accomplish the federal purpose for which the land was acquired. In contrast to the exercise of the reservation doctrine, however, any such appropriation by the United States which interfered with a valid appropriation under state law would presumably be subject to compensation under the terms of the fifth amendment to the Constitution.
5. The Atomic Energy Commission.
At present, of the total of more than 2.7 million acres owned or controlled by the AEC, approximately 1.5 million acres consist of public land withdrawn for the use of the AEC. 1/ And though the AEC uses varying amounts of water crossing these public lands depending upon the exigencies of the particular operation involved, the AEC is not concerned with the development of the water resources of the lands which it occupies.
The AEC has no formal policy statement on the acquisition of water rights, and the problem of the reservation doctrine has not arisen at AEC installations.
In 1968, Congress adopted the Wild and Scenic Rivers Act 2/ to establish a national wild and scenic rivers system the purpose of which is to preserve in their free-flowing condition, selected rivers of the nation which with their immediate environments possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values. As to its reasons for the necessity of such an Act, Congress stated as follows:
1/ PLLRC Study of Withdrawals and Reservations of Public Domain Lands, App. G (1968).
2/ Pub. L. No. 90-542, 82 Stat. 906.
The Congress declares that the established
national policy of dam and other construction
at appropriate sections of the rivers of the
United States needs to be complemented by a
policy that would preserve other selected
rivers or sections thereof in their free flow-
ing condition to protect the water quality of
such rivers and to fulfill other vital national
conservation purposes. 3/
In furtherance of this policy of preservation of cer-
tain selected rivers in their free-flowing state, Congress re-
s tricted certain uses of the waters falling within the national
wild and scenic rivers system. Section 7(a) of the Act pro-
hibits the Federal Power Commission from licensing the con-
struction of any dam, water conduit, reservoir, powerhouse,
transmission line, or other project works under the Federal
Power Act on or directly affecting any river which becomes part
of the national wild and scenic rivers system, and it further
provides that no department or agency of the United States shall
assist by loan, grant, license, or otherwise in the construction
of any water resources project that would have a direct and
adverse effect on the values for which such rivers were estab-
lished, as determined by the Secretary charged with its admini-
stration. 4/ Further, the Act provides that no department or
agency of the United States shall recommend authorization of
any water resources project that would have a direct and adverse
effect on the values for which such river was established, or re-
quest appropriations to begin construction of any such project
without advising the Secretary of the Interior or the Secretary of
Agriculture, as the case may be, in writing of its intentions at
least 60 days in advance and without specifically reporting to the
Congress in writing at the time of its recommendation or request
in what respect construction of such project would be in conflict
with the purposes of this Act and would affect the component and
the values to be protected by it under this Act. 5/ In addition the
3/ 1 U.S. Code Cong. & Adm. News 1056 (1968) (Section 1(b)).
4/ Id. at 1064.
5/ Ibid. Similar provisions are made in Section 7(b) of the Act
for those rivers listed in Section 5(a) of the Act as potential rivers
for inclusion in the national wild and scenic rivers system.
Federal Power Commission and all other federal agencies are
required under the Act to inform the Secretary of the Interior
and, where national forests are involved, the Secretary of
Agriculture, of any proceedings, studies, or other activities
within their jurisdiction which are now in progress and which
affect or may affect any of the rivers specified in Section 5(a)
of the Act as potential rivers for inclusion in the national wild
and scenic rivers system. 6/
Section 8 of the Act provides for the withdrawal of all
lands within the authorized boundaries of any component of the
national wild and scenic rivers system from entry, sale, or
other disposition under the public land laws of the United
States. 7/
It is not the purpose of the Act to limit other uses of
the affected rivers insofar as they are not inconsistent with the
values which caused said rivers to be included in the national
system. 8/ Any portion of a component of the national wild and
scenic rivers system that is within the national wilderness
preservation system, as established by or pursuant to the
Wilderness Act of Sept. 3, 1964, are subject to the provisions
of both the Wilderness Act and this Act with respect to preser-
vation of such river and its immediate environment, and in case
of conflict, the more restrictive provisions apply. 9/
The Act encourages state and local participation in the establishment of wild, scenic and recreational river areas. 10/
7/ Ibid. This provision, however, does not affect the
applicability of the U.S. mining and mineral leasing laws
except as specifically provided in the Act.
8/ Id. at 1067 (§ 10(a)).
9/ Ibid. (§ 10(b)). This same principle applies to wild and
scenic rivers which are also subject to jurisdiction of Acts
affecting the National Park Service and the Fish and Wildlife
Service.
10/ Id. at 1068 (§ 11). Nothing in this Act is to be construed
as affecting the jurisdiction or responsibilities of the states with
respect to fish and wildlife. Ibid. (§ 13).
With respect to the issue of water rights affected under the provisions of this Act, Congress provided that
any taking by the United States of a water
right which is vested under either State or
Federal law at the time which such river
is included in the national wild and scenic
rivers system shall entitle the owner thereof
to just compensation. Nothing in this Act
shall constitute an express or implied claim
or denial on the part of the Federal Govern-
ment as to exemption from State water
rights. 11/
Congress also stated that designation of any stream or portion
thereof as a national wild, scenic, or recreational river area
was not to be construed as a reservation of the waters of such
streams for purposes other than those specified in the Act. 12/
The Wilderness Act of 1964 13/ was enacted in order
to secure for the American people of present and future genera-
tions the benefits of an enduring resource of wilderness. 14/
A wilderness is described "as an area where the earth and its
community of life are untrammeled by man, where man himself
is a visitor who does not remain." 15/ Such areas are to be
protected and managed so as to preserve their natural conditions.
Thus, like the Wild and Scenic Rivers Act discussed above, the
purpose of the Wilderness Act is to prevent the forces of civiliza-
tion from encroaching upon every square mile of these United
States.
In contrast to the Wild and Scenic Rivers Act, however, the Wilderness Act does not prescribe detailed limitations and restrictions upon the use of waterways flowing thereupon but rather has reference to the broad concept of wilderness preservation. As to the use of wilderness areas for water resource projects, it states as follows:
(4) Within wilderness areas in the national forests
designated by this chapter, (1) the President may, within
a specific area and in accordance with such regulations
as he may deem desirable, authorize prospecting for
the establishment and maintenance of
water resources
reservoirs, water-conservation works, power projects,
transmission lines, and other facilities needed in the
public interest, including the road construction and
maintenance essential to development and use thereof,
upon his determination that such use or uses in the
specific area will better serve the interests of the United
States and the people thereof than will its denial; and (2)
the grazing of livestock, where established prior to
September 3, 1964, shall be permitted to continue sub-
ject to such reasonable regulations as are deemed
necessary by the Secretary of Agriculture. 16/
Regarding the effect of State water laws upon waterways
flowing across wilderness areas, Congress declared that nothing
in this Act constituted an express or implied claim or denial on
the part of the Federal Government as to exemption from state
water laws. 17/
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