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I am very much in favor of the principles of the bills introduced by Senator Barrett and Congressman Engle. I feel that all parties who appropriate the public waters of the State should do so under one set of rules, those rules laid down by our legislature under our constitution and as interpreted by the State courts.
I am unable at this time to say just what the direct effect of the Pelton decision could have on water administration in Nebraska. However, I feel very strongly that the Federal laws should be so amended so as to require all parties, including all Federal agencies, to have their rights to the use of waters in any State determined by the State agency established for that purpose and to have any legal conflicts relating to water appropriations determined by the State courts. The Federal Power Commission, and any other Federal agencies which may have licensing powers where the use of public water is involved, should be required to grant such licenses subject to the granting of necessary water rights by the appropriate State agency.
At this time there is pending in the Federal district court a suit filed by a Federal receiver of an irrigation project in this State seeking a determination of the extent of the water appropriation for the project. This department and water appropriators whose interests are involved moved for a dismissal of the suit on the grounds that the Federal court lacks jurisdiction. The motion for dismissal was argued on July 11, 1955. As yet we have had no decision on the jurisdictional question. In the meantime we are uncertain as to how we should proceed in the administration of the water rights involved. We are more concerned, however, with the possibility that the Federal court will assume jurisdiction and hand down an opinion which would be contrary to established policies and court decisions upon which our administrative procedures are based.
I think the only satisfactory solution of this problem which is continually before us is national legislation which will require all Federal agencies to have their rights relating to the use of water determined in the State courts the same as any individual or local agency is required to do.
You are hereby authorized to present my views as expressed herein to any congressional committee before which you may appear on this matter. Very truly yours,
DAN S. JONES, Jr.,
Water Power, and Drainage. Senator BARRETT. Mr. Dan Jones, the writer of this letter, is a State official of the State of Nebraska?
Mr. PETERSON. Yes; he is our State engineer and in charge of water resources in Nebraska.
Senator MILLIKIx. I am happy to say that I know Mr. Chilson well. He succeeded the Honorable Jean Breitenstein, now a judge, as the water attorney for our water board. Mr. Chilson has succeeded Judge Breitenstein with outstanding satisfaction. He is an able lawyer and an eminent water attorney. I commend his presentation to your very careful attention.
Senator ANDERSON. Thank you. Now we will hear from Senator Neuberger.
STATEMENT OF SENATOR RICHARD L. NEUBERGER
Senator NEUBERGER. Mr. Chairman, I would like to submit a brief statement and certain documentary material for the record of the committee's hearings on S. 863.
Much of the stimulus for S. 863 and related legislation, which is now under consideration in both Houses of Congress, results from the decision of the Supreme Court of the United States of June 6, 1955, in Federal Power Commission v. Oregon, popularly known as the Pelton Dam case.
As one of the Senators from Oregon, I have followed the progress
of the Pelton Dam case with attention and concern; first, because along with many conservationists and fishermen and the agencies
of the Oregon State government concerned with fish and wildlife, I oppose the construction of this dam on the Deschutes River; and second, because of the as-yet-undefined implications of the case for the administration of the water laws of the Western States, such as Oregon, where the Federal Government owns half or more of the land. The case was litigated in the Federal courts by Attorney General Robert Y. Thornton, of Oregon, and Deputy Attorney General Arthur G. Higgs, and Mr. Rollin E. Bowles, of Portland, appeared as amicus curiae on behalf of the Oregon division of the Izaak Walton League of America.
I do not, of course, know what decision your subcommittee may reach as the result of your study and consideration of S. 863, Mr. Chairman. However, in this connection, I would like to bring to the attention of the subcommittee a bill, S. 3250, introduced by my senior colleague, Senator Morse, and me specifically to deal with the Supreme Court's decision of last year in the Pelton Dam case. Becaus S. 3250 is in the form of an amendment to the Federal Power Act, it has been referred to the Committee on Interstate and Foreign Commerce; and that committee has recently initiated hearings on it. For the information of this subcommittee and the full Senate Interior Committee, however, I would like to suggest that the text of S. 3250 be made a part of the record of the present hearings, followed by copies of my statement in the Senate at the time of introducing the bill, and Senator Morse's and my statements in support of the bill before the Committee on Interstate and Foreign Commerce on March 20, 1956.
