Senator O'MAHONEY. What Federal departments or agencies made these applications and received State authority to use the water? Mr. GRIMES. Let me see.

There would be, of course, the Bureau of Reclamation, the Indian Service, the Air Force, Department of Agriculture, perhaps some others.

Senator O'MAHONEY. You might be able to consult the records and later on file with the committee a statement covering the entire list. Mr. GRIMES. I could do that.

Senator O'MAHONEY. Mr. Chairman, I would like to ask that that be done.

(The information referred to follows:)

SOUTH DAKOTA STATE WATER RESOURCES COMMISSION,
Pierre, S. Dak., March 27, 1956.

Mr. GOODRICH LINEWEAVER,

Senate Interior and Insular Affairs Committee,

Senate Office Building, Washington, D. C.

DEAR GOODRICH: During my testimony before the subcommittee hearings on Senator Barrett's bill S. 863, March 20, Senator O'Mahoney requested that I furnish additional information for the record. This additional information was a list of water rights obtained by Federal agencies under provisions of the South Dakota water laws.

I find that I underestimated the number of such water rights in my oral presentation before the subcommittee. Such an underestimate is unimportant, perhaps, since the list of Federal water rights in South Dakota was requested for the record.

The list is enclosed. Should additional details be desired, I will be pleased to furnish them.

Sincerely,

J. W. GRIMES, Chief Engineer.

List of water rights obtained by Federal agencies under provisions of South Dakota water laws

! Includes filings made by Biological Survey, Department of Agriculture.

List of water rights obtained by Federal agencies under provisions of South Dakota water laws-Continued

Senator BARRETT. Are you through, Senator O'Mahoney?
Senator O'MAHONEY. Yes.

Senator BARRETT. One question I wanted to ask you there.

Did the United States Government, to your knowledge, experience any difficulty with reference to their applications for their rights in any of the cases, including the Bureau of Reclamation and all the other departments of Government that were involved?

Mr. GRIMES. Nothing at all important, Senator.

Senator O'MAHONEY. Did they ever express any doubt that it was the duty to apply to the State for the use of the water?

Mr. GRIMES. Not that I know of.

Senator O'MAHONEY. Thank you very much.
Senator ANDERSON. Go ahead, Mr. Bennett.

STATEMENT OF ELMER BENNETT, LEGISLATIVE COUNSEL, DEPARTMENT OF THE INTERIOR

Mr. BENNETT. My name is Elmer Bennett, legislative counsel for the Department of the Interior.

My purpose today is not to state the official views or recommendation of the Department; I have been asked to testify at this point with respect to the background to the legislation and with respect to the apparent purposes of the legislation.

Senator GOLDWATER. Mr. Chairman, could I interject a question? Would it be perfectly proper to question you regarding that stand? Senator BARRETT. Do you know whether or not Secretary McKay and Under Secretary Davis will be available for testimony before this committee?

Mr. BENNETT. It is my understanding that one or the other will appear before the week is out on this legislation. We are also hopeful that there will be a statement of official views in the form of a report on this legislation.

Senator WATKINS. I assume they will uphold the 1902 law and all they have done under it.

Senator O'MAHONEY. Assumptions are dangerous these days.
Senator WATKINS. I do not think that is dangerous.

Mr. BENNETT. My background statement, of course, will reflect some measure of interpretation of previous decisions of the courts. Those views necessarily must be taken as my own.

I would rather imagine that in some cases, although I have no intention of expressing here any recommendations concerning the bill, other attorneys might differ with my interpretations from time to time.

I am primarily interested in the historical background in this connection and the practical development of water law in the Western States.

I felt yesterday that the statements of the various Senators, members of this committee, were very fine summations of the background and growth of western water law and I hope I do not duplicate too much of that.

To begin with, I think from the constitutional standpoint one should keep in mind that the measure and extent of property rights in general is a matter of State law reserved to the States by the 10th amendment to the Constitution.

Rights to the use of water are one form of property. In the West, as this committee is well aware, a very substantial portion of the land area is owned and controlled by the Federal Government. That, of course, creates a question as to whether the land ownership of the Federal Government changes in any way the incidents of property which accrue to the Federal Government by virtue of its ownership of these vast areas in the Western States.

That question, of course, was early reflected in the problems of the miners in the early agricultural development of the West. Rights to the use of water were fundamental.

