WATER RIGHTS SETTLEMENT ACT

MONDAY, MARCH 19, 1956

UNITED STATES SENATE,

SUBCOMMITTEE ON IRRIGATION AND RECLAMATION OF THE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D. C.

The subcommittee met at 10 a. m., pursuant to call, in room 224, Senate Office Building, Hon. Clinton P. Anderson (chairman of the subcommittee) presiding.

Present: Senators Clinton P. Anderson, New Mexico, and Arthur V. Watkins, Utah.

Present also: Senators Alan Bible, Nevada; George W. Malone, Nevada; Frank A. Barett, Wyoming; Barry Goldwater, Arizona. Senator ANDERSON. The subcommittee will be in order.

I might say that this is going to be a difficult morning. We hope that tomorrow will be a little easier.

The Senate resumes again today on the farm bill at 11 o'clock. I have had a little trouble getting out of my office this morning.

This is a hearing on S. 863 proposed by Senator Barrett, for himself, Mr. Malone, Mr. Bible, Mr. Dworshak, Mr. Allott, Mr. Goldwater, Mr. Welker, and Mr. Curtis, to govern the control, appropriation, use, and distribution of water.

The bill and Senator Barrett's corrections will be inserted in the record at this point.

(The bill, S. 863, and amendments follow:)

[S. 863, 84th Cong., 1st sess.]

A BILL To govern the control, appropriation, use, and distribution of water Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all of the navigable and unnavigable waters in the States enumerated in section 1 of the Reclamation Act of June 17, 1902 (32 Stat. 388), and in the State of Texas, pursuant to the Act of February 25, 1905 (33 Stat. 814), and the Act of June 12, 1906 (34 Stat. 259), are hereby declared free for appropriations under the jurisdiction of the State, and thereafter subject to the laws of that State with respect to control, use, and distribution of such appropriated waters for all beneficial uses.

SEC. 2. Federal officers, employees, agencies, and instrumentalities the same as private persons shall proceed in conformity with the laws of the State in which the appropriation has been or shall be instituted or perfected, and that each of them shall be governed by the laws of such State in respect to the control, use, and distribution of the appropriated water.

SEC. 3. The provisions of this Act shall not be construed as repealing or affecting any of the provisions of section 8 of the Reclamation Act, 1902, but shall be construed as being supplementary thereto.

1

[S. 863, 84th Cong., 2d sess.]

AMENDMENTS

Intended to be proposed by Mr. Barrett to the bill (S. 863) to govern the control, appropriation, use, and distribution of water, viz: Strike out all after the enacting clause and insert in lieu thereof the following:

That this Act may be cited as the "Water Rights Settlement Act of 1956".

DECLARATION OF POLICY

SEC. 2. In the arid and semiarid regions west of the ninety-eighth meridian rights to the use of water are property rights which are fundamental to the economic life and well-being of the American people. In view of the fact that the needs for water do not coincide with the location or the natural flow of the available sources of supply, it is recognized that rights to impound and divert water and to apply it to beneficial purposes, frequently at places substantial distances from the points of diversion or storage, are matters of paramount importance. To promote the beneficial application of the available water supplies in these regions it is and has been necessary that public and nonpublic entities be encouraged to make investments in water resource developments. Security of right to the use of water for beneficial purposes is essential to such encouragement, and regulating the acquisition of water rights must be orderly and with full regard to the need for stability of such rights if public and private investments in water resource development are to continue on a sound basis. Neither the proprietorship functions of the United States derived from the ownership of the public lands nor the exercise of its powers relating to interstate commerce and the general welfare should be permitted unduly to interfere with prior rights to the use of water or the orderly acquisition of such rights in the future. For more than ninety years this policy has been recognized by the Congress and the acquisition of such rights under State law has been encouraged and repeatedly protected by Federal legislation. Under this policy these States have been able to make their proper contribution to the strength of the Union, and twenty-seven million acres of arid and semiarid land have been brought under irrigation, of which only one-fourth are a result of federally assisted projects. It has not been and is not the intention of the Congress that Federal agencies, in pursuing their programs for water resources development in these arid and semiarid areas, shall have any prerogative to pre-empt the field or to cast clouds on the security of prior rights under State law acquired for beneficial purposes. Because of the fact that previous Acts of Congress have been and may be interpreted with respect to these States so as to cast clouds on such prior rights and to interfere with the future orderly development of water resources in accordance with the foregoing declaration, it is the purpose of this Act: (1) to remove any such clouds; (2) to provide for the future acquisition of unappropriated waters, navigable and nonnavigable, in compliance with State laws; and (3) to provide adequate protections of the Federal interests to the end that the Federal Government may perform its functions in a manner consistent with the foregoing purposes.

DEFINITIONS

SEC. 3. For the purposes of this Act

(a) "Federal agency" means the executive departments and independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States;

(b) "Employee of the government" includes officers or employees of any Federal agency, members of the military or naval forces of the United States, and persons acting on behalf of any Federal agency in an official capacity, whether temporarily or otherwise.

APPLICABILITY

SEC. 4. This Act shall apply only to States lying wholly or in part west of the ninety-eighth meridian.

FEDERAL INTERFERENCE WITH WATER RIGHTS PREVIOUSLY ACQUIRED UNDER STATE LAW

SEC. 5. In the use of water for any purpose in connection with Federal programs, projects, or activities no Federal agency or employee of the Government 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 upon payment of just compensation therefor: Provided, That the provisions of this Act shall not be construed to preclude, when authorized by Federal law, the acquisition by the United States of such rights by purchase, exchange, gift, or condemnation.

