Mr. BACON. That is what I understand; yes, sir.

Senator ASHURST. Are you familiar with the dam site known as Glenn Canyon in northern Arizona?

Mr. BACON. I have not visited the site; I have heard reports on it; I have seen the information in connection with it and read the reports on it.

Senator ASHURST. I wish the record to show, in answer to your remark, that you had heard that Mr. Maxwell, a citizen of California for many years and a citizen of Arizona now, had advocated a gravity line to bring water to the southern California cities. Let the record show that the most recent report of the Federal Government also points out the feasibility of bringing water to these cities by gravity..

Mr. BACON. The city of Los Angeles has appropriated $2,000,000 for making such an investigation; so looking at it from that standpoint they must consider it feasible.

Senator ASHURST. The La Rue report is Water Supply Paper 556, issued under authority of Hon. Hubert Work, Secretary of the Interior.

The CHAIRMAN. I think there is nothing further, Mayor Bacon. The committee is obliged to you for your statement.

Senator ASHURST. Mr. Chairman, may I make a brief statement? The CHAIRMAN. Yes.

Senator ASHURST. In view of the resolution of the State of California ratifying the Colorado River pact with certain reservations, I trust that after this action by the Legislature of California that the hospitable people of California will abandon their ungenerous criticism of Arizona for our action.

The CHAIRMAN. The next will be W. J. Carr, vice president of the Boulder Dam Association.

STATEMENT OF W. J. CARR

Mr. CARR. Mr. Chairman, members of the committee, when this committee held hearings on the Swing-Johnson bill in Washington last December, I discussed somewhat at length the relationship of the so-called Colorado River compact to this project. I don't propose at the present time to go over the ground covered there. Those of you who were present will perhaps remember that I tried to make. clear to the committee that while Congress had the right to authorize this project, all representatives of the upper division of the State were at least to be organized in development of this character or any other development until some assurances were given to other that any rights that accrue in the lower basin that might stand in the way of their proper development in future years when they were economically ready to undertake that work. I also endeavored to make clear that there were two general methods by which that protection or assurances could be extended to them. The one was by a compact or treaty between the States, approved by Congress; the other, because of the fact of the existence of a large body of public land, and that the Federal Government would have control of the administration of the water and the privilege of using the water. And we urged, all of us that were opposing the SwingJohnson bill, and under all the circumstances, that that method

should be followed, and with safety could be followed, that it was the method frequently used by the Federal water power act when they were granting permits or licenses under that act. And I pointed out to you that the matter had been discussed quite fully in the House committee. Mr. Hamly, attorney for the Reclamation Service, formally expressed the opinion that the reclamation could be handled that way. And Judge Davis of New Mexico, who was New Mexico's representative at Santa Fe, and is still, I believe, the solicitor of the Department of Commerce, appeared before the House committee and expressed it as his opinion that that should be done. All proponents of the Swing-Johnson bill presented to the House committee and the Senate committee discussed quite at length the various theories on which we thought that was justified. Since that time there have been some developments in connection with the compact, and my purpose this morning is to endeavor to bring that up to date.

Early in this present year it was suggested by representatives of some of the upper division states that the so-called Colorado River compact should be amended so that upon its ratification by any six of the seven States of the basin that it should thereupon become effective. Resolutions to that end were adopted by New Mexico, Colorado, Wyoming, Utah, and Nevada. California also adopted a resolution in precisely identical language; but California in its resolution deferred the operative date of its resolution, both as it affected the six-States compact, and also the seven-States compact, until such time as the Congress should authorize large storage at or near Boulder Canyon and exercise whatever power the Congress had to make the compact effective as to all the waters of the river. It is not true, as it has frequently been stated, that California has changed the compact or has ratified it conditionally or in a qualified way. It is perfectly common legislative practice, indulged in by Congress and all the State legislatures, to pass an act and provide that it shall take effect upon a certain date or upon the occurring of certain contingencies which can be definitely ascertained. Now, that is all that the California Legislature did. It might be appropriate rather briefly to the reasons that actuated California to defer the effective date in this ratification. The compact, as most of you know, as drawn up at Santa Fe, endeavored to divide the waters of the Colorado to the various States. Under that compact all upper States are obligated to deliver every period of 10 consecutive years 75,000,000 acre-feet of water. It is a very peculiar provision. The Colorado River is an erratic river. Sometimes it flows as low as six or seven million acre feet; that means that the States of the upper division under that compact could withhold all the waters of the river for one dry year or two dry years and they probably would be safe in withholding all the water for three dry years, then they could make up the deficiency the next year.