Thank you very much, Mr. Chairman.
[S. 3250, 84th Cong., 2d sess. ] A BILL To amend the Federal Power Act to make the applicability of State water laws
to applicants for a license under that Act independent of any reservation or classification of lands of the United States, to revoke the Federal Power Commission's license for the Pelton project numbered 2030, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 27 of the Federal Power Act is amended by inserting “(a)" after “Sec. 27”, and by inserting at the end of the section the following new subsection :
"(b) In any case where a license is required under the provisions of this Act because the project, or a part thereof, for which such license is required is to be constructed upon lands of the United States, any reservation or classification of such lands shall not affect the applicability or nonapplicability of the laws of any State, relating to the control, appropriation, use, diversion, or distribution of water to the applicant seeking the license."
SEC. 2. Pending any future proceedings in accordance with law as amended by section 1 of this Act, the license granted by the Federal Power Commission to Portland General Electric Company to construct, operate, and maintain a hydroelectric plant, known as Pelton project numbered 2030, in and along the Deschutes River in Oregon, is revoked.
Mr. NEUBERGER. Mr. President, our Nation is presently entering a cycle of its greatest population growth-a trend which foreshadows unprecedented pressures on our storehouse of natural resources. Perhaps no more delicate task confronts us than the problem of putting these resources to their best use to meet the demands of the present generation without forever impairing their availability to those who will follow us.
This conflict has been brought dramatically into focus in my home State of Oregon where a power company has received a Federal Power Commission license for a hydroelectric project, despite efforts of the Oregon State government to prevent it. The State of Oregon contends that the power company's high dam will destroy the runs of anadromous fish which spawn in the Deschutes River, a stream held in high esteem by anglers for the number, size, and quality of fish.
On March 16, the Portland General Electric Co. will open bids for the dam which will forever form a barrier across this source of enjoyment for sportsmen and source of a livelihood for scores of commercial fishermen. When the concrete is poured for the dam's foundation and powerhouse, and unless Congress acts, a final and unhappy chapter will be written to what has become known as the Pelton Dam case. The steel and concrete of the dam will bring to an end the inspiring fish runs which, since some time in the misty past, have coursed each year up the Deschutes River to spawn. If this depredation is permitted to occur, we will again have turned our backs on the obligation to preserve and protect natural resources for the benefit of future generations. It will also stand as a symbol of private power company arrogance and disregard of State law for management of its resources.
STATE OF OREGON SOUGHT TO PRESERVE FISII RUNS
The battle to preserve the fisheries resource of the Deschutes has been long and involved. In 1949, the Northwest Power Supply Co., of Portland, Oreg., predecessor company of Portland Central Electric, applied for a Federal Power Commission license to construct, operate, and maintain a hydroelectric plant designated as Pelton Project No. 2030. The State of Oregon, the Fish Commission of Oregon, the Oregon State Game Commission, and the Oregon division of the Izaak Walton League, intervened before the Commission. They objected to the Commission's authority to grant a license opposed by the State government and to the suitability of the fish-passing facilities.
In 1953, seeking to eliminate the legal objections of the State, the power company attempted to have the Oregon Legislature enact a measure which would have nullified State laws on water rights and usages. The attempt failed, and after the Federal Power Commission license was granted, an appeal was taken by the State of Oregon to a Federal court. Last June, the United States Supreme Court held that the FPC was within its authority in granting the license.
Taking refuge behind the Supreme Court decision, the power company has moved to start construction of the project. Despite the fact that the license stipulated the company work out plans for passing fish over the structure with State and Federal fisheries agencies, this has not been done. The authority of the State has been disregarded.
Because of this situation, I am introducing a bill today to revoke the license of the Portland General Electric Co. for the Pelton Dam project. But it is also necessary to correct the deficiency in water law which made the Pelton decision possible. In explaining the effect of this section of the bill, I would like to outline the background which makes its enactment necessary.
