In the opinion of the chamber the method for the establishment of the river basin commissions and the membership of the commissions will not be satisfactory from the States' point of view.

The CHAIRMAN. Do you think every State should agree? You say "such action could be taken without consent of all the States involved." Do you think all the States involved should consent each time?

Mr. WYLIE. I believe they should. I also believe that the possibility of not having membership of these States, of all the States, is also a possibility because of the wording of the bill.

The CHAIRMAN. If you had required unanimity, the Hoover Dam would not yet be built. It was built a long long time ago and it has served a very useful purpose.

Mr. WYLIE. That is not true basic planning if everybody does not feel unanimous about the plan.

The CHAIRMAN. Maybe it wasn't, but Arizona, for reasons of its own, stayed out, would not sign the compact, did not think it got enough water. They went right ahead and built the dam anyhow. Mr. WYLIE. I know they did.

The CHAIRMAN. It is a pretty good dam. It is not bad at all. If the U.S. Chamber of Commerce had its way it would not have been built but other people saw it differently and they got it built, thank God. I don't see why it is so bad.

Mr. WYLIE. Really, though, what we are talking about here in terms of this bill are comprehensive river basin plans which involve many more things than hydroelectric power or irrigation or a combination of the two or others.

The CHAIRMAN. I know. So did the Colorado River project. It involved transmission of electricity. We had a terrible argument in my home State about what was going to happen to all of the electricity from Boulder Canyon and the dam which is now called Hoover Dam. But it was idle conversation because the power all went to California and Arizona; they were prepared to use it. They were prepared to build transmission lines. We were not. But the portion allotted to the State of New Mexico I don't expect to see in my lifetime and my children do not expect to see it in theirs, but it is there in the compact. Mr. WYLIE. The membership of the commission will be composed of (1) a chairman appointed by the President; (2) representatives of Federal agencies determined by the President to have a substantial interest in the work to be undertaken by the commission; (3) one or more members from each State which lies wholly or partially within the region, river basin, or groups of river basins for which the commission is established; and (4) when deemed appropriate by the President, one member from any interstate of international commission involved in the basin.

The selection of the State representatives to the commissions as outlined in subsection (c) of section 202 of S. 2246, places the States and the Governors of the States in a completely subservient position. Instead of appointing, a Governor can only nominate a representative to the commission. The nominee must be "satisfactory to the President" before he is appointed to the commission by the President. If the Governor should fail to nominate a State representative within 60 days after a request by the President, the President may make his own nomination.

To us this does not truly reflect State, local, or industry representation in the planning process for a river basin. It does represent Federal determination of river basin plans with little or no recognition of the interest of the State and local groups. It is our conclusion that title I and II of S. 2246 will eventually breed a valleyauthority type of Federal domination of the river basins of our Nation.

The CHAIRMAN. You understand the Governor nominates and the President appoints, do you not?

Mr. WYLIE. Definitely.

The CHAIRMAN. The Governor has no authority to appoint somebody to a Federal commission. There is no other way that it can be done.

Mr. WYLIE. There is no guarantee, however, in here that the President will accept his nomination, either.

The CHAIRMAN. That is correct.

Mr. WYLIE. Or that he will accept anyone from his State. I mean there is no guarantee that each State will have to be represented, either.

The CHAIRMAN. I make the same observation I made awhile ago. You have a pretty low opinion of the Presidency of the United States if you start with that assumption. You have to assume the President would not care a hoot for anybody or their opinion. But it just so happens that the Government does not work that way in most instances.

I believe it would not in this one. It just depends, on what concepts you have of the type of people who are elected President of the United States.

Mr. WYLIE. I don't start with any assumption concerning anyone in the Government. However, I don't think it is spelled out clearly enough here. I think it could be without any great problem.

Mr. SMITH. May I ask a question? If these river basin planning agencies were joint Federal-State planning agencies, could not the Governors of the States then appoint the State representatives and the President appoint the Federal representatives?

The CHAIRMAN. I should think so, yes.

Mr. SMITH. Don't you think that would be a better way of getting true representation from the States?

The CHAIRMAN. If we did we would put the bill that way. This has not worked badly.

Mr. SMITH. We think that would be a better way.

Mr. WYLIE. The States should make adequate evaluations of the natural resources within their boundaries and maintain their natural resource agencies, particularly those dealing with forest, water, and mineral resources, at high efficiency, staffed by well-trained personnel, and free from political domination.

We believe, however, that sections 302, 303, and 304 provide the Water Resources Council with such authority and control through grants-in-aid that eventual Federal domination of the State planning agencies will be a natural result.

