SUMMARY

It has been emphasized at various places above that we have a system of dual control of the Nation's streams and that it is this that gives rise to many of the problems with which the bills now before the committee are concerned. Though the points that this dual system is not new and that it is, indeed, virtually inherent in the structure of our Government-a Government which is neither, on the one hand, a mere confederation of States nor, on the other, completely centralized-need be no more than stated, they are, of course, well taken. Running through the discussion, moreover, are two sets of problems which, though the distinction between them was frequently blurred in the testimony before the committee, need to be kept separate: (1) those which involve consideration of the relations between individual water users' rights on the one hand and the rights or claims of the Federal Government on the other; (2) those which involve consideration of the relations between the States on the one hand and the Federal Government and its agencies on the other. The first is essentially a problem of deciding how fully "vested" the rights to the use of water which individuals have shall be treated as being. The second is essentially a problem of deciding how fully the administration of water resources, particularly of those water resources which are not now in use, shall be continued in or restored to the States.141 The strength of the argument in favor of a Federal yielding or refusal to yield may well be greater in one case than it is in the other and it may well vary from instance to instance depending on what Federal activity is in question at the moment.

What is now called for, with these remarks as background, is an outline and summary of the kind of problems that we have and of why we have them:

(1) We have, on the one hand, the facts that, with few exceptions, our stream systems are interstate stream systems and that the sum of all the interests in any such stream system transcend those of any one State through which it passes and even, in some cases, those of all the States through which it passes.

141 A common factor in both of these is the open-endedness of the Federal claims. Certainly life would be much simpler for State administrators and a tidier conceptual framework would be available to them and to State legislators if the Winters doctrine were not law, if Federal Power Commission licensees were obliged to secure permission to store and divert water as other users in accordance with State law, if there were no Federal navigation servitude, and if all Federal agencies which make use of the waters of any stream or of underground sources had to act in the same manner as private appropriators. Likewise, for the individual water user. He thinks of himself as having, and, he is commonly referred to as having, a "vested" right. The term carries with it a connotation of permanence and indefeasibility as long as he continues to put the water to beneficial use. But the open-endedness of Federal claims involves questions which bother him, too. How fully vested is a water right which may be set aside to satisfy navigation requirements? How fully protected is it against claims made on behalf of an expanding Indian use? What are its owner's rights as against those of others who derive their water supply from, say, a Federal project built for flood control and allied purposes?

To ask these questions is not to answer them or to suggest that there are not countervailing considerations on the Federal side of the picture. It is merely to say that they are serious questions which deserve serious consideration. In any event, however, it must also be noted that, even if all Federal claims could become close-ended, this would not furnish complete protection either to the individual States, subject as they are to the rule of equitable apportionment (Kansas v. Colorado, 206 U.S. 46 (1907); Wyoming v. Colorado, 259 U.S. 419 (1922); Nebraska v. Wyoming, supra note 119), or to the individual water users, subject as they are to the same rule as applied between the States and as embodied in interstate compacts (Hinderlider v. La Plata River and Cherry Creek Ditch Co., 304 U.S. 92 (1938)) and, at least in some Western States, to such hazards as those that rise from the pueblo rights doctrine (San Diego v. Cuyamaca Water Co., 209 Calif. 105, 287 Pac. 475 (1930); Cartwright v. Public Service Co. of New Mexico, 66 N. Mex. 64, 343 Pac. 2d 654 (1958)).

(2) We have, again, the fact that our streams are being called on to furnish water for diverse and conflicting purposes. For instance, the full use of the flow of a stream, regulated or unregulated, to supply navigation requirements is (or, at least in many instances, may be) inconsistent with its use for irrigation. In most cases, these uses are uses by private interests and, though our problem is frequently phrased as though it were one of the Federal Government or of a Federal agency versus the States, it will more frequently be that of private interests operating under Federal auspices versus private interests operating under State auspices.

(3) We have a substantial body of law and doctrine under which the United States and its agencies exercise the power to control the streams for at least some purposes. Vast expenditures of Federal money have been made to accomplish certain of these purposes. In other instances, substantial non-Federal expenditures have been made in reliance on the Federal power and willingness to control.

(4) We have, on the other hand, the basic assumption that, to the extent that the United States does not act, the States may act to control these streams and we have, in addition, the fact that it has been left to the States, for the most part, to prescribe the rules by which private rights to the use of water may be acquired and, where such rights require administration, to provide the same. It is also a fact that, quite apart from any constitutional issue that may be involved, there is no inclination on the part of the Federal Government to disturb this arrangement in any wholesale fashion.

