AFTERNOON SESSION

Senator ANDERSON. The committee will be in order.

We will hear from Mr. Welsh now.

STATEMENT OF WILLIAM E. WELSH, SECRETARY-MANAGER, NATIONAL RECLAMATION ASSOCIATION, WASHINGTON, D. C.

Mr. WELSH. Mr. Chairman and members of the committee, with your permission and in the interest of time, I would like to file my statement and have it made a part of the record.

Senator ANDERSON. We appreciate your cooperation very much, Mr. Welsh.

Mr. WELSH. I guarantee it will not take nearly as long to make the comments I want to make as it would to read the statement.

(The statement referred to is as follows:)

STATEMENT BEFORE SENATE SUBCOMMITTEE ON IRRIGATION AND RECLAMATION ON AMENDMENTS TO S. 863 BY SENATOR BARRETT AND OTHERS

By William E. Welsh, secretary-manager, National Reclamation Association, Washington 4, D. C.

My name is William E. Welsh. I am secretary-manager of the National Reclamation Association, a position that I have held for the past 7 years.

The National Reclamation Association was organized in Salt Lake City in 1932 primarily for the purpose of saving the reclamation program for the West. It has included among its membership continuously since that time not only the representatives of all of the major irrigation districts and canal companies of the West but also without question the outstanding leaders of reclamation from each of its 17 member States. Included also among its membership during all of these years have been the leading irrigation engineers as well as irrigation and reclamation attorneys, men who are well versed in all of the problems inherent in western water law.

The question of control and jurisdiction over the streams of the West by the 17 Western States comprising the area lying west of the 98th meridian has long been a matter of concern to the National Reclamation Association.

NRA CONCERN DATES BACK TO 1937

The first resolution adopted by the association on this subject was in October 1937 when the annual meeting was held in Casper, Wyo. Each succeeding year strong resolutions were adopted in defense of the principle that the States have and should retain jurisdiction and control over the appropriation and use of the various streams of the West.

In 1942 two resolutions were adopted on this subject. Resolution No. 9 of that year authorized the appointment of a special committee of five members of the association to present the matter of State control of nonnavigable waters to the governors of the several States with the request that suitable provision be made by statute and appropriation for the appointment and payment of necessary expenses of representatives of each of such States to assemble data and make a thorough study of the rights and powers of such States to control all waters nonnavigable in fact and do all things that may be necessary and appropriate whether by way of conferences, court appearances or otherwise to protect properly the rights of the several States.

Pursuant to the provisions of that resolution, the then president of the National Reclamation Association, Mr. O. S. Warden, Great Falls, Mont., appointed a committee of eight with Judge Clifford H. Stone, Denver, Colo., as chairman of the committee. The late Judge Stone was well known throughout the entire Nation and recognized as one of the outstanding authorities of the first half of this century on western water law. Other members of the committee, which included a number of other prominent and outstanding water attorneys, included: George T. Cochran, A. E. Chandler, Gus T. Backman, Wardner G. Scott, Ralph L. Carr, Fred Cunningham, and Jean S. Breitenstein. The report of this com

mittee submitted to the association at the following annual meeting in October 1943 has long been recognized as one of the outstanding documents ever published by this association. The recommendations of this committee will be set forth a little later in this statement.

Following is the resolution adopted by the National Reclamation Association at the last annual meeting in Lincoln, Nebr., October 1955 which deals with this this particular subject.

