3, 1944

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ANNUAL PRECIPITATION 2 TO 30 INCHES iii»

ANNUAL PRECIPITATION 30 TO 80 INCHES

U. S. Weather Bureau

•

DEDICATED TO THE TASK OF PROVIDING ADEQUATE WATER FOR A PROFITABLE AND DIVERSIFIED IRRIGATION AGRICULTURE IN-WESTERN AMERICA-AN-EXPAN.

SION OF WAR FOOD PRODUCTION THROUGH MORE IRRIGATION-THE CREATION OF NEW FARM OPPORTUNITIES AND THE STABILIZATION OF DROUGHT AREAS.

VOL. VIII, NO. 11 1119 NATIONAL PRESS BUILDING. WASHINGTON 4. D.

c.

^Ma.y

^{3, 1944}

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SPECIAL TO:

Western Congressmen, Senators, Governors

And all members of the National Reclamation Associntion

An Analysis of the Startling Flood Control Bill Gentlemen:

In response to many requests for an analysis of the so-called Flood Control Bill now before the House, and due .for House action about May 10, the National Reclamation Association asked Clifford H. stone, Director of the Colorado Hater Conservation Board and one of the Wests' keenest students of we3tern wat6r development, to prepare such an analysis. We submit it herewith.

A careful stud~r of Judge Stone's digest of the Bill will reveal that H. R. 1.J+85 is much more than a Flood Control Bill. It appears to be an intrusive effort on the part of a single Federal Agency to establish Regional or Easin authorities throughout the HA.tion, and particularly in the West.

We reoorr~end that you read the analysis carefully, and act promptly.

Respectll1lly suomi tted, F'. O. Hagie

Seoretary-I1anager

H. R. 4485

A BILL AUTHORIZIlJG 7HE CONSTRUCTION OF CERTAIE PUBI .. IC WORKS ON RIVERS AND HARBORS FOR FLOOD CONTROL AND FO!t OTHER PURPOSES

(This Bill was comnitted to the Committee of the whole House on !1arch 29,

1944,

and probably will be considered for passage within the next three weeks. Report No.

1309

of the Committee on Flood Control, was dated March 29,

1944.)

This a.nalysis of H. R. 4485 is confined to those provisions of the Bill affect- ing the rivers having their sources in the arid and semi-arid regions west of the 97th Meridian.

OFFICERS _ 0. S. WARDEN. PRESIDENT ORA BUNDY. FIRST VICE PRESIDENT

HUGO B. FARMER. YUMA. ARIZONA

DIRECTORS H. D. STRUNK. Me COOK. NEBRASKA A. M SMITH. CARSON CITY. NEVADA ROBERT W. SAWYER. SECOND VICE-PRESIDENT

J. A FORD. TREASURER

J. R. FAUVER. EXETER. CALIFORNIA CLIFFORD H. STONE. DENVER. COLORADO N. V. SHARP. FILER. IDAHO

E. W. BOWEN. TUCUMCARI. NEW MEXICO HARRY E. POLK. WILLISTON. NORTH DAKOTA FRANK RAAB. CANTON. OKLAHOMA

ROBERT·W. SAWYER. BEND. OREGON MILLARD G. SCOTT. PIERRE. SOUTH DAKOTA MILTON E. DANIEL. BRECKENRIDGE. TEXAS ORA BUNDY. OGOEN. UTAH

F. O. HAGlE. SECRETARY·MANAGER E. ~ORTER AHRENS. SCANDIA. KANSAS Q. S: WARDEN. GREAT FALLS. MONTAN~

J. A. FORD. SPOKANE. WASHINGTON W. F. WILKERSON. CASPER. WYOMING

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~

Bulletin Vol. VIII~ No. 11 _{- 2 -}

The Bill oontains four significant innovations in Federal policies and prac- tices respecting flood oontrol and water oonserva.tion.

1. It authorizes a oomprehensive scheme of improvements in the Missouri River, under the direction of the Secretary of War and supervision of the Chief of Engin- ^>

eers~ not only for flood control and navigation, but for irrigation. power development, and other purposes.

2. It authorizes the S6cret~ry of War to construot, mainta.in and operate conservation facil! ties ,at dums under the oontrol of the War Depa.rtment. Section 3 granting this author i ty seems to be broad enough to permit the Corps 'of Engineers to construct, maintain and operate the nooessary canals and other facilities to utilize stored water for irrigation ^purpos~s.

3.

It authorizes the Secretary of War to sell to states, municipalities, private oonoerns, or individuals, at such prioes and on such terms as he may deem

reaso~able for domestic and industrial uses~ surplus water that may be available at any r3servoir under the oontrol of the War Departmentj and providos that all monies recei7ed from such sales shall be deposited in the Treasury of the l~ited States as miscellaneous receipts.

4.

It provides that hereai~er, whenever in the op~n~on of the Seoretary of Har any dam and reservoir proj ect operated under hi s direction can b e cons istently' used, fo:;," reclamat ion of urid lands , it shall be the duty of the Secretary of the Int6~'j 01'

to presoribe regulations for the use of the storage available for suoh purposes and the operation of any suoh proj ect sha.ll be in acoordanQe with such regulations ^~ ^T.~e same provision specifies such oharges for the use of stored water ^I as the Secretary of the Interior may -deem reasonablet the reoeipts therefrom to be doposited into the :rreasury of the United States to the credit of mis~ellaneous receipts.

These four paragraphs are taken up in order and discussed as follows:

Missouri River Comprehensive Plan of Development

The significance of the present authorization for the I"Iissouri Bas in is dis-

(

l

closed by a study' of House Document Uo. 475, referred to in the Bill as setting forth a oomprehensive plan. This plan includes project developments for irrigation, as well as for flood contr~l and navigation, undar the direction of the Corps of Engineers. (See House Document 475, 78th Congress, 2nd Session, Report of Board of Engineers Par.

9,

Page

17).

The authorization wouid subordinate the plan for irri- ga.tion developr:tent to flood control and navigation even though the dominant interest of the Upper Basin States in a basin-wide plan of development ,is irrigation and bene- fioial consumptive use of water_

The Secretary of War, in transmitting House Dooument No. 475. whioh is the basis of this Missouri Basin plan (otherwise known as the Pick Plan). stated that the

Bureau of the Budget had advised that the authorization of the iIilprovements recommended by th~ Chief of Engineers would not be in accord with the program of the· President, at least at present; and further that the relationship of the improvements described in the report to the program of the President would be given further study by the Bureau of the Budget.

Under date of February 16,

1944,

tho Bureau of the Budget advised the S0cretary of War that the flood control projects plan for the Missouri River by the Chief of Engineers is not complete without supplemental aotion by other departments of the

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Bulletin Vol. VIII, No. 11 tilt 3 -

government; that a difference of op1n1on appears to exist between the Corps of En~

gineers and the Bureau of Reclamation over tho use and control of the wuters of the 1'1issouri River and its tributaries west of or entering above Sioux City,' IoWai that the exact nature of these differences cannot be Rscertained until the report of the Bure~u of Reclamation for the area is completed and submitted to the Bureau of the Budget; and that the Bureau of Reclamation has completed, after a five year study, Which will shortly beoome available, a report on the Missouri River Basin directed primarily toward tho d~velopmant of irrigo.tion,· hydro-electric powor pro- duotion and other beneficial uses of ~uter.

On December 17, 1943, Commissioner H. W. Bashore, of the Bureau of Reclama.tion,.

advised the Chief of Engineers as follows:

"Primarily" the Bureau of Reclamation desires to emphasize that the plan for the Missouri Basin initially presented to the Congress should be truly comprehensive, adequately providing not only for the control of floods and the improvement of navigation .• but also for the future development of irrigation, hydro-electric power production,· and any other beno-

ficial uses of water*

* *

"The report of the Board of Hi vers and Harbors " in accor dance wi til the general Congressional authorization to the Corps of Engineers, is directed primarily toward flood control ^a..~dnavigation improvements ^~ A report on the 11is80 uri River Basin, based on over' five years of in- tensive invostigations,' is currently being prepared by the Bureau of Reclamation for completion this Spring.

* .

I believe that you will agree that a truly comprehensive plan can be developed through the integration of these two approaches.^tt

Commissioner Bashore recommended the recognition of certain principles in the author ization Bill which would naintllin the present policies of the reclamation development, and ~ichwould assure a proper integration of the uses of the waters of the 1'1issouri River for all purposes. These pr inciples reco:rnmertded by Commissioner Bashore were not incorporated in the Bill as reported by tho Housa Committee.

It is recognized in the various statements cC:ltained' in House Document

475

that water in the !-1issouri Basin is limited, end proposed improven.ents must be carefully evaluated in advance in terms of land as well as water to 2roducG the greatest com-' bined social and econom.ic benefits to the reGion .• · However, the House Commfttee on Flood Control has favorably' reported out 11.

R. 4485

that would delegate to the Corps of Engineers the primary function of designine the pattern for the Missouri Basin development, including irrigation as well as flood control and navigation.' In this

respect the Comllli ttee sta'tes:: .

ttAfter careful consideration of tho testimony presented at that hear- ing, and with duo regard to the comments of the Bureau of the Budget on the report of' the Chief of Engineers, the Committee is of the opinion that the works recommended by. the Chief of Engineers will form n broad framework for·the comprehensive development for the entire Missouri River Basin

in the interest of flood control, irrigation,· power development, navigation, and other purposes,. and that the adjustment of the water usc to meet the changing needs of the Missouri River Basin as a whole, can and will be made if the comprehensive development pr'oceeds step by step toward 11ltimate accompl ishment •. ^tt

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Bulletin Vol. VIII, no.

11 - 4 -

The theory of the Committee seems to be that the responsibility for a c ompre- hensive plan for the Missouri Basin should be lodged in the War Department. Other agencies of the Government and the interested states dealing with water development must, from time to time, correlate their activities with those of the Corps of

Engineers, subject to the supervision of the Chief of Army Engineers, and within the

"broad framework" mentioned in the above quotation.

The significanoe of this policy, so far as reolamation interests in the West are conoerned, should be noted.

The flood control projeots contained in the "Piok Plan" constitute a part of the comprehensive soheme of development of the Missouri Basin. The navigation improvements contained in the Omnibus Rivers and Harbors Bill (H. R.

3961)

which has passed the House is an integral part of this comprehensive plan. Many of the projeots in the plan are designed for mUltiple purposes, including irrigation and the production of hydro-eleotric energy. As pointed out hereinafter, under Sec. 6 of H. R.

4485,

any dam or reservoir, operated under the direction of the Secretary of War, which can serve to reclaim arid lands, the water stored thereby may be sold for such purpose under regulations prescribed by the Secretary of Interior. Sec.

4

of the Bill provides that the Secretary of War is authorized to sell to states, municipalities, privdte concerns or individuals surplus water that may be available at any reservoir under the control of the War Department. Sec.

5

speoifies that the Secretary of War shall prescribe the regulation for the use of storage available for flood control or navigation at all reservoirs construoted wholly or in part with Federal funds by any agency of the Govermnent.

Thus the threat to the appropriation and use of water for domestio irrigation and industrial purposes under state laws is revealed. It is not disputed that the state control of waters is subordinate to the jursidictian of the United States under the Constitution in regard to commerce and the navigation of the waters of rivers.

United States v. Rio Grande Dam and Irrigation "Co.

174

U.s.

690.

United States v. Appalachian Power Co. (new River Decision)

311

U.s.

377.

Oklahoma v. Athinson. (Red River Decision)

313 u.s. 508.

The oonflict between uses of water from the Missouri River (irrigation a.nd navigation, both in connection with flood control) and the contrariety of interest~

and jurisdiotion seems to be thus resolved by this Bill by the siBple expediency of recognizing only Federal jurisdiction. The states of the arid West assert and claim the right to control the use of water for beneficial consumption purposes. As between states and groups of states~ the benefits of interstate waters have been held subject to equitable apportio~ment. Yet here, without any saving provisions in favor of reclamation projects the adjustment between uses of water, and the appor- tionnent between states and groups of states would Seem to be subjected by the Congress to the Federal oontrol.

The passage of H. R.

4485

as reported by the Co~ittee on Flood Control would mean that for the Missouri Basin these far reaohing results in water resource development would be accomplished without ,an adequate oonsideration of the views of the states direotly affected and without consideration of the studies and plans of the Bureau of Reclamation which is charged under the law with the Federal program of reclamation developmont in the arid West.

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Bulletin Vol. ViII,

no.

¹¹

_{- 5 -}

The report of the Flood Control COlrunittee states that in order to oonfirm I

clearly the intention of the Chief of Engineers and reassuro the residents o.f the Upper Missol.\l'i Basin, the Conunittee has inserted ,the following provisos to the .iten in the Bill modifying and expanding ~he approved'cohlprehensive plan of development in the 1'11ss ouri River Basin:

"Provided that nothing in this act shall be construed as creating below Sioux City any demand upon the wuter rosources of the Missouri Rivel' Basin above Sioux City in excess of that now authorized by existing law.^lt

This am~ndment does· not proteot the existing and potential uses of wnter for irrigation, ~nd does not clearly state the intention of the Chief of Engineers. It can constitute no reassurance whatsoever to re~idents in the Upper Missouri Basin.

First, when it is said that by the authorizod words no demand for water is made

"over that now authorized by existing law," the question is asked, "What law?tt

Under the th~ory of this authorization Bill, the dennnd for water for ·navigation and to carry out the plan of the Corps of Engineers would be exercised under the Cor:ll:lerce Clause. This me~lS then, that the paramount and controlling law would be the Federal Constitution. It follows that in any case where there is a conflict between the

Constitution~l power and the state laws the term existin£ law offers no protection to water rights for irrigation, domestic and industrial purposes under state laws.

Second, existing law does not speoifically define the quantitative dema~ds tha.t may be made \lpon water resouroes of the Missouri Basin for pres ant or future"havi- gntion projects in any co~prehensive plan.

Section

3.

(Secretary of War Authorized to Construct Conservation Facilities) Sectiotl 3 of H. R. 4l~85 provides ^I

"$eo.

3,

In order to fully utilize da~ and reservoir art:las under the control of the War Departncnt. the Chief of Engineers) und~i· the

superv~s ion of the Secretary of War, is authorizod to cons truct·). maintain a:p.d op~rate recreat.ion, cons ervution, nnd ·other facilities 't'here- at advantageolls .to the inte-rests of the United Stutes, or to permit the construotion, r:luintenanoe. and operation of suoh facilities.* '"

.n

Since this section re.f'ers to "dam and reseryoir areas" and to facilities at -'

such areas "~dvantageous to the interests of the United States", the meaning of the section is somewhat unoertain insofar as "conservation'"

* '"

^facilitiee^tt ^~re^conoern-

edt The report of the cornrn.ittee emphasizes the nooessity of authority to expend money to ma.ke recrea.tional facilitie's available. There can be no objection to that objective. ~owever, the language of this sectiori may be interpreted to include the construction and ope.re.tion of cane.ls and other fa.cIlities for the irrigation of land with water stored by th·o conservation capacities of flood oontrol reservoirs. The provisions of Sec.

6

for sale of water lends weight to such interpretations. Tho inclusion of conservation capacities for irrigation in such flood control reservoirs is often posaible and desirable. It is a phase of mUltiple-use development. But, if the Army Engineers are now to be given authority to construct conservation faei- lities in connection with flood control dams for. the irrigation of lands in the seventeen reolamation states, then some procedure must be included to protect .. the rights and interests of states in the control ·of this water under state laws.

Section 8 and other provisions of the 1902 Reolamation Act provides such procedure and affords protection to the states where projeots are constructad, maintained and operated by the Bureau of Roclnmation.

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Bulletin Vol. VIII, No. 11 - 6 -

Section

4.

(Seoretary of War· Authorized to Sell Water.)

The second significant innovation in this Bill mentioned in the fore part of this analysis is conta.ined in Section

4,

Page

3.

of H. R.

4485.

It provides that the Secretary of War is authorized to sell to states, municipalities, private concerns, or individuals, surplus wa.ter which may be avr.:.ilable at any reservoir under the control of the War Department.

This provision would be applicable to areas west of the 97th maridian where water heretofore has been appropriated and distributed for domestic and industrial purposes under the provisions of state law. In the seventeen reclamation states when water is conserved through storage in a reservoir, it is subject to control under the state laws. Here, however, we find a. new and startling Foderal policy. Tho Corps of' Engineers, having been authorized under the Commerce Clause to work out a plan of comp~ehensive development and to ;construct and operate projects in accord- ance with such plan, is apparently considered to have conserved water which thereby becomes the property and subject to the control of the United stutes. This water then under the provision of H. R.

4485

may be nade available to states in the West or to legal subdivisions of those states, if suoh states and legal subdivisions are willing to pay the United States n rental priee for it. The western states which heretofore have controlled the appropriation and distribution of water resources for donestic, irrigation, and industrial purposes on the theory that such resour~es

belong to the publio subject to ooctrcl under state laws, must under this Bill re- cognize in suoh waters the property of. the United States and pay for it if it is used by suoh states or their citizens.

This is a radio 0.1 departure from the Reclaranti on Law of 1902 as runended. Unaer this law, the Seoretary of Interior was directed to aoquire water for reclamation projects in the 'It/est which wa.s used for domestio, irrigation and im ustrial purpos es ^I in conformity with the provisions of state law. The Federal gover~~ent finanoed such projects under a provis ion for repayment of the investment by the government.

This control under state laws has been upheld repeatedly by the Supreme Court and the Congress of the Uni ted.~tates. The Congress is now asked to reverse this policy so far as flood control projects constructed by the Har Department are concerned. and to initiate an entirely new one whereby the goverrunent will sell to the states the benefits of their water resources.

Section

6.

Regulations for the Use of storage Available for Recla- mation of Arid Lands.

Section

6,

Page

3,

of H. R.

W+85,

provides that whenever, in the op~n~on of the Seoretary of War a~d the Chief of Ehgineors, any dam 8~d reservoir operated under the direction of the Seoretary of War can be oonsistently us~d for reclamation of arid lands, it shall be the duty ·of the Secretary of the Interior to prescribe regulations for the use of the storage available for such purpose and the operation of any such project shall be in accordanoe with suoh regulations. This provision,·further sets out that suoh rates as the Seoretary of the Interior nay deem reasonable shall be charged for the use of such stored water used for the irrigation of arid lands •.

This, indeed, is an amazing innovation and change in Federn.l policy. Since this provision refers to the reclamation of arid lands, its application is oonfined to river bas ins having their sour ces west of the 97th .meridian. It is in tha t area where reclamation is essential to present and potential f\gricultural development.

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Bulletin Vol. VIII, No. 11

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As point.ed out above, Congress established the polioy in 1902, and has never changed it, under whioh water for Federal reolamation projeots is appropriated and distributed in conformity with state laws.

The basis of the obJection, so far as the Western states are conoerned, to Section

3, 4

and

6

of H. R.

4485

is that seemingly the Federal gJVernment under this Bill would be asserting rights to and ownership in water in the seventeen reolamaticn states for various oonservation purposes without having established those rights under state law. To the extent that the Corps of Engineers are engaged in conservation development in connection with flood oontrol in the arid West, it should be required to comply with the state prooedure suoh as is prescribed under Seo. 8 of the Reolamation Law of 1902. This objection goes to the claim of oNnership in water whioh seemingly underlies the sale and revenue provisions of Sections

4

and 6 noted above. The beneficiaries of the conservation.benefits should be required to repay the construction, operation and maintenanoe oosts for that part of the works devoted to conservation, and not be subjected to a provision speoifying payment for the right to use water.

Moreover ^I it would servo the interest,s of the Western states if ^I when there are dominant oonservation benefits in flood control projects, provisions were made for their administration by the Bureau of Reclamation under established reclamation laws.

It would seem that this administrative prooedure under the reolamation la ws oan be acccllJ.plished evan in those projects where the con.servution benefits a.re of less con- sequence than are the flood control or navigntion benefits fmd projeot administration remains with the Corps of Engineers. Should there be oases where administration of these benefits by the Bureau of Reclamation would not be practicable, cer-

tainly the Bill should provide for t~e applioation by the Corps of Engineers

9£

the

establish~d and tested principles of the reclamation law.

It should be understood that flood control is an essential part of river basin development in the West. Multiple-use projects whioh include irrigation and flood control., a.nd in many ca.ses other fea.tures ~ often provide the most desirable develop-

men~. storage of water in the upper basins of rivers arising west of the 97th meridian offers opportunities for controlling floods while at the same time provid-

ing conservation benefits. Flood control is priru\rily under the central of the Corps of Engineers, but there is no reason why that agency C!U1not coordinate its activities with the Bureau of Reclamation.

3, 1944

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3, 1944

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1944,

1309

1944.)

~

3.

4.

9,

17).

1944,

* *

* *. *

475

R. 4485

11 - 4 -

3961)

4485,

4

5

174

690.

311

377.

313 u.s. 508.

4485

no.

- 5 -

3.

3,

.n

* '"

6

4.

4,

3.

4485.

4485

6.

6,

3,

W+85,

- 7

3, 4

6

4485

4

9£

^{3, 1944}

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_{- 5 -}