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however, Congress added another function which has rapidly grown to out strip all others, namely, the artificial cultivation and distribution of food fishes, particularly shad, salmon, and whitefish. The need for this assumption of responsibility by the Federal Government was pointed out in the first report of the commission by Baird:

[The States] have not been disinterested enough to take charge of waters which constitute State boundaries, or where the benefits are likely to be shared, if not entirely reaped, by citizens of other States. For this reason, some of the more important rivers, and the entire system of the Great Lakes, the vast subjects for the experiment, have been entirely neglected *

In the person of its first commissioner, Professor Baird, the Federal Government possessed a man with a tremendous range of knowledge and interests whose common denominator was his strong belief in the efficacy of the scientific method. In making his plans for the systematic investigation of the waters of the United States and the biological and physical problems presented, Professor Baird refused to limit the study to food fishes, as the statutory authorization easily suggested, "but insisted on building a broad foundation of investigations purely scientific in character.2

Professor Baird was interested not merely in cooperation of the Federal Government with the States and stimulating them to cooperate among themselves in mutually solving their problems, but also in laying the ground work for cooperation among the Federal scientific bureaus, having

the various workers supported or aided by the Government join together as associates and friends, not as rivals, in the increase and diffusion of knowledge. This meant the development of a special morale based on high principles which would give Government service a dignity rare in other quarters of the capital. He would weed out all those who in Cassin's words, “look on science as a milch cow, rather than as a transcendant goddess." To a large extent he was successful in these aims; and it is not too much to say that in the seventies and eighties Government science reached a degree of dignity and effectiveness it had not before possessed.23

The establishment of a Federal agency for the government of fish contributed greatly to the momentum which had already reflected itself in the creation of 10 State agencies by 1870. Within the decade 20 other States were added; and by the end of the nineteenth century, only 7 States appeared not to have estab lished some State agency for the conservation of fish.24

The function of the Federal Government in prompting the States to engage in fish administration can be illustrated by the following incident from Illinois. In 1875 the State Fish Culture Association urged the Governor to appoint a fish commissioner, though legislative authority was lacking, for the purpose of receiving on behalf of the State its due proportion of fish spawn to which it was entitled under the act of Congress; and 4 years later the legislature remedied this statutory defect.

The subsequent growth of the State fish agencies has been so closely associated with game administration that the two subjects have been treated together in chapter II.

Flood, Drainage, and Irrigation.-The States appeared to have played somewhat minor roles in the management of water resources for the purpose of the prevention of floods and the promotion of drainage and irrigation, in contrast to the Federal Government and localities which, respectively, have been pri marily concerned therewith. Furthermore, Federal concern with flood preven tion is a relatively recent phenomenon so that during the greater part of the

22 U. S. Fish Commission, Report for 1908, p. 1383. By employing numerous young naturalists for field investigations during their summer vacations from the universities, Baird was able to "develop in the aggregate more research than he could personally have accomplished had he refrained from his executive burdens" (Dictionary of American Biography, I, p. 515). This research was particularly carried on at the rough field headquarters at Woods Hole, Mass., where a few summer stu dents were invited to work on the abundant materials that were daily brought in. From this informal beginning has grown the present great marine laboratory of Woods Hole.

23 Dictionary of American Biography, I, p. 515.

34 See Appendix A.

past century the water problems of floods, drainage, and irrigation were all matters of primarily local concern.

At the famous Memphis convention of 1845, which advocated Federal respon sibility for the promotion of navigation along the "great thoroughfare" of the Mississippi, John Calhoun strongly denied that the General Government should concern itself in any way with the flood problem, except possibly by the indirect method of making land grants to the States, as was shortly done (1849–50).25 Frequently, however, the construction of specific navigation projects (par ticularly those straightening river courses) actually aggravated the flood problem. In the Louisiana Parishes of Rapides and Avoyeles (one of the finest sections of alluvial lands in America) no protective levees had been needed until the extension of protective works up the river caused the recurrent rise and overflow of floodwater, and this region finally became inundated with every large flood.26 In fact, the scattered local efforts at flood protection by levee constructions resulted in a "process by which the country above is relieved" by ruining "the country below. "The water is supplied by nature, but its height is increased by the works of man." Already in 1852 Ellet had foreseen the dangers of "the greater frequency and more alarming character of the floods" and attributed the situation to four causes:

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Primarily, to the extension of cultivation throughout the Mississippi Valley, by which the evaporation is thought to be, in the aggregate, diminished, the drainage obviously increased, and the floods hurried forward more rapidly into the country below.