So that if became necessary, if that compact were in effect, the lower basin must have large storage so that they could have the reserves of water against the exercise of the upper basin States of that provision under the compact. And there were many other reasons why the lower basin could not get any benefit out of the compact without large storage. There was another, consideration that

I think influenced the California Legislature some in the six-State compact. The State of California would, in effect, become a guarantor for the upper States of a given amount of water, and it was somewhat doubtful in the minds of many of us whether the States could acquire any special water right under the six-State compact. Now, without some definite assurance of large storage, California. went out somewhat under a gamble with that situation. So it seemed wise, and the legislature by an overwhelming majority provided that the compact should not become effective until a large storage basin was provided. Now, the bill when introduced in Congress authorizing this project, there will be appropriate provisions whereby all the conditions upon the happening of which California's ratification of the compact will become fully effective will be made, and also expressing the approval of Congress under the Constitution to the compact. So that if the legislation passes, the upper-basin States will immediately and ipso facto secure the protection they are entitled to, and we have no question but that their claim is a fair one, both by reason of the compact and by the exercise of whatever power Congress has by reason of its authority over public lands and otherwise to make the compact effective. The lower basin in the same instance will secure the protection it needs, which it would not have without the large storage.

Now, that, in brief, is the situation. I think, if I heard correctly, Senator Phipps or Senator Oddie raised the question of the filing of the resolution, Swing-Phinney resolution. I was going to file it. Senator PHIPPS. No. I did not hear that clearly.

Senator PITTMAN. You asked for the filing of the Phinney resolution.

Senator SHORTRIDGE. A word on your argument. That is, it is perfectly competent for Congress to incorporate the terms of the so-called compact into any act which it may pass?

Mr. CARR. I think, because of the peculiar situation that exists, that Congress can.

Senator SHORTRIDGE. There is no question about that, the legality of it.

Mr. CARR. Personally, no.

Senator DILL. Mr. Chairman, may I ask one question?

Mr. CARR. To make clear one thing, I want to file with the committee, so they might have the viewpoint of the California Legislature, the printed statement that was before the members of the legislature when they ratified or passed the resolution to which reference has been made. It is not very long, and I would like to read it.

The CHAIRMAN. It may go into the record. Senator Dill, of Washington.

Senator DILL. I am not familiar with the history of this compact, as the other Senators from these States are; but the question of Senator Shortridge that Congress might include this compact in legislation leads me to ask this question: Is it necessary that Congress give any attention to the terms of this compact or to the desires of the States, or may Congress independently, if it so sees fit, in the division of these waters and the building of this dam

Mr. CARR. I think I can answer that very briefly. Congress undoubtedly has power to go ahead and authorize a major project such as this.

Senator DILL. These States do not claim sovereign rights to be protected in certain use of waters.

Mr. CARR. There are a good many claims, but Congress, of course, owns the public domain and has very broad powers. But the practical situation exists that representatives of other States feel that if nothing was done except the authorization of this project a situation might be created which would be prejudicial to them, and very naturally they don't want to arbitrarily exercise the power of Congress in connection with such a development as this if it might affect their future development; so they have insisted that as a condition precedent to anything else, not a legal condition precedent, but a practical condition precedent, before they are willing to lend their efforts for such a development that such assurances be given them as to their legal authority.

Senator DILL. They don't claim a legal right to prevent or interfere with Congress's acts.

