reversed the circuit court, stating that the Desert Land Act had application only to lands open to public entry and not to Federal "reservations."

The results of the Pelton Dam case have already been felt elsewhere; e. g., in Nevada where the Navy Department has reversed its previous position and now refuses to comply with State law governing the appropriation of water. It is certain that other similar situations will occur elsewhere.

Furthermore, it should be noted, in the absence of clarification, by the Congress, it is entirely possible that the Supreme Court may construe to be ineffective other provisions of the Federal law apparently designed to protect State water law. In this connection, it is interesting to note that the language of section 8 of the Reclamation Act of 1902, is closely similar to section 27 of the Federal Power Act.

NEW CONGRESSIONAL LEGISLATION IS NEEDED

From the few cases just discussed, which deal primarily with the Federal Power Commission, it appears that the integrity of State water law and the effectiveness of State water planning have been jeopardized. If the cases remain the law and if allowed their logical expansion, it might ultimately mean that Federal agencies and their licensees may ignore State water law and State planning. Further, this might well preclude the State and local entities from prosecuting their proper and essential roles in the future development of California's water resources, with resultant detriment to the economy and welfare of the State. This result, I am sure, would not lead to adequate and best development of the water resources of the State of California.

We are convinced that our State water laws, developed through experience, are adequately designed to protect and encourage the best use of our water resources. We are further convinced that the California water plan represents the best comprehensive blueprint for the development of water within our State. If these conclusions are valid, it would appear to be necessary that any and all persons and agencies, whether Federal, State, or local, should construct and operate water projects in California in accordance with State law and planning. The requirement of compliance with State law by Federal agencies would most certainly not put the Federal Government out of the reclamation business in California, or any other water business, even though this result has been suggested. On the contrary, these requirements would lead to greater stability of understanding and cooperation between those Federal and State and local groups engaged in water resource development.

Because it appears that S. 863 is intended to assure compliance with State water law and planning by Federal agencies and their licensees and would thus protect California water and the California water plan, I am in accord with the general purposes expressed in the bill. It is possible that a better approach to the Federal-State water problem might be one based on specific amendment to specific existing Federal legislation, rather than the omnibus approach of S. 863. This specific approach would require an examination of each Federal activity in the field of water use and development, the existing Federal law governing such activity, and the conflict, if any, of this Federal

activity and law, with State law and State planning involving the development and use of water. If such an examination were to demonstrate that the existing safeguards were not adequate, appropriate congressional legislation could be drafted. By such a specific approach, the results to be achieved would be clearly seen and many of the problems inherent in S. 863, including some points of possible conflict with the Federal Constitution, could be more readily resolved. In view of the foregoing, I have not attempted to offer specific suggestions for revision of S. 863. My sole objective in this statement has been to point out why California must seek to adequately protect its State laws and plans relating to the development and use of its water resources, and to urge that Congress take the necessary steps to assure this protection.

Senator ANDERSON. I am a little confused by the next to the last paragraph.

Senator BARRETT. I am, too, Mr. Chairman.

Senator ANDERSON. You suggested that an examination would be made and if such an examination would demonstrate that existing safeguards are not adequate appropriate congressional legislation could be drafted.

Do you recommend the specific approach? You say that many problems inherent in S. 863 would be solved that way. You know when a bill gets to the floor of Congress you cannot say, "I vote neutral." You have to vote "Yes" or "No."

Mr. Banks. Mr. Chairman, let me make something clear. We are not attempting, as far as my office is concerned, to suggest how this legislation be adopted. That is merely one viewpoint that has been expressed and we did bring it out.

Senator ANDERSON. Yes; but are you for or against the bill?

Mr. BANKS. We are for the principles enunciated in the bill. We have not analyzed the thing to the point where we are willing or want to come forward and say that "this should be amended this way."

Senator ANDERSON. In the absence of a specific amendment may we construe that you favor the bill as written?

