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(Mr. Sonosky's letter is as follows:)

Re S. 863, 84th Congress.

Hon. FRANK A. BARRETT,

United States Senator,

WASHINGTON 6, D. C., March 23, 1956.

Senate Office Building, Washington, D. C.

DEAR SENATOR BARRETT: We understand that S. 863 is designed to protect holders of water rights under State law from the threat of diminishment by Federal agencies acting under the doctrine of the Pelton Dam case, Federal Power Commission v. Oregon (349 U. S. 433).

We write this letter on behalf of the Shoshone Indian Tribe of Wyoming, in whose problems we know you are interested. We are confident that S. 863 is not intended in any way to diminish or impair the water rights of the Shoshone Indian Tribe or its members. However, under the broad phraseology of S. 863, there is room for the construction that Indian water rights stemming from Federal law will be wiped out. Such an interpretation would affect the tribe's rights, individual Indian rights, and the rights of many non-Indians who are owners of former Indian land and whose water rights are those which attached to the original Indian allotments

If it is not the purpose of S. 863 to upset private water titles and destroy property rights, we feel that unmistakable language should be used to make that point clear. The Department of the Interior thinks this could be accomplished by striking the words "under State law" which appear in the savings clause at the beginning of section 6 of the bill. Perhaps so, but clarification by omission frequently creates new ambiguities. It seems to us that, if the matter is to be made plain, it is important enough both to Indians and non-Indians to employ language which will leave absolutely no doubt concerning the intention of the proposed legislation.

Accordingly, it is our recommendation that section 9 of the bill, which deals with other exceptions, should be modified to read as follows (italic language news) :

"SEC. 9. LIMITATIONS. Nothing in this Act shall be construed to interfere with the rights of any State to waters apportioned under any interstate contract or judicial decree, or, to permit appropriations of water under State law which interfere with the fulfillment of treaty obligations of the United States, or to affect, impair or diminish any existing water rights of Indians, Indian tribes, or persons claiming under or through them, but such rights shall continue to be enjoyed to the same extent as if this Act had not been passed."

We trust that you will have no objection to our transmitting copies of this letter to Senator Joseph C. O'Mahoney and to Representative E. Keith Thomson, of Wyoming.

Kind personal regards,

Very truly yours,

KING, NOBLE & SONOSKY,
By MARVIN J. SONOSKY,

General Counsel for Shoshone Indian Tribe.

(By direction of the chairman, the following is made a part of the record :)

STATE OF OREGON,

STATE WATER RESOURCES BOARD,
Salem, September 28, 1956.

Senator JAMES E. MURRAY,

Chairman, Senate Committee on Interior and Insular Affairs,
Senate Office Building, Washington, D. C.

DEAR SENATOR MURRAY: The State water resources board was established by the Legislature of Oregon to coordinate the State's planning in water-resources development.

The board at its meeting in Portland on February 27 discussed the effects of the Pelton decision on its future activities. The board is of the opinion that there is a need for a redefinition and restatement by the Congress of the rights of the States west of the 98th meridian to control the appropriation and use of water within their boundaries.

The board feels that the decision of the United States Supreme Court in the Pelton case has seriously infringed upon the rights of the State of Oregon to govern its own development of water resources. In the judgment of the board, its whole program in developing a plan of water-resources development and a program of utilization of these resources has been jeopardized if not made wholly ineffective.

If the Pelton decision is to be the law, the Federal Power Commission may authorize construction of hydroelectric developments on any stream in Oregon which flows through reserved lands even though the State has, by specific legislation, provided that no power projects shall be constructed on such streams. It could very well also mean that the Federal Power Commission could license projects on streams which the Legislature of the State of Oregon has totally withdrawn from appropriation in order to preserve what the State considers to be paramount scenic and recreational values.

The board requests that you give your consideration to this problem and support such legislation as may be introduced by you or others in this session of Congress to the end that the sovereignty of the State of Oregon over the control and use of water within its boundaries or water over which the State has concurrent jurisdiction shall be redefined and confirmed. Very truly yours,

Don LANE, Secretary.

