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ruling in the Pelton Dam case on Oregon's Deschutes River has aroused great concern in Western States.
Gov. Paul Patterson has brought the matter to the attention of the Columbia Basin lnteragency Committee, the coordinating policy group whose members are governors of the Northwest States and the regional representatives of Federal departments. The CBIAC will be asked at its meeting in Spokane September 13 whether it wishes to make a study and have a full-scale discussion of the subject. The Northwest Governors' Power Poiicy Committee will take up the matter if CBIAC doesn't. Conservation groups, including the Izaak Walton League, are studying the problem.
In the State of Washington another conflict between State and Federal Governments, involving Federal licensing of dams on the Cowlitz River for the city of Tacoma, contrary to State law, has been brought into the State courts after a ruling in a Federal court upheld the Federal Power Commission. There, the issue turns on the Federal claim of navigability of the Cowlitz throughout its length.
The Supreme Court ruled in Oregon's Pelton case, in effect, that the Desert Land Act of 1877 and related acts do not mean what the Western States always believed they meant—that the States control the uses of waters originating in or flowing through Federal lands. The Court held that water on Federal lands where power sites had been designated by the Secretary of the Interior can be used to develop bydroelectric power-not exclusively by the Federal Government, but by a private utility-solely by the granting of an FPC license. State law and the requirement of a State license were given no standing.
The rivers of Oregon are dotted with sites set aside by Federal Executive order as far back as 1910 under the name of power. Since 51 percent of Oregon is Federal land, and all streams of major size originate in Federal forests, the State has lost jurisdiction over most of its waters under the Court's ruling.
A case in point is the Beaver Marsh project on the headwaters of the McKenzie River, a plan by the city of Eugene to utilize incomparable Clear Lake and the McKenzie Falls for hydroelectric generation. These sites in a national forest have been reserved by the Federal Government for power. The hearing held by the State hydroelectric commission appears to have been a waste of time. If the Pelton decision holds, an FPC license will be all Eugene needs.
Irrigationists have tended to be complacent about the Pelton decision, since it does not seem to affect irrigation developments directly. They should not be. By issuing a proclamation, the Secretary of Interior today or in the future could reserve areas of streams or lakes on the public domain for power purposesand such developments could have a profound effect on potential irrigation uses of the water.
And, of course, the decision handcuffs the State in its management of the commercial and recreational fishing resource-the primary issue in the Pelton case on the Deschutes. It promises to interfere to a major extent in the functioning of the State water resources board, provided in legislation adopted by the last legislature at the request of Governor Patterson. This master agency is to be created to determine and assign the most beneficial and comprehensive uses of the State's water resource.
We thoroughly endorse Governor Patterson's proposal that CBIAC consider the Pelton decision. It is our understanding that State officials of Idaho and Washington are equally concerned. Since the CBIAC includes Federal representatives, the Federal Power Commission among them, that agency is a proper one for an attempt to reach an understanding which, in turn, would lead to amendment of the Federal laws respecting power sites.
For that matter, there is nothing sacred about the doctrine of navigability which Federal law has carried to absurd extremes in overriding State controls. The whole broad subject needs review.
[From the Oregonian, November 3, 1955)
WATER FIGHT COMING
The muddy issue of Federal encroachment on water rights and laws of the States, brought into sharp focus by the United States Supreme Court's ruling against Oregon in the Pelton Dam case, resulted in a strong resolution at the National Reclamation Association convention in Lincoln, Nebr., last week.
Spurred by an address by Senator Frank A. Barrett, of Wyoming, the NRA urged Congress to adopt legislation assuring that Western State water laws
are paramount and must be observed by all Federal agencies. Several such bills are pending or being prepared for introduction in the next Congress. The Columbia Basin Interagency Committee will have a panel discussion of effects of the Pelton ruling at its November meeting in Portland.
In the Pelton issue on the Deschutes River, the Supreme Court held that the Federal Desert Land Act did not apply and that the Federal Power Commission had authority to license an electric utility to dam the river—which is nonnaygable and lies wholly within the State of Oregon—despite the State's refusal to issue a license.
