It has been proposed that a new section be added to the bill reading as follows: "All withdrawals and reservations of land heretofore or hereafter made by the United States shall be deemed made without prejudice to valid rights to the beneficial consumptive use of water originating in or flowing across such lands, theretofore initiated under the laws of the States in which such lands are situated."

This amendment would seem entirely consistent with the basic purposes of the bill and would buttress the apparent intent of the bill to make the policy of the Desert Land Act apply to Federal withdrawals and reservations of public lands. The amendment would seem clearer if it were revised to read as follows: "Subject to existing rights of others, all withdrawals and reservations of public land heretofore or hereafter made by the United States shall be deemed made without prejudice to valid rights to the beneficial use of water originating in or flowing across such lands, theretofore or thereafter initiated under the laws of the States in which such lands are situated."

Another amendment suggested to the committee would add a new section to the bill designed to make it more certain that Indian water rights would not be affected by either section 5 or section 6 of the bill. We would have no objection to such a provision.

It has been suggested that the provision of S. 863 should operate as supplementary to section 8 of the Reclamation Act of 1902 and should not be construed as modifying the requirements thereof. The following language would appear adequate for this purpose: "The provisions of this act shall not be construed as repealing or affecting any of the provisions of section 8 of the Reclamation Act of 1902, but shall be construed as being supplementary thereto."

It has also been proposed that a separability clause might be desirable. The following language is suggested for that purpose: "If any provision of this act or the application of such provision to any person, organization, or circumstance shall be held invalid, the remainder of the act and the application of such provision to persons, organizations, or circumstances other than those as to which it is held invalid shall not be affected thereby."

(Whereupon, the committee recessed, subject to the call of the chairman.)

APPENDIX

REPORT ON FEDERALLY RECOGNIZED WATER RIGHTS PROVISIONS IN CONSTITUTIONS AND ENABLING ACTS OF 17 WESTERN STATES

In response to the subcommittee's request, the Legislative Reference Service of the Library of Congress has prepared the following compilation of provisions in State constitutions and enabling acts respecting water rights which were approved by the Congress, which is inserted as an appendix to the hearings by direction of the chairman :

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, Washington 25, D. C., April 11, 1956.

To: Senate Interior and Insular Affairs Committee.

(Attention: Mr. Stewart French.)

From: American Law Division.

Subject: (1) Provisions in the enabling acts of the 17 reclamation State dealing with ownership and control of water, and (2) Provisions in State constitutions of these 17 States dealing with the ownership and control of water.

We are enclosing a report covering the two subjects noted above. For this purpose provisions specifically reserving the public lands are included as well as references to waters or water rights in the enabling acts. The provisions in State constitutions are limited to those approved by Congress or conforming to certain requirements in the enabling acts but actually proclaimed by the President without further congressional action.

OWNERSHIP OR CONTROL OF WATER IN RECLAMATION STATES I. PROVISIONS IN ENABLING ACTS OF THE RECLAMATION STATES DEALING WITH OWNERSHIP OR CONTROL OF WATER

1. ARIZONA

The enabling act of Arizona approved June 20, 1910 (36 Stat. 569-571 c. 310 § 20, 574-575 § 28) provides:

"First.

"And said [constitutional] convention shall provide, by an ordinance irrevocable without the consent of the United States and the people of said State"First

...

"Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof

...

"Seventh. That there be and are reserved to the United States, with full acquiescence of the State, all rights and powers for the carrying out of the provisions by the United States of the Act of Congress entitled "An Act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," approved June seventeenth, nineteen hundred and two, and Acts amendaory thereof or supplementary thereto, to the same extent as if said State had remained a Territory.

"All of which ordinance described in this section shall, by proper reference, be made a part of any constitution that shall be formed hereunder in such terms as shall positively preclude the making by any future constitutional amendment of any change or abrogation of the said ordinance in whole or in part without the consent of Congress.

"Sec. 28.

75335-5627

403

"Provided, That said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at any time are needed for irrigation works in connection with any such government project.

"There is hereby reserved to the United States and excepted from the operation of any and all grants made or confirmed by this Act to said proposed State all land actually or prospectively valuable for the development of water powers or power for hydro-electric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State or any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section twenty-four of this Act."

2. CALIFORNIA

California was admitted into the Union by act of September 9, 1850, without the enactment of an enabling act (9 Stat. 452-453 c. 50). The act of admission provides:

"Sec. 3. That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law or do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned; . . . and that all the navigable waters within the said State shall be common highways, and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor..

3. COLORADO

The enabling act of Colorado, approved March 3, 1875 (18 Stat. 474-475 c. 139 § 4) provides:

"Sec. 4. .

"And provided further, That said [constitutional] convention shall provide, by an ordinance irrevocable without the consent of the United States and the people of said State, first...; secondly, that the people inhabiting said Territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said Territory, and that the same shall be and remain at the sole and entire disposition of the United States."

4. IDAHO

Idaho was admitted into the Union without enactment of an enabling act. The act of admission, approved on July 3, 1890 (26 Stat. 216 c. 656 § 7) contains no provision concerning water rights and does not expressly reserve public lands.

5. KANSAS

Kansas was admitted into the Union without enactment of an enabling act. The act of admission, approved January 29, 1861 (12 Stat. 127-128 c. 20 § 3) provides:

"Sec. 3.

"but the following propositions are hereby offered to the said people of Kansas for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States and upon the said State of Kansas, to wit:

Provided, That the foregoing propositions hereinbefore offered are on the condition that the people of Kansas shall provide by an ordinance, irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof."

6. MONTANA

The enabling act of Montana, approved February 22, 1889, was a part of the enabling act for the States of North and South Dakota, Montana and Washington (25 Stat. 677 c. 180 § 4). This act provides:

"Sec. 4.

And said [constitutional] conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States:

"Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, . . .;”

7. NEBRASKA

The enabling act of Nebraska, approved April 19, 1864 (13 Stat. 48 c. 59 § 4) provides:

"Sec. 4.

“And provided, further, That said Constitution shall provide, by an article forever irrevocable, without the consent of the Congress of the United States: "First.

"Third. That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States, . . .;"

8. NEVADA

The enabling act of Nevada, approved March 21, 1864 (13 Stat. 31 c. 36 § 4, 32 § 10) provides:

"Sec. 4.

"And provided further, That said [constitutional] convention shall provide, by an ordinance irrevocable, without the consent of the United States and the people of said state :

"First.

"Third. That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States;"

9. NEW MEXICO

The enabling act of New Mexico, approved June 20, 1910 (36 Stat. 558-559 c. 310 § 2, 564 § 10) provides:

"Sec. 2. ***

"And said [constitutional] convention shall provide, by an ordinance irrevocable without the consent of the United States and the people of said State"First. ***

"Second. That the people, inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof.

"Seventh. That there be and are reserved to the United States, with full acquiescence of the State, all rights and powers for the carrying out of the provisions by the United States of the Act of Congress entitled "An Act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," approved June seventeenth, nineteen hundred and two, and Acts amendatory thereof or supplementary thereto, to the same extent as if said State had remained a Territory.

***

"All of which ordinance described in this section shall, by proper reference, be made a part of any constitution that shall be formed hereunder, in such terms as shall positively preclude the making by any future constitutional amendment of any change or abrogation of the said ordinance in whole or in part without the consent of Congress.

"Sec. 10.

***

"Provided, That said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at