RESOLUTION NO. 3-SUBJECTION OF ALL FEDERAL AGENCIES TO STATE WATER LAWS Whereas the authority to regulate and control the appropriation, distribution, and use of ground water and the waters of streams arising in States lying wholly or partly west of the 98th meridian is properly the exclusive sovereign right of these States; and

Whereas existing laws have not brought about clear and uniform practice in accordance with said principles by all Federal agencies and officers having to do with use or development of water resources; and

Whereas the recent decision of the Supreme Court of the United States in the Pelton Dam case (Federal Power Commission v. State of Oregon, 349 C. S. 435) is presently being interpreted erroneously by various Federal agencies to exclude them from the necessity of complying with State water laws; and

Whereas this interpretation points to the urgent need of a Federal law requiring all Federal agencies to obtain water rights in compliance with State water law whenever water rights are required in connection with projects, development, or use on Federal or other lands within affected States; and

Whereas this interpretation of the Pelton Dam case established a dangerous precedent because it has already been used by one agency of the Federal Government as a basis for its refusal to complete its appropriation for ground water as required of all water users under the laws of Nevada, on the grounds that the wells are on reserved lands of the Government: Now, therefore, be it

Resolved by the National Reclamation Association, That the Congress be urged to pass legislation to the effect that within the States lying wholly or partly west of the 98th meridian and subject to water rights heretofore established in their respective States, all navigable and nonnavigable waters together with underground water be reserved for beneficial use pursuant to State laws; and be it further

Resolved, That Federal agencies, permittees, licensees, and employees of the Federal Government, in seeking the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, shall as a condition precedent to the use of any such water, acquire rights to the use thereof in conformity with State laws and procedures relating to the control, appropriation, use or distribution of such water.

LEGISLATIVE COMMITTEE

The NRA legislative committee, at its meeting held in Washington, D. C., on January 25 of this year, in its progress report stated "the general objectives of the bill (S. 863) should be endorsed and every effort be made to secure the consideration of this legislation by the Conress. *** We urge the official representatives of the association to assist in every way in the further preparation of this legislation and its presentation before the commitees of Congress when hearings are held." The report of the legislative committee was approved unanimously by the board of directors January 26, 1956.

PRESERVATION OF INTEGRITY OF STATE WATER LAWS

The outstanding committee previously referred to submitted a report to the association in October 1943, entitled "Preservation of Integrity of State Water Laws." A copy of that report is hereby filed with this committee so that it will be available to the members. In addition to the report and recommendations of that committee, I would also like to call to your attention, beginning on page 146 of the report, the copies of joint resolutions and memorials passed by the State legislatures of seven Western States setting forth the policy of each State to maintain jurisdiction and control over the right to the use of the waters of the respective States.

The recommendations of that committee will long be remembered because of the comprehensive manner in which the committee dealt with the subject of

control, regulation, and utilization of water in the arid and semiarid areas of the United States.

These recommendations are as follows:

1. That the control, regulation, and utilization of water in the arid and semiarid areas of the United States be in accord with the principle that the highest use shall be for domestic consumption and for growing crops; that multiple-use or power projects shall be so designed and operated that domestic and irrigation needs shall at all times be paramount to the requirements of hydroelectric energy production; and that the imposition of Federal jurisdiction under the commerce clause to maintain navigable capacity and regulate floods in lower reaches of rivers having their sources in the arid and semiarid region, should recognize the maximum use of water for irrigation purposes.

2. That appropriate steps should be taken to resist resort to the commerce clause of the Federal Constitution, through various legislative enactments and a liberal construction thereof by judicial decrees; as a means of imposing complete Federal control of water resources in disregard of applicable State water laws.

3. That the States oppose the creation of Federal regional authorities for the control of the planning, construction, and operation of water-development projects as being inimicable to the preservation of the State control over water resources. 4. That in pending and all future litigation, the States unite in opposing the Government claim of the ownership of unappropriated waters of nonnavigable streams; that all necessary steps be taken to encourage compliance with the provisions of section 8 of the Reclamation Act of 1902 by the Secretary of the Interior; and that State officials resist the initiation of water rights for reclamation projects by means of a reservation of water by the Secretary of the Interior under the claim of Government ownership of all unappropriated water.

5. That in the interests of economy, avoidance of duplication of effort and the attainment of the highest use of the limited water resources of the West for all beneficial purposes, the States seek through action of the Congress, or by other effective means, to obtain the correlation of the activities of all departments, bureaus, and agencies of the Government engaged in water development and flood control.