FUTURE ACQUISITION OF WATER RIGHTS

SEC. 6. Subject to existing rights under State law, all navigable and nonnavigable waters are hereby reserved for appropriation and use of the public pursuant to State law, and rights to the use of such waters for beneficial purposes shall be acquired under State laws relating to the appropriation, control, use, and distribution of such waters. Federal agencies and permittees, licensees, and employees of the Government, in 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: Provided, That nothing in this Act shall be construed to preclude the storage and release of water by the United States solely for the prevention of floods: Provided further, That the United States may acquire such rights, when authorized under Federal law, by purchase, exchange, gift, or condemnation: Provided further, That no right acquired under State law shall be enforceable against the United States if such right would be enforceable against the United States 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 under which any other entity or person may acquire such rights: And provided further, That nothing in this Act shall be construed to permit any person or entity to acquire the right to store or divert waters in any national park or monument unless otherwise authorized by Act of Congress.

WAIVER OF IMMUNITY TO SUIT

SEC. 7. (a) Consent is hereby given to join the United States as a defendant in any suit relating to the control, appropriation, use, or distribution of water which is to be used for beneficial purposes when (1) 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 any right to the use thereof by appropriation under State law or otherwise, and (2) the United States is a necessary party to such suit. The United States, when a party to any such suit, (1) shall be deemed to have waived any right to plead that said State laws are inapplicable or that the United States is not amendable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction of any such suit in the same manner and to the same extent as a private individual under like circumstances: Provided, That judgment for costs shall not be entered against the United States in any such suit.

(b) Summons or other process in any such suit may be served on the Attorney General of the United States or his designated representatives, or on the United States attorney for the district in which the court having jurisdiction of any such suit is situated.

(c) In the absence of the service of summons or other process in any such suit, the Attorney General of the United States or his designated representative is authorized, either in person or by writing, to make an appearance or file pleadings in any such suit on behalf of the United States and thereby to subject the United States to the jurisdiction of any such court.

(d) On petition of the United States any such suit may be removed pursuant to title 28 of the United States Code from a State court to the district court of the United States for the district and division within which such action is pending.

INTERSTATE LITIGATION

SEC. 8. Nothing in this Act shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States relating to the rights of States to the use of the water of any interstate stream.

EQUITABLE APPORTIONMENT AND TREATY OBLIGATIONS

SEC. 9. Nothing in this Act shall be construed to interfere with the rights of any State to waters apportioned under any interstate compact or judicial decree, or to permit appropriations of water under State law which interfere with the fulfillment of treaty obligations of the United States.

Amend the title so as to read: "A bill to recognize and confirm the authority of arid and semiarid States relating to the control, appropriation, use, or distribution of water within their geographic boundaries, and for other purposes." Senator ANDERSON. We also have here a letter from the Executive Office of the President, which will be included in the record. (The letter referred to follows:)

EXECUTIVE OFFICE OF THE PRESIDENT,

BUREAU OF THE BUDGET, Washington, D. C., March 15, 1956.

Hon. JAMES E. MURRAY,

Chairman, Committee on Interior and Insular Affairs,

United States Senate, Washington, D. C.

MY DEAR MR. CHAIRMAN: This is in reply to your letter of March 5, 1956, requesting the views of the Bureau of the Budget on S. 863, a bill to govern the control, appropriation, use, and distribution of water, and on the amendment to S. 863 proposed by Senator Barrett. The amendment is in the nature of a substitute bill and would be known as the Water Rights Settlement Act of 1956. Both S. 863 and the amendment proposed would apply only to the States situated wholly or in part west of the 98th meridian. While the bill and the amendment differ substantially in format, their purpose appears to be similar. This purpose is to prohibit any Federal agency or employee from interfering in the 17 western States "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 upon payment of just compensation therefor ***" Federal agencies and those proposing to operate under Federal authority would also be required to acquire all rights to the use of water under State law, except for the storage and release of water by the United States solely for the prevention of floods.

The Department of Justice discusses certain legal and constitutional questions with repect to this legislation in considerable detail in its report to your committee. The Bureau believes that these questions should be most carefully considered by the committee.

Apart from any legal and constitutional questions which may be presented, the bills deal with important and complex matters of water resources policy. These matters are discussed in the reports of the various agencies, particularly the Departments of the Interior and Agriculture. In connection with these questions, this Bureau believes that there will be wide support for the declaration of policy in section 2 of the proposed amendment, which reads in pertinent part as follows: "To promote the beneficial application of the available water supplies in these regions it is and has been necessary that public and nonpublic entities be encouraged to make investments in water resource developments. Security of right to the use of water for beneficial purposes is essential to such encouragement, and regulating the acquisition of water rights must be orderly and with full regard to the need for stability of such rights if public and private investments in water resource development are to continue on a sound basis." However sympathetic the executive agencies may be to such a declaration of policy by the Congress, the fact remains that serious problems of Federal policy regarding the exercise of water rights, particularly in the arid and semiarid areas of the West, have existed for a long time and there are basic conflicts which must be resolved. Most recently this matter was considered by the President's Advisory Committee on Water Resources Policy. It came to the conclusion that the complexity of the problem required further study under the leadership of the Federal Government, but in collaboration with State and local entities. The Bureau of the Budget believes that such a study is essential to the proper evaluation of legislation along the lines of S. 863. Meanwhile, however, we believe that individual problems should be solved in the light of circumstances peculiar to them. Therefore, the executive agencies will work out solutions to specific situations in cooperation with the States, without prejudice to any broader policy ultimately developed.