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Representative TAYLOR. Mr. Carpenter, the letter referred to by Senator Ashurst is something that Colorado has no responsibility for Mr. CARPENTER. Not in the slightest.
Representative TAYLOR. And there is no effort on our part up there to attempt to modify or change or in any way misconstrue the plain meaning of that compact ?
Mr. CARPENTER. Not in the slightest degree. The letters do not represent our position. Our attitude is simply this, Mr. Taylor, that we wish to do everything we can legitimately, having due regard to our own rights, to promote early development below.
The CHAIRMAN. Are there any further questions to be asked the witness?
Senator Gooding. Mr. Carpenter, has any study been made in Colorado in regard to the return flow of the water to the stream after use for irrigation?
Mr. CARPENTER. Yes, sir; a number of studies, the most notable of which is on the South Platte River. Other studies have been made on the Arkansas, the data on which is not yet published; also the investigations on the Rio Grande. Those are still in preparation. The results of the investigation on the South Platte River are published and may be obtained from the State Agricultural College at Fort Collins, Colo.
Senator GOODING. Do you know what the percentage of return is? Do you recall it?
Mr. CARPENTER. It is around 50 per cent. But the water of the South Platte is reused so often that it is more worn out" than water that would not be so frequently reused. That is, on the South Platte the return will come into a tributary, be picked up and taken out, come back to the main stream, be picked up and taken out again, etc., repeatedly, clear from above Denver to Julesburg, at the interstate line. That publication on the return flow of the South Platte River is, however, very illuminating. It takes the river in its earlier stages and brings it down to date, showing a tremendous increase and equalization of flow along the lower stretches of the river. In fact, the startling condition there obtains that the large project at Julesburg, at the interstate line, is one of the youngest and most inferior in point of appropriation on the entire river in Colorado, and yet the project now has the best water supply of any large project in the whole drainage in that State. purely because of the return flow.
Senator GOODING. In other words, the upper basin in that case and the same would apply with reference to the Colorado-acts as a reservoir for the lower country?
Mr. CARPENTER. Yes, sir. About half, I think, of the soil consists of air, or voids, and where the water is poured onto the surface of the soil it sinks down through these voids and forms a ground reservoir—in this case of the South Platte consisting of about 1,500,000 acres.
The CHAIRMAN. Does that conclude your statement, Mr. Carpenter?
Mr. CARPENTER. Yes, sir.
Senator SHORTRIDGE. I would like to ask some few questions, Mr. Chairman. They will be few, because many that I had intended to put have already been put and answered.
It is not necessary for me to say it, but I do say that in directing attention to the claims of Arizona I do so in no spirit of hostility toward that State. Indeed, I have an affection for it. Nor is that a feigned affection. My father and mother lived in that State for a time, and the fact that it is represented by such amiable Senators makes me feel very kindly toward it.
For the benefit of the committee, Mr. Chairman, and of others who will come to study this problem, and in order to predicate one or two questions to Mr. Carpenter, I ask to have inserted in the record section 28 of the act of June 20, 1910, found in Thirty-sixth Statutes at Large, page 557, particularly page 575. It will take but a moment to read it, and that would seem necessary in order for me to propound one or two questions to Mr. Carpenter. This is a section of the enabing act whereby Arizona came into the Union. It reads:
There is hereby reserved to the United States and excepted from the operation of any and all grants made or confirmed by this act to said proposed State all land actually or prospectively valuable for the development of water powers or power for hydroelectric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State of any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section 24 of this act.
I also wish to introduce in the record—and you will pay heed, Mr. Carpenter, to the language-section 6 of article 10 of the constitution of Arizona :
No lands reserved and excepted of the lands granted to this State by the United States, actually or prospectively valuable for the development of water power or power for hydroelectric use or transmission, which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State, shall be subject to any disposition whatsoever by the State or by any officer of the State, and any conveyance or transfer of such lands made within said five years shall be null and void.
