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State authorities under the State law have decided to give it to the Federal Government for that purpose.

Mr. Banks. We would certainly be remiss in our public duty, in commenting on proposed projects, if in our opinion there existed any question as to the availability of sufficient unappropriated water, were we not to point that out.

Senator O’MAHONEY. Is there any reason why the permit should not be granted immediately so that Federal fiscal authorities would know? A lot of money has to be spent by the Bureau of Reclamation to determine whether or not a project is feasible.

I think it is not wise to spend Federal money to determine the feasibility of projects if the State is hanging back and reserving to itself the right to determine, after these initial expenditures, whether or not a permit will be granted.

Senator MALONE. I would like to ask Mr. Banks, because I think he is a very competent engineer and State engineer where this particular problem is always confronting him, we may get an idea from general testimony that you are able to develop and report on all of the unappropriated water and all of the unused water in the future. Is it not true that water-use changes sometimes due to the character of the land and better cultivation of the land and certainly in the improved transportation of the water to the land? Therefore, if I understand the situation, they have a certain amount of water that they can put to beneficial use. As the facilities improve, is there not more water for additional land available as time goes on? Maybe 25 or 30 years from now there will be better facilities for transportation of water ind better facilities for water. Would that not make more water available to additional land?

Mr. BANKS. I think that is correct.
Senator MALONE. So it is a continual change.
Mr. BANKS. Yes.

Senator MALONE. It is not something you could report on your period, someone taking your place would still have the problem.

Mr. BANKS. Yes.

Senator MALONE. I anticipate in some of our rivers, and I know in yours,


you could come back 75 or 100 years from now, most of them will be running in conduits because the water will be so valuable. I wanted the committee to understand that.

Mr. BANKS. May I elaborate on that a little? Senator MALONE. Yes. Mr. Banks. I agree with you wholeheartedly that we are dealing with physical situations and not solely with the law. It is very true that the physical situation changes with time. The state of artificial cultural development has a marked effect upon the availability of unappropriated water. It is a continuing process of study to deter mine at any particular time the amount of remaining unappropriated water.

Senator MALONE. What you can do and have done on various streams -we have done the same thing in Nevada—you can over a period of years, 50 or 75 years, determine the amount of water that would be available under certain conditions.

Mr. BANKS. That is right.

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Senator MALONE. But that does not determine how much water will be available for additional land 50 years from now under better conditions. That is the point I wanted to make.

When you file as a State on unappropriated water where a project is contemplated, is it not a safeguard against a third party coming in and botching up the situation so that perhaps this third application would have to be handled because you could construct the project through the Federal Government?

Mr. BANKS. That I believe was the intent of the so-called State filing procedure.

Senator MALONE. It was not the intent to prevent any project that the State approved to be constructed.

Mr. BANKS. No.

Senator MALONE. If they approved the Federal Government coming in it is just an automatic transfer of the water right to them.

Mr. Banks. The purpose of the State filing was not to prevent any specific entity from proceeding or to allow any specific entity to proceed, but it was to assure that the development of those particular water resources concerned shall be generally in accordance with the plan for which the application was filed.

Senator MALONE. Let me clear up one other point and it is only for people who may read the record.

When you call hearings on an application from the Federal Government, you are complying with the State law with no idea of turning that application down at all if it is to be applied to this project. You have to do that in compliance with State law; do you not?

Mr. BANKS. We regard the Federal Government in the same status as any other applicant for a water right.

Senator MALONE. You have approved the project. Therefore, there is no question about the decision. But you comply with the State law.

Mr. Banks. With respect to the State filings, you are correct, if the project has been built.

Senator MALONE. Where you have control, there is no question of your compliance with the application if they make the proper appropriation here to build a project. But you must comply with the State law in any case and have certain advertising periods and certain hearings? Mr. BANKS. That is right. Senator MALONE. I wanted to clear that

up. Mr. Banks. There is a procedure set up that is mandatory. Senator WATKINS. I want to clear that up, too.

However, that is not an idle proceeding. If people came in and presented evidence at one of those hearings that upset the Government program, you would not approve it just because the Government was involved. If you had a Federal reclamation project, you would proceed on the law just the same as if the Federal Government were a private citizen or corporation ?

Mr. Banks. The purpose of the protest is to protect the prior rights of the protestants. They must produce proof that they do have a prior right, if you follow what I mean. It is not a protest against the project. It is a protest against an alleged interference of that project with a prior right.

Senator WATKINS. Which might impair whatever water right the protestant may have.

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Mr. Banks. That is right.

Senator MALONE. Regardless of whatever it is you must follow the si? State law and advertising periods and hearings?

Mr. BANKS. Yes.

Senator MALONE. That is a routine matter regardless of what you intend to do.

Mr. Banks. It is exactly in the same category as the due process of law in a condemnation proceeding or anything else.

Senator WATKINS. State engineers have to make a decision accord!! ing to law and the evidence is presented to them in a semijudicial proceeding.

Mr. BANKS. Yes.

Senator WATKINS. We have a case in New Mexico that was called to the attention of the House committee. The Federal Government was in wildlife there. They went ahead and spent a lot of money. Finally they applied for extensions of time to go on with the project

. i Finally the State of New Mexico said, “You didn't comply," and all these extensions granted were invalid, and now the Federal Government has no water for the project.

Senator BARRETT. They did not comply with State law.

Senator WATKINS. I know that is the claim. That is one of the reasons that is urged that the Federal Government should have some rights above the State law and it would be a lot better if the Federal Government owned the water. Either that or cut out building projects in the States where they have trouble.

