BY LEONARD LUNDGREN

Much has been said and written along theoretical lines about the dual control of water powers in the United States between the federal government and the sovereign states, one arising from the ownership of public lands and the other from state laws on the appropriation of water. Many writers have attempted to point out that such control is incompatible with the industrial development of the country, and actually hinders its growth. In actual practice, however, the federal government works in closest harmony with the state. The regulations of the Secretary of Agriculture, effective February 1, 1915, contain the following:

"Wherever the approval of a state administrative official, board or commission is a condition precedent to the right either to take and use water for power purposes or to engage in the business of the generation, transmission or distribution of power, certified evidence of such approval must be filed * before a final permit will be issued. Formal notification by such official, board or commission that the water right has been canceled or that the permission to engage in the power business withdrawn, will be deemed sufficient grounds for the revocation of the permit."

This or a similar requirement has been in force in the regulations of the Departments of the Interior and Agriculture for the last five years. During this period no person has secured a permit to construct a water power plant on public lands without first securing a water right from the state. Recently, in order to facilitate the approval of applications for water power both by the state and the federal government, the following cooperative agreement was entered into between the State Water Commission of California and the Secretary of Agriculture.

COOPERATIVE AGREEMENT-WATER POWER

"For the purpose of facilitating the approval of applications for water rights and for the occupancy and use of national forest lands within the State of California for the development of water power, and in order that uniform action may be taken with respect to such applications, the Secretary of the United States Department of Agriculture and the Water Commission of the State of California, subscribe to the following cooperative agreement:

"1. Whenever an application for either a preliminary or a final permit for a water power site is filed with the District Forester at San Francisco,

California, and the evidence of the appropriation of water consists of a notice posted in conformity with the provisions of Section 1415 of the Civil Code of California, immediate notice of such application for a permit, consisting of the name of the applicant, the name of the stream from which the water is to be diverted, the point of the proposed diversion, the date of the notice, and the name of the locator, shall be sent to the State Water Commission.

"2. Whenever such application for a permit is filed with the District Forester, and the evidence of the appropriation of water consists of an application made to the State Water Commission under the existing Water Power Act, it will be sufficient to inform the commission that such application for permit has been filed with the District Forester.

"3. Whenever an application is made to the State Water Commission for a permit to appropriate water, and the use of such water will in any manner necessitate the occupancy and use of any National Forest land, immediate notice of the filing of such application shall be given to the District Forester at San Francisco. Such notice shall give the name of the applicant, the stream from which the diversion is to be made, the point of the proposed diversion, the date of the notice, the name of the locator, and a description of the lands that may be within such National Forest.

"4. No application for a water right involving the use of National Forest lands will be approved by the State Water Commission prior to notification by the District Forester that a complete application for the use of the National Forest lands has been filed in conformity with the regulations of the Secretary of Agriculture.

"5. If the application filed with the District Forester, as provided in paragraph 4 hereof, is for a preliminary permit, the State Water Commission will defer final approval of any application for water right until notified by the District Forester that a complete final application has been filed in accordance with the regulations of the Secretary of Agriculture, or that a preliminary permit containing permission to construction work has been issued.

"The District Forester will confer with the State Water Commission before arranging the terms of any preliminary permit and will furnish the commission with copies of such permits immediately upon their issuance.

"6. If the evidence of the appropriation of water filed with an application for a final permit for a water power site consists of a notice posted in conformity with the provisions of Section 1415 of the Civil Code of California, such permit will not be issued until the State Water Commission either approves such appropriations or disclaims jurisdiction. If the applicant relies upon an appropriation under the existing law, no final permit will be issued until notice of the approval of the commission has been filed with the District Forester.

"7. No preliminary permit will allow construction upon National Forest land except in an emergency or to comply with the state law, and then only upon approval of the State Water Commission.

"8. If the time for beginning and completing construction under any final permit issued by the Secretary of Agriculture is different from that granted by the State Water Commission, such difference shall not be deemed to affect in any way the permittee's liability under the state law or the approval of the commission, or to free him from the cancellation of his permit if he loses his water right under the state law.

"9. If any permittee shall lose his water right because of failure to begin construction in accordance with the requirements of the state law and of the approval of the State Water Commission, such loss of right when certified to by the said commission shall be deemed sufficient cause for revocation of the permit.

"10. If either the District Forester or the State Water Commission shall fail to give notification of any action as contemplated herein, within sixty (60) days of the receipt of written report of applications pending, the officer or office so reporting may take action without waiting further for such notification.

"In witness whereof, this cooperative agreement has been executed at San Francisco, California, by the State Water Commission of California, on the twenty-seventh day of August, 1914.

"(Signed) CHAS. D. MARX,
"HAROLD S. POWER,
"S. C. GRAHAM.

"And at Washington, D. C., by the Secretary of the Department of Agriculture, on the fourteenth day of November, 1914.

"D. F. HOUSTON, Secretary of Agriculture."

