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require them for a dam that will impound more than 9.2 feet of water.

Senator WATKINS. The State projects come within that?

Mr. STANLEY. Oh, yes. But we do not require the plans of the Bureau of Reclamation dams or a dam by the Corps of Engineers to be approved by the State.

Senator WATKINS. Even though it is for irrigation purposes ?
Mr. STANLEY. That is right.

Senator WATKINS. Then probably your State law does not go that far. In my State it does not make any difference who the applicant is,

. whether it is the Federal Government or anyone else on the reclamation project, or any type of project that has to do with the consumptive use of water because they have to comply with the State requirement that they shall furnish the plans, have them approved, and then they must finally show that they have put to a beneficial use that water before they get the certificate of appropriation, as it is technically called.

Senator BARRETT. I think that this is true in every State.

Senator WATKINS. Do you not make the Federal Government come in and furnish its proof of beneficial use?

Mr. STANLEY. Oh, yes.

Senator WATKINS. Then it is just a question of whether your State went as far as it might have gone. It is not the question of whether you had the right to do it but whether you exercised the full power

Mr. STANLEY. We did not consider it necessary because we figured the Corps of Engineers and the Reclamation Bureau, who have done most of the work in Oregon, have competent engineers and if they decide that the structure is safe and adequate, it is good enough for us.

Senator WATKINS. Then you did not rule on the question of whether you had the power to require or not to require?


Senator WATKINS. But you did make it a requirement that they had to supply the proof of appropriation and they had to comply?

Mr. STANLEY. They have complied.
Senator WATKINS. Without protest?

Mr. STANLEY. That is right.Oh, we have had a little conflict with the Bureau of Reclamation in the Klamath project, a disagreement.

Senator WATKINS. Over plans?

Mr. STANLEY. Over a great number of years. I can give you a little history on that.

Back in 1905, the Bureau made a filing in the office of the State engineer for all of the waters of the Klamath River and its tributaries and named the tributaries. They took everything in this

. filing.

All down through the years they have claimed that by reason of that filing, they had control of these waters and that they were no longer subject to appropriation under State law, but since some of the recent Supreme Court decisions they have retreated from that viewpoint and have come to the view that they are only entitled to the water necessary for their project, which is not all of the water by any means.

Senator WATKINS. In other words, they had to comply with the law that anyone else had to comply with. Just because it was the Federal


Government, they could not get control of all that water by one filing.

Mr. STANLEY. That is right.
Senator WATKINS. Was it required that it be approved ?
Mr. STANLEY. It was not required that it be approved, just filed.

Senator WATKINS. They receded then from the position of claiming all the water?

Mr. STANLEY. Yes, they have.

Senator WATKINS. Have they made final proof of the use of that water?

Mr. STANLEY. No, they have not and they will not have to make any final proof as such because that right was vested by an appropriation in 1905 and the water code of Oregon was enacted in 1909. Anything that was appropriated prior to 1909 became a vested right and it is only subject to determination after adjudication.

Senator WATKINS. Has the United States appeared in those cases and submitted to adjudication?

Mr. STANLEY. It has in the case of the Klamath and, so far as I recall, that was the only one.

Senator WATKINS. When did that happen?

Mr. STANLEY. That was the earliest large reclamation project in Oregon and our adjudication procedure did not come in until 1909. All of the rights that have been acquired in Oregon by the Bureau since 1909 have been under State engineer permits.

Senator WATKINS. But the United States did appear in that adjudication and had the rights determined ?

Mr. STANLEY. Yes, it did.
Senator WATKINS. You are quite sure of that?

Senator WATKINS. That is very interesting because we have had that kind of controversy here recently.

Mr. STANLEY. That is in the case of Lost River, which is a tributary of the Klamath, and the United States was a party to.

Senator WATKINS. As I recall, we had a rider in the appropriation bill that required the United States to submit to the jurisdiction of the Supreme Court in adjudication of those matters.

Mr. STANLEY. Yes. Senator WATKINS. But prior to that, there was some question whether the United States would appear or not appear.

I remember I conducted the hearing with Senator McCarran when the matter was referred to the Judiciary Committee and we were requiring the United States to comply with the State law and give the United States permission to appear and permission to sue the United States so that the rights, including the rights of the United States, could be held in trust for the water users under a reclamation project.

Mr. STANLEY. That was my understanding.
Senator WATKINS. I think that is all I have to say.
Senator BARRETT. That is all I have.
Thank you very much, Mr. Stanley.
Mr. STANLEY. Thank you, gentlemen.

Senator BARRETT. Mr. Chairman, before we adjourn here today, I have just had presented to me a few moments ago a report from the Justice Department signed by William P. Rogers, Deputy Attorney General. It is 7 pages of single-spaced typewritten report.

