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There you have the same basic philosophy, an attempt to conform and follow State laws. You have it showing up in the Reclamation Act of 1902. You have it in the Flood Control Act of 1944. You have it in the Federal Power Act, and some other acts that there is no use pointing up because I am sure they have been pointed up.
I point those things out to this committee, and I am sure that the committee is well aware of it, that this is merely a continuation of what has been done by the Government.
I didn't hear Assistant Attorney General Rankin. I know him. But I understand yesterday—and I think Mr. Ely very aptly pointed out that his whole argument boiled down was the United States Government could give the whole cake away but it could not cut a little slice and give it away. It was all or nothing.
I have not studied the constitutional aspects of this bill, but in my opinion, if there is any shortcoming that needs a little drafting, it can be done. I don't think his argument that the United States
. can give all of the land away, but cannot concede some jurisdiction, is tenable.
I hope I have called to this committee's attention the critical situation of Arizona. May I add just one other thing. I think the committee is well aware of the fact that the Military Department of this country has embarked on a dispersal program. That Arizona is one of those favored States that the Military Department thinks that military establishments should be established. We have a great many military establishments. We have many industries now there connected with the defense program and others coming in. Our good friends from California, in case of war, I think, should realize that when the Californians come to our State for defense purposes, that we have a drink of water for them. So it is important that the conservation program of the State of Arizona is carried out thoroughly.
Mr. Chairman, I want to thank you and the committee for giving me the opportunity to give you an unprepared statement of Arizona's position. I want you to know that everyone in Arizona on the official side of the picture is fully in accord with the purposes and policy of this bill. If any improvements can be made, we are all for that. Even if the bill does not encompass underground water, we are still for it, because we do have a little bit of water running around there, although Mr. Ely is trying to take away our Colorado River from us. But nevertheless, we want to support this bill. Thank you.
. Senator WATKINS. I think you made a showing that at least in the case of Arizona that the situation is not hypothetical at all. You have an immediate threat already being carried out to interfere with what you always understood was the right of Arizona as to the control of waters within the State.
Mr. MORRISON. Yes; that is correct.
Senator WATKINS. Under those circumstances you have presented a very strong reason why this bill should be speedily enacted. We thank you very much for your presentation.
Mr. MORRISON. Thank you, Mr. Chairman.
(Thereupon at 12:20 p. m., a recess was taken until 2 p. m., the same day.)
Senator ANDERSON. The committee will be in order.
STATEMENT OF WILLIAM E. WELSH, SECRETARY-MANAGER, NATIONAL RECLAMATION ASSOCIATION, WASHINGTON, D. C.
Mr. WELSH. Mr. Chairman and members of the committee, with your permission and in the interest of time, I would like to file my statement and have it made a part of the record.
Senator ANDERSON. We appreciate your cooperation very much, Mr. Welsh.
Mr. WELSH. I guarantee it will not take nearly as long to make the comments I want to make as it would to read the statement.
(The statement referred to is as follows:)
STATEMENT BEFORE SENATE SUBCOMMITTEE ON IRRIGATION AND RECLAMATION ON AMENDMENTS TO S. 863 BY SENATOR BARRETT AND OTHERS
By William E. Welsh, secretary-manager, National Reclamation Association, Washington 4, D. C.
My name is William E. Welsh. I am secretary-manager of the National Reclamation Association, a position that I have held for the past 7 years.
The National Reclamation Association was organized in Salt Lake City in 1932 primarily for the purpose of saving the reclamation program for the West. It has included among its membership continuously since that time not only the representatives of all of the major irrigation districts and canal companies of the West but also without question the outstanding leaders of reclamation from each of its 17 member States. Included also among its membership during all of these years have been the leading irrigation engineers as well as irrigation and reclamation attorneys, men who are well versed in all of the problems inherent in western water law.
The question of control and jurisdiction over the streams of the West by the 17 Western States comprising the area lying west of the 98th meridian has long been a matter of concern to the National Reclamation Association.
NRA CONCERN DATES BACK TO 1937
The first resolution adopted by the association on this subject was in October 1937 when the annual meeting was held in Casper, Wyo. Each succeeding year strong resolutions were adopted in defense of the principle that the States have and should retain jurisdiction and control over the appropriation and use of the various streams of the West.
In 1942 two resolutions were adopted on this subject. Resolution No. 9 of that year authorized the appointment of a special committee of five members of the association to present the matter of State control of nonnavigable. waters to the governors of the several States with the request that suitable provision be made by statute and appropriation for the appointment and payment of necessary expenses of representatives of each of such States to assemble data and make a thorough study of the rights and powers of such States to control all waters nonnavigable in fact and do all things that may be necessary and appropriate whether by way of conferences, court appearances or otherwise to protect properly the rights of the several States.
