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As to the interstate situation the status is also very plain. Prior appropriation controls, regardless of State lines. All seven States of the basin are appropriation States. The common-law doctrine does not obtain in any State, except to some degree in California. California has a dual system, but that apparently does not concern the Colorado river.
The Colorado has been a navigable river, and the latest reports of Government officials still call it a navigable stream. Congress has never openly relinquished its right of control, though the river has long since ceased to be a navigable international or interstate stream for international or interstate commerce, except in crossing it. For many years the Governnient engineers who have examined it with reference to navigation have recommended it unworthy of improvement for navigation. The Laguna diversion dam above Yuma also tends to destroy navigation.
Our Supreme Court has often said, and uniformly held, that a stream is navigable in law when it is navigable in fact.
If the Colorado is a navigable river, then I find that the Congress controls the stream for navigation, and under such control may prohibit or prevent any structure being placed in the river or anything done that would impede or destroy navigation; may even prevent the depletion of its waters to any extent for irrigation or other use, reason and the value of the use of the waters being the basis for the consideration of Congress.
If the river is a navigable stream, the State within whose borders it is controls the use of the water for all other purposes common in arid countries under ordinary circumstances, and holds in trust for the public the bed of the stream. Mr. Justice Brandeis goes further in Port of Seattle v. Oregon & Washington Railroad Co. et al. (255 U. S. 56), that the ownership of the State in the lands under navigable waters" is the full proprietary right." The United States Supreme Court has often held that the United States holds such rights in newly acquired territory “in trust” for the States that should be carved out of the new territory. I think it better law to say the State holds in trust for the people the lands under navigable waters where the waters are navigable for interstate or international commerce.
If the stream is innavigable, then in the Colorado Basin States the riparian proprietors own to the middle or thread of the stream, except tidelands, which are owned or controlled by the State, and the State controls the use of the water. There is no ownership of such water until rightfully taken into possession for a beneficial use not a traffic.
In the enabling act for Arizona, Congress reserved the right in the Government to withdraw all dam sites within five years. I understand that was done in a sort of blanket withdrawal without specifying particular dam sites on the Colorado.
There is an average annual volume of water in the Colorado and tributaries available for use of approximately 20,000,000 acre-feet of water, of which 2,500,000 acre-feet are now being used in the upper basin for irrigation and 3,000,000 acre-feet out of the main stream in the lower basin, not counting Mexico. The upper States may eventually need 5,000,000 acre-feet more per annum, and the lower basin States may feasibly use the balance of the water as follows: Nevada, 250,000 acre-feet per annum; Arizona, from the main stream, 3,500,000 acre-feet per annum for the reclamation of 860,000 acres of new land and 1,500,000 diverted from her streams before the waters reach the Colorado upon 500,000 acres more of new land; and California, 1,750,000 acrefeet per annum for additional irrigation, which will add 400,000 acres of new land to her irrigated area and 1,500,000 acre-feet per annum eventually for domestic use of the cities in southern California. Such a large use of the water as I have suggested will necessitate a reuse of the return flow to some extent. This would leave approximately 1,000,000 acre-feet per annum of water unused in the United States, to be later appropriated if a use can be found for it, and is approximately the amount of water now used in Mexico. I have not considered loss by evaporation occasioned by storage reservoirs, hoping that may be compensated for by the inflow of unmeasured waters and a saving of the extra loss in flood times.
The transmountain diversion of water at present from the Colorado River Basin for use outside is in Colorado approximately 30,000 acre-feet per annum, with the Pioneer Tunnel about two-thirds finished, by means of which they hope to divert 100,000 acre-feet more for the city of Denver; in Utah approximately 125,000 acre-feet per annum, mostly in the Strawberry project. California is proposing to take 1,500,000 acre-feet across to the Pacific coast.
The All-American Canal, if at all feasible, should be constructed as soon as possible, and the irrigation relationship between the United States and Mexico completely divorced and the old California Development Co. contract or agreement abrogated as soon as that can be done safely. That canal is not feasible, as a matter of course, unless and until the river is controlled, at least partially.
