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I think that is another example of what we are thinking of. Maybe if it can be done in 15 minutes because of past studies
Senator BARRETT. I do not think you are going to get any studies where the States are going to relinquish their property rights. I do not think the Federal Government is going to require that. We in the West cannot give up the control over our waters.
You can protect your rights and under State law, everybody is treated alike. The Federal Government is treated precisely as any other applicant under State law.
There are some complications out in California because of the fact that under California law they follow partly the riparian doctrine and partly the appropriation doctrine; that does make it somewhat involved.
I think that other than probably the State of Washington, that is the only 2 States in the West that follow both of those 2 doctrines and try to work them in together.
Mr. RODERICK. Senator, I am sure that is what we all meant by getting together, to get some uniformity if possible. Maybe it cannot be done.
Senator BARRETT. I do not think you can get any uniformity whero you ask the other Western States to relinquish their rights.
What I meant when I said we would get together in short order is simply this, that I think the West is so determined about the matter that our position is that we must stand firm and unyielding on the matter of State-control of our water.
know the Marines have a mighty strong organization and we are proud of them but when it comes to water rights, I think you will find a pretty strong group lined up on that side, too. Mr. RODERICK. That is really what we were trying to point out.
Senator WATKINS. I would like to ask the Colonel about the situation a little further. The Government went in and purchased property and you would not expect to get any more in the purchase of the property than the person who sold it to the Government had, would you?
Colonel ROBERTSON. Quantitatively, yes. We thought we bought the water rights through condemnation.
Senator WATKINS. And the question came up between the Government and the State as to what rights you got when you bought that?
Colonel ROBERTSON. The contention of the State, in short, is, since we are doing something different with the water, we have to apply to them and abandon what we bought.
Senator WATKINS. So there was no real controversy between the Government and the State as such, but you were in the position, not as the sovereign, but as a purchaser of private rights from citizens of the United States.
Colonel ROBERTSON. You are getting into legal matters and I am not qualified to speak of sovereigns and so on.
As I understand, as a layman, we consider that the United States in its defense function, having bought the property and applied it with the knowledge of all, including a cession of jurisdiction from the governor of that enclave, the military commander then within that property right and within that enclave and for military purposes is entitled to do as he sees necessary with that water for his purposes. Senator O’MAHONEY. Stated more simply, Colonel Robertson, as a purchaser of the property with its appurtenant rights, the Government in seeking to use this as a Marine base was in the same position as a farmer who might have bought the same property with the same water rights and wanted to use them for domestic purposes to support his work.
All that the Marine Corps wanted to do was to provide the water which the Marines needed, sometimes to drink, sometimes to bathe, sometimes to have the laundry wash their clothes in, a wholly domestic use?
Colonel ROBERTSON. Yes, sir. Senator O’MAHONEY. That was the way it was set up, was it not? Colonel ROBERTSON. Yes, sir. Senator WATKINS. Could not that have been accomplished under State law?
Colonel ROBERTSON. If the contentions of the State, which I am outlining, were followed, we could not for the reasons that I am giving, because the State says that applying these contentions to our use, we would have to do certain things.
Senator WATKINS. The owner, the person that sold the property, would have had to do the same thing?
Colonel ROBERTSON. He was not in the Marine Corps business.
Senator WATKINS. That is true, but unless you are actually going to assign some overall right over and beyond what the person from whom you purchased had, you would still be bound by the State law that would apply to the individual?
Colonel ROBERTSON. He had a riparian right for water among others which gave him the right to use the water, say, to grow alfalfa.
Senator O'MAHONEY. Colonel, I want to get into this because I sat through it. You are not a lawyer?
Colonel ROBERTSON. No, sir.
Senator O'MAHONEY. It may be that the committee does not realize that the Santa Margarita controversy was one which revolved around an attempt to get water after the Government had purchased this land for the irrigation of utterly dry land around it.
During the controversy, and as a result of the controversy, which had its basis in a purely speculative venture, the State of California changed its constitution for the purpose of expelling the Marines so that we do not have here at all the issue involved in Senator Barrett's bill. It is utterly different from that bill.
Senator BARRETT. Senator, you were not here when I asked the Colonel a question a moment ago and I would like to ask you this question, if the chairman will permit me.
Senator O’MAHONEY. I will take the oath too, if you want.
Senator BARRETT. I know you are familiar with the case but I want to ask this question:
If some private individual or if some corporation was in precisely the same situation as the Marine Corps found themselves in, would they not be required to go to the State authorities and comply with State law precisely as the Marine Corps was required to do.
