Hearings, Reports and Prints of the Senate Committee on Interior and Insular Affairs

Thank you. I think you have been a good witness.

Senator WATKINS. Mr. Chairman, I had a line of questioning here I think is rather practical in connection with statements made by the witness and also some of the things we have to consider.

I agree with the witness' statement that the Federal Government in the event it claims all the unappropriated water in the West would have to take on a mighty big job. I think we all concede now that the Federal Government does not intend to and will not take on that job, So let us get to some of the practical matters.

You said, on page 12:

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.

Prior to that, you had said something with respect to:

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.

I read that to you and I want to get your comment on what has been said in the House hearing that raises directly some very practical questions.

The chairman of the House Interior Committee said this. This is on page 24 of the transcript:

What I think is the answer to this

I do not want to read all that went on before but I think it will clear up as I read, and I want to get your comment on the three statements; first your own statement and then the statement of the chairman of the House committee, and the statement of Mr. Rankin, representing the Department of Justice:

What I think is the answer to this is that the Federal Government should refuse to proceed with the construction of these desirable projects until they have the necessary water rights in their hands.

This has to do with whether the Federal Government is going to be protected if its owns the water (continuing) :

We had an illustration in California that was absolutely flagrant in which the United States Government went out there to build the Central Valley project as you well know. The Federal Government went to the State which had under its 1927 constitutional provisions gone out through the department of finance of the State and filed on all of the unappropriated and unclaimed waters of the State. They had it all right in one batch. So the Federal Government goes to the State and says: "Now, we need these assignments of water rights in order to implement this great project which would transfer huge amounts of water from the surplus areas of northern California to the desert areas of the San Joaquin Valley." Lo and behold when my subcommittee went out there in 1952, I was amazed to find out that the State of California had set public hearings upon these very applications which had been assigned to the Federal Government for the purpose of permitting protests to be made against the granting of these applications.

I said, "Just what goes on here anyway? Do you mean to say that the Federal Government has spent $500 million plus on the Central Valley project only to find that the applications for water upon which the operation of that project, according to the State water plan is predicated, are now subject to protest by anybody who wants to come in here?" And evidently that is where the case sets.

Then I go over to page 26 to the statement of Mr. Rankin. wants to clarify some of the practical problems:

In the theory of water law you have first the declaration that you are going to try to use a certain amount of unappropriated water. Then you have to go ahead and apply to the beneficial use before you ever get any permitted rights. I understand that is the rule in California as well as in my State: If they get all kinds of documents in which they purport to give them the first, they never get the second permitted right until they have applied the water to beneficial use. That is the box that the Federal Government is caught in because it takes years to build some of these projects. Until we get that done and the water applied to that use the Government cannot go in and prove that it did exactly what it said that it would do in the first place. So up until that time it is never sure of the water. Then after the locale gets the project built and they know the Government is permitted and cannot get out of it there is an entirely different attiude how to handle the water rights. If they think there is a way that they can get local control of a Government project after the Congress has voted several hundred million dollars to build it, there are people that are willing to try it and that is where we have our great battle. As a State engineer, and it happens to involve your State, I would like to know what your comment is on the practical situation. You say that observance of State law will not in any way interfere with Federal construction and operation of reclamation projects. I presented the problem to you very flatly and very frankly. Mr. BANKS. I will try to answer as briefly as I can, Senator. With respect to the procedure of the Bureau of Reclamation in the more recent projects, such as the project on the Santa Maria, the Casitas project on the Coyote Creek tributary to the Ventura River, the procedure followed there has been eminently satisfactory to the Bureau and to the State. As a matter of fact, we have already granted the permit for the Vacaro project well in advance of any initiation of construction. We will hold the necessary hearings and grant the permits, subject, of course, to the information developed at those hearings on the Ventura project and if the applications are complete, which they are not at the present time, that will be done in advance of the initiation of construction.

With respect to the Central Valley project, the Bureau did receive assignment of the State filings which were made in 1927 and subsequently in furtherance of the Central Valley project, particularly those filings made in furtherance of Shasta and Friant. It is true that those have not been set for hearing yet. We hope to set hearings for Shasta in 1957.

Senator ANDERSON. I do not want to interrupt, but is there not some Federal application?

Senator WATKINS. Let me clear this up. The flat statement was made that the applications had been made by the State of California through its finance department on all of the unappropriated water. Mr. BANKS. Not all of it. That is not correct.

Senator WATKINS. What happened? Certain waters of the State of California, the United States Government operating through the Army engineers, wanted assignment of those applications.

Mr. BANKS. We gave them.

Senator WATKINS. The criticism is that after they got all of these assigned from the State they suddenly wake up to the fact that the State is going out and inviting protests to see if they cannot upset all these water rights that the State initiated.

I have an answer in my own mind, but I want to get your answer for the record.

Mr. BANKS. Let me clear the record there as far as the State filings are concerned. The State water code directs the director of finance to make and file applications for unappropriated water in furtherance of general and coordinated plans for the development of the State. The director of finance has not filed on all of the unappropriated water of the State of California. He has filed on waters where general and coordinated plans for development have been made and adopted. Senator ANDERSON. Has he filed on all the Central Valley project water?

