I appreciate this opportunity to appear before the Interior Committee's Subcommittee on Irrigation and Reclamation to testify on behalf of S. 863, the legislation before you introduced by Senator Barrett and other Senators. I believe that it would be an understatement to assert that during the past several years our State officials have become critically concerned with what has appeared to be an increasing encroachment by the Federal Government on State water laws and rights which previously had been respected and maintained. With your permission, I would like to take the time of the members of the subcommittee to read a letter I recently received on this serious problem from Goodwin J. Knight, Governor of the State of California (reading):

We are becoming increasingly concerned over the relationship between the Federal and State Governments in the matter of water rights. As I am sure you are fully aware, our own State has assumed the leadership in the formulation of future plans for the comprehensive development and utilization of its water resources. We are, I hope, about to begin the implementation of these plans by construction of the Feather River project. Recent developments appear to indicate that the future of such plans may be uncertain particularly because of the decision of the Supreme Court of the United State in Federal Power Commission v. Oregon (349 U. S. 435 (1955)). In fact, it may be said that the principles approved by the Court in this and other cases, as I understand them, vest in the Federal Power Commission a possible effective veto power over any such plans by any State. Recent actions by the United States Navy Department in refusing to abide by the water laws of Nevada appear to have further jeopardized the integrity of State water laws.

I believe that in view of the increasing activities of the various Federal agencies in this general field, the representatives of the concerned States should press for the immediate adoption of effective measures for the protection and preservation of power and prerogatives of the States to develop and control their own water resources in accordance with the public interest of the respective States. I urge you and the other California Representatives in the Congress, acting in concert with like-minded representatives of other States, to support appropriate measures in Congress to remedy this situation, and to vigorously advocate and guide them to enactment. I am sure you will agree that California's Representatives should assume the leadership in so doing to the same extent California has and is now leading in formulating its own plans for the development of its own water resources. It would appear that, because of their current active interest in water-right matters, the support of the Eastern and Southern States can be obtained.

In connection with the foregoing, I wish to call your attention to "Views of the State of California presented to Special Subcommittee on Water Resources and Power, House Committee on Government Operations" (together with letter of transmittal) which were submitted at hearings held in Los Angeles on December 7 and 8, 1955, before Hon. Robert E Jones, chairman, with respect to a report of the Hoover Commission, a copy of which is transmitted herewith. In it you will find statements which are relevant to the present subject. I am also sending herewith comments on the Barrett bill (S. 863) prepared by Henry Holsinger, principal attorney of the State division of water resources.

In the future, if you so desire, our further views relevant hereto will be submitted for your consideration. We will be glad to review any other proposed legislation and furnish you with our comments and recommendations.

Again, I urge prompt action by the Congress in this important matter and respectfully request your active support.

Mr. Chairman, for almost 100 years the successive Congresses of the United States have consistently approved a Federal policy which assured the independence and inviolability of State water laws. This policy has been relied on by our farmers, our industrial workers, and our business people in an area of expanding population where water is the lifeblood of human existence.

The legislation now pending before this subcommittee, the proposed Water Rights Settlement Act of 1956, is in my judgment constructive

legislation and a modern expression of long-established Federal policy on water rights in the West.

Article 1, section 1 of the Constitution of the United States states that all legislative power is vested in the Congress.

This is not a partial grant of legislative power but a complete grant limited only by the fact that the Federal Government was granted specified powers and all other powers were reserved to the States or to the people thereof.

The Congress does not and in my opinion should not dilute its legislative power or abdicate it to any executive or judicial agency.

If a prior Congress has left ambiguous meaning so that the judicial branch is doubtful about the legislative intent, it is up to us to clear that ambiguity.

Within our defined constitutional powers we should not let stand unchallenged decisions which in effect are legislative in character and by default condone the passage of legislative power to another branch of the Federal Government.

I believe that within this committee and in the two Houses of Congress are men as well, if not better, qualified in water law and reclamation problems as are any in the executive departments.

The executive agencies have a responsibility to give their opinions to the Congress for its consideration. However, the responsibility for the enactment of policymaking legislation is here on Capitol Hill. Senator ANDERSON. Thank you, Senator Knowland.

