Hearings, Reports and Prints of the Senate Committee on Interior and Insular Affairs

declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided.

"Section 6. Diverting unappropriated water-priority preferred uses.-The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes."

At the same time these constitutional provisions were being adopted, the constitutional convention forever disclaimed all right and title to unappropriated public lands within the new State's boundaries, as required by the enabling act. It is apparent that article XVI, quoted above, could not be consistent with such a disclaimer if the ownership of public lands carried with it all rights to the use of water. Yet the President found all enabling act requirements satisfied and proclaimed the admission of Colorado to the Union.

In my opinion the power to legislate concerning the acquisition of water rights as property rights was never delegated to the United States and remains as one of the reserved powers of the individual States under the 10th amendment. In Kansas v. Colorado (206 U. S. 46, at 94) the Supreme Court said:

"It (a State) may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any State."

In Clark v. Nash (198 U. S. 361, at 370) the western law limiting the rights of riparian landowners to the use of water was explicitly recognized when the Court said:

"The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous States of the West that they are in the States of the East. These rights have been altered by many of the Western States, by their constitution and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the States of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and properity of those States arising from mining and the cultivation of an otherwise valueless soil by means of irrigation. This Court must recognize the difference of climate and soil which renders necessary these different laws in the States so situated."

I submit that this same principle of water law applies to the ownership by the Federal Government of the public lands. In most of the Western States it was settled doctrine before they were admitted to the Union. So far as I am aware, none of the cases cited to this committee to date met this issue squarely. Nevertheless, for reasons of sound public policy, I believe legislation such as S. 863 should be enacted promptly. The so-called Pelton case, F. P. C. v. Oregon (349 U. S. 435), has merely accentuated the need for clarifying legislation. While this case did not involve a conflict between vested rights under State law and riparian claims accruing to the United States because of its public land ownership, there is a clear implication in the Court's interpretation of the Desert Land Act that by withdrawing or reserving public lands from entry under the public land laws, the United States thereby reserves or holds rights to the use of water on such withdrawals or reservations.

In my State, Colorado, this would unsettle large numbers of water rights which have been adjudicated and deemed vested for many years. Over 23 million acres of public land have been withdrawn or reserved in Colorado. Many of these withdrawals and reservations took place from 35 to 50 years ago. Since that time major investments in water development have taken place all over the State based upon the security of water rights under State law. The so-called Pelton case has cast a cloud on many of these rights which S. 863 is designed to remove. The hearings of this committee are replete with citations to previous congressional acts establishing that Congress has never intended that such rights should be in jeopardy from Federal claims.

I also submit that Federal claims under the Pelton case are bad public policy and would stultify the growth of the West. There is no indication of any limitation on the amount of water to which the Federal Government might have rights under the Pelton doctrine. In the arid and semiarid States it is fundamental that water rights should be limited to those amounts of water which

can reasonably be put to beneficial use. It is also fundamental to western law that such rights are lost through failure to put water to beneficial use with due diligence or through nonuse. There is no indication that any of these principles would apply to Federal claims.

Thus in my State alone these claims may well amount to a perpetual reservation of unappropriated water for use on 23 million acres of Federal land, whether or not the United States ever puts the water to beneficial use. Such a principle would be a gross waste of the West's limited and most precious resource, water. In my view, Congress should make it clear that rights to the use of water are to be acquired under local law which will reflect the best policy for the development of the West.

It has been related in these hearings that the earliest western water rights were recognized in connection with mining operations; that the acts of 1866, 1870, and the Desert Land Act of 1877 shaped the policies of water uses, as well as the mining codes, to conform to local necessities. Local controls and complete fredom to satisfy local conditions without Federal interference became the basis for our Territorial and later our State water laws and codes.

Of the 17 Western States, 9 recognized by their constitutions ownership or control of the use of the waters within their borders that were subject to appropriation for beneficial purposes, while 8 States did so by statutes. Congress approved the constitutions of all of them without reservations respecting local autonomy over their water resources. In the first category, and in the second, with dates of admission, the States are:

Some of these States administered their waters under Territorial laws prior to admission. There never was any question but that local customs, laws, and the decisions of the courts, determined the vesting of water rights and their relative priorities. This was explicit in the act of July 26, 1866 (14 Stat. 253). When Congress passed the Reclamation Act of 1902, it required that the Federal Government in carrying out the reclamation program should observe the laws of the States (and Territories, there being 3 in 1902), and to conform to those laws.

The record made in the present hearings will contain documentary evidence in support of what I have said so briefly.

I want to turn now to most convincing evidence of the intention of the Congress to preserve the rights of the Western States in the ownership, control, and administration of their natural water resources. Beginning with the Colorado River compact of 1922, Congress has consented to the following western interstate compacts for the apportionment of the waters, or use of waters, among the States affected and claiming ownership of the waters of the streams involved: Compact and States:

1. Colorado River compact of 1922, 7 States: Colorado, Wyoming, New Mexico, Utah, Arizona, California, and Nevada.

2. South Platte River compact of 1923, 2 States: Colorado and Nebraska. 3. La Plata River compact of 1922, 2 States: Colorado and New Mexico. 4. Rio Grande compact of 1929, 3 States: Colorado, New Mexico, and Texas.

5. Rio Grande compact of 1939, 3 States: Texas.

Colorado, New Mexico, and

6. Republican River compact of 1942, 3 States: Colorado, Nebraska, and Kansas.

7. Belle Fourche River compact of 1943, 2 States: South Dakota and Wyoming.

8. Costilla Creek compact of 1944, 2 States: Colorado and New Mexico. 9. Arkansas River compact of 1948, 2 States: Colorado and Kansas. 10. Pecos River compact of 1948, 2 States: New Mexico and Texas. 11. Upper Colorado River Basin compact of 1948, 5 States: Arizona, New Mexico, Wyoming, Colorado, and Utah.

12. Snake River compact of 1949, 2 States: Idaho and Wyoming.

13. Yellowstone River compact of 1950, 3 States: Wyoming, Montana, and North Dakota.

14. Canadian River compact of 1950, 3 States: Texas, New Mexico, and Oklahoma.

15. Sabine River compact of 1953, 2 States: Texas and Louisiana. Congress previously gave its consent to the negotiation of these compacts with the exception of the South Platte and La Plata Rivers. In each case, however, the consent of the Congress constituted an approval of the "equitable" division and apportionment of the waters of the stream system involved in perpetuity.

The Congress did not reserve any waters in the name of the United States. But the Congress consented to and approved apportionments to States of all waters, appropriated as well as unappropriated, recognizing vested rights as well as future rights under the laws of these States.

I have named 15 interstate compacts. With the exception of the Sabine River compact, which concerns Louisiana, the States in these agreements are reclamation States. The list includes all but Oregon and Washington of the 17 affected by S. 863.

In conclusion, I urge the committee to take favorable action on S. 863 promptly. As indicated above, I believe such action is necessary if the Congress is to keep faith with the people of my State and other Western States similarly situated. I also submit that such action is necessary as a matter of public policy if further growth in the West is to be encouraged.

(Thereupon, at 4:27 p. m., the hearings were recessed subject to the call of the chairman.)

Such

a principle would be a gross waste of the West's limited and most precious resource, water. In my view, Congress should make it clear that rights to the use of water are to be acquired under local law which will reflect the best policy for the development of the West.