ASSOCIATION OF WESTERN STATE ENGINEERS,

March 15, 1956. To the Members of Congress:

Enclosed is a copy of resolution No. 1 adopted by the Association of Western State Engineers at the 1955 meeting in Denver, Colo., last September.

The members of this association are generally in favor of the Barrett bill, S. 863, and the identical bills introduced by several Members of the House, including Congressman Clair Engle, of California. I believe there are some desirable amendments to this bill necessary in order to make it clear that nothing therein is intended to interfere with the construction by the United States of flood control and navigation projects which, as a rule, include power development. As I see it, the most urgent need is for legislation which will require licensees of the Federal Power Commission for projects on any waters within a State or over which a State has concurrent jurisdiction to acquire, as a condition precedent to construction of any such project, a right to the use of the waters in accordance with State laws. It is also necessary to restate the principle that has been recognized by the Congress for many years that all rights to the use of ground and surface waters must be acquired in accordance with State laws. Your support of the necessary legislation will be greatly appreciated. Very truly yours,

LEWIS A. STANLEY, President. Whereas the authority to regulate and control the appropriation, distribution, and use of all of the waters of States lying wholly or partially west of the 98th meridian is properly the exclusive sovereign function of the States; and

Whereas existing laws have not resulted in clear and uniform practice in accordauce with said principle by all Federal agencies and officers having to do with the use or development of water resources; and

Whereas the recent decision of the Supreme Court of the United States in the Pelton Dam case (Federal Power Commission v. State of Oregon, 349 U. S. 4:35), points to the urgent need for the Congress to legislate to the end that all Federal agencies comply with State law to safeguard the rights of the States to control and regulate the beneficial use of water within their borders; and

Whereas the Pelton Dam case establishes a dangerous precedent because it has already been used by one agency of the Federal Government as a basis for its refusal to complete existing permits to appropriate ground water under the laws of Nevada on the grounds that the wells are on reserved lands of the Government: Now, therefore, be it

Resolved by the Association of Western State Engineers, That the Congress be urged to pass legislation to the effect that within the States lying west of the 98th meridian, and subject to existing rights under State laws, all navigable and nonnavigable waters together with underground water be reserved for appropriation and use by the public pursuant to State law; and be it further

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Resolved, That the Federal agencies and committees, licensees, and employees of the Federal Government, in the use of water for any purpose in connection with Federal programs, projects, activities, licenses, or permits, shall, as a condition precedent to the use of any such waters, acquire rights to the use thereof in conformity with State laws and procedures relating to the control, appropriation, use, or distribution of such water; be it further

Resolved, That the secretary be instructed to send a copy of this resolution to all Members of Congress and the heads of appropriate Federal agencies.

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OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE,

LEGISLATIVE AND PUBLIC AFFAIRS,

Washington 25, D. C., March 16, 1956. Hon. JAMES E. MURRAY, Chuirman, Committee on Interior and Insular Affairs,

United States Senate. DEAR MR. CHAIRMAN: This will reply to your request for comments of the Department of Defense on S. 863 (amendments), a bill to govern the control, appropriation, use, and distribution of water. Comments of this Department on S. 863, a similar bill to govern the control, appropriatiton, use, and distribution of water, are being submitted by the means of an accompanying but separate report.

The purpose of this bill is to provide for the control, appropriation, use, and distribution of water in the States lying wholly or in part west of the 98th meridian. Section 2 of the bill expresses an intention to remove any doubts as to the intent of previous legislation which could be construed to preempt the security of prior rights under State law; to provide for future acquisition of unappropriated waters, navigable and nonnavigable, in compliance with State laws; and to provide adequate protection of the Federal interests to the end that the Federal Government may perform its functions in a manner consistent with the foregoing purposes.