Now, without introducing specifically the act of the Secretary of the Interior, I think it is agreed on all hands that before the expiration of the five-year period referred to the Government of the United States, acting through the Secretary of the Interior as provided, exercised the reserved right to appropriate waters.
Would you be good enough to give the committee the benefit of your view as to whether the State of Arizona, in view of the enabling act, her constitutional provision, and the decisions applicable, has the legal or equitable right to assert ownership, with all the attributes of ownership, over any dam which the Federal Government may erect or cause to be erected within or partly within the State of Arizona ?
Mr. CARPENTER. Senator, the provisions of that enabling act and the constitution of that State have several times been given a very cursory attention by us, and we have not arrived at a final conclusion. I should prefer to refrain from expressing an opinion.
Senator SHORTRIDGE. Very well. We have the claim of Arizona and the claim of Nevada-which in that respect, as I recall, are harmonious-to the effect that if a dam should be erected at Boulder Canyon those two States are willing to have the Government charge for any power developed and sold, and receive the proceeds until the Government is reimbursed for any outlay, and that then, thereafter, and in perpetuity the two States are entitled, as claimed, to the proceeds; that is to say, that they become the absolute owners in fee, with all the rights of ownership. That, I understand, is the position advanced by Arizona, and similarly by the Governor of Nevada. That involves the same point.
Mr. CARPENTER. It involves the same question.
Mr. CARPENTER. On the one side of the river there is the Arizona condition, and on the other side the Nevada condition is not similar to that obtaining in Arizona.
Senator SHORTRIDGE. I understand you to say-not speaking finally, of course, for the State of Colorado-that the State is satisfied with the seven-State compact as drafted ?
Mr. CARPENTER. Yes, sir.
Senator SHORTRIDGE. Also, that it was satisfied and is satisfied with the six-State compact, having evidenced that satisfaction by act of its legislature.
Mr. CARPENTER. They passed_the_act authorizing the six-State ratification to become effective. But I will say further, that it is not altogether satisfactory to our people--the six-State compact. Nevertheless it is the law of the State of the present time.
Senator SHORTRIDGE. You used the expression that you might be attacked, that Colorado "might be attacked," or "would self to attack or assault by or from Arizona should the six-State compact go into effect.” Would you have the kindness, if you can in a few words, to indicate the ground of such attack? Would there be any basis for such attack, or legal justification for such attack!
Mr. CARPENTER. We fail to see, in view of the physical conditions, where Arizona would have any justification for an attack, but we are painfully aware of the fact that such attacks have been made in the past, without just cause and upon political or other motives, and do not care to be exposed to the danger of such attacks if we can avoid it.
Senator SHORTRIDGE. You mean, of course, legal attack by peaceful legal processes?
Mr. CARPENTER. Yes. The peaceful legal processes, in the form of suits in court, must be defended, and are very prolonged and partake somewhat of the characteristics of war, without bloodshed.
Senator SHORTRIDGE. Just a final question. Do you think that if Congress, by act, by appropriate language carefully drawn, scrutinized by the legal mind, should provide that no rights acquired by the lower basin States by appropriation, use or otherwise, should impair any existing legal rights of the upper States or citizens of the upper States, such a provision would be valid and binding!
Mr. CARPENTER. Such a provision would doubtless be of some value. It would bind and cover the subject matter over which Congress has jurisdiction. The degree of that jurisdiction, to what extent it would cover the whole subject matter, is a matter involved in doubt. In other words, it is an open question in some respects where the jurisdiction of the United States ends and that of Arizona begins. Arizona has some jurisdiction, doubtless, but so has California, and Nevada, and all the other States.
The main objection that we raise to that is, however, this, that even though the act went -the full length that Congress could go to protect us as regards a structure authorized by Congress directly, as for example in the proposed bill, we have a grave and serious doubt of the ability of Congress to control the process of enlarging appropriations down below the dam for irrigation or domestic purposes which would be brought about by an equating of the river flow; that is, making it fuller in low periods and lesser in high. We see no way that Congress could limit that development, and the claim for that development would fall upon the source of the river in the upper basin. That is, we must supply the water to fill it.