I think this legal discussion we are having is extremely important because it goes to the very heart of what this controversy is all about. While I had hoped we would finish the hearings tomorrow, I do not think that is half as important as that we come out with the right decision when we do finish the hearings, if we have to hold them a while longer to do so. We would be happy to have you remain as long as

you can.

Senator KNOWLAND. I would like to remain, and I will come back if your hearings continue.

Senator ANDERSON. I hope you will come back because I believe fully that this bill and the discussion about it is very important at the present time, and touches every phase of water development in the West, which becomes increasingly important as we go along. I personally appreciate your appearing here today very, very much.

Ι

Senator BARRETT. May I say also that I want to commend the minority leader, Senator Knowland, for his forthright statement and I am sure that his position reflects the sentiments of the people not only of his State, but of the entire West.

Senator ANDERSON. Mr. Rankin, we have called on you for testimony on a good many times on a great many bills and have always enjoyed having you here. We are happy to have you here. We wish you would help us on the problem that we have. I think I can say this for Senator Barrett, as well as other members of the committee, since he is the author of the bill: The Department of Justice has not looked with much favor on this bill. The Department of Defense has a sort of unfavorable report on it. After quite a little bit of conversation the Department of Defense thought maybe it would submit some amendments or put in some statements that would protect its situation. While I am not trying to tell you how to make your statement, if after you finished your formal statement, you feel like giving

us any advice as to what might be done to the Barrett bill, as amended by the sponsor of the bill, to make it a little more palatable to the Department of Justice, we would be glad to have those suggestions. If you do not feel like doing that, you will not be held in contempt of the committee.

STATEMENT OF J. LEE RANKIN, ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES IN CHARGE OF THE OFFICE OF LEGAL COUNSEL

Mr. RANKIN. Thank you, Mr. Chairman. My name is J. Lee Rankin. I am Assistant Attorney General of the United States in charge of the Office of Legal Counsel.

With regard to S. 863, the Department of Justice has given a great deal of study to the bill, and the proposals; and the possibility of trying to accomplish what the committee might have in mind or the introducers of the bill, as the case may be.

First, I should like to make it clear that the Department of Justice does not construe the Pelton Dam case as causing the difficulties that are recited in the preamble of the bill. First, the court said very clearly that there were no vested rights involved in passing on the question in that case. Then it proceeded to deal with the basic question of whether the Federal Power Commission could license a powerplant on a river in Oregon without the licensee being required to comply with the requirements of the State law before it could proceed to exercise its license.

Since the Court pointed out that it was dealing with reserved lands of the United States, it held as a matter of law that there was no requirement beyond the requirement that Congress had provided for the Federal Power Commission to authorize the license. So far as the case goes, the Supreme Court has said many times that whatever they say applies to the matter before them and not beyond that. It held that as to the reserved lands of the United States, this power was inherent in the United States, and followed the first Iowa decision (First Iowa Coop. v. Federal Power Comm., 328 U. S. 152) to the effect that there was no requirement for State action in this area.

Senator ANDERSON. When you use the term "this power" could you define a little more?

Mr. RANKIN. The power that the Court was dealing with was the power under the Constitution that delegates to the Federal Government the control of the Territories and lands of the United States, and empowers the Congress to make rules, regulations, and laws in regard to them.

So we do not think that there is any threat to vested rights by reason of that decision. The whole area of water law that we are dealing with is complicated like property law in many of the Western States, and practically all over the country, by reason of the fact that we have a federal system of government, and in certain areas of that governmental operation, the States are empowered to act, and in certain areas they have delegated the power under the Constitution to the Federal Government to act, and it is the difficulty of measuring those two systems of law that apply to this property right, the right to use water that causes the problem that the committee is now considering.

Concerning section 5 of the proposed bill, it would appear that that section is intended to deal with the problem in the Twin Cities case recently decided by the Supreme Court on the navigational servitude. There, as you will recall, the Court stated that there was no requirement to compensate for the values that could be attributed to the lands lying upland from the river because of the fact that there could be erected in the stream a power dam, and excluded from the compensatory feature the amount that was attributable to it on the ground that Congress had said that the entire navigational servitude should be obtained or occupied by the United States and therefore there was nothing left to compensate for, because the Federal Government by order of Congress took the entire right, and that anybody who had any rights in connection with the river took them subject to that power that had been delegated to the Federal Government by the Constitution to provide for navigation in the various streams in the country.

