WSP00671

• File Number: 8210.140.20 A
• Description: Colorado River Basin Organizations - States Forum ‎(CRBSF)‎ - Colorado River Board Of California
• State: CA
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 2/2/1954
• Author: Irrigation Dists Ass
• Title: Which Way California
• Water Supply Pro - Doc Type: Publication

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pa_ .... .e extent to which the risk of oversimpli. "tion
IS mult.ploed in the later two-page memorandum must be
evident. (See page 13)

I wish it to be understood that in preparing both of
these memor.anda there was no intent on my part to de-
part f~om any essential position heretofore taken before
the trlal court in these contract validation cases. In the
preparation of these memoranda for the information of
t~~ Authority I attempted to summarize the essential po-
.~hon I propose to takea Naturally, these are generaliza-
hons only, end what I would actually state in the brief to
be filed in the Ivanhoe case would necessarily depend, to
a substantial extent, upon what I might have to answer in
briefs filed by the appellants. However, I do believe that
the Authority, in passing on the important issue now before
!t. is entitled to a more complete explanation than appears
In the two memoranda of the basic considerations why I
consider the public interest requires a disclosure to the
Supreme Court of relevant considerations which might not
otherwise be available to the court. J therefore now pro-
pose to outline as briefly as practicable those consider-
ations.

In the first instance, I wish to emphasize that my concern
throughout is, and has been, with the objective to pro-
tect and preserve against impairment the integrity
of State law relating to the deyelopment, control
and use of the water resources of the State. I con-
sider that the fundamental basis justifying that ob-
'ectiye is Section 102 of the Water Code, proyid-
ing that" All water within the State Is the property
of the people of the State, but the right to the use
of water may be acquired by appropriation In the
manner proyided by law." I belieye that this se..
tion is to be taken literally and simply means what
it says.

Beginning in approximately 1934, with the prospect of
development of the Central Valley Project pursuant to the
Federal reclamation laws, I have made a specialty of that
body of law. Since enactment of the Reclamation Project
Act of 1939, I have given detailed attention to interpre-
tation of that act which in a nu~ber of respects presents
problems of difficulty in interpretation. I was particularly
apprehensive of certain adverse implications in Section
9(e) and have given that section close study since that
time, and particularly so subsequent to inauguration of the
"contract program" of the U. S. Bureau of Reclamation
which was first initiated in 1944. Concisely stated that
program was to execute water delivery contracts pursuant
to Section 9(e) of the Reclamation Project Act of 1939,
limited to a 40-year term, without right of renewal, at
. annual rates per acre-foot, in substitution for repayment

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con;". ...ts within the service
Project.

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area of the Central ,.ey

That study was given impetus by a request of the Water
Project Authority that the Division legal staff review the
subject of the application of the Federal reclamation laws
to the Central Valley Project and recommend such Con-
gressionallegislation as might be considered required. The
review was made, which culminated in a broad program for
revision of the Reclamation Project Act of 1939. This pro-
gram was presented to the Authority in the form of a
mimeographed pamphlet entitled "Suggested Princ'rles to
Govern Amendments to Reclamation Project Act 0 1939,
and Ten of Amendments in Accordance with Such Prin-
ciples," and was dated November, 1948. The Authority
acted on that program on November 30, 1948, byapprov-
ing the Explanatory Foreword and the Suggested Principles
to Govern the Amendments. Items 4 and 5 of the Explan-
atory Foreword read as follows:

"(4) To terminate experimental programs of
questionable validity and of doubtful expediency.
In connection herewith, it is not believed that the
Congress ever contemplated the United States em-
barking upon a program of delivering water on a
utility basis. Another prime objective of the pro-
gram is to prevent any further extensions of such
experiments.

"(5) To preserve the integrity of the law of waters
of the western reclamation states. In the past, a
sensitive balance has been more or less precariously
maintained between state and national policies re-
lating to the use. control and distribution of western
water resources. Of recent years applications and
interpretations of Federal law in this field have
tended to upset this balance. A major objective of
the program is to restore that balance in particular
by requiring return to traditional conceptions of
repayment contracts whereby continuing rights to
the use of water may be acquired pursuant to State
law."

Item 4 obviously relates to Section 9(e) contracts, and
Item 5 is concerned with the adverse implications of such
contracts. The hazard to the "sensitive balance" referred
to in Item 5 between Federal and State policies relating
to the use and control of western water resources is as
acute now as it was in 1948.

Various aspects of the Federal reclamation laws have
been reviewed by the Supreme Court of the United States.

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