal Government in the subject case, had been constructed and were being used. Continued use of water under these claims most certainly a ffects the amount of water available for other uses on the stream.
If the State courts do not control the regulation and use under the priority doctrine, who then is to say when diversions can be made?
I believe it is apparent that all of our industries, municipalities, and our irrigating ditch companies of necessity, have made large expenditure of funds to provide facilities for the use of water.
Due to the confusion and a lack of knowledge of who has final jurisdiction, it becomes very difficult for the above organizations to make plans and finances for facilities to provide for expansion and growth. Millions of dollars have been invested in facilities to permit the beneficial use of water obtained through decree of the State court. It seems apparent that legislation is necessary to clear up this question.
I might add, Mr. Chairman, to an engineer planning for plant expansion or to a municipality in connection with this withdrawal, it was understood that the Justice Department had indicated that there was a question of doubt as to whether the title to the land and to the water had ever passed from the United States.
If you are planning a new rolling mill, you might be looking at a project that would require the investment of $20 million or $25 million
A water supply is a basic necessity for cooling purposes in connection with that mill.
Who do we look to for jurisdiction if the State laws are not in effect?
Senator BARRETT. Mr. Christy, as you already know, State appropriation is the only system we have in the western country at the present time. There is no Federal system and, consequently, if you cannot look to the State, I do not know where you would look.
Now, the Justice Department has taken the position that of course there has been no transfer of the title to the water. They do say
that it questions the right of the Congress under the Constitution to make
a grant of authority to the States to administer the disposition and the control of the waters in their States.
Of course, that throws the dark cloud of suspicion on our water rights all over the West, and as you well know, if it had not been for the application of water to our arid lands in the Western States, we would still be the desert of about 100 years ago. Consequently, it is a terrible insecurity that we must look forward to if that principle is going to prevail.
We are hoping, of course, to correct it by this legislation.
Mr. CHRISTY. We are actually only tenants by sufference. We developed the civilization in the West where you have to regulate the erratic flows of the stream, who has priority, and how can you plan, how can you put anything in?
Senator BARRETT. Having permitted us to make such progress as we have during the last half century under State control now it would would seem a bit unfair for anybody to question the legality of the foundation structure upon which we built our farm economy and established our communities and our homes and developed our society, all predicated on the idea that we were supreme and secure in the administration of our water rights under State law.
Mr. CHRISTY. That is right.
I can say to you that not only has the National Reclamation Association endorsed this type of legislation by resolution, as you may know, but that the association inspired the legislation in the first instance.
Mr. CHRISTY. I know that.
I wanted to take this opportunity to thank you for allowing me to appear. I thought that private industry might add something to the minutes of this hearing to show the thinking of the people.
Senator BARRETT. We thank you very much, Mr. Christy, for your contribution.
Mr. CHRISTY. Thank you, gentlemen.
Senator BARRETT. Next we have Mr. E. W. Rising, appearing on behalf of Roger Ernst, Arizona State Land and Water Commissioner.
STATEMENT OF E. W. RISING, ON BEHALF OF ROGER ERNST,
ARIZONA STATE LAND AND WATER COMMISSIONER
Mr. Rising. I am E. W. Rising.
Mr. Chairman, I am appearing here today for the purpose of placing the name of Mr. Roger Ernst, Arizona State land and water commissioner, on the list of those who support the principles of Senator Barrett's bill, H. R. 863.
Mr. Ernst is unable on account of illness to appear before the committee in person.
I submit for the record a letter received by me from Mr. David F. Brinegar, executive secretary of the Central Arizona Project Association, authorizing this statement.
Thank you, Mr. Chairman.
(The letter referred to follows:)
THE CENTRAL ARIZONA PROJECT ASSOCIATION,
Phoenix, Ariz., March 5, 1956. E. W. RISING, Special Representative, Arizona Interstate Stream Commission,
Washington 6, D. C. DEAR EVERETT: I have just talked with Roger Ernst, Arizona State Land and Water Commissioner, who wishes to be on record before Congress as endorsing the Barrett bill providing for State control of water rights, but who cannot attend hearings because of recent surgery to restore his hearing. Would you please express Commissioner Ernst's backing of the Barrett bill, S. 863? Yours truly,
DAVID F. BRINEGAR. Senator BARRETT. The subcommittee will stand adjourned then until 2 p.m.
(Whereupon, at 12:32 p. m., the subcommittee recessed, to reconvene at 2 p. m. of the same day.)
