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The right acquired by the appropriation of water has been recognized from the beginning of development of the West as a property right, just as valued and oftentimes more so, and just as much protected by the law as the title to the land itself.
That report also says:
The principles which recognize water rights as property rights should be accepted.
It seems to me that is what this bill proposes to do and for that reason as well as others which I have attempted to briefly state it is in general harmony with the Presidential Advisory Committee report. Senator WATKINS. Senator O'Mahoney?
Senator O'MAHONEY. What I listened to sounds very accurate, Mr. Secretary, and is a correct interpretation of the constitutional division of powers, which I take it you recognize completely.
Congress is the policymaking power, and the executive is the power to enforce the policies established by Congress.
Mr. PETERSON. That is my view, Senator O'Mahoney.
Senator O'MAHONEY. Since, as you say, the Congress has the power to dispose of Federal property and water property, Congress has the power to make the laws with respect to the handling of this property right. That is your view?
Mr. PETERSON. That is my view, and as I understand the Constitution of the United States as a layman, I believe that is in accord with the constitutional principles. The issues here are not fine legal issues as I understand them, but rather a question of what policies shall be pursued in the matter which we are discussing.
Senator O'MAHONEY. I compliment you, sir, on what seems to me to be a very accurate and clear statement of the basic principles. Senator BARRETT. Will the Senator yield to me?
Senator O'MAHONEY. Yes.
Senator BARRETT. I would like, Mr. Chairman, to compliment the Assistant Secretary for his splendid statement. I could not agree more with him in the policies outlined in his statement. I have read the report of the Department of Agriculture, and it, too, is favorable to the enactment of this legislation, but in line with the statement just made by my colleague, Senator O'Mahoney, I want to read the concluding paragraph of the report. I quote:
The Bureau of the Budget advises that, while there is no objection to the submission of this report, the Bureau recommends against favorable consideration of the proposed legislation pending clarification of legal and constitutional questions, and the completion of the study recommended in the report of the President's Advisory Committee on Water Resources Policy.
I take it from your colloquy with Senator O'Mahoney and the statement you made in your own paper which you read here a moment ago, you quite agree that under the Constitution the Congress in the final analysis has the duty and the right to set policy concerning property of the United States and regardless of the admonitions of the Bureau of the Budget I assume that you feel that we can exercise the powers delegated to us under the Constitution and do the things that we think are proper in the premises.
Is that about right, Mr. Secretary?
Mr. PETERSON. That is substantially correct, Senator Barrett. As I attempted to indicate, the issue here, as I see it, is not to be resolved around a question of law but around a question of policy. The Con
gress establishes the policy applicable to Federal property, and if any of these waters are in fact Federal property, then certainly it seems to me that the Congress not only has the authority but also the responsibility to set down the policies under which that property is to be handled and administered.
Senator BARRETT. I thank you, Mr. Secretary.
Senator ANDERSON. Mir. Secretary, I was one of those, you may recall, who had some views on the question of the disposition of the submerged lands. I didn't find myself in agreement with all the people here today. At the time we had that bill up the argument was steadily made to us that even though the Supreme Court had held that they belonged to the United States, the Congress had complete right to dispose of those submerged lands as they wished to. We finally had to agree that that interpretation was probably sound. Certainly that doesn't contradict in any way what you have just said, does it?
Mr. PETERSON. I do not believe that it does, Senator Anderson.
Senator ANDERSON. I believe, Mr. Secretary, it goes right along with it. If anybody could contend that we acquired certain Federal rights in this area in water projects, the Congress can say they think the administration of them belongs to the State. The Federal Government has the right to give away not only administration of them but the water itself.