Section 6 of the bill provides that subject to existing rights under State law, all navigable and nonnavigable waters are reserved for appropriation and use of the public pursuant to State law, and rights to the use of such waters for bene ficial purposes shall be acquired under State laws relating to the appropriation, control, use, and distribution of such waters. A possible effect of this section of the bill would be to subject many Government establishments in the States concerned to State law insofar as the control, use, and distribution of water is concerned and would make the operation of such establishments subject to the police powers of the various States. Thus, the application of State law to the use and distribution of water on Federal property lying within a State would be required, resulting in the exercise of control by State administrative officers over the day to day use of water on Federal reservations. However, it is difficult to determine the precise scope and effect of this bill.

There is lack of uniformity of approach by the various states to the problems of water rights, and their statutes vary greatly. The instant bill, therefore, in the event of enactment at this time, could seriously hamper our national defense efforts. To place the internal operation of a military reservation under State water laws would require State approval before taking any action, such as more ment of troops, change in water use, or any other acttion that would alter the rate or location of water use. Such a situation is objectionable as complete Federal control over many of the military establishments is essential in the interest of national defense. Further, such a situation could result in an expensive delay in the procurement of essential water rights and even in a complete denial of such rights.

The Department of Defense recognizes that the problems to which this proposed legislation is directed are many and complex, problems that are of grave and increasing concern to the entire Nation, but particularly to those States west of the 98th meridian. Accordingly, the Department is most anxious to assist and cooperate in the determination of solutions that will result in a sound policy relating to water whereby the needs of the people, national, regional, State, and local, are adequately met. In this connection, the Department of Defense recommends that a study be made by the Federal Government in collaboration with State and local entities to determine the relationships between property rights to water and the social and economic development of the Natiton and the area, as well as the principles and criteria which should be incorporated into Federal,

State, and local laws regarding water rights. This is also a recommendation of the Presidential Advisory Committee on Water Resources Policy.

The Department of Defense, in keeping with general policies concerning State requirements, considers that its water rights should be exercised with due regard for State requirements and needs. It accepts the principles which recognize water rights as property rights. The Department will make every reasonable effort to adhere to State and local laws and practices and, when necessary in time of drought and shortages, will voluntarily restrict the use of available waters to the most essential needs. The Department, however, is opposed to any legislation that would interfere with or endanger the national defense effort.

In consideratiton of the foregoing, Department of Defense is opposed to the enactment of S. 863 (amendments).

The Bureau of the Budget has advised that there is no objection to the submission of this report to the Congress. Sincerely yours,

LORNE KENNEDY, Deputy Legislative Affairs.

OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE,

LEGISLATIVE AND PUBLIC AFFAIRS,

Washington 25, D. C., March 16, 1956. Hon. JAMES E. MURRAY, Chairman, Committee on Interior and Insular Affairs,

United States Senate. DEAR MR. CHAIRMAN: This will reply to your request for comments of the Department of Defense on S. 863, a bill to govern the control, appropriation, use, and distribution of water. Comments of this Department on S. 863 (amendments), a similar bill to govern the control, appropriation, use, and distribution of water, are being submitted by the means of an accompanying but separate report.

Section 1 of the bill provides that all of the navigable and unnavigable water in certain enumerated Western States are declared free for appropriations under the jurisdiction of the State concerned and that thereafter the control, use, and distribution of such appropriated waters are to be subject to the laws of that State. The effect of this section would be to subject many Government establishments in the States concerned to State law insofar as the control, use, and distribution of water is concerned and to make the operation of such establishments subject to the police powers of the various States. Thus, the application of State law to the use and distribution of water on Federal property lying within a State would be required, resulting in the exercise of control by State administrative officers over the day-to-day use of water on Federal reservations. However, it is difficult to determine the precise scope and effect of the bill.

There is a lack of uniformity of approach by the various States to the problems of water rights, and their statutes vary greatly. The instant bill, therefore, in the event of enactment at this time, could seriously hamper our national defense efforts. To place the internal operation of a military reservation under. State water laws would require State approval before taking any action, such as movement of troops, change in water use, or any other action that would alter the rate or location of water use. Such a situation is objectionable as complete Federal control over many of the military establishments is essential in the interest of national defense. Further, such a situation could result in an expensive delay in the procurement of essential water rights and even in a complete denial of such rights.

