UNITED STATES SENATE, Memorandum to: Senator Frank A. Barrett. From: Elmer K. Nelson. Subject: Section 6 of the Flood Control Act of 1944. 1. At your meeting today I mentioned section 6 of the Flood Control Act of 1944 and the attempt by Senator O'Mahoney to have a substitute adopted. 2. Section 6 of the Flood Control Act of 1944 does not provide that the Secretary of the Army (then the Secretary of War) shall comply with the water laws of the States involved. This is one major reason for the several resolutions of NRA. Section 6 is as follows: "SEC. 6. That the Secretary of War is authorized to make contracts with States, municipalities, private concerns, or individuals at such prices and on such terms as he may deem reasonable, for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the War Department: Provided, That no contracts for such water shall adversely affect then existing lawful uses of such water. All moneys received from such contracts shall be deposited in the Treasury of the United States as miscellaneous receipts (58 Stat. 890) (33 U. S. C. A. 708)." 3. When this act was debated in the Senate (Nov. 29, 1944, at p. 8548) Senator O'Mahoney offered the following amendment as a substitute for section 6 then under consideration: "SEC. 6. That the Secretary of War is authorized to contract for water storage for any beneficial uses or purposes with States, legal subdivisions thereof, State and interstate agencies, municipalities, public, quasi-public, or private corporations, firms, associations, or individuals on such terms and conditions as he may deem reasonable, when storage capacity for any such uses or purposes is or may be made available at any reservoir now or hereafter constructed by the War Department: Provided, That the right to the use of water for such purposes shall have been established by proceedings in conformity with State laws: And provided further, That no such water storage shall be in conflict with, or adversely affect, then existing lawful uses of water. All moneys received from such contracts shall be deposited in the Treasury of the United States as miscellaneous receipts." 4. This amendment, as is seen, was not adopted. But it is clear that Senator O'Mahoney had in mind a statute having the effect of the intent of the bill proposed by the National Reclamation Association. RESOLUTION ELMER K. NELSON. Whereas the Congress of the United States has repeatedly expressed its intention that Federal programs should not interfere with State law relating to the ownership, control, appropriation, distribution, and use of water, the Congress defined its policy as early as 1866 (act of July 26, 1866, 14 Stat. 253), when it encouraged State control by permitting the acquisition of water rights first on nonnavigable streams and bodies of water, on the public lands of the Western States and Territories and later when it subordinated navigation west of the 98th meridian to appropriative rights and by subjecting flood-control projects to the policy of protecting present and future beneficial consumptive uses (sec. 1 of the Flood Control Act of December 22, 1944, 58 Stat. 890), and recently by providing for adjudication of water rights, other than on interstate streams, in State Courts (sec. 208 of the act of July 10, 1952); and Whereas Congress has down through the years reaffirmed its position time and again that western water laws are to be observed and followed by the Federal Government in other acts, such as: 1. The act of July 9, 1870 (16 Stat. 253); 2. The Desert Land Act of March 3, 1877 (19 Stat. 377); 3. Section 8 of the Reclamation Act of 1902 (32 Stat. 390); 4. Sections 9 (b) and 27 of the Federal Power Act of 1920 (41 Stat. 1077); 5. Section 3 of the Taylor Grazing Act of 1934 (48 Stat. 1269); 6. The Great Plains Water Conservation and Utilization Projects Act of October 14, 1920 (54 Stat. 1119); 7. The water Conservation Act of 1939 (53 Stat. 1419); 8. The National Parks Act of 1946 (60 Stat. 885); 9. Subsection 3 (e) of the Submerged Lands Act of May 22, 1953 (67 Stat. 31); 10. The act of July 23, 1955 (being sec. 4 (b) of Public Law 167-84th Cong.) the act providing for multiple use of the surface of tracts of public lands; and Whereas in the case of Federal Power Commission v. Oregon (349 U. S. 435), known as the Pelton Dam case, decided June 6, 1955, and in a more recent case known as the Savannah River case, the Supreme Court of the United States injected great doubt and uncertainty into the validity