6. That in the formulation of plans for basin development and in the authorization of specific projects, steps be taken to insure both the recognition of applicable State laws and the appropriate coordination of Federal and State jurisdictions over the waters involved in such plans or projects.

7. That to assure the most efficient use of waters for multiple purposes, to provide for amicable division of waters among States, to remove all causes, present and future, which might lead to controversies, to promote interstate comity, to recognize that the most efficient utilization of waters within a basin in the arid and semiarid West is for beneficial consumptive use, to preserve the integrity of State water laws, and to promote joint action by the States and the United States for the utilization of the water resources and the control of destructive floods, studies be made in various basins to determine the desirability of interstate compacts and encourage the making of such compacts.

8. That to attain the objectives set forth in the last preceding paragraph and to lay the groundwork for possible compactmaking, serious and immediate consideration be given to the formulation of basin States committees; that such committees make every reasonable effort to cooperate with interested Federal agencies.

9. That consideration and study be given to a proposal that in the national interest to provide for the reclamation of public lands and to preserve the best economy of a large section of the United States, the Congress adopt legislation recognizing that the paramount and most beneficial use of water west of the 98th meridian, or other designated line, is for beneficial consumptive use; and that all Federal agencies dealing with water in this region be required to observe this policy and that it be mandatory that any appropriation of water for beneficial consumptive use for projects planned, constructed, or operated by them in that region be in full conformity with applicable State laws. Such legislation should make appropriate and reasonable provision in compliance with the commerce clause for the maintenance of navigable capacity of major rivers which arise in the arid region and serve the ends of commerce in their lower reaches.

10. That while insisting upon the preservation of the integrity of State water laws, the States recognize the legitimate application of Federal jurisdiction and endeavor to coordinate it with the State jurisdictions over the appropriation and use of water for beneficial purpose; and that the States of the West resist a

policy, recently evidenced by the activities of some Federal agencies, bureaus, and departments, apparently designed to secure an unassailable Federal control of a limited and vital western resource in disregard of State laws and the established economy of a great region both through a claim of ownership of unappropriated water of nonnavigable streams and also through an application of the commerce clause of the Federal Constitution to obtain such control and not in the substantial interest of commerce. The States of the West have supported and shall continue to support and urge Federal participation in western water development as being in the national and regional interests, but it is believed that this program was neither initiated, nor is its continuance dependent, upon a surrender by the States of the control of the appropriation, use, and distribution of waters of the arid and semiarid regions heretofore exercised by them.

11. That the use of water for irrigation, industrial, and domestic purposes is local in character and plenary control thereof should rest exclusively in these States. The claim of the Federal Government, that it has a proprietary right to such waters is a challenge to the sovereignty of the States and, if established, renders them dependencies of the Federal Government. We should, therefore, invite other States to join in the preservation of the principle of State sovereignty and against encroachment upon State prerogatives by the Federal Government.

FURTHER EVIDENCE OF N. R. A. INTEREST

As further indication of the interest of the National Reclamation Association in this subject, the association, through its officers and directors, took a very active and leading part in all of the conferences held prior to and leading up to the drafting and adoption of the O'Mahoney-Milliken amendments to the December 1944 Flood Control Act, which was a major step toward recognition by the Congress of "the interest and rights of the States in determining the development of the watersheds within their borders and likewise their interest and rights in water utilization and control."

As another illustration of the active interest of our association in the general subject of the rights of the State to control the use and distribution of the waters of the State, I call attention to the fact that when the so-called Hope-Aiken bill, now referred to as Public Law 566, was before the Congress for consideration our association took a very active and leading part in urging two amendments to that bill:

1. A provision compliance with State law.

2. A requirement that the proposed projects should be approved by a local or State agency. In response to the urgent insistence of our association and others, the bill was so amended. I call to your attention particularly the provision requiring compliance with State laws as follows:

"SEC. 4. The Secretary shall require as a condition to providing Federal assistance for the installation of works of improvement that local organizations shail

"(4) acquire or provide assurance that landowners have acquired such water rights pursuant to State law as may be needed in the installation and operation of works of improvement."

