result might well have been that the city and the county of would have expended $70 million and would have acquired ed right under the laws of Colorado to the water, but nevertheat vested right could well have been lost if the contentions made. The Government with reference to the shale reservations were acted by the courts?

Mr. CHILSON. That is correct. If the Government's theory is correct, its right became vested when the withdrawals were made, whereas Denver's right was some time in the 1940's given by the decree. The Government claimed vested rights since 1910, which means that its rights, whatever they are, and whenever exercised, if they conflict with Denver, Denver has to give way. If the Government's utilization of the water at any time in the future based on that vested right, they could call it from Denver to the extent of all the waters in the river, except rights initiated prior to the dates of the withdrawal.

Mr. Rankin made that plain, that the withdrawals would not come in ahead of private rights that were vested prior to the date of the withdrawal.

Senator BARRETT. I call your attention to the fact that the withdrawals in that case were made 35 years or 40 years ago, and many of these withdrawals go back to even the turn of the century and before that. So that while they make the statement that vested rights are not in jeopardy as a matter of fact, if they were permited to carry out the contentions that they made in that case, and in some other cases, vested rights are subject to loss.

Mr. CHILSON. Yes. It depends on the definition of vested right. As I understand it, the Government would define that vested rights are all rights that vested prior to the date of withdrawal.

Previously we had understood that when the Government referred to vested rights, it referred to all rights that vested before the Government initiated its use of the water.

Senator BARRETT. I want to congratulate the witness for his splendid dissertation here this afternoon on this very important subject, and very complicated, I may say, also.

Senator ANDERSON. May I congratulate you for your patience with us. We probably asked a great many questions.

Senator WATKINS. I would like to make it unanimous. As one lawyer to another, I think he did a very masterful job in answering the various questions, and in his rather informal presentation. It is quite a different thing to do it this way than to sit down and prepare a brief where you can be careful of every word you use. It takes a lot of ability to do that, and I appreciate it very much.

Senator ANDERSON. Mr. Bennett, would you be able to come back at a subsequent date?

Mr. BENNETT. Yes.

Senator ANDERSON. Mr. Garry, do you have a statement to make or file?

Mr. GARRY. Yes, sir. It will take about 3 minutes.

Senator ANDERSON. Then we will give you the same privilege we have given some others of filing your views on this, if you desire. State your name for the record, please.

Mr. CHILSON. That is right.

Senator WATKINS. To various States.

Mr. CHILSON. That is right.

Senator WATKINS. Each State has so much of the flow of the river. Mr. CHILSON. That is correct.

Senator WATKINS. The division in the upper Colorado compact involves so much for the lower and upper basins. And we had an allocation of a certain percentage of the waters to those States.

Mr. CHILSON. That is right.

Senator WATKINS. If I understand anything about the agreement in which the United States is a party, and which is ratified by the Congress, then if they never had it before they certainly must have the principle now. Because to be willing to go ahead and spend immense sums of money in the developing of that water for the use of various States and to allow the States to repay the money to the Government, must be on the theory that they are developing the property of the people of those States.

Mr. CHILSON. I think there is merit to that contention, Senator. That is my feeling about it.

Senator WATKINS. It is just one step after another. We, after all, have these acts and the constitution of Colorado which was accepted by the Congress.

By the way, the constitution of my State is substantially the same as yours.

Mr. CHILSON. That is what I understand.

Senator WATKINS. That has been accepted. It is just one step after another. We come along with the compacts and we have a ratification again and again of the doctrine that this water belonged to the people of those States.

Mr. CHILSON. That is correct. It is another link in the whole chain of congressional expression of intent.

The reason I said a while ago "philosophy," I think among certain people that it is not so much a matter of reason and logic as it is philosophy. Somehow or other it is a crime for the Federal Government not to be the owner and in control of the water supply of the Western States. You get emotional-I do-about this. That is one trouble with water. You deal emotionally with it.