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I have examined the report rather hurriedly and I note that the Justice Department has taken the position that this legislation is very objectionable to the United States Government; that it is unconsitutional; that there is no good reason why the legislation should be enacted and, furthermore, the only inference I can draw from this report is that they believe the Federal Government should control the water, unappropriated waters, at least in the Western States and certainly on the reserved lands rather than the States themselves according to the intent of the Congress since 1866.

Now, the reason that I object to this report so strenuously, Mr. Chairman, is the fact that there is a chief legal officer of the United States Government making bare assertions of every kind, nature and description without documenting it with a single case.

I think it is an affront to the United States Senate that the Justice Department would come up here and submit a report to this committee making contention after contention and not documenting by giving us the cases that supposedly support these various contentions.

I doubt if we have any authority to reject this report and send it back but they have many lawyers down in the Justice Department, and certainly they could take the time out to document these charges and give us the citations, and then we can look them up.

I have taken time out to study a good many cases but I have not been able to find a case yet that substantiated the position taken by the Justice Department.

Now, if you want to say that under admiralty law, under article III of the Constitution, that the Congress cannot delegate to the State any authority over the Maritime Administration, certainly I will agree with that, but that has nothing whatsoever to do with the water laws in the West where the Congress has the power to act and has acted in no uncertain terms. (The report referred to follows:)


Washington D. C., March 19, 1956. Hon. JAMES E. MURRAY, Chairman, Committee on Interior and Insular Affairs,

United States Senate, Washington, D. C. MY DEAR MR. CHAIRMAN: This is in response to your request dated March 5, 1956, for the views of the Department of Justice concerning the amendment to be proposed by Senator Barrett to the bill S. 863. Under the proposed amendment, the bill would be entitled “A bill to recognize and confirm the authority of arid and semiarid States relating to the control, appropriation, use, or distribution of water within their geographic boundaries, and for other purposes."

The proposed legislation would be cited as the Water Rights Settlement Act of 1956. After a detailed recital indicating that the security of prior rights to the use of water acquired under State law for beneficial purposes is threatened by the exercise by the Federal Government of its rights to the use of water in those States lying wholly or in part west of the 98th meridian, the purpose of the proposed legislation is stated in the last sentence of section 2 as follows: "Because of the fact that previous acts of Congress has been and may be interpreted with respect to these States so as to cast clouds on such prior rights and to interfere with the future orderly development of water resources in accordance with the foregoing declaration, it is the purpose of this act: (1) to remove any such clouds; (2) to provide for the future acquisition of unappropriated waters, navigable and nonnavigable, in compliance with State laws; and (3) to provide adequate protections of the Federal interests to the end that the Federal Govern. ment may perform its functions in a manner consistent with the foregoing purposes."

This Department questions the validity of the assumption underlying the statement of policy that Federal activities in the Western States involving rights to the use of water threaten the security of prior rights acquired under State law or cause undue interference with such rights or with the orderly acquisition of such rights in the future. If there are instances in which either public or nonpublic investments in water resource developments have been jeopardized by the National Government in the exercise of its powers and authority under the Constitution, they are indeed rare.

Passing over without further comment the statement of policy considerations, it appears that the effect of the legislation would be to subordinate substantially all Federal rights to the use of water in the West to the laws of the States and the rights of those claiming under State laws and to completely subject the National Government in this field to control and regulation by the States. That this effect is inconsistent with, and, in the present form of the bill, at best renders uncertain of accomplishment, the declared purpose “(3) to provide adequate protections of the Federal interests to the end that the Federal Government may perform its functions in a manner consistent with the foregoing purposes” is apparent from the following considerations.

Section 5 of the proposed legislation would provide that: “In the use of water for any purpose in connection with Federal programs, projects, or activities no Federal agency or employee of the Government shall interfere with the exercise of any right to the use of water for beneficial purposes heretofore acquired under and recognized by State custom or law except when expressly authorized by law and upon payment of just compensation therefor: * * *." The full impact of this provision is difficult of comprehension. Questions of construction would be innumerable. 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 the Federal rights. There are presently pending in the courts numerous cases involving that precise situation. A conceivable construction of section 5 is that it constitutes a relinquishment by the United States of America of its vested rights to the use of water in every instance when an appropriator under the laws of the State, asserting a right acquired prior to the date of the approval of the legislation, claims adversely to the rights of the United States irrespective of relative priority. Under such a construction, the executive branch of the Federal Government would be precluded from fulfilling its responsibilities in connection with the development of water resources and the use of those resources if for no other reason than that the costs would be in many instances prohibitive. Beyond the question of the extent to which section 5 might conceivably be construed as subordinating reserved or other presently vested rights of the Federal Government not based upon State law to rights asserted under such laws, other impediments to performance by the Federal Government of its functions in water resource development are suggested. For example, the injunction against interference by Federal agencies or employees with the exercise of any right to the use of water heretofore acquired under and recognized by State custom or law might be construed as requiring water deliveries from the Colorado River for the satisfaction of all rights to waters of that river heretofore acquired under State law without regard to the feasibility of such deliveries unless express authorization for the taking of such rights by the Federal Government can be found in legislation. There is wide conflict between such possible construction of section 5 of the proposed legislation and the claims asserted by the several States included in the lower basin of this river in litigation now pending in the Supreme Court of the United States. A similar impact upon administration by the Federal Government of other great reclamation projects in the West is conceivable.

