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course, there is always the possibility that the State would deny the Federal application or place intolerable conditions on a permit.

4. Example.-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 replenishment 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 construction 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 national defense effort. Similarly, over 1,000 family quarters would be without a water supply and subject to similar displacement.

7. Example.-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 had approved the requisite change in water use.

8. Example.-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. Example. 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. Example.-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 you found 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.

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.


Secretary MCKAY. Mr. Chairman, I want to thank you for the opportunity to appear before you today on the very important subject of western water rights.

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. Western 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.

This custom early ripened into the principle of prior appropriation of rights to use of water by which existing beneficial uses were recognized as constituting a prior right to the water of a stream; that first in time of beneficial use was first in right; and that through its beneficial and productive use valid property rights could be acquired.

The agricultural, mining, and hydroelectric power economy of the 17 Western States is largely built upon the recognition of the right to use water as a property right. Large areas of land in our Western States are admittedly of little value if deprived of water. The right acquired by the appropriation of water has been recognized from the beginning of development of the West as a property right, just as valued and oftentimes more so, and just as much protected by the law as the title to the land itself.

The development of our Western economy has been greatly assisted by the Federal reclamation program. But I do not believe that the success of the program requires that the Federal Government should have a paramount right to the use of water without full and adequate regard for local conditions and the integrity of State law. The : have been difficulties from time to time and clashes between State agencies and Federal agencies.

It is also true that there is not complete uniformity among the laws of the various States, and the job of Federal agencies in water de velopment is sometimes burdensome as a result of the lack of uniformity in these laws.

As this committee is well aware, the original Reclamation Act was passed in 1902. Section 8 of that act requires the Secretary of the Interior to comply with State laws in carrying out the reclamation program. Thus we have 54 years of history in which the Federal reclamation program and State water laws have developed side by side.

The requirement of conformity to State law was included in President Theodore Roosevelt's original message to the Congress proposing the original Reclamation Act.

I believe the last 54 years have fully demonstrated the wisdom of President Theodore Roosevelt as expressed in his message to the Congress in 1901, in which he said:

There remain, however, vast areas of public land which can be made available for homestead settlement, but only by reservoirs and mainline canals impracticable for private enterprise. These irrigation works should be built by the National Government. The lands reclaimed by them should be reserved by the Government for actual settlers, and the cost of construction should so far as possible be repaid by the land reclaimed. The distribution of the water, the division of the streams among irrigators, should be left to the settlers themselves in conformity with State laws and without interference with those laws or with vested rights. The policy of the National Government should be to aid irrigation in the several States and Territories in such manner as will enable the people in the local communities to help themselves, and as will stimulate needed reforms in the State laws and regulations governing irrigation.

There is no doubt but what the Western States are very jealous of their prerogatives and rights in connection with water-law matters. But the use of water is a matter of life and death to them, and these factors must be kept closely in mind when the Congress or the executive branch of the Federal Government set out to determine national policies relating to water-resource development.

My native State of Oregon has been consistently active in resisting any effort to impose Federal rules relating to water rights which would upset jurisdiction of the State in regard to these matters.

As one example, in 1943 a committee of the National Reclamation Association met with State officials of 13 Western States on this very

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Be it resolved by the Senate of the State of Oregon, the House of RepresentaI tives jointly concurring therein, That it is the determined policy of this State of

Oregon to maintain its jurisdiction and control over the rights to the use of the waters in this State, and to protect such rights as have been established under the laws thereof; and be it further


question of the integrity of State water laws. Representatives of Oregon actively participated in this conference held in Denver, Colo., and joined in the issuance of a detailed report published that year which discussed at length the legal claims of the Federal Government and their impact on State water-law principles.

As a result of this 1943 report, the legislature of the State of Oregon memorialized Congress as follows:

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That is the resolution that was submitted in 1943.

It is my understanding that recent decisions of the Supreme Court dealing with the interpretation of certain Federal statutes have caused once again the same fears expressed in the 1943 resolution of the Oregon legislature. Our views on these technical phases of the current situation are quite fully set out in our report to the committee.

As you can readily see from the nature of my previous testimony, I am thoroughly sympathetic with the objectives of the proposed substitute amendment to S. 863. However, in this regard, I am expressing my personal convictions as a native of Oregon and as a cabinet officer responsible for the reclamation program.

I am not familiar with the problems of other agencies and, therefore, concurred in the recommendation of the President's Advisory Committee that a cooperative Federal-State study of improvements tin Federal and State laws should be undertaken.

