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Senator MALONE. But that does not determine how much water will be available for additional land 50 years from now under better conditions. That is the point I wanted to make.

When you file as a State on unappropriated water where a project is contemplated, is it not a safeguard against a third party coming in and botching up the situation so that perhaps this third application would have to be handled because you could construct the project through the Federal Government?

Mr. BANKS. That I believe was the intent of the so-called State filing procedure.

Senator MALONE. It was not the intent to prevent any project that the State approved to be constructed.

Mr. BANKS. No.

Senator MALONE. If they approved the Federal Government coming in it is just an automatic transfer of the water right to them.

Mr. Banks. The purpose of the State filing was not to prevent any specific entity from proceeding or to allow any specific entity to proceed, but it was to assure that the development of those particular water resources concerned shall be generally in accordance with the plan for which the application was filed.

Senator MALONE. Let me clear up one other point and it is only for people who may read the record.

When you call hearings on an application from the Federal Government, you are complying with the State law with no idea of turning that application down at all if it is to be applied to this project. You have to do that in compliance with State law; do you not?

Mr. Banks. We regard the Federal Government in the same status as any other applicant for a water right.

Senator MALONE. You have approved the project. Therefore, there is no question about the decision. But you comply with the State law.

Mr. Banks. With respect to the State filings, you are correct, if the project has been built.

Senator MALONE. Where you have control, there is no question of your compliance with the application if they make the proper appropriation here to build a project. But you must comply with the State law in any case and have certain advertising periods and certain hearings?

Mr. Banks. That is right.
Senator MALONE. I wanted to clear that up.
Mr. Banks. There is a procedure set up that is mandatory.
Senator WATKINS. I want to clear that up, too.

However, that is not an idle proceeding. If people came in and presented evidence at one of those hearings that upset the Government program, you would not approve it just because the Government was involved. If you had a Federal reclamation project, you would proceed on the law just the same as if the Federal Government were a private citizen or corporation ?

Mr. Banks. The purpose of the protest is to protect the prior rights of the protestants. They must produce proof that they do have a prior right, if you follow what I mean. It is not a protest against the project. It is a protest against an alleged interference of that project with a prior right.

Senator WATKINS. Which might impair whatever water right the protestant may have.


Mr. Banks. That is right.

Senator MALONE. Regardless of whatever it is you must follow the State law and advertising periods and hearings?

Mr. BANKS. Yes.

Senator MALONE. That is a routine matter regardless of what you intend to do.

Mr. Banks. It is exactly in the same category as the due process of law in a condemnation proceeding or anything else.

Senator WATKINS. State engineers have to make a decision according to law and the evidence is presented to them in a semijudicial proceeding.

Mr. BANKS. Yes.

Senator WATKINS. We have a case in New Mexico that was called to the attention of the House committee. The Federal Government was in wildlife there. They went ahead and spent a lot of money. Finally they applied for extensions of time to go on with the project. Finally the State of New Mexico said, “You didn't comply," and all these extensions granted were invalid, and now the Federal Government has no water for the project.

Senator BARRETT. They did not comply with State law.

Senator WATKINS. I know that is the claim. That is one of the reasons that is urged that the Federal Government should have some rights above the State law and it would be a lot better if the Federal Government owned the water. Either that or cut out building projects in the States where they have trouble.

Senator O’MAHONEY. As I came into the committee room, you were testifying with respect to some system which is followed in California by which I understand you to say that a fiscal officer of the States files an application for unappropriated water; is that right?

Mr. BANKs. Yes. In furtherance of general and coordinated plans of development. That is the director of finance.

Senator O'MAHONEY. The director of finance makes an explanation for all available unappropriated water?

Mr. Banks. No. He files applications for unappropriated water in furtherance of general and coordinated plans of development. He does not and has not and has no authority to make applications for all of the unappropriated water of the State of California in advance of the development of general and coordinated plans for the development of all of the waters of the State. He is directed to file applications in furtherance of general and coordinated planning.

Senator O’MAHONEY. What is the theory of that action? It seems to me to be taking some authority away from the State engineer.