PERSONAL OBSERVATIONS

Based upon my own experience and observations extending back over a long period of years, during which time I was actively engaged in administering and distributing the waters of the Boise River in southwest Idaho to the decreed users thereof, I would like to call attention to several pertinent facts.

The Bureau of Reclamation, originally known as the United States Reclamation Service, was required from the beginning, by section 8 of the act of June 17, 1902, to comply with State water laws. On December 4, 1903, a filing was made on the Boise River in accordance with State law by local citizens with the announced intention of assigning the same over to the Federal Government for use upon the proposed Boise reclamation project. The permit obtained as a result of the above filing was assigned to the United States on February 24, 1904. Proof of completion of works was made by the United States Government in accordance with State law for 1,647 second-feet on June 19, 1909.

The United States Government, through its local attorneys, participated in proceedings before the State courts along with local water users over a long period of years which ultimately resulted in the adjudication of the waters of the Boise River in accordance with State law. The water rights adjudicated

by the State courts included not only the water rights of the local water users but the water rights which had been previously filed upon and acquired by the United States Bureau of Reclamation under the laws of the State of Idaho. On several occasions I have talked with men of the Bureau of Reclamation who were in charge of the construction and operation of the Federal reclamation projects in that area. These men have always insisted that compliance with State law as required under section 8 of the 1902 act has not in any way hindered or interfered with the Bureau of Reclamation in carrying out its programs in the area.

We believe that the law should be so amended as provided in S. 863 to require that all Federal agencies which are given the responsibility of constructing and developing water projects on the streams of the West should be required to comply with State law in the same manner as the Bureau of Reclamation is required under section 8 of the 1902 act.

SUMMARY

The economy of the entire western half of the United States is dependent upon the continued beneficial and in most cases consumptive use of the waters of that area. The water rights upon which the western economy is based have all been acquired under State law during the past century. We believe that the welfare of the West requires that water rights in the future should be acquired and appropriated in the same manner as they have been in the past in full conformity to and compliance with the laws of the respective States.

Included in the report of the NRA special committee in 1943, Preservation of the Integrity of State Water Laws will be found an excellent address by the late Ralph L. Carr, former Governor of Colorado. The concluding sentence of former Governor Carr's address might well be said to summarize the position of the members of the National Reclamation Association on this most important subject: "To the States of the West water is life. The control of it by the States is of major importance.

"To lose control of that water may mean the end of the States as active governmental agencies and the establishment of a centralized control of men and rights which will challenge our theory of freedom."

In view of the foregoing and because of the significance of the Pelton Dam case in Oregon (Federal Power Commission v. State of Oregon et al., decided June 6, 1955) which has been fully discussed by a number of witnesses who have preceded me, and also because of the action by the Navy Department based on the Pelton Dam case contending that it is no longer necessary for the Navy to comply with State water laws, we strongly urge the enactment of Senate bill 863 or similar legislation which clearly and unmistakably sets forth the rights of the several States of the West to have complete control and jurisdiction over the appropriation, use, and distribution of the waters of the various streams of the West.

Mr. WELSH. First, I would like to call your attention to the fact that the National Reclamation Association, an organization with which I am sure you are all familiar, has been adopting resolutions on this particular subject every year since 1937, and in my statement is a copy of the resolution which was adopted at the last annual meeting which was held in Lincoln, Nebr., last fall.

I would like also to call to your attention a special committee of the National Reclamation Association and a report of that committee, which was submitted at the annual meeting of our association in Denver, Colo., in 1952. The committee was authorized by resolution in 1942. It included among its members some of the outstanding irrigation and water lawyers of the West. Judge Clifford H. Stone, of Colorado, was chairman of the committee. Some of the other outstanding attorneys who are members of that committee included former Governor Carr, Jean Breitenstein, who is now on the district Federal court in Colorado, Fred Cunningham, an outstanding water

75335-5622