I am perfectly willing to take that up now. My argument is being all shot to pieces, but I do not care.

Mr. HAYDEN. Why not let him first complete his general statement?

The CHAIRMAN. I was just going to say this is all very interesting and instructive; but the witness has already occupied 45 minutes. Shall we not let him proceed with his general statement on the proposition?

Mr. ALLGOOD. How much time has the gentleman?

The CHAIRMAN. Well, we thought that he would probably finish in half an hour, but he has given us so much information that I think the committee would prefer to hear him further.

Mr. RAKER. Let me follow this line up. I wanted to follow that up with another question, if you have answered my question relative to water unused?

Mr. BANNISTER. If I may I will answer it now. I do not see why I should not answer it now just as well as later. Your question that, if the Federal Government, through the Federal Power Commission, grants a power license for a project, let us say, for example, in Arizona, will the appropriation connected with that power license have priority against labor appropriations in the upper States, or in any of the other States?

Mr. RAKER. That is the question, directly.

Mr. BANNISTER. Now, that question can not be answered with certainty by any human being that lives, because the law is in such an unsettled condition. If we go by the rule laid down in Kansas ?. Colorado, then an appropriation down there would not acquire priority over a later use in one of the upper States. But if we go by the rule laid down in Wyoming v. Colorado, then a priority would be acquired.

Mr. RAKER. That is the latest decision?

Mr. BANNISTER. Well, I will distinguish those, if I may: By Wyoming v. Colorado a priority would be acquired, subject to this additional burden, that the lower State must provide the reservoir construction, and not the other. Now, the question is, which of those two rules governs this situation on the Colorado River?

Mr. RAKER. All right. One other question: Do you apply the same argument and the same reasoning to the construction of a dam in the Colorado River by the Federal Government, if it proceeds under the law to acquire, by notice and application in the various States, a water right in connection with the construction of the dam in the river?

Mr. BANNISTER. Exactly.

Mr. RAKER. And is that the reason that you and your people are afraid of the Government constructing & dam in the Colorado River?

Mr. BANNISTER. I am not afraid of the Government. Personally, I would say that I would like to see the Government construct one there. I would like to see the Government construct one in the Gila Valley. No; it is not the fear that would come from the Government doing it. It is the fear that would come from anybody doing it until the ratification of the compact.

Mr. RAKER. Then your theory is that the ratification of the compact would change and does change materially the rights to the waters of the Colorado River at the present time?

Mr. BANNISTER. We do not know for a certainty whether it does or not. It all depends on which of those two cases I have cited applies to this situation. Perhaps I had better take that question up.

But in Kansas v. Colorado, we had a controversy between two States, one of which was a simon-pure appropriation State, Colorado, and the other of which was a hybrid State Kansas, as is California; and the court held in that case that there was no such thing as a priority to be gained by one State as against another. It also held that the lower State, by reason of being the lower State on the stream, did not have the right to have all the water come to it, undiminished in quantity. It also held that Colorado, by reason of being the State of origin, did not have the right to have all the water which originated in Colorado retained within its own borders. The court regarded those positions as positions of extreme State selfishness, and held that the principle to be applied was what the court called, in its own language, "equitable division"; in other words, a fair amount of water delivered in each State, without any conclusive regard to the relative dates of use within the two States.

And when it came to the case of Wyoming v. Colorado, which involved the Laramie River, and where the contest was between two simon-pure appropriation States, the principle laid down was that equitable division would not apply, Mr. Justice Van Devanter saying that in Kansas v. Colorado one of the States was not a simonpure appropriation State, but had as its fundamental water law the law of riparianism; and then he applied this rule of interstate priority, the rule of which you have been speaking, as between the States for the use of the river with the burden of reservoir construction thrown on the lower State.

Now, it is the contention of the people in our State, and I think of the other upper States as well, that inasmuch as California has exactly the same kind of water law as has Kansas-in other words, a State whose fundamental water law is riparianism, with such appropriation rights as there are carved out of previously existing riparian rights, that the rule to be applied to that river would be exactly the same as the rule laid down in Kansas v. Colorado for the Arkansas River.

Mr. LITTLE. That would be the more satisfactory rule to your people, would it?

Mr. BANNISTER. That would be the more satisfactory rule to our people, and I should think to the other States. It is the only rule that will give the States upon an interstate stream anything like an equal chance of economic development.

Mr. LITTLE. Well, that rule would cover, perhaps, all the difficulties that you had in mind?

Mr. BANNISTER. It provides the principle upon which the settlement can be made.

But here is one difficulty: It takes more than the mere establishment of a legal principle to affect a settlement of a water controversy between States. It takes the application of that principle, as well as its formulation.

Mr. LITTLE. Well, that would be very easy to make, would it not, if you had reached a decision?

Mr. BANNISTER. Oh; that is most difficult to make.