Mr. PETERSON. That is my view. I think it is a very good view and I am particularly happy to see the Department of Agriculture continuing what I think has been the traditional attitude of the Department of Agriculture to welcome the development of these irrigation projects. It is true that our agricultural capacity stays a little bit above our capacity to consume, but that is preferable to those areas of the earth where scarcity is the rule of life, rather than abund
Mr. PETERSON. I think, Senator Anderson, we must develop our natural resources in an orderly fashion. You can't very well develop one without the other. With respect to the development of irrigated lands, I think that the land presently being planned for irrigation development will ultimately be needed. Moreover, when developing western projects it is impossible to segregate one portion of the resources from the other, and I think it ought to be in one piece. This is I think necessary to the settlement or stabilizing of the rights to use water which have been vested under State law and to quiet any doubts there may be in the minds of people considering investments or further development of resources about the validity of the right to use water. This is to the orderly development of an area, having, as you know, vast potential development of this natural resource.
Senator ANDERSON. We are very glad to have you here and this statement from you.
Senator WATKINS. Mr. Secretary, I would like to join my colleagues in complimenting you on what I think is a very statesmanlike statement. It is a recognition of what has developed over the period since the West has been settled. It represents the policy, as I indicated a moment
grew up very much like the common law of Great Britain, which has become of course the basis of most of our laws in the United States.
Mr. PETERSON. Thank you very much.
Senator WATKINS. I want you to know that we appreciate, at least in Utah, the fine cooperation the Department of Agriculture has always given the State in the control of the forests in the watersheds where most of the water that the State uses falls. We recognize that in the use of small portions of that water, you have made the necessary application to the State engineer and have proceeded according to Utah practice and water codes.
Mr. PETERSON. That is true, Senator. We have done that in other States also where we operate subject to State water law. Senator ANDERSON. Thank you very much.
Senator MALONE. Mr. Chairman, I am sorry that I did not hear the statement. I would like to ask a question.
I notice a paragraph in your statement where you say that the Congress can dispose of any Government property. You assume that the water is Government property?
OWNERSHIP OF UNAPPROPRIATED WATER
Mr. PETERSON. No, sir.
Senator MALONE. Would you explain that part of your statement? Mr. PETERSON. I said if it is legally determined that the water is Government property, then the Congress has the authority to dispose or otherwise provide for the management of that property.
Senator MALONE. Yes.
Mr. PETERSON. We do not concede that it is in fact Government property.
Senator MALONE. I think that is a very good statement.
Senator WATKINS. As a matter of fact, Mr. Peterson, if the Government ever had any ownership in it, it conceded the transfer of the water to the States when it accepted constitutions like that of the State of Utah, for instance, which declares that the water belongs to the people. The courts have interpreted that to mean the people of the State of Utah.
I understand Wyoming has a similar constitution.
Senator BARRETT. Wyoming says to the State; others say to the people. In the final analysis, it means the same thing.
Senator WATKINS. The same thing. Those constitutions of course were approved by the Congress of the United States acting for this country.
Mr. PETERSON. That question can lead into quite a legal discussion, Senator, which frankly I am not capable to participate in, but I say if after all the legal decisions have been made, the water should be determined to be Federal property, to the extent that it is Federal property the Congress has the power under the Constitution to provide by what means and in what manner it shall be used.
Senator MALONE. Mr. Chairman, the thing which bothers some of us over the years-I was State engineer in my State from 1927 to 1935-is that everything seems to be settled for a period of time, and then a new crowd comes in and starts anew the claims of Government ownership of unappropriated water. It never seems to be settled. Most of us believe that it is in fact settled, but our administration
seems to be doing the same thing through the Navy. It disturbs the States to continually have to fight this thing. That is, of course, the purpose of the legislation. I am a cosponsor of the legislation. I do not believe there is anything to settle. I believe it has been settled. But as long as the departments of the Government periodically make that claim, the legislation unfortunately is necessary.
I would not like the impression to be given that we do it because we think there is any real need for the legislation except to close up new Government officials in the future.
Senator BARRETT. If you don't mind, I dislike to disagree with my colleague from Nevada, but we have a bigger problem than that. Unfortunately the Supreme Court has handed down two decisions which also had something to say about this problem, and with some power and effect, too, I may say. We have to correct them in the process.
