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decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.
"All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by this section. (R. S. SS 2339, 2340.)” (13 U. S. C. A. § 661.)
3. The Desert Land Act of March 3, 1877 (19 Stat. 377):
“It shall be lawful for any citizen of the United States, or any person of requisite age 'who may be entitled to become a citizen, and who has filed his declaration to become such' and upon payment of 25 cents per acreto file a declaration under oath with the register (and the receiver) of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one-half section, by conducting water upon the same, within the period of 3 years thereafter: Provided, however, That the right to the use of water by the person so conducting the same, on or to any tract of desert land of 320 acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said one-half section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of 3 years after filing said declaration, upon making satisfactory proof to the register (and receiver) of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of $1 per acre for a tract of land not exceeding 320 acres to any 1 person, a patent for the same shall be issued to him: Provided, That no person shall be permitted to enter more than 1 tract of land and not to exceed 320 acres which shall be in compact form (Mar. 3, 1877, c. 107, sec. 1, 19 Stat. 377; Mar. 3, 1891, c. 561, sec. 2, 26 Stat. 1096)," (43 U. S. C. A. § 321).
4. Section 8 of the Reclamation Act of 1902 (32 Stat. 390):
“Nothing in this chapter shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this chapter, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof (June 17, 1902, C. 1093, sec. 8, 32 Stat. 390)," (43 U. S. C. A. 383).
5. Sections 9 (h) and 27 of the Federal Power Act of 1920 (41 Stat. 1077):
“(b) Satisfactory evidence that the applicant has complied with the require ments of the laws of the State or States within which the proposed project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purposes of a license under this chapter" (16 U. S. C. A. sec. 802 (b)).
“Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein (June 10, 1920, c. 285, sec. 27, 41 Stat. 1077)," (16 U. S. C. A. sec. 821).
6. Section 18 of the Boulder Canyon Project Act of December 21, 1928 (45 Stat. 1057) :
"Nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders or to adopt such policies and enact such laws as they may deem necessary with respect to the
appropriation, control, and use of waters within their borders, except as modified by the Colorado River compact or other interstate agreement.”
7. Section 3 of the Taylor Grazing Act of 1934 (48 Stat. 1269) :
“Provided further, That nothing in this chapter shall be construed or administered in any way to diminish or impair any right to the possession and use of water for mining, agriculture, manufacture, or other purposes which has heretofore vested or accrued under existing law validly affecting the public lands or which may be hereafter initiated or acquired and maintained in accordance with such law" (43 U. S. C. A. 315b).
8. The Great Plains Water Conservation and Utilization Projects Act of October 14, 1940 (54 Stat. 1119):
“As a condition to extending benefits under sections 590r-590x of this title to any lands not owned or controlled by the United States or any of its agencies, the Secretary of Agriculture may, insofar as he may deem necessary for the purposes of sections 590r-590x of this title, require
"(1) The enactment of State and local laws providing for soil conserving land uses and practices, and the storage, conservation, and equitable utilization of waters;
“(2) Agreements or covenants in regard to the maintenance and permanent use of such water, facilities, or lands benefited by such facilities;
“(3) Contributions in money, services, materials, or otherwise to any operations conferring such benefits (Aug. 28, 1937, c. 870, sec. 4, 50 Stat.
870)," (16 U. S. C. A. sec. 590u). 9. The Water Conservation Act of 1939 (53 Stat. 1419):
“(2) the Secretary has found (i) that water rights adequate for the purposes of the project have been acquired with titles and at prices satisfactory to him, or have been initiated and can be perfected in conformity with State law and any applicable interstate agreements and in a manner satisfactory to him; and (ii) that such water rights can be utilized for the purposes of the project in conformity with State law and any applicable interstate agreements and in a manner satisfactory to him (Aug. 11, 1939, c. 717, sec. 3, 53 Stat. 1419; Oct. 14, 1940, c. 861, 54 Stat. 1120),” (16 U. S. C. A. sec. 5902–1 (b) (2)).
10. Section 1 of the Flood Control Act of December 22, 1944 (58 Stat. 887) :
"In connection with the exercise of jurisdiction over the rivers of the Nation through the construction of works of improvement, for navigation or flood control, as herein authorized, it is declared to be the policy of the Congress to recognize the interests and rights of the States in determining the development of the watersheds within their borders and likewise their interests and rights in water utilization and control, as herein authorized to preserve and protect to the fullest possible extent established and potential uses, for all purposes, of the waters of the Nation's rivers; to facilitate the consideration of projects on a basis of comprehensive and coordinated development; and to limit the authorization and construction of navigation works to those in which a substantial benefit to navigation will be realized therefrom and which can be operated consistently with appropriate and economic use of the waters of such rivers by other users.