The fact that the Water Resources Council will establish the regulations for the allocations of the grants-in-aid, and will approve the plans for the expenditure of Federal grants leads us to the conclusion that the State agencies will gradually reflect the thinking of

some central planning group to the detriment of the rights of the citizens of the individual States.

There are no provisions in S. 2246 to prevent the actions of the Water Resources Council or a river basin commission from completely ignoring the rights of the States to control their water as established by custom and State laws which have been recognized by previous acts of Congress and decisions of the U.S. Supreme Court.

The CHAIRMAN. Wait a minute. You say:

There are no provisions in 2246 to prevent the actions of the Water Resources Council or a river basin commission from completely ignoring the rights of the States to control their water *

Mr. WYLIE. I think we are referring again

The CHAIRMAN. There is no power in here that permits a single river planning commission or a water resources council to deal with the rights of States on water, is there? If so, where do you see it? Mr. WYLIE. There is none that says they have the right, either. I think we are referring here to the representation

The CHAIRMAN. Do you mean since there is nothing that says they haven't the right, you really believe they do have the right to take away the waters of the State without proper judicial action or treaty? Mr. WYLIE. That who has the right?

The CHAIRMAN. That the Resources Council in this bill, or the river planning commission.

Do you think that the river basin planning commission could so determine without litigation between Arizona and California on how much water Arizona is going to get?

Mr. WYLIE. No, they could not.

The CHAIRMAN. Would they be able to touch it at all?

Mr. WYLIE. They can determine the plans that will be developed. The CHAIRMAN. Will they be able to touch at all the distribution of the water?

Mr. WYLIE. The river basin commission?

You

The CHAIRMAN. Yes, or the Resources Council, either one. mentioned them both. Would they be able to touch the distribution of a single drop of water from the Colorado River?

Mr. WYLIE. Isn't that the purpose of this whole bill, to give them the right to develop those plans?

The CHAIRMAN. Plans? Would you please answer the question? Under the terms of this bill would the Water Resources Council or river basin planning commission be able to change the distribution of a single drop of water between Arizona and California or any other States in the Colorado River Basin?

Mr. WYLIE. No, their action would have to go to the Congress.
The CHAIRMAN. Do you think the Congress can do it?

Mr. WYLIE. I don't know who can if they can't.

The CHAIRMAN. It is being settled in the Supreme Court right now. When the Supreme Court gets finished if anybody tries to pass a law changing the distribution of waters the Supreme Court decides upon, he will have a very strange experience. He won't get very far with it. I don't know whoever told you that the States would lose the right to control their water. Any rights they have under State law is not going to be abrogated by a council which is an advisory council in Washing

ton,

Mr. WYLIE. I would like to ask Mr. Smith to respond to that.

Mr. SMITH. The Council is made up of representatives of the Federal agencies and some of the Federal agencies have brought up plans that I believe would change the right to allocate, to take water. The CHAIRMAN. Just name one.

one.

You said they have. Just name

Mr. SMITH. I am afraid I can't, Senator.

The CHAIRMAN. I am afraid you can't either. You cannot do it this afternoon, you cannot do it tomorrow afternoon.

(Richard W. Smith, manager of the natural resources department of the Chamber of Commerce of the United States, subsequently wrote Chairman Anderson, citing two cases to support Mr. Wylie's statement. The letter was referred to the Assistant Attorney General for an analysis of the cases. The correspondence follows:)

CHAMBER OF COMMERCE OF THE UNITED STATES,
Washington, D.C., August 17, 1961.

HON. CLINTON P. ANDERSON,
Chairman, Senate Committee on Interior and Insular Affairs,
Senate Office Building, Washington, D.C.

DEAR SENATOR ANDERSON: During the hearings on August 16 on S. 2246, the Water Resources Planning Act of 1961, the chamber's witness, Mr. Robert C. Wylie, made the statement that there are no provisions in S. 2246 to prevent the actions of the Water Resources Council or a river basin commission from completely ignoring the rights of the States to control their water as established by custom and State laws which have been recognized by previous acts of Congress and decisions of the U.S. Supreme Court. You questioned the relevancy of this statement.

Mr. Wylie responded and then asked me to comment. The following is from the transcript (pp. 260-261).

"Mr. SMITH. The Council is made up of representatives of the Federal agencies and some of the Federal agencies have brought up plans that I believe would change the right to allocate, to take water.

You said they have. Just name one.

"The CHAIRMAN. Just name one. "Mr. SMITH. I am afraid I can't, Senator. "The CHAIRMAN. I am afraid you can't either. You cannot do it this afternoon, you cannot do it tomorrow afternoon."

