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is to be the law that the Federal Power Commission can completely ignore these development plans of any State in licensing projects.
The question of Federal versus State control of the beneficial úse of navigable waters is raised in S. 863. Actually, this need not be a question without a wholly satisfactory solution.
Let us start with the fully accepted provision of the Constitution that Congress has the power to regulate commerce and, therefore, has control over navigable waters.
Then suppose we make it clear that the use of such waters for purposes other than navigation and flood control are appropriations for beneficial use and are to be made in accordance with State law.
There is nothing incompatible in these two viewpoints. No one argues that a project could be built on a navigable stream without permission of the Government.
If we require that as a condition precedent to construction, a water right must be obtained from the State, the result would be simply that the builder would have to have permission of both sovereignties.
Some will say that such plan would give the State legal power over a Federal agency. Is there anything wrong with that?
Is there anything wrong in admitting that the sovereignty of the State of Oregon should prevail over the administrative act of the department of the Federal Government?
Oregon is a sovereign State which should have as high a place in the sun as a Federal agency. If the States does not want a project built, either because it thinks there is a better use for the water, that the project does not make good use of the resource, or that power produced by a project for sale to the citizens of the State would be more costly than justified, who has a better right to the veto power?
I do not have now and do not expect to have any concern over construction of Federal projects in Oregon. They have not all complied with State laws.
The Corps of Engineers in their flood-control projects or in their power projects on the Columbia River have never complied with the laws of the State and I sometimes wonder, although they would be so required by the bill, if it is necessary to do that.
I cannot see where anything would be gained if a constitutional question is raised by insisting that the United States should obtain its water rights for a flood-control, navigation, and power project on a stream like the Columbia River.
Also in Oregon, the Corps of Engineers have built quite a number of purely flood-control reservoirs. Some of them have power development in connection therewith.
Senator WATKINS. Those reservoirs were not built in any way for consumptive use purposes, were they?
Mr. STANLEY. No; they were not.
I have no concern that the situation will ever arise where this Congress would approve a project to be built by the Federal Government in Oregon over the protests of the State of Oregon. I think if the proposal was made to build such a project in Oregon by some agency, we would have a chance to review it and furnish our comment on it, and if a bill still went into Congress on the matter to authorize that project over the objections of the State, I have no concern that the Congress would go along and honor the views of the State in that matter.
I have one more thought. Would I have a chance possibly to talk after the others, at a later time in the hearing, to reappear after some of the Federal agencies have spoken?
Senator WATKINS. As far as the present acting chairman is concerned, you can appear not only once but many times if you feel like doing so.
I would like to ask: Is your attorney general going to appear?
Mr. STANLEY. I am very familiar with them.
Do you have a constitutional provision in the State of Oregon claiming the waters as the property of the State?
Mr. STANLEY. No; we do not.
Senator WATKINS. In several other States we have that sort of section in the constitution. We have it in Utah and I think it is true in Wyoming and at least one other State.
Mr. STANLEY. We have a provision that all power-developing water use is within the powers of the State but that was an amendment to the constitution recently.
Senator WATKINS. You mention navigation. I think that at this point in your testimony it would be well to have subsection (b) of the first section of the 1944 Flood Control Act, known now as Public Law 534, inserted.
The opening paragraph is as follows:
In connection with the exercise of jurisdiction over the rivers of the nation through the construction of works of improvement, for navigation or flood control, as herein authorized, it is hereby declared to be the policy of the Congress to recognize the interests and rights of the States in determining the development of the watersheds within their borders, and likewise their interests and rights in water utilization and control, as herein authorized, to preserve and protect to the fullest possible extent established and potential uses, for all purposes, of the waters of the nation's rivers; to facilitate the consideration of projects on a basis of comprehensive and coordinated development; and to limit the authorization and construction of navigation work to those in which a substantial benefit to navigation will be realized therefrom, and which can be operated consistently with appropriate and economic use of the waters of such rivers by other users.