"In conformity with this policy:
“(a) Plans, proposals, or reports of the Chief of Engineers, Department of the Army, for any works of improvement for navigation or flood control not heretofore or herein authorized, shall be submitted to the Congress only upon compliance with the provisions of this paragraph (a). Investigations which form the basis of any such plans, proposals, or reports shall be conducted in such a manner as to give to the affected State or States, during the course of the investigations, information developed by the investigations and also op portunity for consultation regarding plans and proposals, and, to the extent deemed practicable by the Chief of Engineers, opportunity to cooperate in the investigations. If such investigations in whole or in part are concerned with the use or control of waters arising west of the 97th meridian, the Chief of Engineers shall give to the Secretary of the Interior, during the course of the investigations, information developed by the investigations and also opportunity for consultation regarding plans and proposals, and to the extent deemed practicable by the Chief of Engineers, opportunity to cooperate in the investigations. The relations of the Chief of Engineers with any State under this paragraph shall be with the governor of the State or such official or agency of the State as the governor may designate. The term 'affected State or States' shall include those in which the works or any part thereof are proposed to be located; those which
in whole or in part are both within the drainage basin involved and situated in a State lying wholly or in part west of the 98th meridian; and such of those which are east of the 98th meridian as, in the judgment of the Chief of Engineers, will be substantially affected. Such plans, proposals, or reports and related investigations shall be made to the end, among other things, of facilitating the coordination of plans for the construction and operation of the proposed works with other plans involving the waters which would be used or controlled by such proposed works. Each report submitting any such plans or proposals to the Congress shall set out therein, among other things, the relationship be tween the plans, if any, submitted by the affected States and by the Secretary of the Interior. The Chief of Engineers shall transmit a copy of his proposed report to each affected State, and, in case the plans or proposals covered by the report are concerned with the use or control of waters which rise in whole or in part west of the 97th meridian, to the Secretary of the Interior. Within 90 days from the date of receipt of said proposed report, the written views and recommendations of each affected State and of the Secretary of the Interior may be submitted to the Chief of Engineers. The Secretary of the Army shall transmit to the Congress, with such comments and recommendations as he deems appropriate, the proposed report together with the submitted views and recommendations of affected States and of the Secretary of the Interior. The Secre tary of the Army may prepare and make said transmittal any time following said 90-day period. The letter of transmittal and its attachments shall be printed as a House or Senate document.
“(b) The use for navigation, in connection with the operation and maintenance of such works herein authorized for construction, of waters arising in States lying wholly or partly west of the 98th meridian shall be only such use as does not conflict with any beneficial consumptive use, present or future, in States lying wholly or partly west of the 98th meridian, of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes.
“(c) The Secretary of the Interior, in making investigations of and reports on works for irrigation and purposes incidental thereto shall, in relation to an affected State or States (as defined in paragraph (a) of this section), and to the Secretary of the Army, be subject to the same provisions regarding investigations, plans, proposals, and reports as prescribed in paragraph (a) of this section for the Chief of Engineers and the Secretary of the Army. In the event a submission of views and recommendations, made by an affected State or by the Secretary of the Army pursuant to said provisions, sets forth objections to the plans or proposals covered by the report of the Secretary of the Interior, the proposed works shall not be deemed authorized except upon approval by an act of Congress; and section 485h of tile 43 and section 5902–1 of title 16 are amended accordingly (Dec. 22, 1944, ch. 665, sec. 1, 58 Stat. 887, amended July 26, 1947, ch.343, sec. 205 (a), 61 Stat. 501)” (33 U. S. C. A. 701-1).
11. Reservation (c) to the Mexican Water Treaty, United States Treaty Serial No. 994 (59 Stat. 1219 (1945)):
"(c) That nothing contained in the treaty or protocol shall be construed as authorizing the Secretary of State of the United States, the Commissioner of the United States Section of the International Boundary and Water Commission, or the United States Section of said Commission, directly or indirectly to alter or control the distribution of water to users within the territorial limits of any of the individual States."
12. The National Parks Act of 1946 (60 Stat. 885):
“Investigation and establishment of water rights in accordance with local custom, laws, and decisions of courts, including the acquisition of water rights or of lands or interests in lands or rights-of-way for use and protection of water rights necessary or beneficial in the administration and public use of the national parks and monuments” (16 U. S. C. A., sec. 173–2 (g.)).
13. Section 208 of the act of July 10, 1952, authorizing suits against the United States in State courts for the adjudication of water rights (66 Stat. 560):
“Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments,
orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit" (43 U. S. C. A., sec. 666 (a)).
"Nothing in this section shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream” (43 U. S. C. A., sec. 666 (c)).
14. Subsection 3 (e) of the Submerged Lands Act of May 22, 1953 (67 Stat. 31):
"Nothing in this chapter shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the 98th meridian, relating to the ownership and control of ground and surface waters; and the control, appropriation, use and distribution of such waters shall continue to be in accordance with the laws of such States (May 22, 1953, ch. 65, title II, sec. 3, 67 Stat. 30)” (43 U. S. C. A., sec. 1311 (e)).