Secondly, to the extension of the levees along the borders of the Mississippi, and of its tributaries and outlets, by means of which the water that was formerly allowed to spread over many thousand square miles of lowlands, is becoming more and more confined to the immediate channel of the river, and is, therefore, compelled to rise higher and flow faster, until, under the increased power of the current, it may have time to excavate a wider and deeper trench to give vent to the increased volume which it conveys.

Thirdly, to cut-offs, natural and artificial, by which the distance traversed by the stream is shortened, its slope and velocity increased, and the water consequently brought down more rapidly upon the country below.

Fourthly, to the gradual progress of the delta into the sea, by which the course of the river, at its embouchure, is lengthened, the slope and velocity there are diminished, and the water consequently thrown back upon the lands above.

It is shown that each of these causes is likely to be progressive, and that the future floods through. out the length and breadth of the delta, and along the great streams tributary to the Mississippi, are destined to rise higher and higher, as society spreads over the upper States, as population adjacent to the river increases, and the inundated lowlands appreciate in value.27

It is apparent from these quotations that Ellet viewed the flood problem of the Mississippi Valley as an interrelated entity whose solution could be obtained only by means of comprehensive action throughout the entire watershed, not by means of local or individual efforts alone.

Ellet proposed to cope with the flood problem by six "distinct plans" which, nonetheless, could be made to "harmonize with each other, and may be carried on simultaneously." These plans included the construction of levees, the prevention of cut-offs, the formation of an outlet of the greatest attainable capacity, the enlargement of bayous and channels, and "the creation of great artificial reservoirs, and the increase of the capacity of the lakes on the distant tributaries, by placing dams across their outlets, with apertures sufficient for their uniform discharge so as to retain a portion of the water above until the floods have subsided below" and thus compensate "for the loss of those natural reservoirs which have been and are yet to be destroyed by the levees." It

26 South-Western Convention in Memphis, November 12, 1845, Journal of Proceedings, pp. 7-14. A. D. Frank, History of Flood Control on the Lower Mississippi (1930), pp. 63-64.

37 Charles Ellet, The Mississippi and Ohio Rivers: Containing Plans for The Protection of the Delta from Inundation; and Investigation of the Practicability and Cost of Improving the Navigation of the Ohio and Other Rivers by Means of Reservoirs (1852), pp. 17-18, 95, 107.

appeared to Ellet that "nothing will more forcibly impress the mind of the practical man" than "the comprehensive study of the grand and beautiful problem of controlling their waters" (i. e., of the Mississippi and its tributaries); but he also realistically conceded the "distrust with which some of his views on subject have been, and may yet be for a season, regarded."

When a Mississippi River Commission was eventually established in 1879, little actual change in the techniques of river control and utilization took place, for the construction of levees was retained as the predominating policy in prefer ence to the concept of the "comprehensive plan." 28 For a discussion of some fragmentary experimentation with flood prevention by means of the "compre hensive plan," see the concluding section of this chapter.

Governmental control of water-power development under the Federal Water Power Act of 1920 has remained in a large measure a national concern because the principal dam sites are located on navigable streams or within the public domain.29 Proposals have been current at various times in some States for public water power development, as shortly after the Civil War when several New England Governors pointed out the need for public action, but nothing seems to have come of these proposals.30

Drainage and irrigation are sectional complements of the problem of water and land use-too much and too little water. Drainage is concentrated primarily in the Mississippi Valley, where eight States in 1930 accounted for approximately three-fourths (72 percent) of all drained land in the United States, whereas irriga tion is largely confined to the West where six States accounted for almost threefourths (70 percent) of the total irrigated land. 31 Both activities are largely local in administration, i. e., special ad hoc districts carry on the enterprise. Such control as is exerted over drainage enterprise is largely judicial, with the result that it is very difficult to find any trends of State planning. While the States appear to have no operating responsibility in the irrigation field, considerable directive control of the development of irrigation projects seems to have been exercised through the office of the State water engineer.

With the pushing of the line of settlement steadily westward into the “arid regions" of the United States-as Director Powell characterized the area in his famous report of 1878-the determining factor in agricultural development turned out to be not so much the quality of the land as its accessibility to water and the dependability of the supply. The first extensive settlement in the West by the Mormons in 1849 had clearly recognized the vital importance of the water problem and had adopted a comprehensive policy of irrigation, but most other settlers were neither so far visioned nor so inclined to cooperative enterprise.32 As early as 1866 Congress had recognized the crucial need for water in Western development by conferring a right-of-way over the public lands for ditches and

28 The Commission was directed to "take into consideration and mature such * * plans and estimates as will correct permanently locate, and deepen the channel and protect the banks of the Mississippi River, improve and give safety and ease to the navigation thereof; prevent destructive floods," etc., 21 Stat. 37, sec. 4. In 1884 Congress created a Missouri River Commission (23 Stat. 144) and in 1893 a California Debris Commission (27 Stat. 507). Frank stated, "By far the strongest part of the accusation that the U. S. Government has helped to create the flood problem of the delta rests upon the relation of flood-control works in various areas to the cause of floods in other areas." Op. cit., p. 62.