Let us just take the alternative. Obviously, the State can't have control of these waters unless limited to the unappropriated water or water that is not yet put to use. Either the State has got to control that unappropriated water or the Federal Government has got to control it.

If the State controls it, the State will then determine what its future development is going to be, whether its future development shall be agriculture, whether its future development shall be recreation, hydroelectric power, or industrial uses or municipal uses. It will be for the State to determine.

The alternative to that is for the Federal Government to have control, in which event Congress will then determine the future destiny of the State.

I can't conceive of a Congressman from Connecticut, New York, or Pennsylvania, wanting to be bothered with the problem of what is to be the future development of Wyoming and Colorado and Utah

and New Mexico, and the other Western States. They have enough to do to determine the future of their own State.

Senator O'MAHONEY. There is another angle, Mr. Chilson, it seems to me, when we consider the fact that in the arid land States some large amount of the area is completely mountainous. There are many areas subject to mineral development in which the claims have not passed patent. This 70 percent, approximately speaking, of land still in the public domain or in forests, constitutes the watershed from which the water is derived to build up the domestic, mineral, agricultural, and industrial use of the State.

If the Federal Government can by step by step executive action set up the claim that it has control of all of the unappropriated waters, then the Federal Government becomes an obstacle to the development of the domestic uses of water in the Western States and makes the future growth of those States dependent not upon the constitution and the acts of administrations but upon the activities of the Federal Government.

Mr. CHILSON. That is correct.

Senator WATKINS. That brings to my mind again a theory that I do not know but what might be almost an actual situation now, that the lands that are held by the United States-the so-called public lands of the United States in the 17 western public-land States-is being held by the United States in trust for the people of those States. Its conduct with reference to water and all these things seems to bear out that particular theory.

Mr. CHILSON. That is right.

Senator WATKINS. So the water, the mountains, the forests, and all those areas that it has withdrawn, are largely for the benefit and use of those States. The forests are used as recreation areas of those States. They are used for timber for those people in those States. They are used as watersheds for the accumulation of water that takes care of people of those States.

When they come to divide up whatever revenue they get, they see to it that the schools of those States get some revenue, and the counties of those States get some of the revenue, and the same with nearly all of the resources they have out there. Sooner or later part of that comes to those States.

I cannot understand it on any other theory than that they are holding that area in trust for the people of those States.

So when they try to set the Federal Government over here as a sort of independent proprietor that wants to do a lot of things not for the benefit of the people of these States but for the United States as a whole, they are running counter to one of the theories or policies they adopted in the past recognition of the trusteeship policy. I am sorry I have to leave, Mr. Chairman.

Senator ANDERSON (presiding). Thank you.

Senator ALLOTT. I wonder if the pertinent provisions of the respective constitutions of the Western States have been made a part of this record? It might be necessary to include in that the respective enabling legislation, too.

But with respect to our own State, our constitutional provision is so strong that it occurred to me that it might be an addition to the record.

Senator ANDERSON. I was just going to suggest to the staff that they consider that question. It is pertinent.

I think it might be that we add sections of State constitutions of the Western States.

Senator BARRETT. We put it in as far as Wyoming is concerned. I am not sure about Colorado.

Senator ANDERSON. We have no other witnesses except Mr. Bennett.

Senator ALLOTT. I do not believe Mr. Chilson is through.
Senator ANDERSON. I apologize. I thought you had finished your

statement.

Mr. CHILSON. No, we just had rather a lull here.

Senator ANDERSON. Excursion is a more proper term. [Laughter.] Mr. CHILSON. Referring again to the Attorney General's statement of March 19, 1956, the Attorney General says with reference to section 5 of this proposed legislation:

It is conceivable that rights heretofore acquired under and recognized by State custom or law, without recognition of prior vested rights of the Federal Government not based upon State law would be held superior to Federal rights.

From Mr. Rankin's testimony yesterday, I assume that he refers to the Federal rights that are vested by virtue of the theory of Government ownership of the waters or vested rights based on the withdrawals of Federal lands.