15. Subsection 3 (c) of the act of July 28, 1954, to authorize the Secretary of the Interior to construct facilities for the Santa Margarita River project, California (68 Stat. 577) :
“For the purposes of this Act the basis, measure, and limit of all rights of the United States of America pertaining to the use of water shall be the laws of the State of California: Provided, that nothing in this Act shall be construed as a grant or a relinquishment by the United States of America of any of its rights to the use of water which it acquired according to the laws of the State of California either as a result of its acquisition of the lands comprising Camp Joseph, H. Pendleton and adjoining naval installations, and the rights to the use of water as a part of said acquisition, or through actual use or prescription or both since the date of that acquisition, if any, or to create any legal obligation to store any water in De Luz Reservoir, to the use of which it has such rights, or to require the division under this Act of water to which it has such rights."
16. The act of July 23, 1955 (being sec. 4 (b) of Public Law 167, 84th Cong.), the act providing for multiple use of the surface of tracts of public land (69 Stat. 368). “Provided further, That nothing in sections 601, 603, and 611-615 of this title shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim" (30 U. S. C. A., sec. 612 (b)).
Mr. Ely. I suggest, Mr. Chairman, that I go through the bill section by section with the amendments I have to suggest, and thereafter comment upon the testimony of Mr. Rankin on yesterday,
On page 4 at line 7, it would suggest that the bill might very properly include as general law a restatement of the provisions che O'Mahoney-Millikin amendment to the Flood Control Act of 1944, suitably amended. I would suggest that you say at that point:
Subject to existing rights, the use for navigation or generation of power of waters arising in States lying wholly or partly west of the 98th meridian shall be only such use as does not conflict with any beneficial use, present or future, in States lying wholly or partly west of the 98th meridian, of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes.
Senator WATKINS. Is that the language of the O'Mahoney-Millikin amendment ?
Mr. Ely. With the exception that I have added the words “or generation of power.” I would suggest that be a new section,
Senator BARRETT. I can see no objection to that amendment.
Senator WATKINS. I would want to see what effect it would have. Would you want to explain why you add generation of power?
Mr. Èly. Yes, sir. The recent Supreme Court decisions which have occasioned such concern to the Western States, primarily the Pelton decision, preceded by the first Iowa case, and by the Ninth Circuit Court decision in the city of Tacoma case, all curiously enough involved conflicts not between rights to consumptive use claimed under State law and rights to consumptive use claimed under Federal law, but involved conflicts between rights to the use of power under Federal statutes and rights claimed or asserted under the laws of the States for the protection of fish. We are finding the law on this question of Federal versus State control of the use of waters made by implication in a field that does not directly concern consumptive use.
It would seem to me appropriate that Federal power licenses or other rights to the use of power west of the 98th meridian be made subject to the use of those waters for domestic, municipal, irrigation and other consumptive uses in the same manner that the O'MahoneyMilliken amendment subjected the use of such waters for navigation.
Senator KUCHEL. Do you find any constitutional question in your recommendation, Mr. Ely?
Mr. Ely. No, Senator Kuchel, I do not. The committee is considering a bill which deals with two constitutional powers, the commerce power and the property clause. As to both of them, the United States Supreme Court has said that the power of Congress is plenary: You may or may not assert the full power of Congress in the control of the navigation servitude. "You may or may not assert the full power of Congress with respect to Federal property. You may to the degree, in my opinion, that you see fit recognize States rights or private property rights that by hypothesis you might disregard if you chose.
Senator WATKINS. Would you care to comment on the section with respect to commerce as it would apply in a situation of this kind, if it should apply?
Mr. ELY. Yes. The commerce clause of the Constitution has been held to confer upon the Congress plenary power for the control of navigation. You may, if you choose, prohibit any obstruction of a navigable stream. You may prohibit the development of power. You may license or authorize executive officers to license the placing of obstructions in navigable waters. You may license power development in exercising the navigation servitude. You may direct that private rights in the bed of the navigable stream or in the use of its waters, at least not theretofore vested and to some degree to vested rights, be taken without compensation, because it is subject to that servitude.
On the other hand, you may recognize private rights and direct for their compensation. I see no constitutional difficulty in a bill which now applies that plenary power. Since they are plenary, both of these powers, in the drafting of your legislation, it seems to me you are not controlled by what the law has been under past statutes. The problem is, What should it be?
Senator WATKINS. You would not see any necessity of amending the Constitution in order to adopt a bill of this kind.
Mr. ELY. No; not at all.
Senator KUCHEL. May I ask, because I think this recommendation you just made is certainly worthy of great consideration by the com