Although I could not think of them at the time, there are two cases which I should have cited in illustration of actions of Federal agencies in violation of State water rights.

The first is the Fallbrook case in southern California in which the Navy was attempting to get an additional water supply for the Marine's Camp Pendleton. Attorneys for the Federal Government, on the basis of "paramount Federal rights," filed claims on water rights on ground water in the Santa Marguerita River Valley acquired by private citizens under the water laws of the State of California. It is my understanding that the Federal Government has now abandoned the case.

The second is the Hawthorne case in Nevada. The Navy had made application under Nevada State law for the beneficial use of water from six wells on the Naval Ammunition Depot at Hawthorne, Nev. Based on its understanding of the Pelton Dam decision, the Navy abandoned its applications, on the basis that the Federal Government had "paramount right." The State of Nevada instituted a suit to obtain declaratory judgment that the Navy must comply with Nevada's State laws. The Federal district court on August 27, 1958, dismissed Nevada's complaint and held that the United States need not comply with Nevada water law.

I request that this letter be inserted in the record of the hearings, following the testimony of the chamber's witness, Mr. Wylie.

Sincerely,

RICHARD W. SMITH,

Manager, Natural Resources Department.

U.S. SENATE,

Hon. RAMSEY CLARK,

Assistant Attorney General,

COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,
Washington, D.C., August 18, 1961.

Department of Justice, Washington, D.C.

DEAR MR. CLARK: At our committee hearing on August 16 on S. 2246, the Water Resources Planning Act, a witness representing the U.S. Chamber of Commerce in charging that the Federal Government could ignore State water rights asserted that "some of the Federal agencies have brought up plans that * * * would change the right to allocate, to take water."

I challenged the witness to name one such plan. He was unable to do so.. Now, however, I have a letter from the chamber citing, as examples of such "plans," the Fallbrook and the Hawthorne cases. I do not think these cases are in point as to the subject then under discussion, nor do I believe the cases stand for what the chamber asserts.

However, the chamber has requested that its letter be printed in the hearings. If it is so printed, I believe a reply or comment by the Department of Justice should be printed with it.

Therefore, would you be good enough to give the committee a statement as to the specific facts involved in the chamber's assertions regarding the Fallbrook and Santa Margarita cases. A copy of the chamber's letter is enclosed,

Sincerely yours,

CLINTON P. ANDERSON, Chairman.

Hon. CLINTON P. ANDERSON,

DEPARTMENT OF JUSTICE, Washington, August 28, 1961.

Chairman, Committee on Interior and Insular Affairs,
U.S. Senate, Washington, D.C.

DEAR SENATOR ANDERSON: You have asked this Department to comment on a letter dated August 17, 1961, to you from Richard W. Smith, manager, natural resources department, Chamber of Commerce of the United States. Quoted in that letter is a statement made by Mr. Smith in hearings before the Senate Committee on Interior and Insular Affairs that "some of the Federal agencies have brought up plans that I believe would change the right to allocate, to take water." In his letter, Mr. Smith cites the Fallbrook case (United States v. Fallbrook Public Utility District, et al., Civil No. 1247-SD-C, U.S.D.C.S.D. Cal. S.D.) and the Hawthorne case (Nevada v. United States, 165 F. Supp. 600 (U.S.D.C. Nev. 1958) affirmed 279 F. 2d 699 (C.A. 9, 1960)) to support his statements. The precise meaning of Mr. Smith's statement is not entirely clear to me. I assume that it relates to the various laws and regulations enacted and adopted by the Western States in the exercise of their police powers in connection with the acquisition and allocation of rights to the use of water. Applying that connotation to the phrase in question, I can assure you that neither of the mentioned cases could in any way change the power of the States "to allocate, to take water," nor was either brought for such a purpose.

In the Fallbrook case, the United States seeks to have quieted its title to rights to the use of water purchased in the years 1942-43 from the Rancho Santa Margarita and rights it has acquired by proscription and use. There is no challenge in that case to California's power to regulate the acquisition of rights to the use of surplus waters.

The Navy was not "attempting to get an additional water supply for the Marines' Camp Pendleton." The suit is an action to quiet title, the objective of which is to have the rights of the United States adjudged. It is not possible in such an action to "acquire" rights. Accordingly, the statement that, "Attorneys for the Federal Government, on the basis of 'paramount Federal rights, filed claims on water rights on ground water in the Santa Margarita River Valley acquired by private citizens under the water laws of the State of California" is without basis in fact. The United States has not considered abandoning the Fallbrook case. At present, findings of fact and conclusions of law are being formulated in preparation for the entry of the final decree.