Mr. BANKS. Yes; you may construe that we favor the principles enunciated therein. If you should desire, my legal staff has made a preliminary analysis of the bill. We would be glad to make that available to you for your information, if you so desire.

Senator ANDERSON. I think that would be useful.

Mr. BANKS. We do not feel that we are in a position to recommend to the Congress specific legislation or that it is our place so to do. Senator ANDERSON. Let us put it this way, Mr. Banks. A great deal of difficulty has arisen of an apparent interpretation of one case in California-the Santa Margarita case. We spent quite a bit of time discussing it yesterday. California is the possessor of a tremendous amount of water. It is constantly involved whenever a water litigation matter comes up. California is also the location of a great many military establishments.

Does California feel that the approach of S. 863 is a good approach or a bad approach? That is what I would like to know.

Mr. BANKS. Our legal staff in analyzing the bill, I believe, feels that it is possible that there might be some constitutional questions involved. However, the approach of the bill so far as the State is concerned is

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that we are in favor of it, without going into the corollary legal questions.

Senator ANDERSON. When you say "constitutional questions involved," do you refer to the Constitution of the United States? Mr. BANKS. Yes.

Senator ANDERSON. You do not refer to that recent change in the constitution of the State of California?

Mr. BANKS. No, sir.

Senator ANDERSON. Was that brought on by the Santa Margarita case?

Mr. BANKS. Yes. We may as well admit that gave rise to that. As far as the State is concerned, I would like to make it clear that we do not interpret that as being any effort to get the Federal Government out of California.

Senator ANDERSON. How do you interpret it?

Mr. BANKS. Merely as the announced policy of the State that the Federal Government shall abide in the use and development of the water in California by State water law.

Senator ANDERSON. But can we agree on this: The Federal Government came in when the State law and State constitution were one thing and bought its land under that law and that constitution, and then California changed its State law and its constitution in order to have an effect upon the acquisition of water by the Federal Government. Would that be a fair statement?

Mr. BANKS. Mr. Ely and Mr. Towner can correct me if my view is wrong. I would say that constitutional amendment was an affirmation of the view that we had held all along.

Senator ANDERSON. You do not amend your constitution in order to affirm a view. You amend a constitution to have a specific bearing on the Santa Margarita case.

Mr. BANKS. May I insert something here off the record?

(Discussion off the record.)

Senator ANDERSON. Go ahead.

Mr. BANKS. I do not personally interpret that as having any more effect than State law had before the constitutional amendment was passed.

Senator ANDERSON. As far as I am concerned, this gets back to the purposes of this bill. If you do not need a bill of this nature, if you can change State constitutions, you are in fine shape. But if you do need a bill of this nature, then it seems to me that the State of California ought to either say "We think this bill is good" or "We think this bill is bad."

Senator BARRETT. Whether we need it now and if it is urgent to act now or if we can safely wait for a period of years.

Senator ANDERSON. May I go further and explain that I am in favor of some of the principles that are embraced in current agricultural law, and I have a slight criticism of maybe the administration of it. You say you are in favor of the principles of this bill, but how do you stand on the bill itself?

Mr. BANKS. Leaving out any considerations upon which I personally am not qualified to judge, but so far as its effect is concerned, I would say we are in favor of the bill.

Senator ANDERSON. I am not trying to press you unduly, but when this bill comes before this committee for final action, I am in a different

position than some of the people around this table. They have had to litigate water law. It has not been any part of my problem. But I do want to present a report to the Congress, if this committee decides to report the bill out favorably or if it decides to report it out unfavorably, I want reasons. I will be quite impressed by the position which the State of California takes.

Mr. BANKS. To put it another way, we hope that this bill or some similar bill will be enacted by the Congress.

Senator ANDERSON. Some similar bill is not going to get up here this year.

Mr. BANKS. That is right.

Senator ANDERSON. We are going to wrestle with this one.

Senator BARRETT. May I ask the witness this question: Are you at all impressed by the fact that the two agencies of Government that have handled water problems since the turn of the century are agreeable to this approach? Does that mean anything to you at all? Mr. BANKS. Yes, it does, very much.

