MEMORANDUM January
14.
1944ANALYSIS OF S. 1519
mrRODUCED
m
THE SENATE OF THE UNITED STATES, NOVEMBER9, 1943
BY SENATOR McCLELLAN, BEING A BILLttTO PROVIDE FOR THE CONSTRUCTION, MAINrENANCE, AND OPERATION OF FLOOD-CONrROL AND NAVIGATION IMPROVEMENTS, n~CLUDING DAMS, RESERVOIRS, AND ALLIED
STRUCTURES, IN THE BASINS OF THE ARKANSAS A,"tI!D WHITE RIVERS, AND FOR THE DISPOSITION OF SURPLUS ELECTRIC ENERGY GENERATED BY THE FEDERAL FLOOD-CONrROL AND NAVIGATION IMPROVEMENTS IN THE BASINS, OF SUCH RIVERS."
...
..
,
-
-An analysis of this proposed legislation must recognize the basic fact that the upper Arkansas river basin in Colorado and Western Kansa inoludes arid and semi-arid lands where irrigation is praotioed and where future de- . velopment' involves additional benefic~al use of wate,r to nurture growing crops .. Further, it must be reoognized that lower Arkansas b~sin development, in dis-regard of these irrigation uses, imposes a potential threat to established and possible increased agricultural production in the upper basin.
1'he above described 'Bill is analyzed as follows I
1. Section 2. This seotion establishes a federal policy with respect to the development of the Arkansas and White river basins. It states that it shall be the federal policy to make use of existing federal agenoies for oon-struction. operation and maintenance of all publio improvements in these basins; and that the provisions of the Bill are designed to insure "coordinated
operation of all Federal projeots therein for the improvement of navigation and alleviation of flood oonditions." The section further announces that it shall be the policy. tt
* *
*
to provide for realization of other benefits tobe derived from such projects; to facilitate preparations and planning for post-war construction by the Federal government in the interest of employment; and to secure effioient executive management under the direction and super-vision of the permanent exeoutive agenoies already established by Act of Con-gress."
The clause, found in lines 2,
3
and4,
page 2, of the printed Bill con-stitutes the "heart" and determining factor in the policy statement contained in Section 2 of the Bill. This olause reads "to insure coordinated operationof all Federal projects therein for the improvement of navigation and allev-iation of flood oonditions.tt The clause following the one just quoted provides
for other benefits derived from project development, but these other benefits of river improvement, suoh as irrigation, are made subservient to the dominant use for na vigati on and fl ood-o antrol.
-2-Under decisions of the Supreme Court of the United States (reoent announoe-ments being the New River and Red River decisions, United States v. Appalachian Eleotric Power Co., 311 U.
s.
377,
and Oklahoma v. Atkinson, 313 U.s. ·508), navigation and flood .. control works and the control of water by them, are in the interests of interstate oommeroe and subjeot to the exolusive oontrol of the Federal goverrunent. This pOlicy statement which ~nsures paramount proteotion to navigation and flood-oontrol on the Arkansas river where in its upper basinirrigation is extensively praotioed, makes irrigation uses under any plan of development, subservient to those which are olaimed by the Federal government under the above deoisions to be under its control.
The report and reoommendations, dated October,
1943,
of a Committee of the National Reolamation Association, approved at the annual convention of the as-sooiation in1943,
reoanmend. 8.1S. follows,"1. That the control, regulation and utilization of water in the arid and semi-arid areas of the United states be in aocord with the prinoiple that the highest use shall be for domestio consumption and for growing orops; that multiple.use or power projeots shall be so designed and operated that domestio and irrigation needs shall at all times be paramount to the requirements of hydroeleotrio energy pro. duction; and that the imposition of federal jurisdiotion under the Commeroe Clause to maintain navigable capaoitya.nd regulate floods in lower reaohes of rivers ha.ving their sources in the arid and semi-arid region, should recognize the maximum use of water for irrigation purposes. n
"2. That appropriate steps be taken to resist resort to the Conuneroe Clause of the Federal Consti tution, through various legis-lative enaotments &ld a liberal construction thereof by judicial de-crees, as a means of imposing complete federal control of water re. souroes in disregard of applicable state water laws .• "
* * * * *
"5.