Senator O’MAHONEY. As I came into the committee room, you were testifying with respect to some system which is followed in California by which I understand you to say that a fiscal officer of the States files an application for unappropriated water; is that right?

Mr. BANKS. Yes. In furtherance of general and coordinated plans of development. That is the director of finance.

Senator O’MAHONEY. The director of finance makes an explanation for all available unappropriated water?

Mr. BANKS. No. He files applications for unappropriated water in furtherance of general and coordinated plans of development. Ho does not and has not and has no authority to make applications for all of the unappropriated water of the State of California in advance of the development of general and coordinated plans for the development of all of the waters of the State. He is directed to file applications in furtherance of general and coordinated planning.

Senator O’MAHONEY. What is the theory of that action? It seems to me to be taking some authority away from the State engineer.

Mr. BANKS. No.

Senator MALONE. The State engineer has no authority to file on the water. He receives the application.

Senator O'MAHONEY. Yes, I understand.

Mr. BANKS. In California, as I understand the administrative setup, you might regard the director of finance as trustee or administrator of certain State properties.

Senator O'MAHONEY. Is this fiscal officer a functionary who stands between the engineer and the ultimate beneficiary? Mr. Banks. If I may take just a moment.

Senator O'MAHONEY. Perhaps it will be easier for you if you would file for the use of the committee the California State law on this particular thing.

Mr. Banks. We would be glad to do that.

Senator O’MAHONEY. And give us particularly the date on which it was adopted.

Mr. BANKS. We can do that. It is written for reference for the record. It is contained in sections 10,500 through 10,505, of the State water code.

(The information referred to was not received at the time the hearings were printed.)

Senator O'MAHONEY. Thank you very much. I do not want to delay Senator Barrett.

Senator BARRETT. Mr. Chairman, I am very pleased with the statement that Mr. Banks made with reference to this bill.

Since Mr. Rankin, representing the Attorney General, is coming up here this afternoon, I feel constrained to clear up one other point in connection with his statement. He has Mr. Towner here who represents his legal staff.

Last summer the Associated Irrigation District of California got 15,000 copies of my statement on this legislation, including the bill so I think the staff of the State engineer as well as many of the irrigation people in California are well informed on exactly what was proposed.

I am therefore somewhat disturbed about this one sentence in your statement and I quote:

By such specific approach the results to be achieved could 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.

Now I may say that many other lawyers in the West have made an extended study of this problem and the question I would like to direct not to you, Mr. Banks, because you have stated that you are an engineer and not a lawyer, but to your attorney, Mr. Towner, is this:

Can you cite any cases decided by the Supreme Court of the United States where section 8 of the Reclamation Act of 1902 has been declared unconstitutional ?

Mr. TOWNER. No, sir.

Senator BARRETT. What is the basis then upon which you make the statement that there may be a conflict with the Constitution ? We have not been able to determine any conflict with the Constitution. We contend to the contrary.

Mr. TOWNER. As I answered you to your first question, I know of no case in which section 8 has been held unconstitutional. I can cite you certain cases where attempts have been made to construe section 8. I don't want to take the time up now. I think the questions would probably be beter directed to representatives of the Department of Justice.

Senator BARRETT. Is the department of Justice representing the State of California in this proceeding?

Mr. TOWNER. No, sir, it is not.

Mr. Ely. May I interrupt to say that when I am reached, I propose to say

that I think the bill is not subject to constitutional difficulties.

Senator BARRETT. I am sure you would say that, Mr. Ely. I was quite positive you were going to say that so I did not direct the question to you.

Mr. ĚLY. The difficulties to which Mr. Banks' statement refers are not those seen by the State of California but by the critics of your bill and the effort has been made to find answers to those. I shall try to give some answers myself.

Senator BARRETT. I appreciate that, Mr. Ely. I was sure that was your position.

I think we have cleared up the record.

Senator O’MAHONEY. I would like to make this a part of the record at this point. I will not take any time since the witness has apparently taken a different position.

You say:

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.

That is precisely the position that the Bureau of the Budget took. It wanted to deal with this piecemeal and bit by bit to offer State water rights. So I was rather puzzled to find it in your statement.

Mr. BANKS. May I say this: that is not a position. It was not intended to be a position as that is written there. Perhaps our wording is not of the best

. I wish to assure you that it is not a position. It was more in the line of a suggestion of a possible line of attack on this thing. Of course, we had no knowledge of the position of the Bureau of the Budget.

I would like to repeat that again we are wholly in accord with the objectives and principles enunciated in S. 863. The bill is satisfactory to the State of California.

I believe Mr. Ely will have some questions on interstate matters here which he will bring up. As far as our office is concerned, the bill is satisfactory.

Senator ()’MAHONEY. Very well, sir.
Mr. BANKS. We will support it on that basis.
Senator BARRETT. I have no more questions, Senator.

Senator OʻMAHONEY (presiding). The subcommittee stands in recess until 2 o'clock. (Whereupon, at 12:25 p. m., a recess was taken until 2 p. m.,

this same day.)


(The subcommittee reconvened at 2 p. m., in room 324, Senate Office Building, Senator Clinton P. Anderson, chairman of the subcommittee, presiding.)

Senator ANDERSON. Senator Knowland, if you have a statement you wish to make, you may proceed.


SENATOR FROM THE STATE OF CALIFORNIA Senator KNOWLAND. Mr. Chairman, I do appreciate it. I left the floor on some debate in which I expect to be engaged, and have to return there. I did want to make a brief statement.

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