(5) We have, as a complement to and confirmation of this practice, the facts that Congress in 1866, 1870, and 1877 consented to the Western States' exercising the power to prescribe the rule by which local uses of water are to be governed and that it has never withdrawn this consent in terms. We have, as a further fact, the clear implication in the 1877 act that this rule is applicable only to the nonnavigable portions of any stream system.

(6) We have, as a fact, the existence of many rights to the use of water in the hands of private parties. Most of these originated in State law and practice. Some, however, depend on Federal law. The extent to which the former are fully "vested" also depends, to some extent, on Federal law.

(7) We have, as history, the fact that control, both Federal and State, over the use of water has grown enormously during the past 100 years and we have the probability that it will continue to grow during the next 100 years as demands increase. We have, therefore, the probability of greater and greater involvement as the years go on.

(8) We have, finally, the fact that in some instances Congress has required Federal agencies to conform to State law with respect to the appropriation, control, use and distribution of water and that in other instances it has not done so. Contrary implications can be drawn. from this practice. It can be said, on the one hand, that it has been the Congress' historic policy to require such conformity in many instances and that, therefore, conformity should be the rule even when it is not required by law. It can be said, on the other hand, that the inclusion of the requirement in some cases and its omission in others is significant and that any Federal agency which goes out of its road to con

form is taking an unauthorized step and, perhaps, casting a cloud on legitimate Federal rights which it ought not to cast.

All of these points need to be borne in mind in framing Federal legislation. Their consideration and a full discussion of the merits of the fears expressed by spokesmen for the States and for private water users would involve a thorough study of the relative benefits of the various uses to which water is being put and of the relative advantages of local control, central control, and dual control in achieving that complete use of the Nation's resources which is becoming more and more urgent. Unfortunately, the materials are not available for such a treatment and the problems, therefore, have to be assessed at this time as best they can be without the benefit of such a treatment. The suggestions that have been made above with respect to legislation that may be appropriate at this time, and the draft of bill that is attached to illustrate a way in which these suggestions may be implemented, are submitted both with this weakness very much in mind and with a realization that any solution that is proposed is likely to be somewhat controversial.

APPENDIX: DRAFT OF BILL

A BILL To promote comity between the United States and the States of the Union with respect to the administration of water, to strengthen rights to the use of water acquired under State law, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the purposes of this Act are to promote harmony between the United States and the States of the Union in the administration by the latter of their laws relating to the appropriation, use and distribution of water and to strengthen rights to the use of water acquired and exercised under those laws.

SEC. 2. (a) No withdrawal or reservation of surveyed or unsurveyed public lands, heretofore or hereafter established, shall affect any right to the use of water acquired pursuant to State law either before or after the establishment of the withdrawal or reservation.

(b) No law of the United States under authority of which water is stored, diverted or developed by an agency of the United States for consumptive use or for the production of hydroelectric power shall be deemed to authorize the taking, without the consent of the owner of the right or, alternatively, payment of just compensation therefor, of a right to the use of water which was acquired and exercised for consumptive use in accordance with State or Federal law prior to enactment of the law of the United States and which was exercised with reasonable continuity thereafter in accordance with the law governing it.

(c) The head of any agency of the United States hereafter initiating a project which involves the storage, diversion, or development of water for the benefit of and consumptive use by persons who, if they were themselves undertaking the project, would be subject to State laws relating to the appropriation, use, and distribution of such water shall, to the extent that the project is for said purpose, proceed or require the beneficiaries of the project to proceed in conformity with those laws. The State laws referred to in this subsection, as they now exist or as they may hereafter be amended, are hereby adopted as laws of the United States to the extent necessary to carry out this subsection.

