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permittees, licensees, and employees, in the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits
, to acquire rights to the use thereof in conformity with State laws and procedures, with provisions that: (1) The United States may store and release water solely for the prevention of floods; (2) the United States may acquire water rights when authorized under Federal law; (3) no right acquired under State law shall be enforciable against the United States if such right would be enforciable only because of a State law or custom which discriminates against the United States or denies the United States the opportunity to acquire such rights on terms and conditions at least as favorable as those enjoyed by any other entity or person.
It gives consent to join the United States as a defendant in any suit relating to water used for beneficial purposes when the United States is or claims to be the owner of any right to the use of such water or is in the process of acquiring right to the use thereof under State law or otherwise, and the United States is a necessary party to such suit. When party to any such suit the United States (1) is deemed to hare waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto; and (2) shall be subject to the judgments, orders, and decrees of the court in the same manner and to the same extent as an individual except that judgment of costs shall not be entered against it.
The Department of Agriculture has traditionally favored full recognition by the Federal Government of the authority of the States relating to the control
, appropriation, use, or distribution of beneficially used water within their boundaries. The Department also believes that all Federal water resources activities should honor fully all concerned water rights acquired under State laws. It has required appropriate conformance with the provisions of such State laws in the administration of its various programs and activities. In this regard. neither the bill nor the amendment would have any financial implications insofar as this Department is concerned.
The Department feels that the amendment is much to be preferred over the original bill in that it is more complete and particularly in that it would recognize existing rights under State laws and provide that nothing in the act shall be construed to preclude the storage and release of water by the United States solely for the prevention of floods.
The Bureau of the Budget advises that, while there is no objection to the submission of this report, the Bureau recommends against favorable consideration of this proposed legislation pending clarification of legal and constitutional questions, and the completion of the study recommended in the report of the President's Advisory Committee on Water Resources Policy. Sincerely yours,
TRUE D. MORSE, Acting Secretary. Senator WATKINS (presiding). Mr. Secretary, we are very happy to have you with us to get the views of the Department on the bill which is now before us. It is a very important piece of legislation for the entire West which relies upon irrigation and the use of irrigation water to produce the agricultural products, also for industrial, mining, and other purposes. The West is badly in need of water. We hope we are going to maintain the standard of water rights which we have in the West.
We are very happy to have you here to state the position of the Department in this respect.
You may proceed.
STATEMENT OF HON. E. L. PETERSON, ASSISTANT SECRETARY OF
Mr. PETERSON. Thank you, Mr. Chairman.
Mr. Chairman and members of the committee, your invitation to testify on S. 863, a bill relating to the control, appropriation, use, and distribution of water in the Western States, and on the amendments intended to be proposed by Senator Barrett to this bill, is appreciated.
In large measure the economy of the 17 Western States is established n the foundation of the right to the use of water. Water is used for he irrigation of more than 27 million acres of western lands in agricultural production. Without irrigation several million acres of hese lands would be unproductive except for such dry land farming or grazing as soil type and rainfall pattern might permit.
In the Western States water rights are property and as such are entitled to the same protection in law as any other property rights. The stability and security of these rights are essential not only for the preservation and protection of the existing economy of the West, but ilso for its growth, development and future prosperity.
I can well understand and appreciate the concern of Members of he Congress and the people of the Western States over the cloud that nas been cast on the integrity of these private rights by the activities of the Federal Government. Present economic values, future investment, in fact orderly development of the economy of the States to be affected by S. 863 is impaired to the extent there is doubt about the integrity and permanence of the right to beneficially use water. Fubure water developments likewise become more difficult so long as such doubt may exist.
During the past 90 years Congress has passed many laws recognizing and protecting the integrity of water rights acquired under the laws of the Western States. Through these laws Congress has repeatedly expressed its intention that Federal water resources activities should not interfere with State laws relating to the control, appropriation, use, and distribution of water. The proposed legislation appears to be in harmony with the policy established and reaffirmed time after time by these enactments of Congress.