The river at flood is a great menace to the lower valleys—the Palo Verde, Yuma, and Imperial Valleys. The flood waters are not only dangerous in volume each year, but are heavily laden with silt held in suspension, which is deposited in the lower levels when the water flow becomes more sluggish, leaving approximately 100,000 acre-feet of silt or mud, mostly in the bed of the stream on the delta cone of the river, thus building up the bed of the stream nearly 1 foot per year in places where the river is most dangerous and most difficult to keep under control in flood time, making the flood menace more and more dangerous each year.
I believe it is the duty of the Government to build at least one flood control dam in the lower Colorado, sufficient in size to impound at least the average annual flow of the river, or 18,000,000 acre-feet capacity.
At the first meeting of the Colorado River Commission at Washington, January 26, 1922, after presenting my suggestions for consideration looking toward the compact, I recommended the following:
“1. That the Government of the United States, through the Reclamation Service or any other authorized agency of the Government, immediately construct a dam in the Colorado River at or near Lees Ferry, in northern Ari. zona, of a sufficient size to impound at least the average annual flow of the river for one year, to control the flood of the river, to equalize the flow for irrigation of arid lands, and for the production of hydroelectric power. A large dam at the point above suggested would practically desilt the river, would control the flow of water, and make the further development of the river below much easier and far less expensive.
"2. That the Government of the United States, through the Reclamation Service or any other authorized agency of the Government, immediately construct a dam in the Colorado River, in the northwest part of Arizona, at or near Boulder Canyon, of sufficient size to impound at least the average annual flow of the river for one year, to control the floods, to equalize the flow of the river for irrigation of the present cultivated lands below the proposed dam and the extension of the reclamation of arid lands, and for the production of hydroelectric power. The site for such dam shall be selected, other things being equal or nearly so, looking to the fullest utilization of the waters of the river for the reclamation of arid lands below such dam.
"3. That in the event the Government of the Unitde States shall be unable or unwilling to immediately undertake the construction of the dam referred to in recommendation No. 1, then we recommend that any person, firm, company, corporation, municipality, or State having the financial ability and readiness and willingness to construct such dam for the uses and purposes suggested, under proper regulations and agreements conserving to the public the inalienable rights to the uses and benefits to be derived from the utilization of the waters of the Colorado River, be granted a permit or permits or license for such development.
“4. That in the event the Government of the United States, or any State or municipal corporation, should construct, own, and control such dam or dams, referred to in recommendations 1 and 2 above, and should such develop ment work or improvement be not subject to taxation, then we recommend that the State in which such development work is located be allocated, without cost to such State, a block of electric power at the switchboard commensurate in amount and in lieu of the tax that would be assessed against such development work if done and owned by private capital.”
I am ready to reiterate that now with very little change, after three years of more or less bitter discussion and somewhat bitter criticism by some, I see but little to change.
There can be no dispute, I think, if the lower river is to be completely developed at once, or at or about the same time, the upper dam should be first constructed, and that would be at Glen Canyon. However, if there is to be but one large dam constructed in the river for many years, and that chiefly for flood control, that dam should be a complete flood-control dam and the water used for power and irrigation. From an economical standpoint there is no doubt in my mind but that Boulder or Black Canyon would be the better location for such a dam; the site is more accessible; it would cost less money to construct; would be nearer the greater power market; would serve irrigation and reclamation in the United States as well, and would accomplish better flood control, for the reason that there is an inflow to the river below Glen Canyon and above Topock or Needles of approximately 1,500,000 acrefeet of water per annum, most all of which would be above Black Canyon and would be held by a dam at that place and made available for use, whereas now, and without storage at the place mentioned, owing to the wide spread of the river in flood time that amount of water is lost between Topock and Yuma.
I do not believe it is feasible now, nor will it be for two or three generations, if ever, to take any large quantity of water from the river above Boulder Canyon Reservoir site for irrigation in Arizona. Certainly not unless practically all of the present unappropriated water would be available for the purpose. Many good people in Arizona believe a diversion of water at Bridge Canyon for irrigation in Arizona is not only possible but feasible now, but I do not.
