Senator O'MAHONEY. I doubt very seriously whether any Congress would ever undertake or any State would ever undertake to take any action which would be adverse to an existing beneficial power project. Mr. GATCHELL. I agree with you, Senator, because Congress has always zealously avoided doing that.

Senator MALONE. Mr. Chairman.

Mr. Gatchell, I didn't quite finish one of the points I wanted to make with you or one of the things I wanted to call to your attention. There seems to be no question in your testimony that when there is an existing right it is recognized by the Government, and it is only the unappropriated water which is in question. Now I ask, suppose a bureau of the Government, as the Navy has started to do, which perturbed many of us, goes ahead and uses water without filing with the proper agency of the State, the State engineer or whatever it is, and continues to use the water. Assume that that goes on, using a large amount of water. Can a State determine whether there is unappropriated water?

Mr. GATCHELL. If they make no filing with the State?

Senator MALONE. Suppose private interests follow the Government's unlicensed use of the water and make their regular filing in the State engineer's office and the adjudication goes on.

The State engineer cannot adjudicate or determine the amount of water the Government has used or is entitled to use because they have made no filing and apparently the State would have no right to adjudicate it or to give it a priority as it does in other cases.

Does not that upset the entire adjudication process of the State? Mr. GATCHELL. Senator Malone, the States are up against a very difficult situation in that connection. They get these expensive military and naval installations in there and then they do not have enough water to operate; what are they to do?

Senator MALONE. This is what they can and do do. It is a very simple matter. I think you should know this better than anyone else. If they file with the State, they acquire a priority as of the moment of filing for the amount of water that the filing or final proof calls for, or as it is put to beneficial use the time for final proof may be extended from time to time. I am sure you understand.

Suppose when the water was adjudicated it might be found that there was not enough water for Navy's use. The Navy could then condemn the amount of water needed in Churchill County and buy it in the regular way.

Mr. GATCHELL. Yes, sir; and pay for it.

Senator MALONE. Pay for it in the regular appraised way or go through a regular court procedure of condemnation, just as they do for other property. With that you agree, I am sure, and there is no hardship?

Mr. GATCHELL. Oh, yes.

Senator MALONE. How would you embarrass the Navy? Would they not be in the position of any other water user except that for a public use they can condemn and secure the amount of water they want by paying the appraised or agreed-upon price for it, either agree on a price or condemn it and through the court secure the use of the water? What I am saying to you is that if it is not done in that

75335-56- -14

manner it upsets the whole procedure and there would be little use of anyone filing for the use of water, in the State enginer's office, because if the Navy's use were not adjudicated no one would know the amount of water available.

Mr. GATCHELL. Senator Malone, I know you will know I am not trying to be discourteous, but I believe in sticking to my knitting. I am general counsel of the Power Commission, and we do not deal with those installations. I do not want to avoid your question, but I do not want to get into a scrap with the Navy Department, either. Senator O'MAHONEY. They carry too many guns?

Mr. GATCHELL. They may stick me in the brig or something.
I have tried to present to you our position.

Senator MALONE. You are presenting your position only in regard to your own department. I respect that.

Mr. GATCHELL. Yes.

Senator MALONE. I merely say to you and for the purpose of the record that if you or any other department failed to file an application for a consumptive use of water, which is what the other departments are purporting to refuse to do, from then on there would be little use of anyone filing because there would be no method of adjudication of the water to determine the amount available, unless the Federal Government should set up the necessary machinery and then accept vested rights proof from the water-user States, thousands upon thousands of vested rights in each State, and make these water users come in then and prove their vested rights just as the State has already done over a long period of years. Then new applications would have to be filed in Washington. In 1913 we passed the first water law which required adjudication of water rights in the State of Nevada. It has been amended several times since, but the fundamental law remains the same, and I think it is fundamentally the same in all the arid and semiarid States.