In conformity with this policy:
(b) The use for navigation, in connection with the operation and the maintenance of such works herein authorized for construction, of waters arising in States lying wholly or partly west of the 98th meridian shall be only such use as does not conflict with any beneficial consumptive use, present or future, in States lying wholly or partly west of the 98th meridian, of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes.
That seems to be the policy of Congress.
Mr. STANLEY. There is also a question that is coming to the fore in the proposed Columbia River compact study and also will be apparent in the Columbia River compact, the matter of subordination of the United States Government power to water for power purposes through future upstream consumptive uses.
I think probably the best way to do that would be for the Government to come in and get its water right under the State and, if the right were granted by the State of Oregon for a power project on any of these streams, such right would specifically make the use for power subordinate to future upstream uses for irrigation and other consumptive uses.
Senator WATKINS. Is the State of Oregon in favor of that sort of provision?
Mr. STANLEY. Yes.
Senator WATKINS. Why is it that they do not ratify then the Columbia compact?
Mr. STANLEY. There are many things besides that; that was not the reason the State did not ratify it.
Senator WATKINS. That became an important matter of controversy in the Hells Canyon project.
Mr. STANLEY. The principal reason, Senator, that the State did not get around to that compact was that it did not have time.
It came before the legislature too late, and without a sufficient understanding. Most of the members did not know what it provided and there was not time to educate them.
Senator WATKINS. Well, that compact on that particular matter that you just mentioned seemed to bear out your statement just now about what should be done. Mr. STANLEY. It does.
Senator WATKINS. We were quite concerned, I was personally, because the upstream rights had not been protected by a compact. It is contended all the time that there is plenty of water for Hells Canyon high dam, at least during the payout period, but the people who were contending that there was plenty of water were not willing to give the assurance that the priority for consumptive use would be approved or would be made part of the binding agreement on the States involved.
That is one reason why I opposed the project because they would not assure full consumptive use of that river.
Mr. STANLEY. I understand that the Department of Justice opposed that provision of the compact—that is, the United States Department of Justice for a reason that the projects that the Congresses authorized on the lower Columbia River might have been authorized without taking into consideration the ultimate decision upstream.
But I do think that the objections of the Department of Justice have been or will be withdrawn on that point.
Senator WATKINS. Do you think there is a prospect that that compact will be ratified in the near future by the Legislature of Washington and Oregon?
Mr. STANLEY. It is rather difficult to say. There are objections; we have heard some very definite objections by the State of Washington, in which they are not satisfied with the voting arrangements. They want the downstream States to have a greater representation on the permanent commission.
That is one of the matters that has to be resolved and I rather think that there may be some amendments to the compact before it is again submitted to the legislature.
Senator WATKINS. It has, however, been submitted to your legislature?
Mr. STANLEY. Yes.
Senator WATKINS. Do you know what the plans of your attorney general are with respect to filing a statement as far as the legal matters of this bill are concerned ?
Mr. STANLEY. I think he would be glad to do that.
Senator WATKINS. I think it would be helpful to us to have the point of view of Oregon with respect to the law in this matter and I suggest that you leave the record open so that your attorney general can appear in person or file his views.
Mr. STANLEY. I will pass that on to him. Senator WATKINS. With respect to the position taken by the State of Oregon. I understand, however, that you would not feel qualified to speak on the legal matters involved?
Mr. STANLEY. No. If you want an opinion of an engineer, I can give it to you. I have a thought that I think would be good for the record.
The question has been raised as to constitutionality of this bill, S. 863. I cannot see where it is unconstitutional and when you go back to read the commerce clause in the Constitution and all in the world it says is that Congress shall have power to regulate commerce between the States and the Nation.
If it is constitutional for the Congress to do what it has done all down through the years, to recognize vested rights, it certainly seems to me that it is constitutional for them to recognize the rights of the States in advance.