The Department of Agriculture has traditionally favored full recognition by the Federal Government of the power of the States pertaining to the control, appropriation, use, and distribution of water within their boundaries for beneficial purposes. The Department also believes that all Federal water resources undertakings should honor fully all water rights acquired under State laws. These views have been recognized for many years in the policies and procedures established by this Department for the administration of its various programs involving the acquisition and exercise of water rights.
For example, it has been the firmly established policy of this Department for nearly half a century to acquire, in strict accordance with State laws and procedures, the water rights needed for the administration of the national forests.
Senator WATKINS. Would you permit a question at this point?
Has the Department of Agriculture ever experienced any difficulty in working with the States and in complying with the water codes of the various States?
Mr. PETERSON. To the best of my knowledge it has not, Senator Watkins.
Senator WATKINS. There is not any history of the Department of Agriculture having difficulties with the States because of the State water codes?
Mr. PETERSON. I have never heard of such difficulty, if it exists.
Senator WATKINS. As a matter of fact, most of the waters which are later used for irrigation and for municipal and industrial use in the Mountain States of the West largely falls on forest land, does it not?
Mr. PETERSON. I would say that most of the primary watersheds in the Western States, starting with the eastern slope of the Rockies and moving westward, lie on the national forests or at least the national forests are a part of those watersheds. Of course, the water which is there accumulated in the form of snow running off downstream to be used in the irrigated valleys originates on the public lands of the national forests.
Senator WATKINS. That is the water we largely rely on for the various uses I have named.
Mr. PETERSON. That is correct.
Senator WATKINS. It has been the policy of the Department of Agriculture fully to approve the operation of the State laws and to work in harmony with them?
Mr. PETERSON. We have, honored the State laws fully, Senator Watkins. So far as I am acquainted from being both in State government, and now in Federal Government, we have had most harmonious relations with the States.
Senator WATKINS. Thank you.
Senator BARRETT. Mr. Chairman, may I make an observation? I am very pleased at the statements being made by the Assistant Secretary of Agriculture. I do want to say that a survey was made and it was determined that 90 percent of all of the waters of the West have their source in national forests or public lands of the United States, mostly in the national forests, as you indicated a moment ago.
Mr. PETERSON. I am not familiar with that survey, Senator Barretty but I do know that a very substantial quantity of the waters which are beneficially used in the West originates on the national forests or on other public lands. Perhaps the most outstanding example is the fact that some 30 percent of the waters used by the Los Angeles Municipal Water District originate on the national forests on the upper Colorado. I merely make that statement to indicate the interdependence of the entire western economy upon the waters which originate in the higher elevations.
Senator BARRETT. Of course that is the main reason why the forest lands were reserved in the first place.
Mr. PETERSON. That is certainly one of the reasons, and so stated I think in the original reservation act.
Senator BARRETT. That is right.
Senator WATKINS. May I ask you this question: Were you one of the active participants in the President's Water Resources Policy Committee?
Mr. PETERSON. I represented the Secretary of Agriculture in the deliberations of that Committee and in the preparation of the report, Senator.
Senator WATKINS. You are personally in full harmony with the report made by that Committee?
Mr. PETERSON. I think it is a good report. Of course, as is true of any report of that nature, as an individual I might have some slightly different views, but overall I am in full accord with that report.
Senator WATKINS. The report of course is in full accord with the policies of the Department of Agriculture.
Mr. PETERSON. It is, sir.
Senator WATKINS. And fully approved by the Secretary himself. Mr. PETERSON. Yes, sir.
Congress has been fully cognizant of this policy for many years. Under this policy, relationships have long been established between his Department and the people of the Western States and their State governments, the maintenance of which is of vital importance to the dministration of the national forest.
Acting under this policy, this Department has acquired by appropriation under State laws many hundreds of rights to the use of vaters within the national forests for the protection, utilization, and dministration of these forests. In acquiring these rights the Department complied with the same State laws and procedures that govern the acquisition of water rights by private individuals. The policy has not brought about any conflicts in Federal-State relaions or created any difficult administrative problems; rather it has engendered a high degree of mutual cooperation and respect between his Department and State and local governments in the West which las greatly contributed to the successful administration of the naional forests.
