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Now, one of these reports, the report of the Bureau of the Budget, I believe, they state on page 2, and I quote in part as follows:
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.
Now, Mr. Chairman, you and I, coming from the West, know that that is not true. I cannot recall in my memory where the Federal Government and the State of Arizona have come into any argument that has not been resolved amicably and quickly and usually in the direction that the Federal Government wanted it to be resolved in.
Senator BARRETT. If my colleague will yield to me, the next witness is going to be the State engineer of Wyoming, and I am sure that he will confirm the statement that I am about to make, which is, that there never has been a conflict between the Federal Government and the State of Wyoming with reference to water rights that interfered with the Defense Department or any other department of Government for that matter.
Senator GOLDWATER. I knew that the experience of the chairman was the same as mine and I think witness after witness from all the 17 Western States will bear us out.
Many people, particularly people in non-Indian States, express concern over the Indians' rights. That is an area that might be called Federal policy.
I would just like to put this for the record: that in every major decree that Arizona has ever had concerning its rivers, the Indians rights are the first to have been spelled out.
That is true of the Colorado compact and in the Kent system, which comprises the Salt and the Verde and the Gila decrees that applied to the Gila, the Indians' rights were fully and adequately protected. So it is just not true what the various Federal agencies of the Government are saying
I concur in what Senator Malone has said; they have either done it through ignorance, and I would like to think that that is the case, or they have done it through malicious intent to interfere with our way of life and, as a Republican, I would resent that. · I appreciate the opportunity to make this statement and I also want to compliment you, Senator Barrett, on the excellent statement you made covering the whole problem this morning.
Senator BARRETT. Thank you very much, Senator Goldwater.
I may say, in defense of this administration, that some departments of the executive arm of the Government are in favor of this legislation.
It is true, as you point out, Senator Goldwater, that the Justice Department has raised some legal questions, in fact some constitutional questions.
I may say that water lawyers who have had extensive experience in this particular field of western water law for a long period of years åre wholly in opposition to the position taken by the Justice Department.
I am hoping as a result of these hearings we can at least convince every reasonable man on this committee that the Justice Department is wrong in its contentions and that the rule, as laid down by the Congress for the past 90 years, is a sound one and that there is no good reason why we should not reaffirm or restate that at this time.
I want to congratulate you at this time, Senator Goldwater, on your splendid statement.
Senator GOLDWATER. If I may be permitted to go one step further, because this brings up something that has been extremely distasteful. to me before I came to the Senate and particularly since I have been here, and that is the idea that the executive branch or the administration enter into the legislative branch's work by the submission of these. reports.
I do not know why we in the legislative have to wait patiently and bend over backward and salaam toward the upper end of Pennsylvania Avenue waiting for these reports.
I have read the Constitution a thousand times and I cannot find anything which says that when we are writing our legislation we have to wait
for somebody up there to say "Yes" or "No." Personally, I do not like the idea of such reports having such a bearing on legislation. I think it is a complete infringement on the intent of the Constitution to have the executive, through its various agencies, influencing legislation down here.
Here is legislation that affects 17 Western States, some 138 million acres of land, which is more land than lies east of the Mississippi, and T
the millions and millions of people that live on it, and yet if we are to follow the accepted practice of Congress during the last 25 or 30 years, I would say that this legislation has a pretty bad start because several people, and I imagine most of them are from the Eastern States, have written these reports and written them in a way that will not be of benefit to the people that we represent.
I think it is incumbent upon us in this legislation, and in all legisla, tion, to disregard whether it is favorable or unfavorable to those reports insofar as they influence legislation.
Senator BARRETT. I may say to my colleague that Senator Knowland spoke to me just a few minutes ago and he wants an opportunity to appear before this committee. He feels just as strongly as you do that while the committee may feel under some compulsion to carefully consider the reports that are brought up here by these departments of the Government, that, nevertheless, we in the Congress have the final responsibility and that it is incumbent upon us to write legislation that we think is fair and equitable for the Western States and at the same time protect the legitimate interests of the United States.