of many water-law principles accepted generally throughout the Western States; and Whereas Senator Frank A. Barrett, of Wyoming, has introduced S. 863, known as the Water Right Settlement Act of 1956, which would again reaffirm, restate, and reinforce the long list of Federal laws enacted by the Congress for the express purpose of preserving the integrity of State water laws: Now, therefore, be it Resolved, That the water laws committee of the Texas Water Conservation Association in meeting assembled in Austin, Tex., this the 2d day of March 1956, does hereby endorse said S. 863 and companion bills in the House of Representatives and urges the early passage of such legislation by the Congress; be it further Resolved, That a copy of this resolution be forwarded to Senator Frank A. Barrett; to sponsors of companion bills in the House of Representatives, and to the Members of the Texas delegation in Congress. RESOLUTION Whereas it has been the settled rule of law for nearly a century that water rights in Midwestern and Western States are determined by State law, and not otherwise; and Whereas it has also been the established rule that control and jurisdiction over the waters of streams and rivers have been vested in the several States subject to whatever control the Federal Government has found necessary to exercise in the case of navigable waters in its regulation of navigation under the commerce clause of the United States Constitution; and Whereas section 210 of the Constitution of North Dakota provides that "all flowing streams and natural water courses shall forever remain the property of the State for mining, irrigation, and manufacturing purposes," and section 61-0101 of the North Dakota Revised Code, as amended, provides that "all waters within the limits of the State belong to the public and are subject to appropriation for beneficial use"; and Whereas the decision of the Supreme Court of the United States in the recent Pelton case, which virtually divested the State of Oregon of complete jurisdiction over the waters of the Deschutes River, a nonnavigable stream therein, threatens to jeopardize and impair the control of States in granting and adjudicating rights to the beneficial use of the waters of their streams: Now, therefore, be it Resolved by the North Dakota Reclamation Association, Inc., in meeting assembled this 3d day of March 1956, That Congress be, and is hereby urged, to definitely and unambiguously recognize the right and jurisdiction of the several States in and to the waters of streams and natural watercourses therein by speedily enacting into law Senate bill 863 proposed by Senator Frank Barrett of Wyoming and thereby settle for all time, and beyond question, that the control, use, distribution, and appropriation of the waters of streams and rivers is vested in the States, and not otherwise; and be it further Resolved, That copies of this resolution be sent to Senator Frank Barrett, Senator William Langer, Senator Milton R. Young, Congressman Usher L. Burdick, and Congressman Otto Krueger. RESOLUTION Whereas it has been the settled rule of law for nearly a century that water rights in Midwestern and Western States are determined by State law, and not otherwise; and Whereas it has also been the established rule that control and jurisdiction over the waters of streams and rivers have been vested in the several States subject to whatever control the Federal Government has found necessary to exercise in the case of navigable waters in its regulation of navigation under the commerce clause of the United States Constitution; and Whereas section 210 of the constitution of North Dakota provides that all flowing streams and natural water courses shall forever remain the property of the State for mining, irrigation, and manufacturing purposes, and section 61-0101 of the North Dakota Revised Code, as amended, provides that "all waters within the limits of the State belong to the public and are subject to appropriation for beneficial use"; and Whereas the decision of the Supreme Court of the United States in the recent Pelton case, which virtually divested the State of Oregon of complete jurisdiction over the waters of the Deschutes River, a nonnavigable stream therein, threatens to jeopardize and impair the control of States in granting and adjudicating rights to the beneficial use of the waters of their streams: Now, therefore, be it Resolved by the North Dakota State Water Conservation Commission in meeting regularly