(d) Nothing contained in this section shall be construed as

(i) affecting, impairing, diminishing, subordinating or enlarging (A) the rights of the United States or any State to waters under any interstate compact or existing judicial decree, (B) any right to the use of water heretofore acquired and maintained under Federal or State law by any person, (C) any right to any quantity of water used for governmental purposes or programs of the United States at any time after January 1, 1940 to the effective date of this Act, or (D) any right of the United States to the use of water lawfully initiated in the exercise of the express or necessarily implied authority of any present or future Act of Congress of State law to the extent that such right is senior to the rights of others acquired under State law; or

(ii) requiring compliance by an officer or agency of the United States with any State law the effect of which is to treat the United States less favorably than it treats any person subject to the jurisdiction of the State or to prohibit or unduly burden the storage, diversion or development of the waters of an interstate stream or stream system in one State for the benefit of persons in another State; or

(iii) permitting appropriations of water under State law which interfere with the provisions of international treaties of the United States. SEC. 3. The head of any agency of the United States which constructs, operates, or maintains any project for the storage, diversion or development of water for consumptive use, for the protection or cultivation of fish and wildlife, or for the production of hydroelectric power shall file or cause to be filed with the Secretary of the Interior, in such form and detail as he may prescribe, a complete list of its claims of right with respect thereto. A like report shall be filed, as the Secretary may require, by or for every licensee, permittee

or ward of the United States whose claim of right is not based solely upon State law. Said list shall be supplemented and revised promptly as new claims are made and existing claims are abandoned or otherwise disposed of. A catalogue of such claims shall be maintained by the Secretary and, except for items therein which are certified by the head of a claimant agency to be of such importance to the national defense as to require secrecy, shall be open to public inspection, and copies thereof and of items therein shall, subject to the same exception, be furnished by the Secretary to any person who applies therefor and pays the cost of preparing the same.

SEC. 4. (a) Notwithstanding its rights with respect to the maintenance and improvement of navigation and of the navigable capacity of the streams of the United States, the United States hereby consents to the continued storage and diversion of water for consumptive use from any stream or stream system to which its jurisdiction extends by any person whose right so to store or divert (i) was established in accordance with the law of the State or States concerned not less than ten years before the enactment of this Act, (ii) has been exercised in accordance with those laws during said ten years and continues to be exercised with reasonable continuity hereafter, and (iii) is not in conflict with any right of the United States other than its right to use that water for the maintenance and improvement of navigation. This consent extends to storage and diversion in an amount equal to the average amount lawfully and beneficially stored and diverted during the ten-year period aforesaid, and in any contest with respect thereto. or to other matters set forth in this subsection the burden of proof shall be on the person claiming the benefit of this consent. (b) Any person to whom the consent given by subsection (a) of this section is not applicable or who wishes to store or divert water for consumptive use in an amount greater than that provided in said subsection may apply to the Secretary of the Army for a license so to do for a stated number of years and said Secretary shall grant such license unless he finds that the storage or diversion will interfere with the probable navigation requirements of the United States during said period and, in the case of storage or diversion in any State lying wholly or partially west of the 98th meridian for beneficial consumptive use in the same or another such State, that the use of said water for navigation will produce benefits substantially in excess of those which will probably arise from the use to which the stored or diverted water will be put. The grant or refusal of a license under this subsection shall be subject to review under the Administrative Procedure Act (60 Stat. 237), as amended (5 U.S.C. 1001 et seq.). Any such license shall be without prejudice to any right of the United States or, as provided by law, of its agencies to store or divert for any purpose (including the control of floods) other than navigation. No failure to apply for and secure a license as aforesaid shall, of its own force, render the storage or diversion unlawful, but such unlicensed storage or diversion shall be subject to abatement only upon proof that it, by itself or in combination with other storage and diversions, licensed or unlicensed, substantially adversely affects the use of the stream system in question, or some part of it, for navigation.

(c) Nothing contained in this section and no license issued pursuant to subsection (b) of this section shall be construed as (i) affecting the rights of any third party, or (ii) depriving any State of its right to the use of an equitable portion of the flow of any interstate stream or stream system, or (iii) precluding any agency of the United States, duly authorized thereunto, from requiring the release of stored water or the cessation of diversions when necessary for the maintenance or improvement of navigation upon payment of just compensation therefor, or (iv) requiring any agency of the United States to cease the storage or diversion of water or to release water which it stores for the maintenance or improvement of navigation except as provided by other laws of the United States, or (v) affecting any provision of the Federal Power Act (41 Stat. 1077), as amended (16 U.S.C., ch. 12), or the rights of any licensee thereunder. SEC. 5. The inclusion in or omission from sections 2 and 4 of this Act of any matter shall not be construed

(a) as a determination of, or a limitation upon, the rights, powers or privileges of the States under the Constitution of the United States with respect to the appropriation, use and distribution of waters within their borders or with respect to the adoption of such policies and the enactment of such laws relating thereto as they may deem necessary;

(b) except as specifically provided in said sections so long as they remain in force, as a waiver by the United States of its rights, powers, privileges or