Senator O’MAHONEY. They would have, of course. But the point in this case is that the State law and the constitution were changed for
the particular objective of getting the Marines out. That is an utterly unusual thing and would scarcely take place, oh, once in a million times.
Here we had a group of speculators who had powerful newspaper interests and powerful political control and they were seeking in an area where there was not sufficient land, not sufficient water, to deprive the Government of the water required under State law to service the Marines in order that they might use that same water to sell dry land that without water they could not sell at all.
Senator WATKINS. Mr. Chairman, I think at this point it might be interesting to have the California amendment to the constitution in the record. I assume that what I have here is a correct copy and it reads as follows:
ARTICLE XIV. CALIFORNIA STATE CONSTITUTION (ADDED November 2, 1954)
SEC. 4. Whenever any agency of Government, local, State, or Federal, hereafter acquires any interest in real property in this State, the acceptance of the interest shall constitute an agreement by the agency to conform to the laws of California as to the acquisition, control, use and distribution of water with respect to the land so acquired.
Senator ANDERSON. Senator Watkins, you would agree that here after all the Government agencies ought to go into Wyoming, Utah, or New Mexico?
Senator BARRETT. They would have no trouble.
Senator ANDERSON. I wonder if you would mind if I now temporarily stopped your testimony and permitted the Secretary of the Interior to give his testimony. He is going out to Oregon this afternoon to check into the rise and fall of the tides out there.
Senator O'MAHONEY. Is it a maritime question that is taking him out there?
Senator ANDERSON. Purely maritime.
Senator O'MAHONEY. I see.
(STAFF NOTE.-Colonel Robertson subsequently submitted the following supplemental material, in the form of notes, with respect to difficulties experienced by the armed services in endeavoring to comply with the laws of the States in which military installations are located:)
Bought 135,000 acres in fee simple including all water rights of prior owner riparian, prescriptive and appropriative. Used for training marines, storing ammunition and naval hospital. Exclusive jurisdiction has been granted.
1. Example.-In belief upstream diverter was taking Government water, asked State engineer to examine situation and if in fact the upstream diversion was improper further asked him to stop the diversion and cancel any permits which infringed on the Government's rights.
State engineer said he had no basis for administering the stream until the rights of the parties had been adjudicated. Further, he had no authority to cancel permits. The State engineer recommended the United States take the matter to court.
2. Example.-The State maintains that military use of water is not a proper riparian use.
The result of such a policy would be that the military services could no longer utilize riparian rights already paid for, for military purposes but would have to seek an appropriative right. Then, we get to the next example.
3. Example.-The State water code does not give priority to or even mention "military use."
An application to appropriate under this policy would put all military applications at the foot of the list. All too often streams in this State are overappropriated. A low priority permit in such event would be valueless.
course, there is always the possibility that the State would deny the Federal application or place intolerable conditions on a permit.
4. Erample.—The State maintains that it owns the very molecules of water and only allows use thereof.
Such a policy would greatly hamper the flexibility of operation of this station where a large part of the water consumed is reused sewage effluent. Here we would need to reappropriate with State permission for the amounts of sewage repumped for human consumption, irrigation, and reple ishment of the fresh water barrier at the mouth of the stream.
5. Example.—State law permits others to appropriate water which for any reason is unused for specified periods.
Applied to defense installations which fluctuate in strength-and water needs—as the needs for defense change, this policy could over the years deprive the Federal installations of their water supply. This camp approached a strength of 60,000 during World War II, then fell to a low of 12,000 for several years and is now slowly but surely advancing to a level-off strength of nearly 100,000. Defense needs, however, could reduce this camp to 5 or 10,000 overnight for extended periods.
6. Example.- The State maintains that water must be used in the watershed of origination.
The camp in question is largely operated in contravention of this policy. To comply would require the abandonment of tens of millions of dollars in con. struction which are outside the watershed because troops could not use water therein. To maintain the necessary number of troops in this area, it would be necessary to create new housing facilities for them within the watershed and then transport the troops several times daily to and from their training and duties. The expense involved would be tremendous, but the loss of training time and resultant decrease in combat efficiency would be irreparable loss to the bati nal deiense efort. Similarly, over 1,000 family quarters would be without a water supply and subject to similar displacement.
7. Erample.—The State engineer administers each water-producing facility, well or otherwise, as to place of use, rate of use, and purpose of use.