At the time, this page warned that this meant, in effect, the loss of State jurisdiction over most inland western waters. Approximately half of the West is in Federal ownership and all that is needed for a Federal power site or other use is designation by the Secretary of the Interior of Federal lands as "reservations.” Some newspapers and some reclamationists seemed to think this view exaggerated. They did not see any threat to use of waters for irrigation. The Reclamation Association, however, views the situation otherwise,
"I am prepared to say that the time has come for the Congress to reaffirm, restate, and reinforce that long list of Federal laws enacted for the express purpose of preserving the integrity of State water law," Senator Barrett told the reclamation convention.
“If we fail to do so I am very fearful there will be a continuing trend toward Federal encroachment on this traditional field of State jurisdiction. Strange as it may seem, this movement could constitute a serious threat to water rights long since acquired and put to beneficial use in the Western States."
He said the Pelton decision has made the need for quick congressional action 'more necessary than ever, in that it nullified a policy of 90 years the West believed protected in Federal laws. "It could take 30 years of litigation to know the full import of this decision," he said. "Only Congress can prevent such a cloud on the future development of the West.”
RESOLUTION OF NEVADA STATE CATTLE ASSOCIATION
Whereas there seems to be a growing practice upon the part of the Federal Government through various of its agencies and the officials thereof to encroach upon and attempt to break down the long-established principles under which the appropriation, distribution, and use of the water resources of the western public-land regions were developed as the exclusive function of State governments concerned ; and
Whereas there seems to be an urgent need for the enactment of Federal legislation clearly and definitely recognizing the title of the States to their water resources and requiring all Federal agencies and officers to recognize and conform with the laws of the States regarding usage rights in such waters : Now, therefore, be it
Resolved, The Nevada State Cattle Association urges the enactment of Federal legislation to accomplish the aforesaid purpose and to that end urges the full support of all the members of the Nevada congressional delegation and of the executive officials of the State of Nevada ; and be it further
Resolved, That copies of this resolution be sent each member of the Nevada congressional delegation, the Governor of Nevada, and to the Honorable Frank A. Barrett, of Wyoming, who has announced his intention to introduce and sponsor such legislation with the aid of other western Senators, including the Honorable George W. Malone, and the Honorable Alan Bible, Senators for the State of Nevada.
Adopted : 21st annual convention, Elko, Nev., November 3 and 4.
[From the Oregonian, September 17, 1955]
STATES TO FIGHT FOR WATER
The Western States slowly are awakening to the realization that the United States Supreme Court's decision in Oregon's Pelton Dam case vastly increases Federal authority over inland waters. A major effort may be expected in the next session of Congress to restore State authority.
The Columbia Basin Interagency Committee, acting on the request of Governor Patterson, agreed in Spokane Tuesday to conduct a forum on the issues raised by the Court ruling at its meeting in Portland, November 16. Membership of CBIAC includes northwest governors as well as representatives of Federal departments, the Federal Power Commission among them.
The International Association of Game, Fish, and Conservation Commissioners, meeting in Columbia, S. C., Tuesday adopted unanimously a resolution presented by P. J. Schneider, director of the Oregon Game Department, urging Congress to amend the Federal Power Act "so as to compel the Federal Power Commission to require proof that applicants for a license (for a hydroelectric dam) have obtained prior approval of the several States in respect to the use of the waters and the beds and banks of streams, notwithstanding the fact that the project sought to be licensed is to be located on public lands or reservations of the United States which have been withdrawn for power purposes."
This resolution went beyond the issue in the Pelton case by urging that FPC also be required to obtain State approval "whether or not the project shall have an adverse effect on the navigable flow or the navigability of any navigable stream."
The latter would apply to the Cowlitz dams in Washington. There the FPC licensed the city of Tacoma, on the premise of navigability, despite a State law prohibiting dams higher than 25 feet in Columbia tributaries below McNary Dam.