RIVER FLOWS WHOLLY WITHIN STATE OF OREGON
Mr. President, the entire length of the Deschutes River lies in the State of Oregon. It is a wholly intrastate stream. The Federal Power Commission made no finding of navigability on the Deschutes--in granting the license it proceeded on the assumption either that it is nonnavigable, or at least that it made no difference whether or not the Deschutes is navigable. The Pelton Dam license, then, represents a case of a project licensed to be built on lands of the Federal Government across a wholly intrastate stream, assumed to be nonnavigable.
The State of Oregon, having objected to this project, took its case from the Federal Power Commission to the United States Court of Appeals for the Ninth Circuit, in San Francisco. That court set aside the Commission's order, on the ground that the public-land legislation of the Congress had long ago made the use of nonnavigalbe waters on Federal lands subject to State control, and that licensees would have to receive their water rights under the water law of the State concerned.
The Federal Power Commission took the case to the Supreme Court of the United States. Several other Western States, which, like Oregon, find a large proportion of the land-and, even more important, the water-within their borders owned by the Federal Government, joined Oregon in the litigation by submitting briefs amici curiae.
SUPREME COURT'S HOLDING JEOPARDIZES ALL WESTERN STATES
The Supreme Court reversed the court of appeals. It held, in brief, that whatever might have been true on public lands of the United States under the Desert Land Act, those rules were made inapplicable by the fact that the proposed project would be built on Federal lands which have been reserved for power purposesthat is to say, on "reservation" rather than “public lands.” Both terms are used in the Federal Power Act, under which the license is granted.
Mr. President, the apparent implication of this decision is that-whatever may be the water rights of a State and its citizens under other Federal public-land laws—these State water laws may be superseded by a simple decision by the Federal Government to create a "reservation” for some purpose. Already, I understand, Federal military reservations all over the West are relying on the Supreme Court's decision as proof that they are beyond any requirement of compliance with State water law.
Mr. President, the decision in Federal Power Commission against Oregon the Pelton Dam case-is thus of incalculable significance for all Western States, including Oregon, in which water is more precious than gold, and in which the Federal Government holds much of the land. The people in these States believe that the implications of this holding go far beyond any reasonable requirement of Federal control over water on its own land. I think the Senate will agree this is a reasonable belief. To negate these implications, and to reverse the decision which gave rise to them, I therefore introduce, for appropriate reference, on behalf of myself and my distinguished colleague, the senior Senator from Oregon (Mr. Morse) a bill to amend the Federal Power Act to make the applicability of State water laws to applicants for a license under that act independent of any reservation or classification of lands of the United States, to revoke the Federal Power Commission's license for the Pelton Project No. 2030, and for other purposes.
Mr. President, section 1 of this bill simply provides that the creation of reservations on Federal lands shall not affect the rules governing State water laws and their application to Federal lands under existing public-lands legislation. In other words, it reverses the Pelton Dam decision and returns the law exactly to the point where it was prior to that decision.
Section 2 of the bill revokes the license granted to the Portland General Electric Co. to proceed in disregard of the objections of the State of Oregon, so that if there is ever any future consideration of projects on the Deschutes River, it will proceed in accordance with the law as amended by my bill, and as it was before the decision of the Supreme Court upholding the license on the ground that the project was located on a reservation rather than on the public lands of the United States.
Other bills have been introduced, Mr. President, which seek to institute a tre. mendous reconsideration and redefinition of all water laws and water rights as between the States and the National Government in our Federal system. Such a redefinition might take years to work out and to enact, and in the meantime the Deschutes would be blockaded for all time.
My bill has no such extreme ambition. It is a simple bill, and it does a simple job. It returns the law to the point where it was, or where all parties thought it was, before the recent decision that has given rise to the presently brewing crisis in western land and water law. Whatever may be later done with other bills, this bill can be studied and acted on very rapidly. I hope that we may be able to complete this action during the present session of Congress.