Senator MALONE. I agree with you there. I include the opposite side of the street in Government officials. That is an important object of the legislation. But periodically But periodically a Government official comes in, fresh out of school, who never has been a resident of an area where water appropriation and an orderly determination of water rights are necessary for the welfare of the country, and he upsets everything and starts the fight anew. I do agree with my colleague. I did not mean to indicate that this legislation was not necessary. It is very necessary. It will be brought up periodically until settled by Congress. This is the third time in my recollection that it has been made an issue.
Senator BARRETT. What you really mean is that you think that the Government should have people of the type and character and ability of this witness in these Federal offices handling western problems. That is the way I interpret your statement.
Senator MALONE. I think the people we appoint ought to have gumption enough to do their work and stay away from upsetting the States' administration.
Senator BARRETT. We have one right here in this witness.
Senator MALONE. That is right.
Mr. PETERSON. Senator, I spent 11 years in State government and perhaps my views are somewhat stronger on Federal-State relations than had I not so spent those years. In the final analysis the people are the Government. Here the people are trying to develop their resources, farms, mines, cities, industries, who need to use water. In order for there to be an orderly development of that resource, I think ultimately this issue will be applied to the remainder of the United States, because we are increasingly finding competition for it. Senator O'MAHONEY. Mr. Secretary, if I may interrupt you, I think this is an appropriate place for the chairman to tell again the story which he told this morning about his experience as Secretary of Agriculture with the Bureau of the Budget.
Senator MALONE. Let us hear it.
Senator ANDERSON. I am sorry to go into it again, but one time I ran into a situation which I felt needed correction. I discussed it with the President of the United States. The President thought that a suggested line of action was appropriate. He said, "Get that on the tracks right this morning. That is what we ought to try to
do." I came back to the Department and started people writing a proposed law and checked it back with the counsel to the President. I found it was just exactly what I thought ought to be done and what the President wanted done. We got that submitted to the Congress. It was sent to the appropriate committee for review. The comment from the Bureau of the Budget was that it had to be rejected because it was not in accordance with the views of the President.
I felt a little bit disturbed about that. I had to try to straighten out the fact that this was the President's own idea, and since it was the President's own idea, it pi obably was in line with the views of the President. The Bureau of the Budget attempted to speak for him a little early on the subject. I think that is indicative of what happens here. Here we have a report from the Department of Justice which is antagonistic to this bill. Then we have a report from the Department of Defense which is mildly antagonistic, but in direct testimony here this morning they indicated that it was based just on fears of some situations and that they believed they might suggest language which would fully protect the Department of Defense, which we all want to do. We don't have any desire to cause them any trouble. But in come two of the great agencies of this Government which are concerned with the protection of the resources of this country agriculturally and the protection of its water resources, the Department of the Interior and the Department of Agriculture. Everything is centered in those two departments. Whether it be soil conservation, the Forest Service, the Taylor Grazing Act, whatever activity it may be, it all centers in these 2 departments, and these 2 departments just as conscientiously certainly come in and recommend in favor of this bill.
Senator O'MAHONEY. We have here, too, a report from the Budget. Senator ANDERSON. We have a report from the Budget which says let's take it and put it to one side and study it for a while.
Mr. PETERSON. My point, Senator Anderson, is that if this were in fact a legal issue then the lawyers should be here testifying as to what the law is. Ultimately only the courts can determine that anyway. It is my own view as far as I have been able to study this thing as I have said 2 or 3 times that this is a policy question and as such it is entirely within the prerogative of the Congress to lay down the policy. That is exactly what this bill proposes to do.
Senator ANDERSON. I got out a nice big volume this morning and started to read something about policy under the Constitution as I saw it and I was going to get to the delegation of that power to show that Congress shouldn't really delegate its power to make policy in matters of that nature. I didn't do it finally because I thought it was going to be done by one of the lawyers on the committee.
I agree with you entirely that this is a matter of policy, that the Congress has a perfect right to lay down this policy and having done
So, the executive department can then carry it out, unless the judiciary sets it aside as being completely contrary to the Constitution. I want also to add that Mr. Peterson is no stranger to me, and his activity in the Department of Agriculture is well known to me. He was just as good an official of a State as I see now he is going to be an official of the Federal Government.