Pursuant to the provisions of that resolution, the then president of the National Reclamation Association, Mr. O. S. Warden, Great Falls, Mont., appointed a committee of eight with Judge Clifford H. Stone, Denver, Colo., as chairman of the committee. The late Judge Stone was well known throughout the entire Nation and recognized as one of the outstanding authorities of the first half of this century on western water law. Other members of the committee, which included a number of other prominent and outstanding water attorneys, included: George T. Cochran, A. E. Chandler, Gus T. Backman, Wardner G. Scott, Ralph L. Carr, Fred Cunningham, and Jean S. Breitenstein. The report of this com
mittee submitted to the association at the following annual meeting in October MnO 1943 has long been recognized as one of the outstanding documents ever pub : lished by this association. The recommendations of this committee will be set forth a little later in this statement.
1. Following is the resolution adopted by the National Reclamation Association ci at the last annual meeting in Lincoln, Nebr., October 1955 which deals with this this particular subject.
RESOLUTION NO. 3—SUBJECTION OF ALL FEDERAL AGENCIES TO STATE WATEB LAWS
Whereas the authority to regulate and control the appropriation, distribution, and use of ground water and the waters of streams arising in States lying wholly or partly west of the 98th meridian is properly the exclusive sovereign right of these States; and
Whereas existing laws have not brought about clear and uniform practice in accordance with said principles by all Federal agencies and officers having to do with use or development of water resources; and
Whereas the recent decision of the Supreme Court of the United States in the Pelton Dam case (Federal Power Commission v. State of Oregon, 349 U.S. 435) is presently being interpreted erroneously by various Federal agencies to exclude them from the necessity of complying with State water laws; and
Whereas this interpretation points to the urgent need of a Federal law requiring all Federal agencies to obtain water rights in compliance with State water law whenever water rights are required in connection with projects, development, or use on Federal or other lands within affected States; and
Whereas this interpretation of the Pelton Dam case established a dangerous precedent because it has already been used by one agency of the Federal Gorernment as a basis for its refusal to complete its appropriation for ground water as required of all water users under the laws of Nevada, on the grounds that the wells are on reserved lands of the Government: Now, therefore, be it
Resolved by the National Reclamation Association, That the Congress be urged to pass legislation to the effect that within the States lying wholly or partly west of the 98th meridian and subject to water rights heretofore established in their respective States, all navigable and nonnavigable waters together with underground water be reserved for beneficial use pursuant to State laws; and be it further
Resolved, That Federal agencies, permittees, licensees, and employees of the Federal Government, in seeking the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, shall as a condition precedent to the use of any such water, acquire rights to the use thereof in conformity with State laws and procedures relating to the control, appropriation, use or distribution of such water.
The NRA legislative committee, at its meeting held in Washington, D. C., on January 25 of this year, in its progress report stated “the general objectives of the bill (S. 863) should be endorsed and every effort be made to secure the consideration of this legislation by the Conress. * * * We urge the official representatives of the association to assist in every way in the further preparation of this legislation and its presentation before the commitees of Congress when hearings are held.” The report of the legislative committee was approved unani mously by the board of directors January 26, 1956.
PRESERVATION OF INTEGRITY OF STATE WATER LAWS
The outstanding committee previously referred to submitted a report to the association in October 1943, entitled "Preservation of Integrity of State Water Laws." A copy of that report is hereby filed with this committee so that it will be available to the members. In addition to the report and recommendations of that committee, I would also like to call to your attention, beginning on page 146 of the report, the copies of joint resolutions and memorials passed by the State legislatures of seven Western States setting forth the policy of each State to maintain jurisdiction and control over the right to the use of the waters of the respective States.
The recommendations of that committee will long be remembered because of the comprehensive manner in which the committee dealt with the subject of
control, regulation, and utilization of water in the arid and semiarid areas of the United States.
These recommendations are as follows:
1. That the control, regulation, and utilization of water in the arid and semiarid areas of the United States be in accord with the principle that the highest use shall be for domestic consumption and for growing crops; that multiple-use or power projects shall be so designed and operated that domestic and irrigation needs shall at all times be paramount to the requirements of hydroelectric energy production; and that the imposition of Federal jurisdiction under the commerce clause to maintain navigable capacity and regulate floods in lower reaches of rivers having their sources in the arid and semiarid region, should recognize the maximum use of water for irrigation purposes.
2. That appropriate steps should be taken to resist resort to the commerce clause of the Federal Constitution, through various legislative enactments and a liberal construction thereof by judicial decrees; as a means of imposing complete Federal control of water resources in disregard of applicable State water laws.
3. That the States oppose the creation of Federal regional authorities for the control of the planning, construction, and operation of water-development projects as being inimicable to the preservation of the State control over water resources.
4. That in pending and all future litigation, the States unite in opposing the Government claim of the ownership of unappropriated waters of nonnavigable streams; that all necessary steps be taken to encourage compliance with the provisions of section 8 of the Reclamation Act of 1902 by the Secretary of the Interior; and that State officials resist the initiation of water rights for reclamation projects by means of a reservation of water by the Secretary of the Interior under the claim of Government ownership of all unappropriated water.
5. That in the interests of economy, avoidance of duplication of effort and the attainment of the highest use of the limited water resources of the West for all beneficial purposes, the States seek through action of the Congress, or by other effective means, to obtain the correlation of the activities of all departments, bureaus, and agencies of the Government engaged in water development and flood control.