THE PROBLEMS POSED BY THE PELTON DAM PROJECT AND DECISION
(Statement by Senator Wayne Morse on S. 3250 before the Senate Committee
on Interstate and Foreign Commerce, Tuesday, March 21, 1956) Mr. Chairman and members of the committee, your action in scheduling hearings on S. 3250 is appreciated. As you know, I am a sponsor of the bill and, of course, advocate favorable action. In fairness to the many groups in central Oregon and to the committee, I must state for the record that this is a controversial project. Therefore, I request that the opportunity be afforded advocates of the Pelton Dam project to present their views to the committee.
At this time I do not wish to make an extended statement because there are witnesses from Oregon whose time in Washington is very limited.
TWO BASIC PROBLEMS PRESENTED
A. State authority over intrastate, nonnavigable streams
The Pelton Dam, for which the Federal Power Commission has issued a license over the protest of Oregon agencies, would be located on the Deschutes River, a wholly intrastate stream. In the case before the Commission and the courts, no party contested its classification as a nonnavigable waterway. Federal jurisdiction was based upon the fact that the dam would be built on Federal land, which had been reserved by administrative action for future power development.
The Supreme Court's decision upholding the Federal Power Commission license was based in major part upon a technical difference between “public lands of the United States" and "reserved" lands. There was no doubt that as to "public lands" the Desert Lands Act applied, thereby insuring the State control over water rights. The Court held, however, that reserved lands, though formerly public lands, were not covered by the Desert Land Act and hence the State did not have the authority to withhold approval of a dam and the use of the water proposed.
It is quite clear that this is a technical kind of distinction which has no support in policy considerations. I do not criticize the Court. It interpreted the law as it found it, and that was in a somewhat confused condition,
The bill which Senator Neuberger and I propose would do no more than remove the distinction without a difference from the Federal Power Act. We share the concern of many westerners over the implications of the Federal Power Commission v. Oregon decision. It does endanger State authority in private license proceedings for projects on wholly intrastate, nonnavigable streams.
Some have advocated a drastic and radical revision of the Federal Power Act as a result of what has become known as the Pelton case. This is a dangerous and shotgun approach to what is a narrow problem so far as the text of the law is concerned.
We urge returning the law to the condition it was in before the Federal Power Commission v. Oregon decision without major and dangerous surgery. B. Power versus conservation
As every member of this committee knows, I am an advocate of hydroelectric power development. None knows this better than the chairman, the senior Senator from Washington, Mr. Magnuson.
However, in approaching problems of resource development in the river-rich Pacific Northwest and elsewhere, a proper balance must be maintained between power production and other very valuable resources. Wherever possible, the use of a stream for power and other conservation uses should be harmonized so as to promote the greatest good for the people of the area. At certain sites the economic production of power should take precedence over competing potential uses. At others, the preservation of invaluable fish runs or other wildlife resources have a higher social value.
The Deschutes is famous for its commercial and sports fish runs. The power potential of the Pelton site is relatively small; it is a total installed capacity of 108,000 kilowatts. I am not completely convinced that the fish and power uses are finally irreconcilable, although the procedure in this case has led to a winnertake-all result to date. Some, who believe that the power use is more important than fish resources in the Deschutes and the Metolius which joins it above the Pelton site, do not fully appreciate that the power that would be generated would not be used in central Oregon, but would go into the Portland General Electric service area in western Oregon. Yet many who support the project argue that the power produced at Pelton would provide central Oregon with badly needed power.
I believe that a cancellation of the Pelton license and the revision of the law proposed would make possible a fresh start on attempts to harmonize use of the site for power and preservation of fish runs. However, if a final choice must be made between relatively small power production and the irreplaceable commercial and sport fish runs, the latter have higher social utility in this area. Commercial fishing in the Columbia Basin has been declining. Sport fish resources are shrinking in Oregon and elsewhere in the Nation. Once lost they are difficult, and probably impossible, to replace.
Outdoor recreation is of ever-increasing importance to our people. Our growing population, increasing leisure, and the pressures of city life make outdoor recreational opportunities ever more important. We cannot afford to shrink those opportunities.