assembled this 9th day of March 1956, That Congress be, and is hereby urged, to definitely and unambiguously recognize the right and jurisdietion of the several States in and to the waters of streams and natural watercourses therein by speedily enacting into law Senate bill 863 proposed by Senator Barrett, of Wyoming, and thereby settle for all time, and beyond question, that the control, use, distribution, and appropriation of the waters of streams and rivers is vested in the States, and not otherwise; and be it further Resolved, That copies of this resolution be sent to Senator Barrett and to our Senators and Representatives in Congress. BOARD OF WATER ENGINEERS, STATE OF TEXAS, Austin, March 13, 1956. Re S. 863 Senator FRANK A. BARRETT, Senate Office Building, Washington, D. C. DEAR SENATOR BARRETT: We understand that hearings have been scheduled on your bill, S. 863, to recognize and confirm the authority of arid and semiarid States relating to the control, appropriation, use, and distribution of water within their geographic boundaries, and for other purposes. Due to a heavy schedule of public hearings before this board, it will not be possible to have a representative present for the hearings on your bill. However, the Texas Board of Water Engineers is keenly interested in the passage of this legislation. Although Texas is not a public land State, we endorse your bill and urge the Congress to again restate, reaffirm, and reinforce the long list of Federal laws enacted by the Congress over the past 90 years for the express purpose of preserving the integrity of State water laws, thus removing the great doubt and uncertainty injected into the validity of many water-law principles accepted generally throughout the 17 Western States, by the Supreme Court in the case of Federal Power Commission v. Oregon (349 U. S. 435), known as the Pelton Dam case decided June 6, 1955, and the more recent case known as the Savannah River case. We would appreciate you placing a copy of this letter in the record of the hearing on S. 863. Yours sincerely, R. M. DIXON, Chairman, State Board of Water Engineers. NORTH DAKOTA STATE WATER CONSERVATION COMMISSION, WILLIAM E. WELSH, Washington, D. C. DEAR MR. WELSH: Enclosed herein, are copies of the resolutions passed by the State water conservation commission at their regular meeting held on March 9, 1956. The resolutions pertain to the passage of a small irrigration projects bill, and to the Senate bill introduced by Senator Barrett covering State water rights. In the event that we can be of further help to you in these matters please feel free to call upon us. Sincerely yours, STATE WATER CONSERVATION COMMISSION, Chief Engineer-State Engineer. RESOLUTION Whereas it has been the settled rule of law for nearly a century that water rights in Midwestern and Western States are determined by State law, and not otherwise; and Whereas it has also been the established rule that control and jurisdiction over the waters of streams and rivers have been vested in the several States subject to whatever control the Federal Government has found necessary to exercise in the case of navigable waters in its regulation of navigation under the commerce clause of the United States Constitution; and Whereas section 210 of the constitution of North Dakota provides that "all flowing stream and natural watercourses shall forever remain the property of the State for mining, irrigation, and manufacturing purposes," and section 61-0101 of the North Dakota Revised Code, as amended, provides that "all waters within the limits of the State belong to the public and are subject to appropriation for beneficial use"; and Whereas the decision of the Supreme Court of the United States in the recent Pelton case, which virtually divested the State of Oregon of complete jurisdiction over the waters of the Deschutes River, a nonnavigable stream therein, threatens to jeopardize and impair the control of States in granting and adjudicating rights to the beneficial use of the waters of their streams: Now, therefore, be it Resolved by the North Dakota State Water Conservation Commission in meeting regularly assembled this 9th day of March 1956, That Congress be, and is hereby urged, to definitely and unambiguously recognize the right and jurisdiction of the several States in and to the waters of streams and natural watercourses therein by speedily enacting into law Senate bill 863, proposed by Senator Barrett of Wyoming, and thereby settle for all