If the Congress should decide in any authorizing legislation to not exercise the full navigational servitude, that is within the province of the Congress, and we see no problem in that.

Section 5 would purport to provide that by this legislation the full servitude would never be exercised, but I am sure this committee is aware of the fact that this bill would not be binding upon the Congress, and if the Congress by inadvertence or otherwise would provide in any subsequent authorizing legislation that the full servitude should be taken, and not provide that there should be compensation that the Twin City case would then come back into operation.

Senator ANDERSON. You are a little beyond me, Mr. Rankin. Could I try to translate it myself and say do you mean that if we pass this Senate bill, and it became a law in about the form in which it stands now, that Congress could subsequently provide that the Government could go into California, pick out a location along some river where it wished to build a dam, and take it under its existing powers? Mr. RANKIN. It would depend upon whether it was a navigable stream.

Senator ANDERSON. I am assuming it is a navigable stream.

Mr. RANKIN. Assuming that fact, then if the Congress just directed someone of the governmental departments or agencies to proceed to take this particular property, then if there was a question of navigation and you were providing for the navigability of the stream either by building dams or exercising the power in regard to navigation in any way, in that event the Congress would not be bound by this law, if it was clear that it was the intent to occupy the full navigational servitude. The Court has said many times that that power is within the Federal Government to exercise the protection and development of navigation on the streams of the country. Unless you made it clear that you didn't intend to take it without compensation, the Congress is only bound by the act at the moment, and it can always change its position in any subsequent legislation.

Senator KUCHEL. May I ask you a question?

Mr. RANKIN. Yes.

Senator KUCHEL. Is it then the position of the Department of Justice, that under Supreme Court interpretation the exercise of a navigational servitude which may deny to a landowner all his water right

is not subject to any payment by the Government to him because he took that water right originally subject to that servitude?

Mr. RANKIN. That is the position of the Supreme Court.

Senator BARRETT. Even though the State law recognizes his water right?

Mr. RANKIN. Yes.

Senator BARRETT. And even if the Congress says in the exercise of its constitutional power that the Government shall compensate him. for that water right?

Mr. RANKIN. No. If you add the last, that is a different factor. Senator BARRETT. That is what this section does.

Mr. RANKIN. Yes. I said under this section you would provide for compensation.

Senator BARRETT. You don't attack the section on constitutional grounds providing the Congress acts, and says in effect that if a man acquires a right under State law, that you must respect it, and if you want it, you must compensate him for it?

Mr. RANKIN. Yes.

Senator ANDERSON. Even though we said that they should compensate by section 5, if in some subsequent legislation the Congress failed to say they should compensate or they should not compensate, that would be perfectly proper, and the action of this Congress would not be binding on that one.

Mr. RANKIN. That is correct.

Senator BARRETT. I think it goes without saying that there is no way to guarantee that a future Congress might not amend or repeal the acts of the present Congress. I think we are in agreement that the Congress has the power, and if the Congress acts and says you must recognize those rights accorded under State law, and that if you want them you must compensate for them, that such action is perfectly within the realm of the constitutional provision.

Mr. RANKIN. Yes. That is our view of the difference between the Twin City decision (U. S. v. Twin City Power Co., 100 L. Ed. 223) (Federal Power Com. v. Niagara-Mohawk Power Corp. 347 U. S. 239) and the Niagara Power decision. In the Niagara Power, the Court found that Congress had not decided to take the entire navigational servitude without compensating for the water rights that were involved. Therefore, they were willing to recognize or the Court did recognize the right of the company to compute the value of the cost of those water rights in their program of amortizing that value over the period of years which would be involved if the Government should try to acquire it. They said in the Twin City case it was apparent that Congress did intend to occupy or take advantage of the entire navigational servitude, and therefore under the act of Congress, there was no duty to compensate, because whatever water right. there was was a State right subject to that superior power of the Federal Government.

Senator BARRETT. In that case the Congress had acted.
Mr. RANKIN. In both cases.

Senator BARRETT. You can distinguish the Twin City case from the Niagara Mohawk because in the latter case the rights were acquired previously under State law.

Mr. RANKIN. The Court did not distinguish on that ground. The Court distinguished on the ground that Congress had not said that it