Mr. CARR. Probably not. But I believe there are some claims from Arizona that Arizona has some control over the bed of the stream.

Senator ASHURST. Lawyers will agree that Arizona owns the bed of the river for several hundred miles.

Mr. CARR. Assuming that it is a navigable stream; assuming that it is not a navigable stream; if it is not a navigable stream, Arizona does not control it.

Senator ASHURST. The claim of Arizona is based upon the assumption that Arizona owns the bed of the river, whether it be navigable or not.

Mr. CARR. I have endeavored to follow the claims of Arizona, and it is sometimes rather difficult.

The CHAIRMAN. Is that all?

Senator PHIPPS. Mr. Chairman.
The CHAIRMAN. Senator Phipps.

Senator PHIPPS. Do you wish to conclude what you had in mind? Senator SHORTRIDGE. I should like to have the record made clear on this point-it may be so now-that the argument which you have suggested in advance is that Congress can incorporate a provision in the bill protecting the upper States from any loss of any right which might be acquired by development lower down. Mr. CARR. Yes, sir: just as the Federal Power Commission, in granting licenses and permits--there was one granted in Utah at Gorge where such a provision was put in, and in the record of my testimony at Washington I cited many instances of that kind. It is common practice.

Senator SHORTRIDGE. That is all.

Senator PHIPPS. I did not have the opportunity of hearing your testimony in Washington for some reason, and I am not familiar with it; but what is your profession?

Mr. CARR. I am an attorney, sir.

Senator PHIPPS. So I assume. And you are possibly familiar with the Colorado-Kansas water case, a case decided by the Supreme Court.

Mr. CARR. Yes, sir; I have read them both.

Senator PHIPPS. And, as I understand it, the basis of the decision hinges upon the point that the one who first puts the water to beneficial use acquires the supreme right.

Mr. CARR. Yes, sir; and that is the reason that

Senator PHIPPS. That is constitutional according to the edicts of the Supreme Court. Congress can not change the situation in the United States.

Mr. CARR. Oh, no; I don't claim that.

Senator PHIPPS. But it would be in effect making such change if they had the power that you seem to think they have, of writing into a permit a condition or provision that these are prior to the rights granted by the Constitution itself.

Mr. CARR. No; not at all on that theory, Senator Phipps. If you will read my testimony-I went into some detail-if you will read my testimony you will get my full statement.

Senator PHIPPS. I shall take occasion to do that. I don't want to pursue this questioning.

Senator JOHNSON. Will you just make that a little more clear; just state in a word.

Mr. CARR. I will give one of the theories so you will understand. If the Government places the dam at Boulder Canyon, the prior rights that the upper States are mostly fearful of is that the upper States would make use of the water by running the water through turbines. If so, if that was done, that prior right would accrue as to all of the waters. That is the most extreme case. Under this project, before anybody would have the privilege of using any power leads from that dam they would have to get permission from the Federal Government to build power plants around the dam site. They would have to have permits from the Government.

Senator PHIPPS. I understand your argument clearly, and not being an attorney like yourself I am not going to express an opinion. Mr. CARR. I have argued the matter out with many of your people. It is an interesting question.

Senator PHIPPS. You can understand the attitude of the representatives of the Western States, all of whom are in favor of reclamation, and as has been said, there is a comparatively small number of us in Congress who are familiar with the facts, and it would seem a pity to divide our forces and get to quibbling and squabbling among ourselves rather than have a united front. As I recall it, I may be wrong, but my impression is that the legislature of California approved the compact and California first gave her consent without any reservation, but a later legislature reconsidered that action and fixed a time upon the occurrence of a certain event the compact would be binding upon California, and not otherwise. Mr. CARR. Yes; that is true.

Senator PHIPPS. That is correct, is it?

Mr. CARR. That is correct.

Senator PHIPPS. So that there was a change of front or attitude. on the part of your congressional authority in the State of California.

Mr. CARR. No.