Senator SHORTRIDGE. I suppose that underlying that question is the question as to who has control over the flow of the waters of that river?
Mr. CARPENTER. Yes, sir; naturally.
Senator SHORTRIDGE. And that brings us back to the question you discussed a moment ago, in response to a question by Senator Phipps; namely, whether the Federal Government or the Nation, as such, has dominant control, or the State through which the river runs. Now, what could you say finally as to those respective rights on an interstate river and as to that part of the river which is wholly within one State?
Mr. CARPENTER. If the river be navigable a certain legal status obtains; generally speaking, the State owns the bed and waters, subject to the paramount right of Congress to control navigation or interstate commerce.
Senator SHORTRIDGE. Have not the courts held repeatedly that a given river may be a legally navigable river which in point of fact is not?
Mr. CARPENTER. They have so held, but the tendency of more modern decisions, the latest of which is the Oklahoma-Texas case, is that a river is navigable only when navigable in fact for purposes of trade and commerce.
Senator SHORTRIDGE. The Colorado River is a legally navigable river, is it not?
Mr. CARPENTER. That is an open question. If it is navigable, one principle of law obtains; if it is nonnavigable, another principle of law obtains.
Senator SHORTRIDGE. Well, it is navigable in and about Boulder Canyon?
Mr. CARPENTER. Yes.
Senator SHORTRIDGE. I can bear witness to that. Then the Federal Government would have control?
The CHAIRMAN. Have you concluded, Senator Shortridge?
Senator Johnson. Mr. Carpenter, can you give me an estimate of what the return flow of the Colorado River would be at low stage from the States above ?
Mr. CARPENTER. Conservatively, from 40 to 50 per cent, probably more.
Senator JOHNSON. How much of the water of the Colorado River, if you can state approximately, is the State of New Mexico to-day utilizing ?
Mr. CARPENTER. At present! Very little; only a limited amount on the little valleys or tributaries of the San Juan and the Gila and some in the vicinity of Farmington.
Senator JOHNSON. Which is a negligible amount?
Senator JOHNSON. Can you state how much of the Colorado River Utah is to-day utilizing?
Mr. CARPENTER. I can not, Senator, because I have not made a personal visit to the areas in Utah. Senator Johnson. Can you approximate it? Mr. CARPENTER. No.
Senator JOHNSON. Can you state how much, or approximately, the State of Wyoming is to-day using?
Mr. CARPENTER. I am not prepared to say of my own knowledge, but their uses are not as great as they will ultimately be, of course.
Senator JOHNSON. Perhaps that will not convey very much to us ultimately in the record.
Mr. CARPENTER. As I say, I introduced at Phoenix a little table by Mr. Meeker that gives you approximately Arizona's acreage and the acreage of each State. He is far better qualified to speak on that subject than I would be.
Senator JOHNSON. Do you recall them approximately at all!
Senator Johnson. I assume you can tell me, however, what, approximately, is the amount of water being utilized by Colorado from the Colorado River at the present time?
Mr. CARPENTER. We are irrigating at present between 800,000 and 900,000 acres.
Senator JOHNSON. And that takes from the Colorado River about how much water
Mr. CARPENTER. The theory is that the acreage would be multiplied by 1.3 acre feet per acre.
Of course, in each diversion, Senator, there are two types of water, so to speak; there is the water that is consumed and the vehicle water that is necessary to take that out. That vehicle water comes back in the form of a return.
Senator Johnson. Have you given approximately the aggregate amount that is taken?
Mr. CARPENTER. Mr. Meeker gives that at 1,100,000 that is now consumed.
Senator JOHNSON. Are the tables there of the waters utilized from the Colorado by the other States ?
Mr. CARPENTER. Yes, sir.