As was pointed out so well yesterday, and again today, by previous witnesses, the water supply in the West is extremely inadequate when compared with the acreages of land that are available for development either for agriculture or for municipal purposes and industrial purposes. Consequently, the practice and the policy in the West has been to permit the free movement of water from the streams in which the water is found to those areas which are deemed by the people living on the land to be most suitable for development.

The traditional common law rule of water rights is known as a riparian doctrine in which the right to the use of water is part and parcel of the ownership of the land. There have been distinct limitations on the use of water under the riparian doctrine, which is common in the eastern States, and which, in modified form, applies to some of the 17 Western States which would be affected by this bill.

All of those 17 Western States, however, do have the doctrine of appropriation. In those States having traditional common law rules concerning riparian rights, or a modified form thereof, the doctrine of appropriation has been superimposed on the common-law system of riparian right.

The essence of a water right, of course, and the value of a water right, depends on the right of the owner to require the delivery of water by those who lie above him on the stream in quantities necessary for his use. Likewise, the value of his right depends very greatly on the right that he has to deplete the flow of the stream at his proposed place of use so as to thereby diminish the flow that would be available to those owners below.

We are talking here, in other words, of rights which may be exercised, as against other persons outside of the specific land boundaries of the claimant to the water rights. This is not strictly a question of what we may do with the water which happens to be on his land of the land over which he has control, but the right he has to demand those above him to leave that water in quality and quantity-the quality question being rather open to discussion-so as to be available to him at the place and at the time that he wishes to put into beneficial

use.

When you consider the fact that the riparian doctrine restricts the use of water to the watershed of the stream, in the first place, and secondly, restricts the quantities of water which can be consumed or beneficially used in a consumptive manner, it becomes very apparent that the riparian system would not work in the Western States, where irrigation is the very lifeblood of their agricultural economy and the necessity exists to take that water as far as several hundred miles from the point of diversion.

By virtue of that, then, you have local laws, customs, and regulations developed after the gold rush in California and the early development of other Western States which put the basis of the right to the use of water on two fundamental principles:

One, the use must be a beneficial use; and

Two, the principle of "first in time is first in right" was the fundamental basis of a secure water right in the Western States, and it remains that way even today.

The early miners and other users of water in the West for the most part were, in a strict sense of the word, squatters on the public domain. There were no Federal laws providing for the disposition of the land, or water rights for that matter, which would give them a firm basis for living in those States and developing those States on a sound basis.

Congress recognized that and you had the enactment of 1886, to which Senator Barrett yesterday referred. That act purported to confirm those rights to the use of water which had become accrued under local laws, customs, and regulations prior to that date (14 Stat. 251).

In 1870, Congress attempted to strengthen the provisions of the 1866 statute by providing that all patents of public land that were granted thereafter would be subject to vested water rights acquired under State law either before or after the date of the act (16 Stat. 217).

There was some question of interpretation involved there as to the extent and degree of the prospective application of that statute. I do not intend to attempt to interpret it at this point.

The next step in the history of the water law of the West from a Federal standpoint was the Desert Land Act. That act permitted entry for reclamation purposes of desert land in what are now 13 States of the Union.

The 1877 Desert Land Act (19 Stat. 377) permitted an entry subject to bona fide appropriation of waters for the purpose of irrigating the land entered. The act also provided that all surplus waters, over and above appropriations made for desert-land entries, of nonnavigable streams and lakes would be available for appropriation by the public.

That act has been the subject of a number of Supreme Court interpretations and the most recent of which was the Pelton case which has been mentioned on several occasions by previous witnesses. (Federal Power Commission v. Oregon, 349 U. Š. 435.)

From the point of view of seeing the Federal function in relation to water-resource development since that date, perhaps the next step would be to point out that in at least 10 instances, since the Desert Land Act, Congress in one form or another has recognized State water law. The extent and degree of recognition has varied widely.

Senator BARRETT. Do you mind interruptions?

Mr. BENNETT. No; that is fine.

Senator BARRETT. There is one thing I think we ought to bring out before you get to the action taken by the Congress. It seems to me that inasmuch as we only had 3 States at the time of the enactment of the Desert Land Act of 1877 and we had 8 Territories, that the fact that those Territories, when they came into the Union by virtue of