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heretofore acquired under State law without regard to the feasibility of such deliveries.
They are saying in effect that the Federal Government could disregard private water rights if they found it a little difficult to comply with them.
Senator BARRETT. I think it is a fair statement to say that while they profess to believe that vested rights are secure and are to be protected, nevertheless what they are actually doing certainly by implication might endanger vested rights also, and consequently we believe a clarification of that field of law is certainly in order at this time. I agree with everything you say.
Mr. TRIGGS. Thank you, Senator.
Senator BARRETT (presiding). Unless there is objection, we will stand adjourned until 10 o'clock in the morning.
(Whereupon, at 3:45 p. m. the committee was recessed, to reconvene at 10 a. m., Wednesday, March 21, 1956.)
WATER RIGHTS SETTLEMENT ACT
WEDNESDAY, MARCH 21, 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 recess, in room 224, Senate Office Building, Hon. Clinton P. Anderson (chairman of the subcommittee) presiding.
Present: Senators Clinton P. Anderson, New Mexico; Joseph C. O'Mahoney, Wyoming; and Arthur V. Watkins, Utah.
Present also: Senators James E. Murray, Montana (chairman); Alan Bible, Nevada; Henry Dworshak, Idaho; Frank A. Barrett, Wyoming; Barry Goldwater, Arizona, Thomas H. Kuchel, California; and Gordon Allott, Colorado.
Senator Watkins (presiding). The subcommittee will be in session.
The first witness listed on the schedule for today is Mr. George H. Roderick, Assistant Secretary of the Army for Civil-Military Affairs.
We are glad to have you with us. STATEMENT OF GEORGE H. RODERICK, ASSISTANT SECRETARY OF
THE ARMY (CIVIL-MILITARY AFFAIRS) Mr. RODERICK. I am glad to be here, Mr. Chairman.
Senator WATKINS. We will be very much interested to hear what you have to say.
Mr. RODERICK. I will be interested in having your remarks after this.
Mr. Chairman and Senators, I am most happy to appear before this committee, as the representative of the Department of Defense, to discuss proposed legislation governing the control, appropriation, use, and distribution of water.
The problem before you is generally recognized as one that is important to the sound development of the Nation. It is also generally recognized that the problem is most complex as well as difficult.
So I am pleased to have the opportunity of assisting this committee, in any way that I can, to find a solution to this deep-seated, continuing problem.
my position as Assistant Secretary of the Army for Civil-Military Affairs, I have been delegated responsibility for various civil as well as military functions of the Department of the Army, among which is responsibility for the civil works program of the Corps of Engineers. Almost daily, therefore, I am working with matters relating to the development of the Nation's water resources. I was privileged to serve for nearly 2 years as Secretary of Defense Wilson's alternate on the Presidential Advisory Committee on Water
Resources Policy. There I had an opportunity to work closely with people intimately familiar with the problem of water rights, such as Under Secretary Clarence Davis of Interior, who I am sure is well known to this committee.
To further explain my position, I would like to mention that I am not a lawyer, and therefore I am not qualified to discuss the legal aspects of water rights. My training has been in engineering. The Department of Justice will appear before you to discuss the legal aspects of this problem.
To approach the problem of water rights, we must go back to the early rural life of America when the use of water was considered a community right to be enjoyed by all for the satisfaction of natural wants. As the Nation developed, the inevitable conflicts between community and individual rights were settled by the application of the English doctrine of riparian rights.
This is the principle that the owner of land contiguous to a stream has the right to a reasonable use of the waters of the stream and the right to have the stream flow past his land reasonably unimpaired by upper riparian owners. In the east this doctrine still prevails, and riparian rights are valuable appurtenances to the land.
In the expansion westward, new conditions were encountered to which the doctrine of riparian rights was not applicable. The need for storing water for domestic, agricultural, and mining uses during dry periods required different rules to protect the right of continued use, regardless of land ownership. Hence, the law of appropriation of water was evolved.
Under this body of law, existing beneficial uses were recognized as constituting a prior right to the water of a stream; first in time of beneficial use was first in right, and valid property rights to use water could be acquired by putting water to beneficial use.
The right acquired by the appropriation of water has been recognized from the beginning of the West as a property right, just as valued, just as much protected by law as the title to the land itself.
At the present time the Nation's need for water is growing tremendously, and with this growth there is a corresponding need to adjust both Federal and State laws governing the right to use water.
The demand for water by industry, agriculture, and domestic use is increasing out of proportion to population increase. New uses for water, such as air-conditioning and new industrial uses, create additional demands. Supplemental irrigation in the East will require more water and, at the same time, will bring problems of water rights into focus in the Eastern States.