Resolved, That it is the determined policy of this State to protect rights to the beneficial use of water within this State as against threatened Federal usurpation; and be it further

Resolved, That the Congress and President of the United States, by appropriate legislation, renounce forever the threatened usurpation, and confirm to the State of Oregon the sovereign control over the waters of this State, except the control over navigation.

The water resources problems of the Eastern States are so much different from those in the Western States that it seems to me they should be studied separately.

Furthermore, in view of the relatively settled nature of Western water law, I doubt that such a cooperative study for the Western States would require the same amount of time that would be required for a comprehensive study affecting the Eastern States.

In conclusion, I should like to state that, in the event the committee determines to act on S. 863, we would have a number of amendments to recommend, and we stand ready to provide whatever technical assistance the committee might want in this regard.

Senator ANDERSON. Mr. Secretary, when you say if they decide to act on S. 863 you have a number of amendments that you have to recommend, Senator Barrett has pretty substantially modified the original proposal, and are you commenting on the original proposal or the modification? They would be to the modification? Secretary MCKAY. Yes, sir.


Senator ANDERSON. I think, Mr. Secretary, that it would be fair to say that we are very seriously interested in this question and do intend to try to do something about it, and we ought to have the proposed amendments before us now, if you have them.

Senator BARRETT. We have the proposed amendments in the Secretary's letter.

Senator ANDERSON. This, then, is the letter here?

Secretary McKay. I am talking out of turn. Let the Senator look at it.

Senator ANDERSON. I am informed that this has not been made a part of the record so we will include it at this time. This is the letter from the Secretary of Interior, dated March 20, 1956, addressed to Senator Murray:

This letter is in response to your request for a report on amendments contained in committee print dated August 17, 1955, and intended to be proposed to S. 863, a bill to govern the control, appropriation, use, and distribution of water.

Subject to consideration of the comments herein set forth, this Department favors the objectives of this proposed legislation.

Section 1 of the proposed substitute bill would designate the proposed legislation as the “Water Rights Settlement Act of 1956.” It is noted that its provisions would apply only to those States lying wholly or partly west of the 98th meridian. Hence, we suggest that the designation should read “Western Water Rights Settlement Act of 1956.”

A brief summary of the unique growth of water law in the Western States should be helpful in appraising the merit of the proposed substitute bill.

Water law in the Eastern States is, for the most part, based upon the common law doctrine of riparian rights. Under these principles rights to use flowing waters are appurtenant to the ownership of riparian lands, and each such owner has an obligation to return water used to the stream, substantially undiminished in quality or quantity, for the benefit of downstream riparians. As against the rights of others, riparians may not use water on nonriparian lands. Furthermore, upper riparians do not lose their rights through nonuse even though downstream riparians may have put the water to beneficial use for many years. These results were satisfactory at a time when and in a humid region where water could be assumed plentiful for all human needs.

All of the States to which the proposed bill would apply are totally or partially arid or semiarid. The land areas of these States vastly outstrip the available water supply. Consequently, the adoption of water law principles by these States was and is a matter of fundamental importance to their deevlopment. Control over the use of water in those States can be a matter of life and death to whole communities, and, in the interests of sound public policy, rights to the use of water must be as free from uncertainty as our legal institutions can make them.

The history of Western water law commenced with the discovery of gold on public lands in the 19th century. These lands at that time were not open to occupation and settlement under Federal law, yet settlers went into these areas and established local rules and regulations to provide a reasonable degree of peace and order. Even before Federal recognition of these rules and customs, State and territorial legislatures and courts enforced and implemented them.

Because of the arid nature of the region it was frequently necessary to divert water from streams and lakes for use in the mining localities. Under local laws and customs water rights were based upon appropriation of water, priority in time, and beneficial use. In some States, such as California, the principle of prior appropriation was superimposed on the riparian system. In others, such as Wyoming and Colorado, prior appropriation was adopted as the exclusive principle of water law. In Colorado and Utah water has been declared to be the “property of the public.” [Colo. Constitution, Art. XVI, sec. 5; Utah Code Ann. Sec. 73-1-1.] The Wyoming constitution declares water to be the "property of the State.” [Wyoming Constitution, Art. 8, Sec. 1].

Since the United States, through cession, was the owner of the vast public lands in these Western States and Territories, its potential claims, riparian or otherwise, to water rights as appurtenances to its land ownership constituted a definite hazard to the rights of early settlers who had diverted water, conducted it long distances, and put it to beneficial use for mining and agricultural purposes. Desiring to promote the development of the West the Congress enacted a series of acts opening lands to settlement for mining and agricultural purposes. By the act of July 26, 1866 (14 Stat. 251) the Congress confirmed

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