29 See Jerome Kerwin, Federal Water-Power Legislation (1926); F. A. Fairlie, "Public Regulation of Water Power in the United States and Europe," 9 Michigan Law Review, pp. 463-483 (1911); and R. D. Brown, "The Conservation of Water Power," 26 Harvard Law Review, pp. 601-630 (1913).

30 The Governor of New Hampshire in 1867 urged the development of water power as a means of curbing the abandoned farm movement. Message, pp. 9-10. A preliminary report was issued in 1870. Hasse's Index also cites reports in Vermont (1872), Ohio (1876), and New York (1873), but little seems to have resulted from these reports. Fairlie pointed out certain State agencies (as the Rhode Island Commissioner of Dams and Reservoirs, Laws 1896, c. 124) were authorized to approve plans for dam construction with the view to assuring safe construction. Op. cit. Fairlie also cites the creation of the Wis consin Valley Improvement Co. (Wisc. Laws 1907, c. 335) for the purpose of developing and controlling the State's water power, but no traces have been found of the activities of this agency.

31 Cf. U. S. Bureau of the Census, Drainage of Agricultural Lands, 1930; Irrigation of Agricultural Lands, 1930.

32 See C. S. Kinney, A Treatise on the Law of Irrigation (1912), secs. 82, 242, 245-250, describing the Mormon restoration of the old Mesa Canal, the settlement in Utah, the Greeley Colony in Colorado, and the Anaheim and Riverside projects in California. See also R. H. Hess, "The Beginnings of Irrigation in the United States," Journal of Political Economics, XX, pp. 807-833 (1912).

canals that were used in connection with mining and agriculture.33 In 1873 George P. Marsh, referred to above and then minister to Italy, prepared a paper at the request of the Commissioner of Agriculture on the subject of irrigation and the methods employed by foreign governments in promoting soil reclamation. Recognizing the "evils and difficulties of the practice of irrigation," Marsh nevertheless concluded that "nearly all the evils which ordinarily attend the practice may be avoided, or at least greatly mitigated." There was "danger that, with our characteristic impetuosity and love of novelty, we shall, especially in the comparatively rainless new States and Territories of our vast empire, engage too readily and too inconsiderately in an agricultural process which, in many cases, may be attended with disadvantages more than sufficient to counterbalance the gains from its adoption." Both the Federal and State Governments, he thought, ought to engage in collecting and diffusing information about irrigation, conduct experiments for developing new knowledge, and particularly undertake continuous hydrographical surveys. In the long run this would not be adequate, Marsh argued, for Government must actually assume the ownership and operation of irrigation works:

Such works will seldom be properly and securely constructed by private persons or bodies, and the management of them by individuals, and especially by corporations, will always be liable to abuse and gross corruption. No irrigation works, in fact, except for the distribution of water over private grounds, after it has once been withdrawn, under Government supervision, from Government sources of supply, ought to be intrusted to private hands. There are, no doubt, serious objections to the assumption of such burdens and such responsibilities by republican governments, but there are also graver and, as I think, insuperable objections to any other system.34

In 1878 Major Powell reported on Lands of the Arid Region, contrasting the dependable character of irrigated farming with ordinary agricultural practice. Successful irrigation depended upon the construction of huge storage reservoirs that would assure adequate water supply through 2 or 3 successive years of drought. The dangers of water monopoly would be avoided through the firm refusal to allow private persons or corporations to hold water rights for potential future use against the actual needs of settlers.

A decade later Major Powell undertook his irrigation survey under the specific Congressional authorization to investigate—

the extent to which the arid region of the United States can be redeemed by irrigation, and the segregation of the irrigable lands in such arid regions, and for the selection of sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows.

Significantly suggestive of an intention to adopt a comprehensive irrigation policy, Congress at the same time reserved from entry "all the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches, or canals for irrigation purposes, and all the land made susceptible of irrigation." Under this sweeping authority the Powell Irrigation Survey ordered the segregation of 127 reservoir sites and over 30 million acres of irrigable land. Widespread protests from affected interests in the arid region led to the appointment of a Senate investigatory committee and within 2 years (1890) effected the repeal of the reservation clause except as to reservoir sites, and forced the discontinuance of appropriations for the irrigation survey. Such work (particularly the topographic maps and stream measurements) as the survey accomplished before being hamstrung by Congressional disapproval furnished much of the basic data later used by the Reclamation Service.