Senator BARRETT. Do you want to leave the impression with this committee that California is not interested in getting legislation enacted at this time.

Mr. BANKS. No.

Senator BARRETT. We are entitled to have the benefit of your counsel on this matter.

Mr. BANKS. I think possibly you have misinterpreted the statement, if I may say so.

Senator ANDERSON. I am not attempting to interpret the statement.

Mr. BANKS. We have no intention of making any suggestion whatsoever on that. Our intention in including that was solely to bring to the attention of your committee certain reservations which my legal staff

Senator MALONE. Is your legal staff with you?

Mr. BANKS. Mr. Towner is here.

Mr. TOWNER. Part of it is.

Mr. BANKS. I think we could have him speak if you wish.

Senator MALONE. When you speak of your legal staff vaguely— maybe we had better put him on the stand.

Mr. BANKS. We do not suggest that your committee consider that suggestion. You may take our position as being wholeheartedly in back of the objectives desired to be accomplished by this bill.

Senator ANDERSON. I understand that perfectly. I am not able to interpret the language, but I can still read. The language in this. I call your attention to it on the top of page 13 of the copy that I have, at least:

Because it appears that S. 863 is intended to assure compliance with State water law and planning by Federal agencies and their licensees, and would thus protect California water law and the California water plan, I am in accord with the general purposes expressed in the bill. It is possible that a better approach to the Federal-State water problem might be one based on specific amendment to specific existing Federal legislation rather than the omnibus approach of S. 863.

I cannot read that as anything but a suggestion to me that I had better vote against S. 863 and search for the specifics.

Senator BARRETT. Would you suggest holding the matter off for some time?

Mr. BANKS. No.

Senator ANDERSON. Do you want to comment Mr. Towner?
Mr. TOWNER. If I may, Mr. Banks.

Senator ANDERSON. You certainly may.

For the record, identify yourself first.

Senator KUCHEL. Mr. Chairman, before he does that, may I make one request? It seems to me that, if the chairman and the committee are interested in this change in the California constitution and the problem of whether or not the Santa Margarita controversy is relevant to our consideration of this bill, then our California witnesses ought to be requested to put into the record the old provisions and the new provisions of the constitution that were adopted, with a statement as to what was involved there, so that we would have it in our record.

(The information had not been received at the time the hearings were printed.)

Senator ANDERSON. I think it would be useful. We put in the record the other day that the new provision is that whenever any agency of Government-local, State, or Federal-hereafter acquires any interest in real property in this State the acceptance of the interest shall constitute an agreement by the agency to conform to the laws of California as to the acquisition, control, use, and distribution of water with respect to the land so acquired. In other words, if you come into the State you have to bind yourself in advance that you will observe these laws and that you will not try to do what the Government thought it was doing-transfer its water right, which was a domestic water right, to irrigate land, into a right to take that same water and use it to supply drinking water and domestic water for a company of soldiers.

Senator KUCHEL. Mr. Chairman, since the constitutional amendment does use the word "hereafter," would the chairman contend that this would be a retroactive attempt by the State to change water rights previously vested?

Senator ANDERSON. No. I said this arose out of the Santa Margarita case. I meant to say that, although I do not know what I

actually said.

Senator MALONE. I am also confused by the testimony of the State engineer of California. I think we can clear it up. A mere change in the California constitution or the constitution of Nevada, if there were no act making it clear that the disposal of the property of the United States, if in fact it is the property of the United States, would have any effect under a Federal law and can the Secretary of the Interior commit the Government beyond his term of office?

Senator ANDERSON. It might as to acquired lands. That is a legal question and I am a very poor person to answer that.

Senator MALONE. We have had Secretaries of Interior that had funny ideas before. When another administration came in things were different. I do not see a change in the constitution will make any difference.

If I may, I would like to ask a question.

Senator ANDERSON. Yes. May I close by saying that I recognize that the witness from California has a perfect right to be for or against the bill or has a right in stating other alternatives.