The effectiveness of an agreement of this kind is well illustrated in the following letter written to the company by the Secretary of Agriculture:

"March 26, 1915.

com

"Sir: The Forester, having sustained the action of the District Forester at San Francisco denying the application of the pany for certain rights of way within the National Forest, has transmitted to me the record in the case, including the petition and brief on appeal, enclosed with your letter of January 21, 1915, addressed to the District Forester at San Francisco, and the minutes of the hearing held before the State Water Commission of California, 1914, 'In the matter of the application of the company for use of certain waters on the south fork and north fork of Creek, etc.' The solicitor of the department has also delivered to me a letter, together with copy of the petition, brief and argument, received by him from your counsel. All of these have received careful consideration.

on

Creek in the

"It appears that the company filed in the office of the District Forester at San Francisco, on October 14, 1914, an application for rights of way for dams, reservoirs, water conduits, power houses and transmission lines, comprehending a development of five power projects National Forest, California. The application so presented was complete with the exception of a permit from the State Water Commission for the use of water as required by paragraph (H) of Regulation L-11, of the Regulations of the Secretary of Agriculture relating to water power in the National Forests, adopted February 24, 1913.

"It appears, also, that the power company made application to the State Water Commission of California for approval of its appropriation of waters from the north and south forks of Creek for the purposes of the proposed power development, but that such application was rejected by the commission in 1914, because they believed that the public interest so demanded.'

"On account of the incompleteness of the application as required by the aforesaid regulation of this department, the District Forester, on November 28, 1914, held the company's application for rejection and allowed it sixty days within which to appeal, if it so desired. This appeal has been taken and the company asks that its application be reinstated for action upon its merits, on the ground that the provisions of Regulations L-10-(G) and L-11-(H), of the aforesaid regulations, should not be construed as applying to the National Forests, because the administration and control of waters of non-navigable streams within National Forests, for hydroelectric power development, rests solely in the government of the United States, and the State of California cannot, without the consent of congress, ‘enact any valid law regulating the appropriation of the waters of National Forests for power purposes.' The petition, brief and argument submitted in support of the appeal are likewise based, exclusively, upon this issue.

"Regulations L-10-(G) and L-11-(H) were adopted by this department upon administrative considerations only, and chiefly in order that the department and the states might cooperate, as far as practicable, in the administration of water development in the National Forests within the respective states. The regulations were adopted with full appreciation of the legal questions which are involved in the appropriation and use of waters on the reserved lands of the United States and without any purpose, express or implied, to relinquish any rights which the United States may have in and to the waters in the National Forests. It is believed that better results can be secured under existing conditions by cooperative action between the state and federal authorities than by any insistence upon strict legal rights on behalf of either.

"Since Regulations L-10-(G) and L-11-(H) have been adopted for administrative reasons, and cannot be held to express, in any degree, the views of this department with respect to the legal rights of the United States in the unappropriated waters of non-navigable streams in National Forests, or to be a waiver of any rights therein that the United States may possess, no reason is perceived why the department should, in this case, waive or modify the requirements of these regulations.

"The action of the Forester in rejecting the application of the Company is sustained. "Very respectfully,

"D. F. HOUSTON, Secretary."

This letter can leave no doubt of its intent in the mind of the reader. It shows that the United States is not assuming the exercise of any function of the sovereign state. Whatever right of control over water power sites the federal government may have through ownership of public lands, the administration of such sites is being used to supplement the efforts of the state to conserve its natural resources.

A cooperative agreement has also been entered into with the State of Oregon, which further illustrates this principle. This document, which appears on the following page, states fully the salient points of the purposes to be accomplished.

COOPERATIVE AGREEMENT-WATER POWER-BETWEEN THE SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE AND THE STATE ENGINEER OF THE STATE OF OREGON.

"In order to insure cooperation and uniform action, to avoid duplication of work and expense, to make available to both the data secured and the action taken by each, and to facilitate the approval of applications for water rights for the occupancy and use of National Forest Lands within the State of Oregon for the development of water power; the secretary of the United States Department of Agriculture and the State Engineer of the State of Oregon do make and subscribe to the following cooperative statement:

"1. Whenever an application for permit for a water power site is filed with the District Forester at Portland, Oregon, notice will be sent the State Engineer, together with a copy of the evidence of the appropriation of water, unless said evidence has been furnished the Forest Service as hereinafter provided.

"2. Whenever an application is made to the State Engineer for a permit to appropriate water for power purposes and the use of such water will in any manner necessitate the occupancy and use of any National Forest land, a copy of such application will be immediately sent to the District Forester at Portland.

"3. The District Forester will confer with the State Engineer before arranging the terms of any preliminary permit, and will furnish him with a copy of such permit immediately upon its issuance.

"4. No application for a water right, which will involve the use of National Forest lands for reservoir, conduit or power house purposes, will be passed upon by the State Engineer prior to the receipt of a copy of a final permit, or of a preliminary permit containing permission to do construction work, or of a notice that the application for a power permit has been rejected by the Secretary of Agriculture. The State Engineer will be given immediate notice of the above stated action.

"5. If the evidence of the appropriation of water filed with an application for permit for a water power site shows the water right to have been initiated prior to February 24, 1909, such permit will not be issued until the State Engineer either approves such appropriation or disclaims jurisdiction.

"6. If the time for beginning and completing construction under any final permit issued by the Secretary of Agriculture is different from that granted by the State Engineer, such difference shall not be deemed to affect in any way the permittee's liabilities either under the State law and approval of the State Engineer or under the permit issued by the Secretary of Agriculture.

"7. If any permittee shall lose his water right because of failure to begin or complete construction in accordance with the requirements of the State law and of the approval of the State Engineer, such loss of right when certified to by the State Engineer shall be deemed cause for revocation of permit by the Secretary of Agriculture.

"8. Neither the District Forester nor the State Engineer will take action on any petition for an extension of time until due notice of the filing of such petition and opportunity for recommending action has been