That is precisely what I am attempting to do by this bill. Senator BARRETT. Thank you very much, Senator Goldwater. Senator GOLDWATER. Thank you very much. Senator BARRETT. The next witness is Mr. L. C. Bishop. Mr. Bishop is the State engineer of the great State of Wyoming He has been our State engineer for many years and he is one of our outstanding citizens.
Will you state for the record your name, your office and your experience in that office ?
STATEMENT OF L. CLARK BISHOP, STATE ENGINEER, WYOMING
Mr. BISHOP. Mr. Chairman, and gentlemen of the committee, my name is L. C. Bishop. From 1920 to 1934, I was a water division superintendent and since 1939 to date I have been State engineer of
the State of Wyoming. In both of these positions I have been in charge of water administration in the State of Wyoming.
I am here to testify in behalf of S. 863, introduced in the United States Senate by Senator Frank A. Barrett of Wyoming, and others.
It is my understanding that the principal purpose of this bill is to enact legislation that will make it necessary for all agencies of the Federal Government to comply with State laws with reference to construction and operation of all water facility developments.
From the wording of the original Reclamation Act of 1902, the O'Mahoney-Millikin amendment to the 1944 Flood Control Act, and others, it seems to have been the intent of Congress to require all agencies of the Federal Government to comply with the State water laws.
In spite of all the provisions contained in some 12 or 13 acts of Congress providing for compliance with State water laws, there has been an estimated 10,000 so-called stock-water reservoirs constructed in Wyoming during the last 20 years in violation of the water laws of the State of Wyoming.
The principal offenders have been the Soil Conservation Service and the Production Marketing Administration. These agencies have repeatedly built or assisted in building reservoirs before a permit application has been filed, and in many instances, no application has ever been made.
An agency that has complied with the State water laws is the Bureau of Reclamation. Other agencies are advising compliance at present and there has been a substantial improvement during the past 5 years.
In my judgment, however, there is an urgent need for legislation as proposed in S. 863, and I respectfully urge the careful and unbiased consideration of this committee to the end that they recommend approval by the Congress of S. 863.
It seems to me that the effect of legislation proposed in S. 863 would be to prevent further encroachment on State water laws as the Pelton case in Oregon, where the Supreme Court of the United States upheld the authority of the Federal Power Commission to issue a license for the major hydroelectric power project on the Deschutes River.
While at the present time in Wyoming, most all Federal agencies are complying with our laws, I feel that the Pelton case may be used as a precedent, as was the situation in the Hawthorne case in Nevada.
In conclusion, I will quote for your information a resolution passed by the Association of Western State Engineers at the 28th annual convention held in Denver, Colo., September 26 to 28, 1955.
Now, therefore, be it resolved by the Association of Western State Engineers, That the Congress be urged to pass legislation to the effect that within the States lying west of 98th meridian and subject to existing rights under State laws, all navigable and nonnavigable waters, together with underground water, be reserved for appropriation and use by the public pursuant to State law; and be it further
Resolved, That Federal agencies and committees licensed and employees of the Federal Government in the use of water for any purpose in connection with Federal programs, projects, activities, licenses or permits, shall as a condiition precedent to the use of any such waters, acquire rights to the use thereof in conformity with the State laws and procedures relating to the control, appropriation, use, or distribution of such water; and be it further
Resolved, That the Secretary be instructed to send a copy of this resolution to all Members of Congress and the heads of appropriate Federal agencies.
I have carefully studied the amendment before the committee. In my opinion it would be entirely satisfactory to the Western States if the bill were further amended to include prohibitions against the expenditure of Federal funds prior to compliance with water laws which govern beneficial uses of our limited water supplies.
Senator WATKINS (presiding). Thank you, Mr. Bishop.