Mr. BANKS. No.

Senator MALONE. The State engineer has no authority to file on the water. He receives the application.

Senator O'MAHONEY. Yes, I understand.

Mr. Banks. In California, as I understand the administrative setup, you might regard the director of finance as trustee or administrator of certain State properties.

Senator O'MAHONEY. Is this fiscal officer a functionary who stands between the engineer and the ultimate beneficiary?

Mr. Banks. If I may take just a moment.

Senator O'MAHONEY. Perhaps it will be easier for you if you would file for the use of the committee the California State law on this particular thing.

Mr. Banks. We would be glad to do that.

Senator O’MAHONEY. And give us particularly the date on which it was adopted.

Mr. BANKS. We can do that. It is written for reference for the record. It is contained in sections 10,500 through 10,505, of the State water code.

(The information referred to was not received at the time the hearings were printed.)

Senator O’MAHONEY. Thank you very much. I do not want to delay Senator Barrett.

Senator BARRETT. Mr. Chairman, I am very pleased with the statement that Mr. Banks made with reference to this bill.

Since Mr. Rankin, representing the Attorney General, is coming up here this afternoon, I feel constrained to clear up one other point in connection with his statement. He has Mr. Towner here who represents his legal staff.

Last summer the Associated Irrigation District of California got 15,000 copies of my statement on this legislation, including the bill so I think the staff of the State engineer as well as many of the irrigation people in California are well informed on exactly what was proposed.

I am therefore somewhat disturbed about this one sentence in your statement and I quote:

By such specific approach the results to be achieved could be clearly seen and many of the problems inherent in S. 863 including some points of possible conflict with the Federal Constitution could be more readily resolved.

Now I may say that many other lawyers in the West have made an extended study of this problem and the question I would like to direct not to you, Mr. Banks, because you have stated that you are an engineer and not a lawyer, but to your attorney, Mr. Towner, is this:

Can you cite any cases decided by the Supreme Court of the United States where section 8 of the Reclamation Act of 1902 has been declared unconstitutional?

Mr. TOWNER. No, sir.

Senator BARRETT. What is the basis then upon which you make the statement that there may be a conflict with the Constitution? We have not been able to determine any conflict with the Constitution. We contend to the contrary.

Mr. TOWNER. As I answered you to your first question, I know of no case in which section 8 has been held unconstitutional. I can cite you certain cases where attempts have been made to construe section 8. I don't want to take the time up now. I think the questions would probably be beter directed to representatives of the Department of Justice.

Senator BARRETT. Is the department of Justice representing the State of California in this proceeding?

Mr. TOWNER. No, sir, it is not.

Mr. Ely. May I interrupt to say that when I am reached, I propose to say that I think the bill is not subject to constitutional difficulties.

tion to you.

Senator BARRETT. I am sure you would say that, Mr. Ely. I was quite positive you were going to say that so I did not direct the ques

Mr. ELY. The difficulties to which Mr. Banks' statement refers are not those seen by the State of California but by the critics of your bill and the effort has been made to find answers to those. I shall try to give some answers myself.

Senator BARRETT. I appreciate that, Mr. Ely. I was sure that was your position.

I think we have cleared up the record.

Senator OʻMAHONEY. I would like to make this a part of the record at this point. I will not take any time since the witness has apparently taken a different position.

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It is possible that a better approach to the Federal-State water problem might be one based on specific amendment to specific existing Federal legislation, rather than the omnibus approach of S. 863.

That is precisely the position that the Bureau of the Budget took. It wanted to deal with this piecemeal and bit by bit to offer State water rights. So I was rather puzzled to find it in your statement.

Mr. Banks. May I say this: that is not a position. It was not intended to be a position as that is written there. Perhaps our wording is not of the best. I wish to assure you that it is not a position. It was more in the line of a suggestion of a possible line of attack on this thing. Of course, we had no knowledge of the position of the Bureau of the Budget.

I would like to repeat that again we are wholly in accord with the objectives and principles enunciated in S. 863. "The bill is satisfactory to the State of California.