That in the interests of economy, avoidanoe of dupli-cation of effort and the attainment of the highest use of thelimited water resource of the Vlest for all benefioial purposes .. the states seek through aotion of the Congress, or by other effeotive means, to obtain the correlation of the aotivities of all depart-ments, bureaus and agencies of the Government engaged in water
de-velopment and flood oontrol.
"6.
That in the formulation of plans for basin development and in the authorizati on of specific projects, steps be taken to in-sure both the reoognition of applicable state laws and the appropriate coordination of federal and state jurisdiotions over the waters in-vol ved in such plans or pr ojects • tt"7.
That to assure the most effioient use of waters for multi-ple purposes# to provide for amicable division of waters among states, to remove all causes, present and future, whioh might lead tooontro-versies, to promote interstate oomity. to recognize that the most ef-fioient utilitation of waters within a basin in the arid and semi-arid West is for benefioial consumptive use, to preserve the integrity
of state water laws, and to promote jOint action by the states and
the United states for the utilization of the water resouroes and the
control of destructive floods, studies be made in various basins to determine the desirability of interstate compaots and encourage the making of suoh compacts.
*
*
* * *
"10. That While insisting upon the preservation of the in-tegrity of state water laws, the states reoognize the legitimate applicati on of federal jurisdiotion al\Q endeavor to coordinate it
wi th the state jurisdiotions over the appropriation and use of water
for beneficial purpose; and that the states of the West resist a
policy, reoent1y evidenoed by the aotivities of same federal agencies, bureaus and departments, apparently designed to secure an
unassail-able federal oontro1 of a. limited and vital Western resouroe in
dis-regard of state laws and the established eoonomy of a great region
both through a olaim of ownership of unappr'opriated water of
non-navi-gable streams and also through an applioation of the Commeroe Clause of the federal oonstitution to obtain suoh control and not in the sub-stantial interest of oarumeroe. The states of the West have supported and shall oontinue to support and urge federal partioipation in
Western water development as being in the national and regional inter-ests, but it is believed that this program was neither initiated, nor is its continuance dependent, upon a surrender by the states of the oontrol of the appropriation, use and distribution of waters of the arid and semi-arid regions heretofore exercised by them. n
These recommendations were adopted and approved by seventeen Western
reclamation states interested in the development of water resouroes in a region
where water is needed to sustain and advanoe agrioulture~ The polioy
establish-ed by the proposed Bill is in direot opposition to these recommendations of
the oommittee hereina~ove oited. T~ effect would be to olose the opportunity.
through appropriate planning and ooordination of water uses, to protect present and future irrigation development.
2. Seotion
3.
Seotion3
is a specifio direotion that all dams and otherworks inoluded in the general comprehensive plans for navigation, oontrol of
destructive ftoads and for all other purposes in the basins of the Arkansas
and White Rivers "HERETOFORE OR HEREAFTER authorized by various flood oontrol
and river and harbor Acts shall be oonstruoted, maintained~ and operated under
the direotion of the Seoretary of War and the supervision of the Chief of Engi-neers."
Sub-seotion (b) of Seotion
3
mentions projeots for reclamation andirri-gation purposes, but it provides speoifically that reclamation and irriirri-gation projeot construotion shall be oonsistent with the insuranoe of oontemp1ated
navigation and flood-oontrol benefits. The-r€fore i by the speoifio':' terms of the
-4-improvement was free from possible interferenoe with the paramount purposes of control of the river for the proteotion of navigable oapacities and the pre-vention of destructive floods. In other words, although the Bill purports to bring about coordination of water uses and integration of the activities of Federal agencies, it defeats coordination of all uses of water and disregards the highest beneficial use of water in the arid section. It dedicates future Arkansas river development primarily to navigation and flood control and
rele-gates irrigation improvements to
a
pOSition subservient to the former. It ignores the possibility of reasonable irrigation. development with reasonable measures for protection of navigable capacities and for control of floods.Sub~section (c) provides that any other agenoy, aside from the Corps of Army Engineers, acting under the Secretary of Har, operating any improvement other than for navigation and flood-oontrol shall insure full protection to navigation and flood-control benefits.
3.
Seotion4.
The bill purports to establish a definite policy of making use of existing Federal agencies and yet the Secretary of the Interior, acting through the Bureau of Reclamation, or otherwise, is given no independent orspecific authority to proceed with reclamation and irri.r;ation projeots except with the ooncurrence of the Secretary of War. Seotion
4
states that in neotion with dams and other works heretofore or hereafter authorized for con-struction or operation under the direction of the Secretary of War, the Se-cretary of the Interior~ with the oonourrenoe of the Seoret~ry of Wart may oon-struot additional works as he, (the Secretary of the Interi or)) may determine necessary for irrigation purposes. In other words, the primary works would beoonstructed by the Secretary of War; and the Seoretary of the Interior, in connection with such works, and with the conourrence of the Secretary or War, would be permitted to construct inoidental works to effeotuate irrigation
pur-poses. There is nothing in the bill which recognizes the construotion of inde-pendent reclamation projeots in the upper basin or the river or whioh,would proteot such projeots, and the use of water thereunder, against the primary demand for the insuranoe of navigation and flood-oontrol benefits in the lower basins •
Unmistakably, the effect of this bill is to plaoe the Chief of the Corps of Army Engineers, acting under the Seoretary of War, in oontrol of future de-velopment on the river. The Bureau of Reolamation, the prinoipal function of which is to oonsider, investigate, develop and operate projeots for irrigation
of arid and semi-arid lands, could only function to construct inoidental irri-gation works, with approval of the Chief of the Corps of Army Engineers and insofar as such irrigation faoilities did not interfere with ~he full and para-mount utilization of water in the interest of navigation and flood-control.
4.
Section6.
Section6
provides that hydroeleotrio energy produced at dams and other works, constructed and operated under the direotion of the Se-cretary of VEar on the Arkansas and vfuite rivers, shall be turned over to the Secretary of the Interior for distribution and disposal. The bill specifies j.n detail the funotions of the Secre~ary of the Interior in this respect. Ac-cordingly, the Secretary of the Interior, in whose department the Bureau ofReclamation operates, while given no independent authority to advanoe irrigation~
mation, which functions primarily to reclaim arid and semi-arid lands, would be relegated t o the position of the power, authority in these river basins.
Without extending this analytice.l statement, t here should be noted and incorporated herein certain portions of the Report and Recommendations of the Committee of the Nationai Reclamation Association, dated October, 19L+-3, entitled "Preservati on of Integrity of State wat'er Laws." 'l'he Committee whioh drafted this report gave this problem a very careful study. This report sets forth the desirability of coordination of the activities of the Federal agencies en-gaged in water development, but the attainment of such an objective is quite different from the plan contained in the Bill under discussion whereby coordi-nation is sought by placing all water development.planning, construction and
operati on primarily under the direotion of one federal agency to insure the protection of navigation and flood control as dominant objectivese
It is not believed that the objeotions to this proposed legislation can be cured by amendments. The basic policy and the prooedural provisions are not in accord with the furtherance of the development of the arid and semi-arid areas of the river basins which are the subjeot of the Bill.
Students of river basin problems reco~lize the inherent desirability, and in many cases the necessity, of adjusting conflicting water use benefits and the clash between federal and state jurisdictions over the control of water through agreements among states with the cooperation of the federal government. Often such adjustments take the form of compacts which a.re ratified by t he legislatures of the Signatory states and approved by t he Congress. This procedUre assures the most efficient use of water for Inul tiple purpos es, provi des for amicabl e and equitable division of waters among states, removes causes which might lead to controversies, promotes interstate comity, preserves the integrity of state water laws, affords the means of eliminating the clash between tederal and state
jurisdictions and promotes joint action between the United States and the states for the utilization of water resources and the control of destructive flooos. The proposed legislation, here discussed, imposes an authority and fixes a rule which limits, and in many ca.ses would defeat, t he possibilities of making such desirable adjustments.
On Deoember
6, 1943,
the Supreme Court of the United States decided an interstate water controversy between Colorado and Kansas, involving the Arkansasriver. Kansas is applying for a rehearing. It is assumed that, if the proposed
legislation evidenced by S.
