« PreviousContinue »
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
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 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. 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.
Senator Johxson. There was one, a seven-State compact, and another, a six-State compact.
Senator Phipps. Now, the seven-State compact, does it still stand that if Arizona comes in and signs up for the seven-State compact, that Colorado is bound without any condition?
Mr. CARR. No, sir.
Senator Johnson. But there were two compacts, and there were different provisions under both; is that not correct?
Mr. CARR. That is correct; the situation under the six-State compact would have been somewhat different. But the resolution that was passed is perfectly plain; it applies to either the sixth or seventh State, so California's ratification becomes effective the instant the storage is provided.
Senator JOHNSON. That change of provision—where was the change, except that one State had not come in?
Mr. CARR. Well, the six-State compact involved a rather nice legal argument. I doubt if the committee wants to take the time on that now.
Senator Phipps. I don't care to go into a lengthy discussion of that. The statement that you made, however, as I read it, would go into the record and be read as meaning that from the very first action California had made this reservation, and I wanted it to appear in the record that it was a later consideration by the Legislature of California that made the
Mr. CARR. Tht is quite true.
Senator PITTMAN. Isn't this true, that the first ratification by California was made under a statement of facts by the Reclamation Department, the same as the other States acted on? That was the statement by Mr. F. E. Waymouth, chief engineer of the Reclamation Department, which Mr. La Rue in his latest report quot s as follows:
For flood control only, F. E. Weymouth, formerly chief engineer of the Bureau of Reclamation, suggested a dam 523 feet in height above its foundation, which would raise the water to an eleration of 1,033 feet above sea level and create a storage capacity of 10,000,000 acre-feet. He has estimated the cost of such a dam at about $28,000,000. The Callville, Boulder Canyon, Virgin Canyon, Fualpai Rapids, Grand Wash Canyon, and Pierce's Ferry Dam sites would be submerged, and the backwater would interfere with the development of water at the Devil's Slide site, which is 1,034 feet above sea level. A dam at the upper Black Canyon site for flood control only would prevent dangerous floods, except those from Gila River.
At that time the Government was advocating only 10,000,000 acrefeet storage, at a cost of $28,000,000. All of us in the West here would like to have that dam built just as high as it can be built and have just as much water stored. There are a great many people in the East, however, that do not want any storage out there or any money appropriated out there, because it comes out of the rivers and harbors pot, and there is just so much every year. They will probably, if they grant this thing at all, fight for the minimum that will control the floods, which Mr. Weymouth gives as 10,000,000 acre-feet and which Mr. La Rue seems to approve of for that purpose. Originally the ratification of California, as the ratification of the other five States, with the exception of Arizona, ratified it on the basis of
a dam that would impound 10,000,000 acre-feet of flood waters. The present conditionally ratification of California calls for a dam that will impound 20,000,000 acre-feet. Therefore, unless the Reclamation Department changes its views in regard to the size of the dam there, California will not have ratified the compact.
Mr. CARR. Well, I think Mr. Weymouth's report--and I have read it quite carefully, Senator-recommended a dam 550 feet high, assuming that the Bridge Canyon site, which is above that, on investigation would prove feasible. California's interest has always been in large storage; we have felt that small storage would not meet the interests of this State. We realized that there were elements in our own midst and elsewhere that sought to divert this project by a low flood control plan of structure, and I think that because of that attempt to convert this into that kind of a project the California Legislature felt that it was entirely proper and necessary to the vital interests of the State that its approval of the compact to take effect only when large storage is provided was advisable.
Senator PITTMAN. I think that is all with regard to that; but what this committee has got to face and what we are here for advice on what to do, we believe that we can get a dam on that river; if the dam is 525 feet high according to Mr. Weymouth it can be made to prevent flooding of the Imperial Valley.
Mr. CARR. Yes.
Senator PITTMAX. We take it that that is the most imminent danger, the most demanding thing, and it is practically the only thing that will appeal to the great majority of Congress.
Mr. CARR. Yes, I realize that.
Senator PirtuAN. Now, if on the side, sir, we can get any effective benefit, which we all believe in, and that is reclamation--fine. But the thing that concerns us is whether or not the policy of California of obtaining all at once what it needs or nothing at all, is to be the policy that we will all fight for, with a chance of having seven or eight years delay, or a chance of getting a start and afterwards fighting for the raising of the dam higher.
Senator Johnson. Senator, may I correct you there? I don't think that Mr. Weymouth recommended this lower dam, he recommended the higher one. He was requested to make estimates, however, in four or five different directions, and accordingly he did. But his recommendation is for the high dam.
Senator PITTMAN. Well, I have just read what Mr. Larue said. He may not give Mír. Weymouth's present opinion
Mr. CARR. Mr. Weymouth is here available to the committee. He is the best person to explain that.
Senator PITTMAN. Mr. Weymouth is not here right at this table. The CHAIRMAN. We will call him when the time arrives.
Senator PITTMAN. I want to know if you understand that impounding 10,000,000-acre feet would protect the flooding of the Imperial Valley!
Mr. CARR. We understand that, sir.
The CHAIRMAX, Senator Kendrick of Wyoming desires to ask the witness a question.