STATEMENT OF THE CHAIRMAN MARCH 1960. To the Members of the House Committee on Interior and Insular Affairs: Subsequent to the hearings before the Irrigation and Reclamation Subcommittee last July and August on the numerous bills involving Federal-State relations in the field of water rights, I asked our committee counsel, Mr. T. Richard Witmer, to make a background study of the problems involved in this legislation and to determine, if possible, how far the Congress could go in providing for administration by the States of our Nation's water resources without endangering our national needs with respect to such resources. In other words, it is clear that our problems arise principally because we have a system of dual control of the Nation's streams and I wanted to know if there was some way we could develop a reasonable accommodation of our divergent State and National needs with respect to the administration of our streams. Mr. Witmer devoted much time during the adjournment period to this assignment and has prepared the report and the suggested legislation which are included herein. His discussion of the background and the problems involved in current water rights legislation is the most understandable treatment of this subject I have seen and I believe his report will be helpful to members of the committee. I believe also that the suggested language for inclusion in a bill merits. the studied consideration of the committee along with its consideration of the bills presently before it together with the testimony on these bills heard last year and printed as Serial No. 9. In addition to Mr. Witmer's report, there are also included in this document two carefully prepared papers on the subject of FederalState relations on water rights which were presented at the 1959 annual meeting of the National Reclamation Association. One is by Hon. Perry W. Morton, Assistant Attorney General of the United States, and the other is by Federal District Judge Hatfield Chilson, former Under Secretary of the Interior. These two papers were prepared for the specific purpose of setting out two different points of view on the administration of our water resources. As you know, the Irrigation and Reclamation Subcommittee has completed hearings on the water rights legislation. The subcommittee is now in a position to consider and develop language for inclusion in a bill. The material in this document is furnished you with the thought that you will want to study it, along with the printed hearings, prior to the time the subcommittee, and subsequently the full committee, schedules action on the legislation. WAYNE N. ASPINALL, Chairman, House Committee on Interior and Insular Affairs. FEDERAL WATER RIGHTS LEGISLATION FEDERAL WATER RIGHTS LEGISLATION-THE (By T. Richard Witmer*) INTRODUCTION For a number of years, bills have been introduced in Congress to declare, reform, clarify, amend, modify, confirm, or restate various propositions of law having to do with the use of the inland waters of the United States by the Federal Government and its licensees and wards. The House bills that have been introduced include the following: 82d Congress: H.R. 5735 (Engle), H.R. 5736 (Budge), H.R. 7691 (Budge). 83d Congress: H.R. 997 (Budge), H.R. 8624 (D'Ewart). 84th Congress: H.R. 741, H.R. 3404, H.R. 6147 and H.R. 8325 Budge), H.R. 8347 (Engle), H.R. 8560 (Young), H.R. 9489 Thomson of Wyoming), H.R. 9505 (Dawson of Utah), H.R. 10873 (Coon). 85th Congress: H.R. 2211 (Budge), H.R. 5871 (Dixon). 86th Congress: H.R. 1234 (Budge), H.R. 2363 (Thomson of Wyoming), H.R. 4567 (Aspinall), H.R. 4604 (Pfost), H.R. 4607 (Saylor), H.R. 5555 (Rogers of Texas), H.R. 5587 (King of Utah), H.R. 5618 (Dixon), H.R. 5718 (Morris of New Mexico), H.R. 5748 (Grant), H.R. 6140 (Udall). These bills have taken many forms. Some have been based on the premise that the law as it is presently administered is an unconstitutional invasion of the rights of the States; others on the assumption that, though constitutional, it ought to be different from what it is; still others on the belief that it is in a state of confusion and that what is needed is clarification. Many of the bills have been written to apply to the entire United States; others have been written to apply only to the Western States.2 Many have been written broadly in terms of compliance with local substantive water law and would require all Federal officers and agencies to "proceed in conformity with the laws of [the] States or Territories with regard to the control, appropriation, use, or distribution of water" or words to that effect; others stress the procedural side *Counsel, Committee on Interior and Insular Affairs, House of Representatives. 