Senator BARRETT. The subcommittee will be in order. At the outset, let us make a part of the record at this point the report of the Acting Secretary of Agriculture, Mr. True D. Morse, under date of March 21. (The report referred to follows:)
DEPARTMENT OF AGRICULTURE,
Washington 25, D, C., March 21, 1956. Hon. JAMES E. MURRAY, Chairman, Committee on Interior and Insular Affairs,
United States Senate. DEAR SENATOR MURRAY: This is in reply to your letters of June 20, 1955, and October 18, 1953, requesting reports, respectively, on S. 863, a bill to govern the control, appropriation, use, and distribution of water, and on S. 863, amendments “intended to be proposed by Mr. Barrett to the bill (S. 863) * * * which would strike out all after the enacting clause and insert in lieu thereof substitute wording.
This Department consider the amendment “intended to be proposed by Mr. Barrett to the bill (S. 863) * * *” to be much preferred over the original bill S. 863 and would have no objection to the passage of the bill when thus amended.
The major purposes of the legislation, as stated in the amendment are: (1) To remove clouds on prior water rights established by State law in the 17 Western States arising from the interpretation of previous acts of Congress; and (2) to provide for the future acquisition of unappropriated waters, navigable and nonnavigable, in compliance with State laws.
S. 863 declares all navigable and unnavigable waters in the 17 Western States to be free for appropriation under the jurisdiction of the States and thereafter subject to the laws of the States with respect to control, use, and distribution for all beneficial purposes and requires that Federal officers, employees, agencies and instrumentalities shall proceed in conformity with the laws of the State concerned in the same manner as private persons and shall be governed by the laws of the State in respect to the control, use, and distribution of appropriated water.
The amendment to S. 863 provides that in the use of water for any purpose in connection with Federal programs, projects, or activities no Federal agency or employee shall interfere with the exercise of any right to the use of water for beneficial purposes heretofore acquired under and recognized by State custom or law except when expressly authorized by law and justly compensated for; that this shall not be construed to preclude, when authorized by Federal law, the acquisition by the United States of such rights.
It reserves, subject to existing rights under State law, all navigable and nonnavigable waters for appropriation and use of the public pursuant to State law and provides that rights to the use of such waters for beneficial purposes shall be acquired under State laws. It requires Federal agencies and permittees, licensees, and employees, in the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, to acquire rights to the use thereof in conformity with State laws and procedures, with provisions that: (1) The United States may store and release water solely for the prevention of floods; (2) the United States may acquire water rights when authorized under Federal law; (3) no right acquired under State law shall be enforciable against the United States if such ri would be enforciable only because of a State law or custom which discriminates against the United States or denies the United States the opportunity to acquire such rights on terms and conditions at least as favorable as those enjoyed by any other entity or person.
It gives consent to join the United States as a defendant in any suit relating to water used for beneficial purposes when the United States is or claims to be the owner of any right to the use of such water or is in the process of acquiring right to the use thereof under State law or otherwise, and the United States is a necessary party to such suit. When party to any such suit the United States (1) is deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto; and (2) shall be subject to the judgments, orders, and decrees of the court in the same manner and to the same extent as an individual except that judgment of costs shall not be entered against it.
The Department of Agriculture has traditionally favored full recognition by the Federal Government of the authority of the States relating to the control, appropriation, use, or distribution of beneficially used water within their boundaries. The Department also believes that all Federal water resources activities should honor fully all concerned water rights acquired under State laws. It has required appropriate conformance with the provisions of such State laws in the administration of its various programs and activities. In this regard, neither the bill nor the amendment would have any financial implications insofar as this Department is concerned.
The Department feels that the amendment is much to be preferred over the original bill in that it is more complete and particularly in that it would recognize existing rights under State laws and provide that nothing in the act shall be construed to preclude the storage and release of water by the United States solely for the prevention of floods.
The Bureau of the Budget advises that, while there is no objection to the submission of this report, the Bureau recommends against favorable consideration of this proposed legislation pending clarification of legal and constitutional questions, and the completion of the study recommended in the report of the President's Advisory Committee on Water Resources Policy. Sincerely yours,
TRUE D. MORSE, Acting Secretary. Senator WATKINS (presiding). Mr. Secretary, we are very happy to have you with us to get the views of the Department on the bill which is now before us. It is a very important piece of legislation for the entire West which relies upon irrigation and the use of irrigation water to produce the agricultural products, also for industrial, mining, and other purposes. The West is badly in need of water. We hope we are going to maintain the standard of water rights which we have in the West.
We are very happy to have you here to state the position of the Department in this respect.
You may proceed.
STATEMENT OF HON. E. L. PETERSON, ASSISTANT SECRETARY OF
Mr. PETERSOx. Thank you, Mr. Chairman.
Mr. Chairman and members of the committee, your invitation to testify on S. 863, a bill relating to the control, appropriation, use, and distribution of water in the Western States, and on the amendments intended to be proposed by Senator Barrett to this bill, is appreciated.