In the Pelton ruling against the State of Oregon in the Deschutes River issue, the High Court held that the Desert Land Act of 1877 did not apply, since the land on which the dam would be built had been withdrawn from the public domain for power purposes under another statute. In effect, this canceled State authority over use of waters flowing in or from 51 percent of Oregon's lands now in Federal ownership. Most power sites in Oregon thus became the exclusive property of the Federal Government.
Conservation organizations throughout the Nation, opposed to granting to a Federal agency dealing almost exclusively with power the sole right of determining water usages, have expressed concern over the Court ruling. Some spokesmen believe it may be necessary to obtain amendment of the law under which the Secretary of the Interior has authority to withdraw portions of the public domain for power sites, as well as the Federal Power Act. The CBIAC discussion here in November should bring out all the points at issue and clarify the method of procedure in Congress.
[From the Oregonian, November 19, 1955]
PELTON RULING MADE CLEAR
The 17 States of the West whose authority over utilization of nonnavigable waters was stricken in one blow by the United States Supreme Courts ruling in the Pelton Dam case should no longer hesitate to use their full weight in Congress to get those rights restored.
W. W. Gatchell, Chief Counsel of the Federal Power Commission, explained and defended the Court's decision, and the philosophy of Federal authority, before the Columbia Basin Interagency Committee in Portland Wednesday. Clearly the States affected by the Desert Land Act of 1877 have been operating these many years on the false premise that the States have licensing power for use of nonnavigable waters.
But the Supreme Court held, in effect, that the States have no power whatsoever to limit or prevent a Federal agency from assigning to itself or to a private cord company or individual a project using water bounded by lands owned and “reserved” by the Federal Government.
Mr. Gatchell's assertion that the Pelton ruling "does not affect any vested water right” is unconvincing. If reinstated, the 50-year license granted by FPC to Portland General Electric Co. to build Pelton Dam in the Deschutes River, despite State refusal of a license, would limit the subsequent diversion of water of the upper Deschutes and Metolius Rivers for irrigation or other purposes.
The FPC, as Attorney Rollin E. Bowles pointed out, “has definitely adjudicated rights on the Deschutes River.” As Assistant Attorney General Arthur C. Higgs stated, the legal effect of the Pelton ruling “is to strip all 17 Western States of their sovereign powers to regulate the use of their nonnavigable streams insofar as the Federal Government has reserved power sites thereon."
As previously stated on this page, the Pelton decision goes far beyond the issue of fish versus a dam in the Deschutes River. It goes beyond the "reservations” for power purposes placed by the Government on every important hydroelectric site in Oregon rivers—sites which now may be handed over by FPC for development without regard to State laws or planning. Examples:
In Nevada, the United States Navy has withdrawn applications under State law for wells to serve the Hawthorne base on the advice of the Chief of Yards and Docks, Washington, D. C., that the Pelton decision makes State permits unnecessary. Nevada's ground-water supply is limited and precious. But the Federal Government may take all that it needs or doesn't need.
In Washington the Federal Indian service has claimed all of the waters in summertime of Ahtanum Creek, a tributary of the Yakima River, for irrigation inside the reservation despite State adjudication of water on the basis of a fair division between Indian and white lands. The Justice Department is taking this through the courts and expects to get a ruling, as in the Pelton case, approving the principle of sole Federal authority.
In California, a master State water plan is being prepared for legislative action.
In Oregon the State water code approved by the last legislature will have no
In the single instance of Oregons Rogue River, set aside under State law 25 years ago for recreational purposes by a restriction against construction of any dams below a certain line, the FPC now may grant hydro dam licenses as in the Pelton case.
Governor Patterson clarified the question at conclusion of the CBIAC discussion : "Do the States wish to subscribe to a policy of national planning and control of their rivers, or do they wish to assert the rights of the States ?”
The answer, in our opinion, is for the Western States to get behind the bill introduced last session by Senator Barrett of Wyoming, or similar legislation. The Barrett bill would require Federal agencies to acquire rights to the use of water in conformity with State laws and procedures as a precedent to development or licensing for any purpose. This would be no bar to national planning. It has not been in the past years. But it would protect the States from unwise exploitation of their waters on the whim of a Federal agency.
