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 1ights 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 arid 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

declared to be the property of the public, and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided.

"Section 6. Diverting unappropriated water-priority preferred uses.-The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes."

At the same time these constitutional provisions were being adopted, the constitutional convention forever disclaimed all right and title to unappropriated public lands within the new State's boundaries, as required by the enabling act. It is apparent that article XVI, quoted above, could not be consistent with such a disclaimer if the ownership of public lands carried with it all rights to the use of water. Yet the President found all enabling act requirements satisfied and proclaimed the admission of Colorado to the Union.

In my opinion the power to legislate concerning the acquisition of water rights as property rights was never delegated to the United States and remains as one of the reserved powers of the individual States under the 10th amendment. In Kansas v. Colorado (206 U. S. 46, at 94) the Supreme Court said:

"It (a State) may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any State."

In Clark v. Nash (198 U. S. 361, at 370) the western law limiting the rights of riparian landowners to the use of water was explicitly recognized when the Court said:

"The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous States of the West that they are in the States of the East. These rights have been altered by many of the Western States, by their constitution and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the States of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and properity of those States arising from mining and the cultivation of an otherwise valueless soil by means of irrigation. This Court must recognize the difference of climate and soil which renders necessary these different laws in the States so situated."

I submit that this same principle of water law applies to the ownership by the Federal Government of the public lands. In most of the Western States it was settled doctrine before they were admitted to the Union. So far as I am aware, none of the cases cited to this committee to date met this issue squarely. Nevertheless, for reasons of sound public policy, I believe legislation such as S. 863 should be enacted promptly. The so-called Pelton case, F. P. C. v. Oregon (349 U. S. 435), has merely accentuated the need for clarifying legislation. While this case did not involve a conflict between vested rights under State law and riparian claims accruing to the United States because of its public land ownership, there is a clear implication in the Court's interpretation of the Desert Land Act that by withdrawing or reserving public lands from entry under the public land laws, the United States thereby reserves or holds rights to the use of water on such withdrawals or reservations.

In my State, Colorado, this would unsettle large numbers of water rights which have been adjudicated and deemed vested for many years. Over 23 million acres of public land have been withdrawn or reserved in Colorado. Many of these withdrawals and reservations took place from 35 to 50 years ago. Since that time major investments in water development have taken place all over the State based upon the security of water rights under State law. The so-called Pelton case has cast a cloud on many of these rights which S. 863 is designed to remove. The hearings of this committee are replete with citations to previous congressional acts establishing that Congress has never intended that such rights should be in jeopardy from Federal claims.

I also submit that Federal claims under the Pelton case are bad public policy and would stultify the growth of the West. There is no indication of any limitation on the amount of water to which the Federal Government might have rights under the Pelton doctrine. In the arid and semiarid States it is fundamental that water rights should be limited to those amounts of water which

can reasonably be put to beneficial use. It is also fundamental to western law that such rights are lost through failure to put water to beneficial use with due diligence or through nonuse. There is no indication that any of these principles would apply to Federal claims.

Thus in my State alone these claims may well amount to a perpetual reservation of unappropriated water for use on 23 million acres of Federal land, whether or not the United States ever puts the water to beneficial use.

Such a principle would be a gross waste of the West's limited and most precious resource, water. In my view, Congress should make it clear that rights to the use of water are to be acquired under local law which will reflect the best policy for the development of the West.

It has been related in these hearings that the earliest western water rights were recognized in connection with mining operations; that the acts of 1866, 1870, and the Desert Land Act of 1877 shaped the policies of water uses, as well as the mining codes, to conform to local necessities. Local controls and complete fredom to satisfy local conditions without Federal interference became the basis for our Territorial and later our State water laws and codes.

Of the 17 Western States, 9 recognized by their constitutions ownership or control of the use of the waters within their borders that were subject to appropriation for beneficial purposes, while 8 States did so by statutes. Congress approved the constitutions of all of them without reservations respecting local autonomy over their water resources. In the first category, and in the second, with dates of admission, the States are:

Some of these States administered their waters under Territorial laws prior to admission. There never was any question but that local customs, laws, and the decisions of the courts, determined the vesting of water rights and their relative priorities. This was explicit in the act of July 26, 1866 (14 Stat. 253). When Congress passed the Reclamation Act of 1902, it required that the Federal Government in carrying out the reclamation program should observe the laws of the States (and Territories, there being 3 in 1902), and to conform to those laws.

The record made in the present hearings will contain documentary evidence in support of what I have said so briefly.

I want to turn now to most convincing evidence of the intention of the Congress to preserve the rights of the Western States in the ownership, control, and administration of their natural water resources. Beginning with the Colorado River compact of 1922, Congress has consented to the following western interstate compacts for the apportionment of the waters, or use of waters, among the States affected and claiming ownership of the waters of the streams involved: Compact and States:

1. Colorado River compact of 1922, 7 States: Colorado, Wyoming, New Mexico, Utah, Arizona, California, and Nevada.

2. South Platte River compact of 1923, 2 States: Colorado and Nebraska. 3. La Plata River compact of 1922, 2 States: Colorado and New Mexico. 4. Rio Grande compact of 1929, 3 States: Colorado, New Mexico, and Texas.

5. Rio Grande compact of 1939, 3 States: Colorado, New Mexico, and Texas.

6. Republican River compact of 1942, 3 States: Colorado, Nebraska, and Kansas.

7. Belle Fourche River compact of 1943, 2 States: South Dakota and Wyoming.

8. Costilla Creek compact of 1944, 2 States: Colorado and New Mexico. 9. Arkansas River compact of 1948, 2 States: Colorado and Kansas. 10. Pecos River compact of 1948, 2 States: New Mexico and Texas. 11. Upper Colorado River Basin compact of 1948, 5 States: Arizona, New Mexico, Wyoming, Colorado, and Utah.

12. Snake River compact of 1949, 2 States: Idaho and Wyoming.

13. Yellowstone River compact of 1950, 3 States: Wyoming, Montana, and North Dakota.

14. Canadian River compact of 1950, 3 States: Texas, New Mexico, and Oklahoma.

15. Sabine River compact of 1953, 2 States: Texas and Louisiana. Congress previously gave its consent to the negotiation of these compacts with the exception of the South Platte and La Plata Rivers. In each case, however, the consent of the Congress constituted an approval of the "equitable" division and apportionment of the waters of the stream system involved in perpetuity.

The Congress did not reserve any waters in the name of the United States. But the Congress consented to and approved apportionments to States of all waters, appropriated as well as unappropriated, recognizing vested rights as well as future rights under the laws of these States.

I have named 15 interstate compacts. With the exception of the Sabine River compact, which concerns Louisiana, the States in these agreements are reclamation States. The list includes all but Oregon and Washington of the 17 affected by S. 863.

In conclusion, I urge the committee to take favorable action on S. 863 promptly. As indicated above, I believe such action is necessary if the Congress is to keep faith with the people of my State and other Western States similarly situated. I also submit that such action is necessary as a matter of public policy if further growth in the West is to be encouraged.

(Thereupon, at 4:27 p. m., the hearings were recessed subject to the call of the chairman.)