1 H.R. 5735 (as reported) and H.R. 7691, 82d Cong.; H.R. 997, 83d Cong.; H.R. 741, 84th Cong.; H.R. 2211, 85th Cong.; H.R. 1234, H.R. 5555, H.R. 5587, H.R. 5618, H.R. 5718, and H.R. 5748, 86th Cong. 2H.R. 5735 (as introduced) and H.R. 5736, 82d Cong.; H.R. 8624, 83d Cong.; H.R. 3404, H.R. 6147, H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong.; H.R. 5871, 85th Cong.; H.R. 2363, H.R. 4567, H.R. 4604, H.R. 4607, and H.R. 6140, 86th Cong. 3 H.R. 5735 and H.R. 5736, 82d Cong.; H.R. 8624, 83d Cong.; H.R. 3404, 84th Cong. 8 and would require resort to State administrative and judicial bodies for determinations of rights. Some include Federal Power Commission licensees in the list of those required to conform to State law;5 others single out defense installations for special mention;" still others omit these provisions or make exceptions in favor of Indians and Indian tribes," Federal flood control operations, treaty obligations with Canada and Mexico, or other types of operation.10 Some are written with an eye specifically to subordinating the use of water for navigation to its other uses;11 others make no express mention of this problem. Some are drawn primarily to eliminate claims of right based on reservations of public lands for Federal purposes; others bypass this question or cover it by their broader terms and do not mention it specifically. Some make compliance with State laws nonmandatory where the United States is not treated at least on a par with other applicants;13 others fail to deal with this problem. .11 FOUR SUPREME COURT DECISIONS .12 As is evident, there is great diversity in the scope and content of these bills. The one factor that they have in common is restriction of the powers of the Federal administrative agencies and a corresponding enlargement of the powers of the States over what they now are. Whatever their terms, all or nearly all of them are indicative of dissatisfaction on the part of their authors with the conclusions arrived at in one or more of four landmark decisions rendered by the Supreme Court over the past 60 years. These four decisions, to name them in chronological order, are those in the cases of United States v. Rio Grande Dam and Irrigation Co.,14 Winters v. United States,15 First Iowa Hydro-Electric Cooperative v. Federal Power Commission,16 and Federal Power Commission v. Oregon, commonly referred to as the Pelton Dam case.17 4 H.R. 7691, 82d Cong.; H.R. 997, 83d Cong.; H.R. 741, H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong.; H.R. 2211 and H.R. 5871, 85th Cong.; H.R. 1234, H.R. 2363, H.R. 5555, H.R. 5587, H.R. 5618, H.R. 5718, and H.R. 5748, 86th Cong.. In H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong., there is specific provision for removal of suits to Federal courts where the United States is a party; the other bills are either silent on this question or prohibit removal. 5H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong.; H.R. 5871, 85th Cong.; H.R. 2363, 86th Cong. H.R. 5735, H.R. 5736, and H.R. 7691, 82d Cong.; H.R. 997, 83d Cong.; H.R. 741, 84th Cong. H.R. 2211, 85th Cong.; H.R. 1234, 86th Cong. H.R. 5871, 85th Cong.; H.R. 2363, H.R. 4567, H.R. 4604, H.R. 4607, H.R. 5555, H.R. 5587, H.R. 5618, H.R. 5718, H.R. 5748, and H.R. 6140, 86th Cong. 8 H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong.; H.R. 5871, 85th Cong.; H.R. 2363, 86th Cong. 9H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong.; H.R. 5871, 85th Cong.; H.R. 2363, H.R. 4567, H.R. 4604, H.R. 4607, H.R. 5555, H.R. 5587, H.R. 5618, H.R. 5718, H.R. 5748, and H.R. 6140, 86th Cong. 10 H.R. 5871, 85th Cong., and H.R. 2363, 86th Cong. (Federal reclamation projects in certain circumstances); H.R. 4567, H.R. 4604, H.R. 4607, and H.R. 6140 ("any right [of the United States] to any quantity of water used for governmental purposes or programs at any time from January 1, 1940 to the effective date of this Act" and "any right of the United States to use water which is hereafter lawfully initiated in the exercise of the express or necessarily implied authority of any present or future Act of Congress or State law when such right is initiated prior to the acquisition by others of any right to use water pursuant to State law.") 11 H.R. 8624, 83d Cong.; H.R. 3404, H.R. 6147, H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong.; H.R. 5871, 85th Cong,; H.R. 2363, 86th Cong. 12 H.R. 5871, 85th Cong.; H.R. 2363, H.R. 4567, H.R. 4604, H.R. 4607, and H.R. 6140, 86th Cong. 13 H.R. 8325, H.R. 8347, H.R. 8560, H.R. 9489, H.R. 9505, and H.R. 10873, 84th Cong.; H.R. 5871, 85th Cong. 14 174 U.S. 690 (1899). 15 207 U.S. 564 (1908). 16 328 U.S. 152 (1946). 17 349 U.S. 435 (1955). The first of these four-the Rio Grande suit-was instituted by the Department of Justice to enjoin construction of a dam across the Rio Grande in what was then the Territory of New Mexico and to restrain the defendants from appropriating waters of that stream for irrigation.18 It was alleged that the impounding, diversion, and use of the water would so deplete and prevent the flow of water through the channel of said river below said dam *** as to seriously obstruct the navigable capacity of the said river throughout its entire course from said point at Elephant Butte to its mouth.1o The lower courts found that the Rio Grande in New Mexico was nonnavigable and dismissed the suit. The Supreme Court reversed with instructions to determine whether the defendants' proposed construction and appropriation would— substantially diminish the navigability of [the Rio Grande] within the limits of present navigability, and if so, to enter a decree restraining those acts to the extent that they will so diminish." In the course of his opinion, Mr. Justice Brewer, speaking for the Court, said that, while each State could adopt or modify the prevailing rule of continuous flow to suit its own needs, its power to do so was subject to two limitations: First, * * * in the absence of specific authority from Congress a State cannot by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the government property. Second, *** it is limited by the superior power of the General Government to secure the uninterrupted_navigability of all navigable streams within the limits of the United States.21 He then pointed out that Congress had, on various occasions, sanctioned the appropriation of water for agricultural, mining, and other purposes in accordance with local law and custom. Referring to the acts of July 26, 1866,22 March 3, 1877,23 and March 3, 1891,2 and their relation to the navigation problem, he said: Obviously by these acts, so far as they extended, Congress recognized and assented to the appropriation of water in contravention of the common law rule as to continuous flow. To infer therefrom that Congress intended to release its control over the navigable streams of the country and to grant in aid of mining industries and the reclamation of arid lands the right to appropriate the waters on the sources of navigable streams to such an extent as to destroy their navigability, is to carry those statutes beyond what their fair import permits. This 18 The suit was actually commenced by the Department of Justice acting at the request of the State Department "upon complaint of the Mexican authorities" (1 Hackworth, Digest of International Law (1940) 584). 19 174 U.S. at 692. 20 Ibid. at 710. 21 Ibid. at 703. 22 14 Stat. 253, sec. 9, Rev. Stat. 2339, 43 U.S.C. 661. The text of this act is set out infra, at pp. 13 f. 23 18 Stat. 377, sec. 1, 43 U.S.C. 321, commonly known as the Desert Land Act: “*** the right to the use of water by the person so conducting the same, on or to any tract of desert land * * *shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights." 24 26 Stat. 1101, sec. 18, 43 U.S.C. 946: "The right-of-way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory * **: Provided. That *** the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.' 52250-60- 2 |