Whereas the United States Supreme Court on June 6, 1955, ruled in the case of Federal Power Commission v. Oregon (the Pelton Dam case) that, respecting water rights for power development on nonpatentable Federal lands, the United States under the circumstances there present, does not need to proceed in accordance with laws of the State ; and
Whereas this decision contains implications that indicate Federal projects are immune from following State laws with respect to water rights which it is the belief of this association is not consistent with the best interests of the State and Nation : Now, therefore, be it
Resolved, That Congress be urged to act promptly to reafirm and guarantee to the arid Western States that water rights in those States shall be determined according to State law no matter where in the State the water may have originated.
This is to certify that the above is a true and correct copy of resolution adopted by the Irrigation Districts Association of California in convention assembled in San Diego, Calif., December 9, 1955.
ROBERT T. DURBROW, Executive Secretary.
UNITED STATES SENATE,
January 27, 1956.
Budge, Members of Congress.
1. At your meeting today I mentioned section 6 of the Flood Control Act of 1944 and the attempt by Senator O'Mahoney to have a substitute adopted.
2. Section 6 of the Flood Control Act of 1944 does not provide that the Secretary of the Army (then the Secretary of War) shall comply with the water laws of the States involved. This is one major reason for the several resolutions of NRA. Section 6 is as follows:
“Sec. 6. That the Secretary of War is authorized to make contracts with States, municipalities, private concerns, or individuals at such prices and on such terms as he may deem reasonable, for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the War Department: Provided, That no contracts for such water shall adversely affect then existing lawful uses of such water. All moneys received from such contracts shall be deposited in the Treasury of the United States as miscellaneous receipts (58 Stat. 890) (33 U.S. C. A. 708)."
3. When this act was debated in the Senate (Nov. 29, 1944, at p. 8518) Senator O‘Mahoney offered the following amendment as a substitute for section 6 then under consideration :
“Sec. 6. That the Secretary of War is authorized to contract for water storage for any beneficial uses or purposes with States, legal subdivisions thereof, State and interstate agencies, municipalities, public, quasi-public, or private corporations, firms, associations, or individuals on such terms and conditions as he may deem reasonable, when storage capacity for any such uses or purposes is or may be made available at any reservoir now or hereafter constructed by the War Department: Provided, That the right to the use of water for such purposes shall have been established by proceedings in conformity with State laws: And provided further, That no such water storage shall be in conflict with, or adversely affect, then existing lawful uses of water. All moneys received from such contracts shall be deposited in the Treasury of the United States as miscellaneous receipts."
4. This amendment, as is seen, was not adopted. But it is clear that Senator O'Mahoney had in mind a statute having the effect of the intent of the bill proposed by the National Reclamation Association.
ELMER K. NELSON.
RESOLUTION Whereas the Congress of the United States has repeatedly expressed its intention that Federal programs should not interfere with State law relating to the ownership, control, appropriation, distribution, and use of water, the Congress defined its policy as early as 1866 (act of July 26, 1866, 14 Stat. 253), when it encouraged State control by permitting the acquisition of water rights first on nonnavigable streams and bodies of water, on the public lands of the Western States and Territories and later when it subordinated navigation west of the 98th meridian to appropriative rights and by subjecting flood-control projects to the policy of protecting present and future beneficial consumptive uses (sec. 1 of the Flood Control Act of December 22, 1944, 58 Stat. $90), and recently by providing for adjudication of water rights, other than on interstate streams, in State Courts (sec. 208 of the act of July 10, 1952); and
Whereas Congress has down through the years reaffirmed its position time and again that western water laws are to be observed and followed by the Federal Government in other acts, such as:
1. The act of July 9, 1870 (16 Stat. 253) ;
6. The Great Plains Water Conservation and Utilization Projects Act of October 14, 1920 (54 Stat. 1119);
7. The water Conservation Act of 1939 (53 Stat. 1419);