I believe the license for the so-called Diamond Creek project should be granted without delay. That project is small, as the lower Colorado River goes, though large in comparison with others on other streams of less importance. It is the most accessible site on the lower river. Bedrock is near the surface of the river. It would not interfere with any other feasible project and would greatly help to desilt the river, and to a small degree in regulating the flood. It is purely an Arizona project, by Arizona people, wholly within Arizona, and for the use and development of Arizona. It would not deplete the water in the river to any extent. It could be quickly completed and power developed which would be of very great help in the construction of other larger projects by furnishing power. It is purely a power project.
By all means the San Carlos or Coolidge Dam on the Gila should be hastened to completion. That will greatly decrease the flood menace to the Yuma and Imperial Valleys. While the Gila floods are rare, and rarely, if ever, have heretofore coinc ed with the flood of the Colorado, yet it sometimes runs a wicked flood, and if it should so run coincident with the Colorado River flood the result would doubtless be very serious, indeed.
I agree with Colonel Kelly's plan of development of the lower Colorado, except I do not agree with him nor anyone else in the construction of a low dam at Black, Boulder, or Glen Canyons for partial control of the floods, nor at Diamond Creek. If it were a matter of necessity, as so often happens in private life, that “poor folks have poor ways," then half a flood control would be better than none, for "half a loaf is better than no loaf," but it is mighty poor economy if it can be avoided, and the United States, with all the money due from Italy and Ireland, a few paltry millions advanced or given by the United States Government to save the lives of thousands of American citizens, perhaps, and many millions of dollars of property, would be money well spent. It seems to me that the Congress will be derelict in its duty if it does not make the money available for complete flood control for the protection of these valleys and order the work done at once.
Inasmuch as the larger part of the expense of the construction of any dam in the lower Colorado is the preparation with roads and equipment, the cofferdam, tunnels for by-passing the water, the clearing and laying the foundation of the dam to the surface of the river bed, it would not be economy to build in Black or Boulder or Glen Canyon a dam 310 or 360 feet high, in either case less than half flood control, and such a dam would likely cost from 80 to 90 per cent of that of a high dam for complete flood control, and leaving a good job half finished with the easiest and cheapest part undone, with the equipment and organization on the job to finish it. That would appear to me to be poor economy.
The same reason exists with respect to the Diamond Creek project. Girand and his associates will not want to be limited to a 250-foot dam. It is the drop of the water they want, and every extra foot of drop will be worth thousands of dollars to them.
I can see no good reason for a partial flood-control dam at Topock. Besides the interference with the railroad and bridge, the highway and bridge, and the town of Needles, all of which would be submerged, it would spread out many miles in a thin sheet of water over the sands of the hottest part of the United States. A veritable evaporating pan.
The upper States of the Colorado River Basin are fearful if a flood-control dam is constructed in the lower river and the water applied to the production of electric power that there will be thereby created a priority of right against any further extension of use of the water above that point. Hence the agreement or compact. Should the compact fail because of the refusal of Arizona to ratify it, it seems to me that each individual permit for any construction may contain stipulations safeguarding the rights of upper States that would be legal and binding.
We in the lower basin, particularly in Arizona, demand an agreement on the division of the waters among the States of the lower basin before ratifying the compact in Arizona. That will not be a difficult problem when the three States-Arizona, California, and Nevada-earnestly desire to meet openmindedly. There has been no proposition of that kind made yet. There have been two or three gestures or pretended attempts at a conference. The compact itself contemplates and provides for such agreements among the States, and the contemplated agreement among the southern basin States on the division of the waters, or any other agreement in anywise pertaining to the Colorado River, would be in harmony with the purpose and intent as well as the provisions of the Colorado River compact. Respectfully submitted.
W. S. NORVIEL. The committee will stand adjourned until 8 o'clock in the morning.
(Whereupon, at 6 o'clock p. m., the committee adjourned until 8 o'clock a. m. on Tuesday, November 3, 1925.)
'll Conouso. Senate. Committie de o
4 ... inugallon and reclarintiane COLORADO RIVER BASIN
COMMITTEE ON IRRIGATION AND RECLAMATION
UNITED STATES SENATE
S. Res. 320
(68th Congress, 2d Session)
DIRECTING THE COMMITTEE ON IRRIGATION AND
OF THE COLORADO RIVER BASIN
LAS VEGAS, NEV.
NOVEMBER 2, 1925
Printed for the use of the Committee on Irrigation and Reclamation