[Congressional Record Volume 149, Number 95 (Wednesday, June 25, 2003)]
[Senate]
[Pages S8574-S8575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         SUBMITTED RESOLUTIONS

                                 ______
                                 

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

[[Page S8575]]

       (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.
                                  ____

  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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