Followed literally, the military commander could not move troops within a camp or to a camp until the State engineer bad approved the requisite change in water use.
8. Erample.—The State engineer requires extensive reports on the usage of water.
The publishing of such information would multiply many times the opportunity of hostile forces to obtain and collate conclusive data as to troop concentrations and troop movements. Such advance information would "telegraph our punch" and be of inestimable value to an enemy and comparably harmful to the welfare of this country. Such information should be as closely guarded as the sailings of troopships in the best interests of the security of this country.
9. Erample.The proposed bill would leave us in a void of uncertainty. The armed services would, in the internal administration of its water assets, be subjected to the laws of the several States and their numerous subdivisions, not only as they exist now, but as they may be altered by statute, custom, or procedure in the future. It is difficult to see how those charged with defense responsibilities can perform those functions when others are in control of the very important and compelling tool that we find water to be.
10. Erample.-The bill in effect will sever all water from public domain land.
Recently the Marine Corps was faced with a need for a firing area for the newer and longer range and higher trajectory weapons. The course followed was to go into an isolated desert area and seek a water source that would support the necessary personnel, then to withdraw the range area including the land overlying the pool of water from the public domain. Construction and use commenced immediately. This occurred under the pressure of the Korean situation.
Under State law we would have, after finding the water (and in this case it was a pure discovery), had to apply to the State engineer for the use thereof. On the one hand, he may have granted a permit, but, on the other, he may have said something along these lines. “There is a town nearby. It should be permitted to grow. You will increase its potential to grow. This water that you have discovered has accumulated over countless centuries and as a , practical matter is not being replenished. I find that a certain percentage of the water yon fonnd should be reserved for appropriation by your neighbors." The residual available to the armed services could very easily limit our ability to perform the necessary functions and even preclude any investment whatever, forcing us to repeat the search process.
STATEMENT OF DOUGLAS MCKAY, SECRETARY OF THE INTERIOR
Secretary MCKAY. Mr. Chairman, I want to thank you for the for opportunity to appear before you today on the very important subject of western water rights.
Senator ANDERSON. Mr. Secretary, we are happy to have you with us again. We always enjoy having you and we thank you for coming this morning and hope we have not inconvenienced you.
I approach this appearance with a frank recognition that any discussion of the problems before this subcommittee today involves legal questions of great importance. I am not a lawyer, and I am not purporting to advise this subcommittee on technical aspects of the bill under consideration.
However, as you may know, I am a native of the State of Oregon. Consequently, as you can well appreciate, I do have strong convictions on the importance and integrity of State water law.
My grandfather arrived in Oregon in 1842. In those days there were no recognized principles of water law or land law. The people who undertook the hazards of making a new life for themselves in the vast western country joined together to set up their own rules and regulations respecting law and order.
My own State of Oregon, unlike most of the other Western States, started out with the traditional concepts of water law developed in the Eastern States. As you know, the coastal belt of Oregon has too much water during certain seasons of the year, and they holler for the engineers, while the eastern portions of the State have far too little water. Even in the western area there are seasons of the year when there is not enough water unless it is stored during the rainy season.
As a matter of fact, I might say that the first irrigation project in Oregon was in 1852 and it was in Jackson County, west of the Cascades. So we do have storage of water even in the humid section. That is not really humid but it has about 25 inches of rainfall a year. Over the years the people of the State learned that the traditional ideas of water law were not satisfactory and eventually the concept of prior appropriation for beneficial use became the established principle in our State.
As a result, it has been possible for arid and semiarid districts to become productive through irrigation. Towns and cities have grown where only sagebrush grew before. This type of growth could not occur in Oregon, or elsewhere in the West, if rights to the use of water were insecure.
I recently had the honor to serve as chairman of the Presidential Advisory Committee on Water Resources Policy. In our report we recognized the vital importance of secure water rights in the economy of the Western States. In that report we said the following:
As expansion continued westward, new conditions were encountered to which the doctrine of riparian rights was not suitable. The arid and semiarid climates of the more Western States made it necessary to store water supplies to meet domestic, agricultural, and industrial needs during the dry seasons. mining was also largely dependent on a continuity of water supply. A rule was evolved to meet local customs and comomn interest, that the one who first applied water for beneficial uses, whether for domestic, agricultural, mining, or manufacturing purposes, was entitled to protection of the right of continued use, whether or not he was a landowner adjacent to the stream.