time, and beyond question, that the control, use, distribution, and appropriation of the waters of streams and rivers is vested in the States, and not otherwise; and be it further Resolved, That copies of this resolution be sent to Senator Barrett and to our Senators and Representatives in Congress. COLORADO WATER CONSERVATION BOARD, The SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, Senate Office Building, Washington, D. C. GENTLEMEN: I should like to call your attention to the attached resolution which was passed unanimously by the Colorado Water Conservation Board at its meeting of January 11, 1956. Sincerely yours, IVAN C. CRAWFORD, Director. RESOLUTION BY COLORADO WATER CONSERVATION BOARD RE BARRETT BILL S. 863 Whereas the United States of America has, from time to time, claimed the ownership of the unappropriated waters of the State of Colorado and other Western States; and Whereas the State of Colorado has and does deny such claim; and Whereas the Honorable Frank A. Barrett, United States Senator from the State of Wyoming, has introduced in the United States Senate a bill entitled S. 863 which is designed to confirm and declare that the waters in Colorado and other Western States are reserved for appropriation for beneficial uses under State law and to require that all uses of water by the Federal Government and its agencies, permittees, licensees, employees, and wards shall be acquired under and in conformity with State law: Now, therefore, be it Resolved, That the Colorado Water Conservation Board does hereby approve the purpose and design of said S. 863 and said board does hereby urge the Congress of the United States to pass and adopt legislation to accomplish the design and purpose set forth in said S. 863. I certify that the above is a true copy of the resolution passed by the Colorado Water Conservation Board at its meeting of January 11, 1956. IVAN C. CRAWFORD, Director, Colorado Water Conservation Board. 1 SENATE JOINT MEMORIAL No. 2 (BY SENATORS ROGERS, BENNETT, BENTLEY, BISHOP, BELDSOE, BROTZMAN, BROWN, CARLSON, CHEEVER, CHRYSLER, CULIG, DANKS, DEBERARD, DUNKLEE, ELLIFF, GILL, GOBBLE, HAM, HOCKER, JOHNSON, KNOUS, LOCKE, MILLER, MOLHOLM, MOWBRAY, POMPONIO, POWERS, SHULTS, SKIFFINGTON, STRAIN, SULLIVAN, TAYLOR, VELTRI, WEINLAND, AND WILSON, ALSO REPRESENTATIVES MCLAUGHLIN, KEIRY, RUTH CLARK, MARKLEY, TAYLOR, BALL, WERTZ, LEHMAN, WYATT, LAMB, STALKER, DAVID CLARKE, ENFIELD, SEIDENSTICKER, KANE, O'KANE, SLATTERY, CALABRESE, MCNEIL, VINCENT MASSARI, BELL, CHELF, AND HAMIL) MEMORIALIZING THE CONGRESS OF THE UNITED STATES TO PASS AND ADOPT LEGISLATION DENYING FEDERAL OWNERSHIP OF UNAPPROPRIATED WATER OF NATURAL STREAMS IN COLORADO AND THE WEST AND CONFIRMING THE RIGHTS OF APPROPRIATION THEREOF UNDER THE STATE LAWS Whereas the United States of America has, from time to time, claimed the ownership of the unappropriated waters of the Western States, including the unappropriated waters of the State of Colorado; and Whereas the Western States including Colorado deny that the United States of America is the owner of said waters; and Whereas the State of Colorado by its constitution has declared "The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided."; and Whereas it is highly desirable that Congress by legislation confirm and declare that the water of every natural stream in Colorado and other Western States are reserved for appropriation for beneficial uses under the laws of the States and that all uses of the Federal Government and its agencies, permittees, licensees, employees and wards shall be acquired in conformity with and under State law; and Whereas the Honorable Frank A. Barrett, United States Senator from the State of Wyoming, has introduced into the United States Senate a bill No. S. 863 which is designed to accomplish the above purpose: Now, therefore, be it Resolved by the Senate of the 40th General Assembly of the State of Colorado, (the House of Representatives concurring herein), That the purpose of S. 863 be and the same is hereby approved by the General Assembly of the State of Colorado and the Congress of the United States is hereby urged to pass and adopt said legislation or similar legislation whereby the claims to Federal ownership of unappropriated waters in the Western States shall be denied and that the unappropriated waters of Colorado and the West shall be confirmed to have been dedicated to the public subject to appropriation for use under and in conformity with State law; be it further |