The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“SUBMITTED RESOLUTIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S8574-S8575 on June 25, 2003.
The publication is reproduced in full below:
SUBMITTED RESOLUTIONS
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SENATE RESOLUTION 183--COMMEMORATING 50 YEARS OF ADJUDICATION UNDER THE
McCARRAN AMENDMENT OF RIGHTS TO THE USE OF WATER
Mr. ENSIGN (for Mr. Campbell (for himself, Mr. Ensign, Mr. Kyl, Mr. Burns, Mr. Allard, Mr. Crapo, and Mr. Craig)) submitted the following resolution; which was referred to the Committee on Energy and Natural Resources:
S. Res. 183
Whereas section 208 of the Department of Justice Appropriation Act, 1953 (commonly known as the McCarran Amendment) (43 U.S.C. 666) waived the sovereign immunity of the United States so that it could be joined in comprehensive State general adjudications of the rights to use water;
Whereas in United States v. District Court for Eagle County, 401 U.S. 520, 524 (1971), the Supreme Court confirmed that the McCarran Amendment was ``an all-inclusive statute concerning `the adjudication of rights to the use of water of a river system' which . . . has no exceptions and . . . includes appropriative rights, riparian rights, and reserved rights'';
Whereas in Colorado River Water Conservation District v. United States, 424 U.S. 800, 819 (1976), the Supreme Court concluded that the concern over ``avoiding the generation of additional litigation through permitting inconsistent dispositions of property . . . Is heightened with respect to water rights, the relationships among which are highly interdependent'' and that the ``consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means of achieving these goals'';
Whereas since the passage of the McCarran Amendment, Federal and non-Federal users, along with numerous Western States, have invested millions of dollars in water right adjudications in those States to establish rights to the use of water that will determine priority of use during times of scarcity;
Whereas State water laws in the West have evolved to accommodate instream values such as recreation and environmental needs, while continuing to recognize and protect traditional consumptive uses for the West's cities and farms;
Whereas Federal claims for water have been recognized under both Federal and State laws within State general adjudications, thus enhancing the protection of Federal interests, as well as the certainty and reliability of non-Federal interests, in water in the West;
Whereas the significance of the McCarran Amendment, in providing States with the ability to determine the extent of federal claims to water resources, has become increasingly apparent as many of the Western States are experiencing a severe and sustained drought, where water supplies for all purposes are severely restricted; and
Whereas now more than ever there is a pressing need to recognize and support the availability of comprehensive systems for quantification of rights to use water in those Western States for all beneficial purposes: Now, therefore, be it
Resolved, that the Senate--
(1) reaffirms the policies and principles of the McCarran Amendment that have been recognized by Supreme Court decisions and recognizes that, as a matter of practice, the United States should adhere and defer to State water law; and
(2) commends Western States that maintain comprehensive systems for the quantification of rights to use water for all beneficial purposes, including environmental protection and enhancement.
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Mr. CAMPBELL. Mr. President, I rise to submit a Resolution commemorating 50 years of adjudicating water rights under the McCarran Amendment and commending Western States' management of water.
Rather than simply go into the Resolution itself, I would like to put the Amendment in its proper historical context.
Unlike the Eastern United States, the history of the West, its settlement, and even its founding, is closely linked to the Federal Government. We should remember that Lewis and Clark and so many other courageous explorers who mapped the Western territories were funded by the United States government. We should also be mindful that much of what we know as the West was purchased or otherwise acquired by the United States Government including the Louisiana Purchase of 1803 and the 1848 Treaty of Guadalupe Hidalgo.
However, just because the Federal Government might have acquired the Western territories didn't mean that people wanted to move there. The West was a rough place, harsh land and harsher winters were enough to keep most folks back East. Again, the United States took action to promote Westward expansion by implementing laws like the Homestead Act to encourage people to relocate.
Eventually, the dream of discovering gold and mining precious metals was the catalyst that got people moving West, and eventual completion of the trans-continental railroad provided the means. Each Western territory developed into a distinct State, based on the makeup of its constituents, diverse as the Mormons of Utah to the Spanish and Mexican-Americans of New Mexico and to the Great Plains Indians and other Tribes.
No matter the reason why people moved West, they all needed water as precious and scarce a resource then as it is today. New industries and cities to sprout up that needed water to survive and a way to manage it.
Water law out West is as distinct from the East as are the histories of the two great regions of our Nation. In the West, water is a rare commodity, and is therefore regarded as a property right under the law sold apart from the land.
Since water was such a scarce resource, each State managed water based on its particular resources, geography, population, and municipal and industrial needs. Yet, Western States all recognized and favored water adjudication systems according to the doctrines of prior appropriation and beneficial use.
State management of water worked rather smoothly for decades. Then after World War II, during the new Deal's expansive programs, the Federal government sought to realign and trump the established States' interest in water to some degree. On one hand, the Federal Government believed it to be acting in its own interest since Uncle Sam owned much of the West. The United States still owns thirty-seven percent of my State of Colorado.
The United States rode roughshod over State interests, often completely ignoring private property rights and resisting cooperative agreements to manage water. The States fought Federal arm twisting as best as they could, but couldn't do much against the U.S. as sovereign. The Federal bullying got so bad that in 1951, a Readers Digest article criticized the U.S.'s strong arm tactics in the famous Santa Margarita water conflict stating that, ``the lack of moral sensitivity in our Government has put into jeopardy thousands of our small landowners; their property, homes, savings and their future.''
Thankfully, Senator Patrick McCarran of Nevada along with other likeminded Senators, successfully defended States' interests and got a very simply provision passed into law. In short, the law that we are celebrating today waives the United States' sovereign immunity so that it could be joined in general state adjudications of rights to use water.
Although a simple concept, the McCarran Amendment effectively leveled the playing field, requiring Uncle Sam to work within the State system he implicitly helped to establish.
The breadth of the McCarran Amendment has been defined by U.S. Supreme Court cases. The Court concluded that although the amendment itself might be short in length, its effect war far reaching. The High Court stated that McCarran was ``an all inclusive statute concerning the adjudication of `the rights to the use of water of a river system'
'' which ``has no exceptions'' and ``includes appropriat[ive] rights, riparian rights, and reserved rights.''
It is undeniable that the history of the West is linked to the Federal Government. Since the Federal Government maintains vast landholdings, the future of the West will also be linked to Uncle Sam. Similarly, the management of property and natural resources, of which water is both, has been and shall remain a State function.
The purpose of the McCarran Amendment was to prevent federal bullying of private and state interests in managing water, and to recognize water as a State resource. McCarran encourages the Federal Government to work together with the States.
I am submitting this resolution today at a time when much of the West is still under or will likely experience severe drought conditions. The Federal Government must remember the history of the McCarran amendment and look to the States in adjudicating water.
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