I believe Mr. Ely will have some questions on interstate matters here which he will bring up. As far as our office is concerned, the bill is satisfactory Senator O VLAHONEY. Very well, sir.

Mr. Banks. We will support it on that basis.
Senator BARRETT. I have no more questions, Senator.

Senator O*MAHONEY (presiding). The subcommittee stands in recess until 2 o'clock.

(Whereupon, at 12:25 p. m., a recess was taken until 2 p. m., this same day.)

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(The subcommittee reconvened at 2 p. m., in room 324, Senate Office Building, Senator Clinton P. Anderson, chairman of the subcommittee, presiding.)

Senator ANDERSON. Senator Knowland, if you have a statement you wish to make, you may proceed.



Senator KNOWLAND. Mr. Chairman, I do appreciate it. I left the floor on some debate in which I expect to be engaged, and have to return there. I did want to make a brief statement.

I appreciate this opportunity to appear before the Interior Committee's Subcommittee on Irrigation and Reclamation to testify on behalf of S. 863, the legislation before you introduced by Senator Barrett and other Senators. I believe that it would be an understatement to assert that during the past several years our State officials have become critically concerned with what has appeared to be an increasing encroachment by the Federal Government on State water laws and rights which previously had been respected and maintained.

With your permission, I would like to take the time of the members of the subcommittee to read a letter I recently received on this serious problem from Goodwin J. Knight, Governor of the State of California (reading):

We are becoming increasingly concerned over the relationship between the Federal and State Governments in the matter of water rights. As I am sure you are fully aware, our own State has assumed the leadership in the formulation of future plans for the comprehensive development and utilization of its water resources. We are, I hope, about to begin the implementation of these plans by construction of the Feather River project. Recent developments appear to indicate that the future of such plans may be uncertain particularly because of the decision of the Supreme Court of the United State in Federal Power Commission v. Oregon (349 U. S. 435 (1955)). In fact, it may be said that the principles approved by the Court in this and other cases, as I understand them, vest in the Federal Power Commission a possible effective veto power over any such plans by any State. Recent actions by the United States Navy Department in refusing to abide by the water laws of Nevada appear to have further jeopardized the integrity of State water laws.

I believe that in view of the increasing activities of the various Federal agencies in this general field, the representatives of the concerned States should press for the immediate adoption of effective measures for the protection and preservation of power and prerogatives of the States to develop and control their own water resources in accordance with the public interest of the respective States. I urge you and the other California Representatives in the Congress, acting in concert with like-minded representatives of other States, to support appropriate measures in Congress to remedy this situation, and to vigorously advocate and guide them to enactment. I am sure you will agree that California's Representatives should assume the leadership in so doing to the same extent California has and is now leading in formulating its own plans for the development of its own water resources. It would appear that, because of their current active interest in water-right matters, the support of the Eastern and Southern States can be obtained.

In connection with the foregoing, I wish to call your attention to “Views of the State of California presented to Special Subcommittee on Water Resources and Power, House Committee on Government Operations” (together with letter of transmittal) which were submitted at hearings held in Los Angeles on December 7 and 8, 1955, before Hon. Robert E .Jones, chairman, with respect to a report of the Hoover Commission, a copy of which is transmitted herewith. In it you will find statements which are relevant to the present subject. I am also sending herewith comments on the Barrett bill (S. 863) prepared by Henry Holsinger, principal attorney of the State division of water resources.

In the future, if you so desire, our further views relevant hereto will be submitted for your consideration. We will be glad to review any other proposed legislation and furnish you with our comments and recommendations.

Again, I urge prompt action by the Congress in this important matter and respectfully request your active support.

Mr. Chairman, for almost 100 years the successive Congresses of the United States have consistently approved a Federal policy which assured the independence and inviolability of State water laws. This policy has been relied on by our farmers, our industrial workers, and our business people in an area of expanding population where water is the lifeblood of human existence.

The legislation now pending before this subcommittee, the proposed Water Rights Settlement Act of 1956, is in my judgment constructive

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