The question of preserving and protecting the integrity of water rights acquired under State law is one which must be settled. Both che Western States and the Federal Government are vitally interested in the solution of this problem. The constantly increasing needs of the West for more abundant water supplies, augmented by large population increases during and since World War II, make it imperative that the issue be decided without further delay. I believe the bill now under consideration, with the amendments intended to be proposed by Senator Barrett, with possibly some perfecting amendments such as those suggested by the Department of the Interior, is the correct approach to the problem. Congress can and should solve this problem.
There has been and will doubtless continue to be a great deal of discussion about the legal issues involved in this matter. I am not a lawyer and cannot discuss legal technicalities. It seems to me, however, that the problem is one of policy for determination by the Congress. The solution of this problem should be developed largely from the standpoint of commonsense.
Senator WATKINS. Isn't that, as a matter of fact, the way the western water law developed?
Mr. PETERSON. It developed from the experience of the settlers. They increased their settlements and problems arose under the old riparian water law and they sought the doctrine of appropriation and then statutory determination of right, as I understand the history, Senator.
Senator WATKINS. It was founded on what they considered to be a commonsense approach to the problem?
Mr. PETERSON. Experience and commonsense; yes, sir. Senator BARRETT. I think it was pointed out here, Mr. Secretary, when we started these hearings that the basic principles of the law were not established by the Congress in the first instance or by any legislative body, but by a group of miners acting on their own initiative out in California in the middle of the last century. Very fortunately, we accepted the mechanics that they worked out at that time mainly to transport water from streams over to mining operations so
they could do the work which was necessary in recovering the gold from the ore. As a consequence, they built up this theory of the appropriation of water, the priority of use, the beneficial use, and so on. That confirms entirely the statements which both of you gentlemen have been making here that hardheaded, everyday Americans were confronted with the proposition that they had to work out something and it so happens that the principles which they laid down were adapted to the application of water for irrigation all over the West.
That really proves conclusively it was just good, hard commonsense which dictated the principles in the first instance and those hardy pioneers are really the fellows who are entitled to probably the greatest credit for laying down the policies and principles which made it possible for us to build a great economy there in the Western States
. Senator WATKINS. Would it not be proper to say that the water law of the West developed very much the same as the common law of England developed ? Senator BARRETT. I think you are exactly right about that.
It was built up over a long period of time, and it came from custom and usage. It just happened that irrigation meshed in well with the principles which were needed to carry on the mining operations in the California Gold Rush of 1850.
(Off the record.)
Mr. PETERSON. No one questions the power of Congress under the Constitution to provide how property belonging to the United States shall be used. I am told by the lawyers that Congress has exclusive control over all Federal property, even to the point of completely disposing of it. Certainly it seems to me as a layman that Congress has this unlimited power over the disposition of Federal property, it also has authority to set up reasonable standards for its administration; and what could be more reasonable and equitable from the standpoint of all concerned than for Congress to provide that Federal property should be administered in certain respects in accordance with the laws of the State in which the property is situated. If it has been or should it be legally determined that the waters or any part of them which are the subject of the bill we are here discussing are in fact Federal property it seems nonetheless logical that Congress may prescribe the conditions and procedures under which such property is to be administered.
It seems to me that the proposed legislation does not involve the surrender by the Federal Government of any of its powers over Federal property, but rather provide certain procedures to be followed by the Fedeal Government in carrying out its programs.
Regardless of all the legal discussions pro and con on its technical aspects, the problem in its final analysis is one of policy to be determined by the Congress. To my way of thinking, it is just plain commonsense that the Federal Government, in the use of water needed for the administration of Federal projects and programs, should be governed by the same laws and procedures concerning the acquisition of water rights that are applicable to all others.
There are no sound reasons why the Federal Government in this respect should be entitled to any paramount rights or privileges that are not possessed by private individuals. As is stated in the report by the Presidential Advisory Committee on Water Resources Policy: