STATEMENT OF ATTORNEY GENERAL ROBERT PICKRELL OF ARIZONA, FOR THE NATIONAL ASSOCIATION OF ATTORNEYS GENERAL

Mr. PICKRELL. I have with me Mr. Mitchell Wendell of the staff of the Council of State Governments, and I have a report which I will just read.

Mr. ROGERS. Thank you, Mr. Attorney General.

Mr. PICKRELL. The National Association of Attorneys General appreciates the opportunity to present this to you.

Mr. ROGERS. It is nice to have you before the subcommittee.

Mr. PICKRELL. At the 1963 annual meeting, the National Association of Attorneys General went on record in support of legislation such as that now before you. A copy of the association's resolution is appended to this statement, and I request that it be placed in the record as part of my testimony. You will note that the resolution authorizes the Federal-State Relations Committee of the Association to make representations on behalf of the legislation. Attorney General Duke Dunbar, of Colorado, is the chairman of that committee. He had planned to be here in person at the time of this hearing. However, the particular date proved to be impossible for him, especially since he was in Washington on another matter less than 2 weeks ago. Consequently, I appear here in his place to make known to you the great interest of the National Association of Attorneys General in the water resources planning bill.

S. 1111 and H.R. 3620 are foresighted bills. They declare in effective fashion that both the Federal and State Governments have major responsibilities for, and powers with respect to, water resources development, administration, and use. They implement this proposition by providing a framework within which the level of government can join for truly comprehensive and systematic planning for a vital segment of the natural resource field. By pointing up the confusion which has characterized the administration structure for planning and development of water and related land resource programs, every major water policy report for the past 20 years has testified to the need for better machinery for the planning of governmental activity with respect to these resources. The need is both for a coordinating mechanism at the Federal level and for better dovetailing as between the Federal Government and the States. The legislation now before you deals with both aspects of the problem.

Of course, it is possible to wonder whether any set of mechanisms, statutory or otherwise, can bring the requisite degree of comprehensiveness and coordination to the planning of water and related resource development. The economic, social, and political pressures which have produced the present situation will continue to operate and, if given free rein, could frustrate any statutory direction mandating more orderly procedures. But this is merely to say that any large undertaking can succeed only if it is conducted by capable, well intentioned, properly motivated people. But given whatever kind of people we may have at any particular time, the results they achieve will be influenced for better or for worse, by the statutory tools placed in their hands. The legislation which forms the subject of this hear

ing provides a more promising set of tools than any which Congress has ever considered.

The first advantage of the bills before you is that they authorize establishment of river basin commissions which would include truly responsible representatives of the Federal Government and each State with an interest in the basin or area for which the planning would be done. This responsibility is made more than nominal by the manner of appointing the members of a commission; by the concept of joint Federal-State financing; by equal identification of the Federal and State Governments with the results of commission work; and by the dependence of each commission for its creation and continuance on the will of the Federal Government and the participating States. With respect to any given area, the most hopeful means of promoting contribution to and acceptance of comprehensive plans is to gear in the mechanism thoroughly with all of the governmental units which have significant responsibilities for water resource policy. The second basic virtue of the legislation is its specific recognition that no single planning mechanism is necessarily best for all circumstances and for every set of potential parties. While providing a kind of basin commission that is likely to suit most regions and most problems, it expressly recognizes and safeguards other arrangements such as interstate and Federal-State compacts, interagency committees, study commissions of the Southeast and Texas variety, and any other devices which the parties concerned may find preferable. The establishment and maintenance of a soundly conceived intergovernmental planning apparatus would be made easy by its authorization in Federal statute of general application. The Federal Government and a group of States would not have to start afresh to negotiate the structure of a comprehensive water resources planning effort every time it was desired to institute such planning for a particular basin or region. On the other hand, they would not be foreclosed from starting afresh, if they thought they could devise a more satisfactory arrangement for their special circumstances.

A third merit of the legislation is that it builds on existing agencies in establishing such additional administrative apparatus as will be necessary to implement the new statute at the Federal level. The proposed Water Resources Council is in effect an interdepartmental arrangement of the Federal agencies now administering major water programs. Yet it would have enough status as a separate legal and administrative entity to carry out the two specific functions assigned to it: (1) Facilitating Federal participation in the contemplated comprehensive, coordinated planning undertakings, and (2) administering the interdepartmental grant-in-aid program authorized by title

III.

In making these brief remarks on the Water Resources Council, we wish to make it clear that we believe such an administrative unit fits well with the overall scheme of the legislation. On the other hand, we also wish to note that, except to the extent that consequences for the States might flow from different organizational patterns, the precise composition of such a Council is a matter of internal administration for Congress and the executive branch of the Federal Government to decide.

The National Association of Attorneys General has followed the development of the current water resources planning legislation with great interest. We are aware that your committee recognized the importance of the subject at least several Congresses ago, and that bills introduced by Chairman Wayne N. Aspinall took vital first steps in the direction that the legislation before you would now travel. You now have the opportunity to see a tangible result of these long labors. Since legislation has already passed the Senate, timely action by this committee could bring a bill to the House floor in proper season for enactment. On the other hand, delay would run the risk of congressional adjournment before the work is done. In view of the years of work which portions of the Congress, interested persons and agencies in the executive branch, and the States have lavished on the legislation now before you, it would be a keen disappointment and a substantial waste if the process were required to be undertaken all over again in a new Congress.

Consequently, we hope that action will come soon.

Mr. ROGERS. Mr. Attorney General, without objection, the resolution by the National Association of Attorneys General, attached to your statement, will be included in your record as a part of your statement.

Mr. PICKRELL. Thank you, sir.

(The resolution follows:)

RESOLUTION I OF NATIONAL ASSOCIATION OF ATTORNEYS GENERAL ON WATER RESOURCES PLANNING

(57th annual meeting, Seattle, Wash., July 3, 1963)

Wheras the effective development, use, and conservation of water resources increasingly require comprehensive and coordinated planning; and

Whereas the States as well as the National Government have fundamental responsibilities in water policymaking and administration; and

Whereas a Federal Water Resources Planning Act embodying the sound principle of genuine and responsible representation of both State and Federal Governments on river basin commissions which would be primary water resources planning bodies has been cooperatively developed and introduced as S. 1111 in the current Congress; and

Whereas this legislation also provides for desirable recognition and protection of all forms of intergovernmental cooperation in water resources planning: Now, therefore, be it

Resolved, That the 57th Annual Meeting of the National Association of Attorneys General in Seattle, Wash., July 3, 1963, urges enactment of legislation embodying the principles of S. 1111 and implementing them; and be it further Resolved, That the Federal-State relations committee of the association is hereby authorized to make such representations as may be appropriate, before the Congress and otherwise, in support of water resources planning legislation of the type described in this resolution.

Mr. ROGERS. Mr. Edmondson, do you have any questions?

Mr. EDMONDSON. No, thank you, Mr. Chairman.

Mr. ROGERS. Mr. Saylor?

Mr. SAYLOR. Mr. Pickrell, from time to time in other hearings before this committee we have had representatives of the U.S. Attorney General's Office here.

Mr. PICKRELL. Pardon, me, sir, this is the National Association of Attorneys General. We have nothing to do with the U.S. Attorney General.

Mr. SAYLOR. I understand, sir, you have nothing to do with the U.S. Attorney General. I want to call your attention to the fact and your organization's attention to the fact that the U.S. Attorney General has appeared before this committee, not once, but on several occasions, and outlined specifically to this committee that the States do not own the waters within their boundaries and that the provisions of the present constitution of your States, the provisions of the present enabling acts that admitted all States following the original 13 to the Government, were in direct violation of the Constitution of the United States, and that the Federal Government owned all of the navigable streams, and that their rights are superior to any State rights, any appropriation rights, whether or not you use the appropriated water theory which you in the western part of the United States use, or whether you have the riparian owners' theory, which is used in the eastern part of the United States.

In view of that testimony, I want to know how you feel, or your organization feels, that you can sit down and discuss with an agency of the Federal Government and come to any conclusion that might be favorable to you or your State or a group of States in a basin, to the solution of a problem that might affect you when the Federal Government's position is that their attorney says they own all of the waters and you folks have no right to them.

Mr. PICKRELL. I don't know the basis of the U.S. attorney's allegations that the Federal Government owns all of the water. I do know that there have been some decisions out of our U.S. Supreme Court which would indicate not necessarily that the Federal Government owns the water, but that the Federal Government has the power to designate the use of the water.

There is a difference between claiming the ownership of the water and the method whereby it shall be used. The riparian rights doctrine of the East and part of the West and the prior appropriations doctrine of much of the West are only doctrines of use. These are not doctrines of Government ownership of the water. The public owns the water under the doctrine of prior appropriation. Then the doctrine goes on to state how the water shall be used.

I know there are some Federal cases that contend that the law shall prevail in this field of use. This is a problem that we will be working on for some time. I do know up to this time of history in Arizona that the Federal Government has recognized the State's rights to administer the use. We have never been interfered with.

However, the reason that I personally am for these two pieces of legislation, and the reason I think that the National Association of Attorneys General is for these two pieces of legislation, is the fact that this will set up a framework under which representatives of the various basins can sit down annd discuss their problems of the best and equitable use of this water within that particular basin.

In considering the feasibility of any particular plan of use, whether it be in the Eastern United States or the Western United States, naturally the legal problems involved will have to be worked out as an auxiliary matter. This is the main reason that the attorneys general are interested. Somebody might say, "Why do you attorneys general care about this, this is a legislative matter?" We are interested in this because of the framework it affords engineers and planners, and

because it also affords attorneys general and lawyers a framework in which to work out the various legal problems.

These questions as to whether or not the Federal Government or the Federal law is going to prevail as to the use of the water will be worked out. I still think that the States will prevail as to the use of the water within their boundaries. The Federal Government will have a certain amount of control of the use of waters flowing in interstate commerce. In fact, this is the reason the National Association of Attorneys General are even entering into this matter.

Mr. SAYLOR. Mr. Pickrell, in 1959, this committee under the jurisdiction of the gentleman from Texas, Mr. Rogers, conducted some hearings on a series of bills dealing with the Federal-State relations in the field of water rights. At that time Perry W. Morton, Assistant U.S. Attorney General, Lands Division, accompanied by Mr. David R. Warner, Chief of the Water Resources Section of the Department of Justice, came before this committee and laid down the Government's position.

This is the same position which the U.S. Attorney General has reported to the Senate Committee on Interior and Insular Affairs on S. 1275, a bill on which someone from your organization appeared to to testify in the Senate just within these past several days.

In the light of this inconsistency of your position and the position of the Federal Government, I think that it would well behoove you and your organization to look into this matter and do some research work and come up to see whether or not there is any mutual ground on which the States can sit down with the Federal Government under a proposition such as proposed in this bill and not be devoured.

You know we are still in the month of March, and the month of March, I will remind you, is when the lion lies down with the lamb. I am afraid the lion is inviting the States to lie down with them, and they might end up in the stomach of the lion. This has happened on more than one occasion.

I appreciate your statement and the statement of your organization. I think it is based upon a rather tenuous position of what you hope the Federal Government would do, rather than what the Federal Government has indicated in the past that it is going to do. After all, all of these departments that have been referred to who have charge of water research programs, when the matter comes to court, Mr. Morton and the people in the Justice Department are the ones that represent the Federal position and not the solicitors for any of these various depart

ments.

Just as when a matter affects the State of Arizona, each one of your agencies may have some attorneys, but it falls upon your shoulders the responsibility of representing the States. While you might disagree with some of them, it is going to be up to you to defend or prosecute any matters that affect your State.

Do you have any comment on that?

Mr. PICKRELL. Congressman Saylor, as I stated before, the brother attorneys of mine that you have said will represent the Federal position by their oath as attorneys have to represent that position. I have confidence that the courts of the United States, even the Federal courts, are not going clear to the position to say that the Federal Government owns all of the water in the United States and owns the exclusive right to regulate it. I think there will be some rights left to the States.