Mr. BANKS. Yes. Let me ask just one question of Mr. Towner because I can't remember.

Yes; he has filed in furtherance of the Central Valley project. There was only one project I had a question in mind and that was Monticello, where there are no State filings.

Senator WATKINS. Now, let us have your comments.

Mr. BANKS. The State filings made in furtherance of the Shasta Reservoir and Friant Reservoir have been assigned to the Bureau of Reclamation. They have been completed.

Senator WATKINS. What do you mean when you say "completed"? Mr. BANKS. The director of finance files the applications in incomplete form. Under the water code an application can be filed if it has a certain basic minimum of information in it. Before it can be processed further, it has to be completed with the remainder of the information involved in the application.

Senator WATKINS. Do you require later on a proof of the beneficial use of water under the application?

Mr. BANKS. The procedure is the filing of an application, the completion of that application, the advertising of the application, the receipt of protests, a period for attempted adjustment of protests. If the protests cannot be adjusted between the applicant and protestants, then it goes to hearing. As a result of the hearing and based upon the facts developed at the hearing, a permit is granted upon which then the applicant goes ahead, develops his project, diverts the water and applies it to beneficial use. After the applicant states that the water has been completely put to beneficial use, and that is upon his notice, then an inspection is made of the project and of the application to beneficial use, and a license is issued, which is the final evidence on the part of the State that the water has been developed and put to beneficial use.

Senator WATKINS. That is evidence of the title of his right to use the water?

Mr. BANKS. Yes.

Senator WATKINS. And the United States has to comply with that the same as any individual or corporation who have to do in California?

Mr. BANKS. To be perfectly honest about it, we do not anticipate any great trouble with water rights with respect to the Central Valley project. It is going to be difficult to work out. I will not deny that. There are a large number of diverters and prior right holders involved. There are people on the Sacramento and San Joaquin Rivers whose priority goes back to the middle and late 1800's, long before the Federal Government ever entered the picture there. It will be difficult. Granted that the proceedings will be complicated, but none

theless those prior right holders have to be protected and would have to be protected under any system of law whether State or Federal. Senator ANDERSON. Did the Federal Government understand that before it invested several hundred millions in the Central Valley project?

Mr. BANKS. I am sure they must have. I cannot answer for the Federal Government.

Senator WATKINS. I listened to the hearings for a long time several years ago we had most hearings in the 80th Congress, as I remember it, during the depression the Government went out there and started a lot of dams without too many preliminary investigations. Is that not about right?

Mr. BANKS. Yes.

Senator WATKINS. I think you are giving the answer. What I am trying to get at is that they have to comply with State law.

Mr. BANKS. That is right. There is a certain procedure set up in the State law that any applicant has to provide for. It is inconceivable to me that something along that procedure would not have to be followed in any event.

Senator WATKINS. What would the Federal Government itself do if it claimed the unappropriated waters out there? Would it not have to set up some system of priorities and give the people who had prior claims the right to say whether or not the filing of the new application would interfere with their rights?

Mr. BANKS. As a personal opinion, I agree with you completely, Senator.

Senator WATKINS. This is one of the principal arguments being made against this type of bill and against the State control of the waters. It is made by one of the principal proponents in the Department of Justice. That is one reason why I wanted to get your comments on that and your answer to that sort of argument.

Mr. BANKS. You cannot determine the amount of unappropriated water remaining in a stream or any other body of water without giving consideration to the extent of usage under prior rights. You can only determine that either through extensive field investigations or hearing or both.

Senator WATKINS. Let me ask you this question: Do you know whether or not the Federal Government has any records whatsoever with respect to the amount of water that is now used in Callifornia, I mean of its own, water that has already been appropriated and the vested rights?

Mr. BANKS. No.

Senator WATKINS. The State of California has that information? Mr. BANKS. We have not complete records as yet. I have recommended to the legislature that we initiate studies to clear that whole matter up, to determine the amount of remaining unappropriated water. I think shortly we will be able to get to that.

Senator WATKINS. You have a lot of record evidence?

Mr. BANKS. We have a lot of record evidence. We have complete records of rights initiated and acquired since 1914, the date the Water Commission Act went into effect. It is true we do not have complete records of appropriated rights initiated and acquired prior to 1914, nor of riparian rights. We do not have the complete records. We have a large amount of information.

Mr. BANKS. Yes. Let me ask just one question of Mr. Towner because I can't remember.

Yes;

he has filed in furtherance of the Central Valley project. There was only one project I had a question in mind and that was Monticello, where there are no State filings.

Senator WATKINS. Now, let us have your comments.

Mr. BANKS. The State filings made in furtherance of the Shasta Reservoir and Friant Reservoir have been assigned to the Bureau of Reclamation. They have been completed.

Senator WATKINS. What do you mean when you say "completed”? Mr. BANKS. The director of finance files the applications in incomplete form. Under the water code an application can be filed if it has a certain basic minimum of information in it. Before it can be processed further, it has to be completed with the remainder of the information involved in the application.

Senator WATKINS. Do you require later on a proof of the beneficial use of water under the application?

Senator WATKINS. That is evidence of the title of his right to use the water?

Mr. BANKS. Yes.

Senator WATKINS. And the United States has to comply with that the same as any individual or corporation who have to do in California?

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