OCR Text |
Show 584 INTERSTATE ADJUDICATIONS Today's result, I venture to say, would have dumbfounded those re- sponsible for the legislation the Court construes, for nothing could have been farther from their minds or more inconsistent with their deeply felt convictions. The Court professes to find this extraordinary delegation of power principally in § 5 of the Project Act, the provision authorizing the Secretary to enter into contracts for the storage and delivery of water. But § 5, as is more fully shown below, pp. 615-621, infra, had no design resembling that which the Court now extracts from it. Rather, it was intended principally as a revenue measure, and the clause requiring a contract as a condition of delivery was inserted at the insistence not of the Lower but of the Upper Basin States in an effort to insure that nothing would disturb that basin's rights under the Colorado River Compact. There was no thought that § 5 would give authority to apportion water among the Lower Basin States. Indeed, during the hearings on the third Swing-Johnson bill when § 5 took its present form, one of its principal proponents, Delph Carpenter of Colorado, specifically stated that the proposed condition of a contract was intended to require "that the persons who receive the water shall respect and do so under the compact. It has nothing to do toith the interstate relations between Arizona and California.'1''x (Emphasis added.) And Representative Swing, coauthor of the bill, made virtu- ally the same point in explaining the provision before the House Rules Committee: "The act says [in § 5] 'The Secretary of the Interior is hereby authorized, under such general regulations as he may prescribe, to contract for the storage of water.' Whose water? It does not say. It might be a community like Imperial Valley that has already acquired a water right ... or it may be someone who hereafter will acquire a water right, but that right will not be acquired under this bill; not from the United States Government. He will acquire his water right, if he acquires one, from the State and under the laws of the State, in which he puts the water to a beneficial use. There is nothing in this bill which puts the Gov- ernment in conflict with the water laws of Arizona or Utah or any other State. As a matter of fact, the reclamation law is adopted by section 13 of this bill [now § 14], and section 8 of the reclama- tion act says that what the Government does must not be in con- flict with the water laws of the States, so there can be no violence done State laws on this score."2 (Emphasis added.) The Court concedes, as indeed it must in the face of such unequivocal evidence, that this third Swing-Johnson bill, like its predecessors, established "no method whatever of apportioning the water among the States of the Lower Basin." Ante, p. 560. This concession, one would think, would end this aspect of the controversy, since § 5 as ultimately adopted is virtually the same as that proposed in the third bill.3 Yet a method of federal apportionment is discovered in the fourth Swing- Johnson bill as finally enacted, a method which ends by delegating to 1 Hearings before House Committee on Irrigation and Keclamation on H.R. 6251 and H.R. 9826, 69th Cong., 1st Sess. 163. 2 Hearings before House Committee on Rules on H.R. 9826, 69th Cong., 2d Sess. 116. The bill then under consideration, as recommended by the House Committee on Irriga- tion and Reclamation, appears in H.R. Rep. No. 1657. 69th Cong., 2d Sess. 29-34. 3 The only change that need be noted for present purposes is the addition of a clause requiring contracts to conform to § 4(a), discussed below, as well as to the Compact. |