35

14 Stat. 253. This enactment was followed by a series of bills to benefit special irrigation ventures. See D. Lampen, Economic and Social Aspects of Federal Reclamation (1930), p. 16.

34 43d Cong., 1st sess., Senate Misc. Doc. No. 55, at pp. 3-4, 15-17.

Brookings Institution of Government Research, U. S. Geological Survey (1918), p. 18. 25 Stat. 20. 26 Stat. 391. In 1891 the exception was narrowed by limiting the site area to "only so much as is actually necessary for the construction and maintenance of reservoirs" (26 Stat. 1101).

*

While Congress was thus legislating Powell's work out of existence, the Great Plains were experiencing the validity of his predictions in the form of the terrible drought of 1890. Deriving from the foresighted efforts of a Nebraska editor (Wm. E. Smythe of the Omaha Bee, who subsequently launched the Irrigation Age), there emerged successively on local, State, regional, and national levels the device of irrigation congresses. Among the immediate achievements of this movement on the national level was the passage of the Desert Act of 1891, and the Carey Act of 1894, which offered to the States of the arid region desert land "not exceeding 1 million acres in each State," on the condition that the State undertake to have such land "irrigated, reclaimed, occupied, and * [in part] cultivated by actual settlers" within a 10-year period. In the 8 years between the enactment of the Carey Act and that of the Reclama tion Act in 1902, but seven States took steps to avail themselves of the former by applying for slightly more than 1 million acres (out of a potential 7 million), and out of these seven States, but four actually qualified (with a total land area of 600,000 acres).36 The reason was very clear; it had been clear to Marsh, Hinton, and Powell: Reclamation called for engineering efforts beyond the abilities of private enterprise. In 1897 Captain Chittenden reiterated the need for governmental responsibility in his report on Reservoirs in the Arid Region, and, in fact, advocated a far-flung program of governmental ownership and operation of irrigation works. By 1900 the major political parties had adopted platforms pledging governmental irrigation.

Thus, the Reclamation Act of 1902, which was passed by Congress with little opposition and promptly signed by President Theodore Roosevelt, representedan evolution involving a continuous elaboration and refinement which has proceeded along the lines, first, of encouraging individual effort and leaving reclamation wholly to private enterprise; next, on finding this insufficient, of attempting to interest various arid States by the terms of the "Carey Act"; and finally of the passage of the national measure, urged by the people of the whole country.37

Unlike most other Federal activities, however, reclamation has proceeded "with little cooperation on the part of the States having projects within their borders. These States have no formal authorization for such projects nor have they any responsibility for their construction, settlement, and operation." The whole enterprise has been conducted "between the Federal Government and the settlers.

38

Although the States appear to operate no irrigation projects, they are able to exercise some directive control over irrigation development by administrative adjudication of water rights under the "prior appropriation doctrine," as well as through the various functions performed by the State engineer or other special administrative bodies concerned with water uses. 39 Under the Arizona water code of 1919 the State water commissioner is authorized to make surveys and water investigations and to control the "beneficial use" of the waters of the State by issuing permits and approving plans for water projects, according to a system of "classified priorities" of water use ((a) domestic, (b) irrigation and stock, and (c) water power and mining).40

The first State official to be concerned with irrigation appears to have been the California State engineer of 1878, but his functions were entirely investigatory, and the office was abolished in 1891. In 1890 the State of Wyoming

C. Wooddy, The Growth of the Federal Government (1934), pp. 529–530. In practical effect the Carey Act was accepted only by the States of Idaho and Wyoming.

7 Lampen, op. ct., p 47.

88 Economic Survey of Certain Federal and Private Irrigation Projects (1929), p. 64. This report recommended that the "States ought to participate in reclamation activities." p. 65. In 1934 the same recommendation was made by Messrs. J. W. Hawes and F. E. Schmitt in their special report to the Secretary of the Interior on Federal Reclamation, p. 9.

See generally M. Lasky, "From Prior Appropriation to Economic Distribution of Water by the State-via Irrigative Administration," 1 Rocky Mountain Law Review, pp. 161-216, 248-70; II, pp. 35-58 (1920-30); and S. C. Wiel, "Public Control of Irrigation," 10 Columbia Law Review, pp. 506-19 (1910), "Theories of Water Law," 27 Harvard Law Review, pp. 530-44 (1914) and "Public Policy in Water Decisions, 1 California Law Review, pp. 11-31 (1912).

40 Ariz. Laws 1919, c. 164. For a general (if somewhat out-of-date) discussion of State control of water use, see Kinney, op. cit., ch. 68.

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