If those are the vested rights that he referred to, I agree that this bill does just that.

I may say again, as I understand this bill and the previous legislation, it will put the Federal Government on a parity with any other water user within the States. They will have the same rights to the use of water as any other user, no more and no less.

The Attorney General, in his statement, also says that the States do not recognize as beneficial uses some uses which the Federal Government makes.

I would like to comment on that because at first blush it would appear that maybe that would be a good objection. We must remember in these 17 Western States that there is not enough water for all of the possible uses. Even the miners recognized that when they put in their system of priority of appropriation. The miners also recognized it when they adopted the abandonment theory which was that if you once got an appropriation and you didn't use it, you lost it and it went back into the pool for the use of other appropriators.

Even as early as that time, as I say, it was known that the water supply of the West would not supply all of the possible uses.

Therefore, as a matter of public policy, the States had to come to some conclusion. They either had to throw this thing open and say, "You can use water for fish and wildlife; you can use water for recreation, and if you get an early enough priority you can deprive a person who needs it for domestic use or irrigation use: You will come first." But these States, realizing they only had a small amount to deal with, as a matter of policy, reserved their waters, reserved the rights to the use of the waters, to the more essential purposes: domestic use, irrigation, manufacturing, and in some cases the production of hydroelectric power;

and so on.

For example, the State of Colorado does not recognize that the owner of a summer resort may divert the water of a river and store it

in a lake purely for recreational purposes and thereby deprive the public of the use of that water for drinking purposes.

The Federal Government, under its theory of its right to the use of water, thinks that it should be able to acquire a right for those less essential purposes in States that do not recognize it.

Again, I think it is a clear-cut issue.

Senator ANDERSON. Would you state that again, that the Government thinks it can acquire a right for lesser purposes?

Mr. CHILSON. Yes. My statement was, if I understand Mr. Rankin's testimony correctly, and also the statement of the Attorney General, one of the objections to this bill and being put under State law, is that some of the State laws do not recognize the acquisition of the right to use of water for certain purposes for which the Federal Government does and would like to acquire the right for its use, and mentions in the statement certain purposes, such as recreation, fish and wildlife, and so on.

Senator ANDERSON. That is why I was wondering. In the cases in California which we were worrying about, that was a military use. You would not make a military use comparable to a summer camp.

Mr. CHILSON. Certainly not. A military use is a domestic use except for lawn sprinkling or unless they have gardens or irrigate some acreage. A military use I would think, offhand, a domestic use.

Senator ANDERSON. Even with lawn sprinkling, the military base at Albuquerque insists on having enough water to sprinkle the laws they built up there even when other residents of the town ration themselves on water. While we do not like it, we are not exactly hostile to having the camp in town and keep still about it.

Mr. CHILSON. In the State of Colorado, it is generally recognized that the ordinary irrigation uses that go with a residence, such as a garden and lawn sprinkling, is a domestic use. Therefore they call it all, and sometimes refer to it, as municipal use, which includes some indutrial uses.

Senator ANDERSON. I understand your previous statement now. I missed the proper reference you made.

Mr. CHILSON. I feel that this bill does accomplish exactly what the Attorney General fears: that if the Federal Government is going to use water in these Western States that they shall use it for the more essential purposes which the State, by trial and error, over almost a hundred years of experience, has determined are the essential uses for that particular area.

Don't misunderstand me. Colorado is as interested in recreation and wildlife as the Federal Government is. We are a great tourist State. We spend millions of dollars in our fish and wildlife program. We pay attention to recreation. But at the same time we try to keep a balance and say we are not going to let recreation uses deprive some city of a water supply. Therefore they can use that water but they cannot get a priority of right for that purpose. Even in the ColoradoBig Thompson project, my conservancy district, which contracted with the Government, agreed that a part of our water supply should be turned loose to be sure and maintain the fish below Granby Dam. It is not only the Federal Government that is interested in fish and wildlife and recreation by any means, but we still as a matter of public policy have to say what the essential purposes of water use are.