1519
should become law, the development plan in the upper basin would be compelled to recognize this decision of the Court. However, an adjustment of this long standing controversy (an earlier decision was rendered in1907)
should not now be oomplicated by development procedure under the policy and the terms of this Bill. This oase held with respect to the Arkansas riverfrom its headwaters to a point near Dodge City, Kansas, that in this area "the stream is non-navigable." Thus this Bill covers a river which for about
440
miles (more than a third of t he total length of the river) has been held by the United states Supreme Court to be non-navigable.In
this same area irrigationis extensively praotioed under state laws. As herein pointed out, this proposed legislation fastens upon this river a basin development plan designed primarily
-6-for the proteotion of navigation and the alleviation 01 flood conditions.
Although this legislation proposes a hard and fast rule respeoting the
relative potential water uses, this deoision further held,
"The reason for judicial oaution in adjudicating the relative
rights of states in suoh cases is that, while we have jurisdiction of suoh disputes, they involve the interests of quasi-sovereigns, present complicated and delicate questions, and, due to the possibility of future ohange of oonditions, neoessitate expert administration rather than judicial imposition of a hard and fast rule. Such controversies
may appropriately be oomposed by negotiation and agreement, pursuant
to the compact clause of the Federal constitution. We say of this case, as the oourt has said of interstate differenoes of like nature, that suoh mutual accQmmodation and agreement should, if possible, be the medium of settlement, instead of invocation of our adjudioator,y power.tt
Another paragraph of the opini on stated I
"The lower state is nat entitled to have the stream flow as it
would in nature regardless of need or use. 'If, then, the upper state
is devoting the water to a benefioial use, the question to be deoided,
in the light of existing conditions in both states, is whether, and
to what extent, her aotion injures the lower state and her citizens
by depriving them of a like, or an eoually valuable, beneficial use.tt
The opini on c oncl uded t hat Colorado f s uses of the waters of this stream
had not worked a serious detriment to the substantial interests of Kansas and
the Court enjoined further proseoution of present suits, instituted by Kansas
ditch interest s against individual ditch compaRies in Colorado.
A fixed legislative policy, dedicated to the primary protection of specified
uses of water in one seotion of a river basin as against uses in another seotion
is dangerous as evidenced by the following language of the Court.
"On this record there can be no doubt that a decree suoh as the
Master reoommends,
*
*
* would inflict serious damage on existing
agrioultural interests in Colorado. How great the injury would be
is difficult to determine, but certainly the proposed decree would
operate to deprive some citizens of Colorado, to some extent, of their
means of support. It might indeed result in the abandonment of
valuable improvements and aotual migration fran fams. Through
praotioe of irrigation, Colorado's agrioulture in the basin has grown steadily for fifty years, With this development has gone a large
in-vestment in canals, reservoirs, and farms. The progress has been open.
The facts were of common knowledge. tt
It should be understood that nothing in this statement is intended to
de-preciate in any sense the work of the Corps of Army Lngineers. But the authority
of the Army Engineers to study-, construct and operate projeots for the prevention
well as others, is fully sustained by existing law. The Corps t activities should
be coordinated with those of other federal agencies engaged in water development for irrigation and other purposes. Any legislation designed for such purpose should allow for the appropriate participation of the Bureau of Reclamation
within its well recognized functional authority. Coordination in the development of a river basin means the integration of facilities to accomplish the most
beneficial and economio use of water for all purposes. To accomplish this ob-jective, there must be a united and cooperative effort of all interested federal agencies, with a minimum of duplication of work and expenditure of public funds. Such integrated development and the coordinated activities of federal agencies is not attained in a desirable fashion by placing ultimate authority and control in one agency and by the specific designation of certain water uses as paramount to all others.
In the interest of proteoting the greatest economic good for all of the people dependent upon the vvater resource of e. river basin, all uses and benefits of water development therein must be weighed, studied and correlated. There is no necessity and it would be adverse to the future welfare of great areas of the country to set up a firm and fixed legislative rule applicable to an entire river basin with diverse climatic and economic conditions, which subjects and subordinates water use necessary for the advancement of one area to the domina~
utilization for the bene fit of another area. Especially is this true when the proposed legislative mandate fastens upon the entire basin an ul tima.te oontrol under federal jurisdiotion in disregard of, and without appropriate coordination with, applicable state water laws.