It authorizes the State engineer, or however the agency proper in each State is designated, through specified advertising and bearings on water rights, applications, and vested rights, to adjudicate the right to the use of water, and after the law is complied with as laid down by the State legislature, then you are forever barred in coming in and claiming a further vested or other right to the use of the water. I was a State engineer for 812 years, and we did adjudicate water rights which had been acquired prior to the water law vested rights. After we adjudicated them in accordance with the State water law, then they are forever barred from further claims.

Under the Government's theory-as I say, it has been raised three times in my relatively short experience there would never be an end to the adjudication procedure. If the Government does own all of the unappropriated water and they have intervening use, then the subsequent filings in the State engineer's office or the proper place in each of the arid States would be of no effect because the State engineer could never tell them that "You have a definite water right as of a certain priority date for a certain amount of water as against all other users."

That is what you would have to give them before they can spend their money or sell bonds to develop land storage projects or in the development of even a 160-acre homestead.

Mr. GATCHELL. Senator, you may be entirely right. I just don't want to get mixed up with the Army and the Navy.

Senator MALONE. That is all, Mr. Chairman.

Senator O'MAHONEY. We are very much indebted to you, Mr. Gatchell, for what I think is one of the clearest statements which has been made during the hearings.

Mr. GATCHELL. Thank you, sir.

Senator O'MAHONEY. It has been very nice, as it always is, to listen to you testify.

The committee, when it adjourns, will adjourn until in the morning at 10 a. m., at which time the witnesses will be Hon. William F. Knowland, Senator from California; Harvey O. Banks, attorney of the Division of Water Resources; and Northcutt Ely, special counsel.

A third witness in the morning session, if time permits, will be Mr. Abbott Goldberg, deputy attorney general of California, who will make a separate appearance.

Senator BARRETT. I think we have set Mr. Rankin down for the afternoon. I think George Guy would like to be on tomorrow afternoon also.

(Whereupon, at 4:45 p. m., the committee was recessed, to reconvene at 10 a. m. Thursday, March 22, 1956.)

WATER RIGHTS SETTLEMENT ACT

THURSDAY, MARCH 22, 1956

UNITED STATES SENATE,

SUBCOMMITTEE ON IRRIGATION AND RECLAMATION, OF THE
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D. C.

The subcommittee met at 10 a. m., pursuant to recess, in room 224, Senate Office Building, Hon. Clinton P. Anderson (chairman of the subcommittee) presiding.

Present: Senators Clinton P. Anderson, New Mexico; Joseph C. O'Mahoney, Wyoming; Eugene D. Millikin, Colorado; Arthur V. Watkins, Utah.

Present also: Senators George W. Malone, Nevada; Henry Dworshak, Idaho; Thomas H. Kuchel, California; Frank A. Barrett, Wyoming; and Barry Goldwater, Árizona.

Senator ANDERSON. The subcommittee will be in order. Mr. Banks? STATEMENT OF HARVEY 0. BANKS, STATE ENGINEER, STATE OF CALIFORNIA, ACCOMPANIED BY PORTER A. TOWNER, ATTORNEY DIVISION OF WATER RESOURCES, AND NORTHCUTT ELY, SPECIAL COUNSEL

Mr. BANKS. I am Harvey O. Banks, State engineer of the State of California. I am privileged to appear here today to discuss the interest of the State of California in some of the bills before the present session of the Congress dealing with basic Federal and State relationships in the field of water use and development.

I would also like to introduce to the committee Mr. Porter A. Towner, attorney for the division of water resources, on my staff, and you are quite familiar with Mr. Ely.

Senator WATKINS. Would you give us your educational experience? Mr. BANKS. I graduated from Syracuse University with the degree of bachelor of science in civil engineering in 1930. I hold the degree of master of science in hydraulic and sanitary engineering at Stanford University. I taught at Stanford University on civil engineering for 3 years in the early thirties. I worked as hydraulic engineer for the Soil Conservation Service. I have about 12 years' actual experience with the State division of water resources.

Senator WATKINS. In California?

Mr. BANKS. Yes, sir. I have had 4 years' experience as consulting hydraulic engineer in Los Angeles. I have been State engineer since November of last year. I was assistant State engineer in charge of water-rights administration for 22 years previously to that.