6. That in the formulation of plans for basin development and in the authorization of specific projects, steps be taken to insure both the recognition of applicable State laws and the appropriate coordination of Federal and State jurisdictions over the waters involved in such plans or projects.
7. That to assure the most efficient use of waters for multiple purposes, to provide for amicable division of waters among States, to remove all causes, present and future, which might lead to controversies, to promote interstate comity, to recognize that the most efficient utilization of waters within a basin in the arid and semiarid West is for beneficial consumptive use, to preserve the integrity of State water laws, and to promote joint action by the States and the United States for the utilization of the water resources and the control of destructive floods, studies be made in various basins to determine the desirability of interstate compacts and encourage the making of such compacts.
8. That to attain the objectives set forth in the last preceding paragraph and to lay the groundwork for possible compactmaking, serious and immediate consideration be given to the formulation of basin States committees; that such committees make every reasonable effort to cooperate with interested Federal agencies.
9. That consideration and study be given to a proposal that in the national interest to provide for the reclamation of public lands and to preserve the best economy of a large section of the United States, the Congress adopt legislation recognizing that the paramount and most beneficial use of water west of the 98th meridian, or other designated line, is for beneficial consumptive use; and that all Federal agencies dealing with water in this region be required to observe this policy and that it be mandatory that any appropriation of water for beneficial consumptive use for projects planned, constructed, or operated by them in that region be in full conformity with applicable State laws. Such legislation should make appropriate and reasonable provision in compliance with the commerce clause for the maintenance of navigable capacity of major rivers which arise in the arid region and serve the ends of commerce in their lower reaches.
10. That while insisting upon the preservation of the integrity of State water laws, the States recognize the legitimate application of Federal jurisdiction and endeavor to coordinate it with the State jurisdictions over the appropriation and use of water for beneficial purpose; and that the States of the West resist a
policy, recently evidenced by the activities of some Federal agencies, bureaus, and departments, apparently designed to secure an unassailable Federal control of a limited and vital western resource in disregard of State laws and the established economy of a great region both through a claim of ownership of unappropriated water of nonnavigable streams and also through an application of the commerce clause of the Federal Constitution to obtain such control and not in the substantial interest of commerce. The States of the West have supported and shall continue to support and urge Federal participation in western water development as being in the national and regional interests, but it is believed that this program was neither initiated, nor is its continuance dependent, upon a surrender by the States of the control of the appropriation, use, and distribution of waters of the arid and semiarid regions heretofore exercised by them.
11. That the use of water for irrigation, industrial, and domestic purposes is local in character and plenary control thereof should rest exclusively in these States. The claim of the Federal Government, that it has a proprietary right to such waters is a challenge to the sovereignty of the States and, if established, renders them dependencies of the Federal Government. We should, therefore, invite other States to join in the preservation of the principle of State sovereignty and against encroachment upon State prerogatives by the Federal Government.
FURTHER EVIDENCE OF N. R. A. INTEREST
As further indication of the interest of the National Reclamation Association in this subject, the association, through its officers and directors, took a very active and leading part in all of the conferences held prior to and leading up to the drafting and adoption of the O'Mahoney-Milliken amendments to the December 1944 Flood Control Act, which was a major step toward recognition by the Congress of the interest and rights of the States in determining the development of the watersheds within their borders and likewise their interest and rights in water utilization and control.”
As another illustration of the active interest of our association in the general subject of the rights of the State to control the use and distribution of the waters of the State, I call attention to the fact that when the so-called Hope-Aiken bill, now referred to as Public Law 566, was before the Congress for consideration our association took a very active and leading part in urging two amendments to that bill:
1. A provision compliance with State law.
2. A requirement that the proposed projects should be approved by a local
or Siate agency. In response to the urgent insistence of our association and others, the bill was so amended. I call to your attention particularly the provision requiring compliance with State laws as follows:
“Sec. 4. The Secretary shall require as a condition to providing Federal assistance for the installation of works of improvement that local organizations shall
“(4) acquire or provide assurance that landowners have acquired such water rights pursuant to State law as may be needed in the installation and operation of works of improvement."
Based upon my own experience and observations extending back over a long period of years, during which time I was actively engaged in administering and distributing the waters of the Boise River in southwest Idaho to the decreed users thereof, I would like to call attention to several pertinent facts.
The Bureau of Reclamation, originally known as the United States Reclamation Service, was required from the beginning, by section 8 of the act of June 17, 1902, to comply with State water laws. On December 4, 1903, a filing was made on the Boise River in accordance with State law by local citizens with the announced intention of assigning the same over to the Federal Government for use upon the proposed Boise reclamation project. The permit obtained as a result of the above filing was assigned to the United States on February 24, 1904. Proof of completion of works was made by the United States Government in accordance with State law for 1,647 second-feet on June 19, 1909.
The United States Government, through its local attorneys, participated in proceedings before the State courts along with local water users over a long period of years which ultimately resulted in the adjudication of the waters of the Boise River in accordance with State law. The water rights adjudicated