What is a vested right? As we know it, it is a right that has been set
up in State laws or in the early days by the customs of the States, the local customs, developed to control the appropriation and use of water and Congress has come along and recognized those as vested rights.
I cannot see where it is any different for the Congress to recognize a right of the State to grant a right tomorrow over recognizing the right that was granted by the State yesterday.
I believe, Mr. Chairman, that is all I have.
Senator BARRETT. Mr. Chairman, I am very interested in the discussion Mr. Stanley just had with you with reference to constitutional provisions, and I may say to him that I certainly agree with the position that he has taken.
It seems to ine that the Congress itself has spoken so many times on this question and the Supreme Court itself has affirmed the position which the Congress took with reference to the fact that State water laws shall govern in these cases.
It appears strange now, after a period of 90 years, that we would be confronted with a constitutional question on that.
I think also it might well be pointed out that there are other fields wherein the Congress has permitted the States to regulate by law; for instance, under the commerce clause certainly the Congress has jurisdiction over interstate shipments. In the Whitfield case from Ohio, they passed a State law making it a criminal offense to bring prisonmade goods into that State in interstate shipments and the Supreme Court upheld their right to enact that law.
The same is true of some liquor cases involving interstate shipments that went to the Supreme Court.
Furthermore, the Court, in the case of Niagara Mohawk upheld the right to compensation allowed under State law on a navigable river. In the House hearings the Justice Department made the conten; tion that the unconstitutionality grounds are based on the maritime
cases that were decided by the Supreme Court but under article III of the Constitution, the Congress is given exclusive jurisdiction over admiralty cases and, consequently, that is not at all in point with the cases involved under the various legislative acts that we have discussed here this morning, particularly the Reclamation Act of 1902.
As I pointed out earlier, the Supreme Court has upheld the rights of the States under the Reclamation Act repeatedly.
So it seems to me the height of folly to bring up this constitutional question.
Now, Mr. Chairman, after making those observations, I would like to quote one paragraph from the statement of the Assistant Attorney General before the House committee and ask Mr. Stanley to comment on that.
I am quoting from page 19 of the hearings, part 1, Wednesday, February 22, 1956:
Mr. RANKIN. You have a vast amount of legislation which directs the various parts of the Federal Government to go out and develop certain Federal projects and you appropriate money by the Congress for that purpose, and then you tell these various branches of the Government to comply with the State laws, and many of the State laws are not drafted with the idea of having these large Gov. ernment projects. Many of them provide that the State engineer shall establish regulations and rules for the control and governance of every structure that is built on the stream.
You provide in your legislation that the Secretary of the Interior shall govern the handling of these structures, the release of water, the allocation of the amounts to the various reciamation and irrigation districts, and the other subdivisions that have to handle the water to get into the final use.
Now, in the face of that fact, these various departments have the problem: Who are they going to obey? Are they going to deliver up these structures and have the State engineer decide that water shall be released contrary to the law that Congress has sent down?
Mr. Stanley, as a State engineer, have you run into any such diffi. culty in the administration of the water of the West?
Mr. STANLEY. No, we have had no difficulty whatever with any Federal department that is building a project in Oregon.
I think that you might be able to remove that objection, Senator Barrett, by amending this bill to provide that the States shall not have the power to pass upon or control the design of a project built by the Federal Government.
I would not object to that at all because we have never made it a practice in Oregon for the State engineer to examine and approve the plans of a Federal project.
Senator WATKINS. You mean even for consumptive use! Even where the project has been built to store water for consumptive use?
Mr. STANLEY. I do not recall that we have ever done it even in that case.
Senator WATKINS. Do you require of every applicant who applies for water in connection with the building of a project that before he gets a certificate to show compliance by furnishing proof that the plans have been approved by the State engineer, that the project was constructed according to those plans and that the water was put to a consumptive use?
Mr. STANLEY. Only certain of the hydroelectric structures. We require no detailed plans and specifications for small canals. We do