The Department of Defense recognizes that the problems to which this proposed legislation is directed are many and complex, problems that are of grave and increasing concern to the entire Nation, but particularly to those States west of the 98th meridian. Accordingly, the Department is most anxious to assist and cooperate in the determination of solutions that will result in a sound policy relating to water whereby the needs of the people, national, regional, State, and local, are adequately met. In this connection, the Department of Defense recommends that a study be made by the Federal Government in collaboration with State and local entities to determine the relationships between property rights to water and the social and economic development of the Nation and the area, as well as the principles and criteria which should be incorporated into Federal, State, and local laws regarding water rights. This is also a recommendation of the Presidential Advisory Committee on Water Resources Policy.

The Department of Defense, in keeping with general policies concerning State requirements, considers that its water rights should be exercised with due regard for State requirements and needs. It accepts the principles which recognize water rights as property rights. The Department will make every reasonable effort to adhere to State and local laws and practices and, when necessary in time of drought and shortages, will voluntarily restrict the use of available waters to the most essential needs. The Department, however, is opposed to any legislation that would interfere with or endanger the national defense effort.

In consideration of the foregoing, the Department of Defense is opposed to the enactment of S. 863.

The Bureau of the Budget has advised that there is no objection to the submission of this report to the Congress. Sincerely yours,

LORNE KENNEDY, Deputy, Legislative Affairs.

STATEMENT OF HON. EUGENE D. MILLIKIN, A UNITED STATES SENATOR FROM THE

STATE OF COLORADO

Mr. CHAIRMAN: The enactment of legislation such as S. 863 is of vital importance to the State of Colorado, and I therefore urge prompt favorable action by this committee. In my judgment such action is necessary if the Federal Government is to keep faith with the arid and semiarid States in the light of the long history of water development in the West. Furthermore, failure to clarify the present situation will leave water rights in the West in a state of uncertainty which cannot help but deter further growth of agriculture and industry in these States.

Long before the State of Colorado was admitted to the Union in 1876, it was settled law in the Territory that water could be appropriated to beneficial use and that the right to use water would be measured by the rule of "first in time shall be first in rights.” Spanish-speaking settlers in southern Colorado acquired one of the earliest appropriative rights in 1852. In 1859 diversions took place from Bear Creek and Boulder Creek above the present site of Denver. Since that time there has been constant succession of new diversions from Colorado's streams to provide water for fields and cities. Water is so precious to Colorado and her neighboring States that public policy dictated a rule of law under which water rights could be lost for nonuse and acquired only by beneficial use.

These principles were part of the common law in the Colorado Territory, just as the traditional riparian doctrine was part of the common law in Eastern Territories before they were admitted to the Union. If we are to say truly that the

rid and semiarid States of the West are equal members of the Union, then we must concede to them and their inhabitants the same sovereign rights to determine what their common-law principles should be as are accorded to the Eastern States.

The Federal Government recognized the necessity of the appropriative doctrine to the populating of the western region and the development of its resources. As early as 1866 Congress confirmed existing appropriations, and a series of later acts encouraged future appropriations of water and provided for canal and reservoir rights-of-way on federally owned land—as has been fully demonstrated in these hearings.

The Desert Land Act of 1877 has played an important part in various court decisions on water law. But we in Colorado do not concede that that act alone determines our right to establish the appropriative principle of water law. The State of Colorado was admitted to the Union the year before the Desert Land Act was passed, and it was not made applicable to Colorado until 1891.

The enabling act for Colorado called for the admission of the State to the Union "upon an equal footing with the original States in all respects whatsoever" by proclamation of the President after satisfaction of the requirements of the enabling act by the people of the Territory. Among the conditions for admission was a requirement that a constitution be adopted. Article XVI of that constitution contains two sections relating to water which are still in effect. These two sections are as follows:

“Section 5. Water of streams public property.The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby

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