It is estimated that for the Nation as a whole, the demand for water in 1975 will be about double what it is now.
All this indicates that legislation governing the control, appropriation, use, and distribution of water must be most carefully considered so that Federal, State, and local responsibilities will harmonize in the interest of the Nation as a whole. This thought is well expressed in the declaration of policy in section 2 of S. 863, amendments, which reads:
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 en. couraged 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.
Section 6 of the bill provides that, subject to existing rights under State law, all navigable and nonnavigable waters are 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.
A possible effect of this section of the bill would be to subject many Federal establishments in the West to State law insofar as the control, use, and distribution of water is concerned, and would make the operation of such establishments subject to the powers of the various States. This would result in the exercise of control by State administrative officers over the day-to-day use of water on Federal reservations.
Senator WATKINS. Would you mind a question at that point!
Senator WATKINS. You understand, of course, that it has been the practice now for a long period of time to do just what you say might happen?
Mr. RODERICK. I understand that. I
Senator WATKINS. In other words, the State laws in the West have governed and the Federal establishments have accommodated themselves to State laws, have worked in connection with them, and have generally proceeded without any question.
Mr. RODERICK. I understand, and generally that is true.
I think you will find in my conclusions why I have any reservations at all.
Senator WATKINS. Are you a westerner?
Senator WATKINS. You will have irrigation problems up there before long.
Mr. RODERICK. That is right.
Senator BARRETT. I wonder if I might ask Secretary Roderick if he means to relate what he is saying here now with the statement that he made in the second paragraph of that same page that we need to adjust our State laws.
You do not mean to say that we in the West have to change our system of the appropriation of water, do you?
Mr. RODERICK. No, and I will not say that, Senator Barrett.
The Department of Defense recognizes that the problems to which this proposed legislation is directed are many and complex, problems that are grave and of increasing concern to the entire Nation, but particularly to those States west of the 98th meridian.
Accordingly, the Department is most anxious to assist and cooperate in the determination of solutions that will result in a sound policy relating to water whereby national, regional, State, and local needs are adequately met.
The Department of Defense, in keeping with general policies concerning State requirements, considers that its water rights should be exercised with due regard for State requirements. It accepts the principles which recognize water rights as property rights. The Department, however, shares with you the desire to avoid any legislation that might interfere with or endanger adequate national defense.
Senator BARRETT. Let me ask right there, Mr. Chairman. We have had this water law working since 1877, if not 1866, right after the Civil War.
Can you cite any case in the history of America where these water laws have interfered with the national defense?
Mr. RODERICK. We have a few cases, Senator Barrett, that we would like to bring up that will back up our problem.
What I am concerned with is precaution only, and I would like to point that out.
Senator BARRETT. If you have any case where the laws of the West have interfered with the national defense, it is new to me because I thought the West cooperated in every possible way in the defense of America since the States were admitted to the Union as well as in Territorial days.
Mr. RODERICK. There certainly is no thought in the Department of Defense of accusing anybody of lack of cooperation.
Senator WATKINS. I notice, Senator, if you read that again, I got the same impression you did:
The Department, however, shares, with you, the desire to avoid any legislation * * *
Senator BARRETT. Is that not the implication, that we are bringing in a bill that will hinder national defense?
Mr. RODERICK. I would like to say that I think we are thinking the same as you are, with just a slight precaution which I shall mention in concluding my testimony.
Senator WATKINS. You can understand, Mr. Roderick, we people who have been raised in the West and know how necessary water is to the West have seen that immense developments have taken place under the law as it now exists and under the interpretation of the Constitution, as it has been interpreted in the past with respect to these matters. It comes to us as a great shock to find that somebody finds there is some defect and, if carried to its logical conclusion, that defect would set aside everything that has been done.
Mr. RODERICK. Certainly we would not under any circumstances expect that to be done.
Senator WATKINS. And would throw everything into chaos. All the water codes would be thrown into chaos.
Mr. RODERICK. We are in full agreement in avoiding that.
Mr. RODERICK. I understand; and I can also say I do not know what the Department would do without the West.
Senator WATKINS. You need it for more than just bombing ranges. Mr. RODERICK. There is no question about that.
Senator BARRETT. Let me interrupt here a little and say that there would not be a West if we did not have the water law that we have had for 90 years.
Mr. RODERICK. That is right.
Senator BARRETT. If we throw out our basic water law, the West will probably revert back to the Indians.
Senator WATKINS. I want to predict, Senator, that that is never going to happen. You are going to be successful with your legislation.
Mr. RODERICK. Mr. Chairman, I am sure that is true.