Mr. Rankin, in testifying before the House, made this statement, and I quote:
As we interpret the Pelton Dam case, not only in its direct language but inferences to be drawn from it, wherever the Government reserves property in the public domain for a particular purpose, thereupon the Government becomes free and clear of any requirement of complying with State law with reference to the appropriation and use of water.
Is that the particular philosophy that disturbs you so much with reference to that case ?
Mr. BISHOP. Yes, sir.
Senator BARRETT. I would like to ask you also, Mr. Bishop, if, during the time that you have been State engineer, the Government itself has had any difficulty with reference to the administration of the water laws of our State under the Reclamation Act?
Mr. BISHOP. No, sir. Senator WATKINS. Has the Government, in each one of those cases where the water was wholly within the State, complied with State laws with respect to the application for the use of the water and the building of the dam, furnishing of the plans and specifications to the State engineer?
Have they followed through with the proof?
These stock reservoirs have been built and people have drawn money from the Government to build them and made no application in many
Senator WATKINS. You mean the Government has made no application for the settler ?
Mr. BISHOP. The settler or the Government.
It is my contention that we should add to this law, I should like to see it in there, that they be required before they paid any money out to require the individual to comply with the State law.
Senator WATKINS. I was not present for the first part of your paper. Did that have to do with the small reservoirs on the ranges?
Senator BARRETT. Stock water.
Mr. Bishop. Yes, sir. Even the small irrigation reservoirs where the Government puts up money to help people, it is my feeling that they should comply with the law before they can receive money.
Senator WATKINS. That is stated fairly clearly in the Reclamation Act of 1902?
Mr. Bishop. It does as far as the Bureau of Reclamation is concerned.
Senator WATKINS. As I say, I did not hear the first part of your paper, so I probably misunderstand it. I am advised that it was the Soil Conservation people?
Mr. BISHOP. The Production Marketing Administration; yes, sir.
Senator WATKINS. Do you have defense plants located in Wyoming that require water for their use?
Mr. Bishop. I do not believe so, Senator.
Senator WATKINS. I have already made reference earlier in this hearing to the fact that Utah has 5 or 6 rather large defense programs, and of course they complied with the State law in getting water for their need.
Mr. Bishop. They would not have any trouble getting defense plants in Wyoming. In fact, we would like to see them come in. In fact, we do not like to see you fellows in Utah getting them all.
Senator WATKINS. We are not objecting to their coming in, but we do recognize that if and when peace really comes, we will be faced with a problem of another type.
Senator BARRETT. Thank you very much, Mr. Bishop.
STATEMENT OF LEWIS A. STANLEY, PRESIDENT OF THE
ASSOCIATION OF WESTERN STATE ENGINEERS
Mr. STANLEY. I am Lewis A. Stanley, president of the Association of Western State Engineers.
Senator Watkins. You may proceed, Mr. Stanley, with your statement.
Mr. STANLEY. Thank you, Mr. Chairman.
Of course, we are talking about my home State when we are talking about the Pelton decision.
(The decision referred to is as follows:)
PELTON DAM DECISION OF UNITED STATES SUPREME COURT
FEDERAL POWER COMMISSION V OREGON ET AL.
CERTIORIA TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 367. Argued March 2-3, 1955.—Decided June 6, 1955. The Federal Power Commission issued to a power company a license to construct,
operate and maintain a hydroelectric plant, constituting Pelton Project No. 2030, on reserved lands of the United States on the Deschutes River in Oregon. The State of Oregon challenged the authority of the Commission to issue the license and the adequacy of the provisions approved by the Commission for the conservation of anadromous fish. Held: The Federal Power Act is applicable in accordance with its terms, and the Commission acted within its powers and its discretion in granting the license. Pp. 437–452.
1. The Federal Power Act is applicable to this license. Pp. 441-446.
(a) The federal jurisdiction here derives from the ownership or control by the United States of the reserved lands on which the licensed project is to be located. P. 442.
(b) The authority to issue licenses in relation to public lands and reservations of the United States stems from the Property Clause, Art. IV, § 3, of the Constitution. Pp. 442-444.