The devastating effects of the provisions of section 6 of the proposed legislation upon the performance by the Federal Government of its functions in water resource development and in the exercise of its rights to the use of water are even more readily apparent. These provisions, subject to existing rights under State law, purport to reserve for appropriation and use of the public pursuant to State law all navigable and nonnavigable waters, and would require all Federal agencies and all permittees, licensees, and employees of the Federal Government, as a condition precedent to the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, to acquire the right to such use in conformity with State laws and procedures. The only exception to such requirement of conformity with State law relates to the storage and release of water solely for the prevention of floods.

The impracticability, if not the impossibility, of full compliance by the Federal Government with State laws in connection with interstate stream development is obvious. This applies not only to reclamation projects but as well to the use of water for power development, improvement and control of navigation, flood control beyond the mere storage and release of water, pollution control, and other proper functions of the Federal Government in connection with the water resources of the Nation. That the necessity of complying with the varying and oftentimes conflicting provisions of the laws of the several States affected by any interstate stream project before such project might be undertaken seriously threatens the possibility of additional Federal projects on such streams appears clear.

This Department cannot, of course, state with certainty the interpretations which may be placed by the courts upon the proposed legislation. The best that can be done is through an analysis of the legislation to suggest what interpretations are reasonably conceivable. In this connection, it is conceivable that the provision of section 6 reserving for appropriation and use of the public pursuant to State law all navigable and nonnavigable waters might be construed as opening up for appropriation under State law the waters stored in Hoover Dam, Parker Dam, Davis Dam, Friant, Shasta, Grand Coulee, Elephant Butte, Fort Peck, Oahe, Garrison, Fort Randall, and other similar projects with out regard to the purpose of the project and without regard to the authorizing legislation, existing Federal contracts, or other considerations.

Other equally undesirable consequences are perceivable through the interpretations which might be made of section 6. There is nothing in the proposed legislation which saves from the operation of that section present rights of the United States, with the exception of the provisions of section 9 relative to the fulfillment of treaty obligations. The language of section 6 seems to require that in the future no Federal right to the use of water which is not already based upon State law may be execised unless a right to such use is first acquired in conformity with State law relating to the control, appropriation, use or distribution of such waters. Whether rights to the use of water for many purposes which are recognized as being within the purview of the Federal Government can be acquired in conformity with State laws presents a serious question. The subject bill provides that rights to the use of navigable and nonnavigable waters "for beneficial purposes” shall be acquired under State laws relating to the appropriation, control, use or distribution of such waters. Use for a beneficial purpose is a prerequisite to acquisition of a water right in those States following the system of prior appropriation. By definition what constitutes a beneficial purpose in a particular State would depend upon the law of that State. Many Federal uses are not recognized as being for beneficial purposes under present laws of all the Western States and many are not so recognized under present laws of any of those States. In this category are navigation, recreation purposes, conservation of fish and wildlife, maintenance of national parks, monuments and scenic attractions, military purposes, and others. If a right to the use of water for any of such purposes could not be acquired in conformity with State law, the provisions of section 6 of the subject legislation would in effect constitute a prohibition against the continuance of existing and the initiation of future Federal activities withn these areas, except as such prohibition may be held violative of constitutional provisions. It could be ar,ued that Federal law recognizing the validity of such purposes in the field of Federal activity would have to be accepted as part of the State law relating to the control, appropriation, use or distribution of water. Past experience indicates that this view would not be willingly accepted. The last proviso in section 6 does not preserve to the National Government the right to the use of water in the national parks and monuments. It merely prohibits others from acquiring the right to store or divert waters therein.

Beyond the question of the impossibility of acquiring rights under State law for many proper Federal purposes, reference is also made to the impracticability in numerous other situations of acquiring all necessary water rights in conformity with State law prior to proceeding with Federal projects. Attention is also directed to the fact that the bill would in effect delegate to State authorities control over the operation of all Federal “programs, projects, activities” requiring the exercise of rights to the use of water. Passing for the time the constitutional aspects of such a delegation, it is suggested that the infeasibility of turning over to authority other than the executive branch of the Federal Government the control of projects built at a cost of hundreds of millions of dollars contributed by the taxpayers of the entire Nation requires no further comment.

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