Now, you take your Colorado River compact-I see Mr. A. P. Davis is here. But there you had men who were experienced in water law, and in the handling of water, from each of the States. You had the same kind of men representing the Federal Government, including Mr. Davis here. And those men held-I have forgotten how many sessions all told, that Colorado River Commission held-but I know this, that the Colorado River compact, when finally signed at Santa Fe, New Mexico, required 27 executive sessions, in addition to the session at which the compact was finally signed.

And why? Because of the difficulty in reaching an application of the principle of equitable division. What would it be, concretely? How much water should different States have out of the common supply to constitute its "equitable division."

And the problem was so difficult that they did not attempt to say how much each State should have, but simply divided the States into two groups, the upper basin group and the lower basin group, one consisting of four States and the other of three States, and then saying how much each group should have.

Mr. LITTLE. Well, the principles of equity can be applied to that? Mr. BANNISTER. It can be done; and in a controversy between States, it would be for the United States Supreme Court to say what would be an equitable apportionment of the water; and there is no question but that the court could, if it wished, appoint a commission of technical engineers versed in water matters to enlighten it as to what would be, in interstate matters, a fair division of the waters of the stream.

Mr. RAKER. Is it your contention that, under that compact, if a dam should be built at Boulder Canyon by the Federal Government, at the present time, and for the next 15 or 20 years there is plenty of water, because the water in the upper reaches is not used-but in 15 years, or thereabouts, those upper States should divert and use the water, that the Government would not be entitled to have the water come down to the Boulder Canyon, if it was necessary to maintain it at its proper height?

Mr. BANNISTER. That would be the contention of the upper States. That is

Mr. RAKER (interposing). Is that the purport and intention of that compact?

Mr. BANNISTER. Yes, sir; that is the intention of the compact, that the upper States may hold back 7,500,000 acre-feet for the use of the four upper States, and for the three States below, 8,500,000 acre-feet, and then dividing the residue at a later time.

Mr. SWING. Less seepage and evaporation.

Mr. BANNISTER. Well, as I understand it, any loss in the seepage in the Grand Canyon, or before the Imperial Valley is reached, is counterbalanced by the inflow from tributaries that come in below, between the two groups.

The CHAIRMAN. The witness has occupied an hour.

Mr. VAILE. Mr. Chairman, I hope the witness will not be shut off. He has come a long distance to address the committee.

Mr. ALLGOOD. We do not want to shut him off, but let him proceed with his general statement.

The CHAIRMAN. We have a good many people who have come as far as Mr. Bannister; and if we give each man an hour and a half, it will take a long time to hear them all.

Mr. VAILE. Well, Mr. Bannister has come here by authorization of three of the four upper States, and speaks as one in a position of authority for those States.

Mr. SWING. Nobody wants to cut Mr. Bannister off. We want to give Mr. Bannister a chance to give us his ideas. I certainly do not want to shut Mr. Bannister off one minute.

Mr. LITTLE. Suppose we agree to let him proceed without questions for half an hour?

The CHAIRMAN. In the absence of objection, that will be done. Mr. BANNISTER. I was just at the point of raising my third question, as to whether a recapture provision in the bill should not include the right for the Government to take back the water, as well as the physical plant?

The next inquiry I make is, should the bill not be clear as to who is to be the owner of the rights to waters appropriate?

For instance, if the water is going to be used for power purposes, by certain lessees of power privileges, and also is going to be used by political subdivisions, who will build their own plants and be entitled in perpetuity to power privileges, who is to own the water rights?

The water will also be used by irrigators in California and in Arizona. And I do not see anything in the bill that indicates clearly who is to be the owner of these various appropriations.

Are the water users themselves to be the owners; that is, the power users, the irrigation users, and other users; or is the Government to be the owner of the appropriations?

If the Government is to be the owner of the appropriations, I do not see in the bill any authority given to the Secretary of the Interior to make appropriations under the laws of the State of Arizona, or of Nevada, in both of which States the dam probably will be built.

And there, again, if the Government is to make the appropriation. I think there should be in this bill, as there is the Federal reclamation act of 1902, a provision clearly to the effect that the Government makes its appropriation under and in pursuance of the laws of the States. That, I believe, is section 8 of that act. I remember it was inserted by Senator Teller at the time of its passage.

And if, on the other hand, the Government is not to be considered as the main appropriator, and the users are, then I think that the users should be directed by this bill to make their appropriations under the laws of the respective States. I am sure that it would not be agreeable to any State in the entire basin, unless, possibly, California, that the appropriations made, whether made by the Government or by individuals, should be other than appropriations made under the laws of the States in which the uses are to be made. You may count on that. You will find opposition, I am sure, in all of those six States; because, whatever our differences may be as to the diversion of the water, we all stand fundamentally on the theory

that the creation of water rights in our respective areas is the product of the exercise of the political power of our States.

I notice here in the bill that political divisions and subdivisions are excepted from the clause that terminates the leases at the end of 50-year periods., I have no comment to make either for or against that.

But this thought occurs to me: I know that there are many people in Arizona who would like to have the State control the generation of hydroelectric power.

And if this provision is in the bill in order to allow the States to do that, well and good. But if not, I am not sure that it is the best thing for Arizona; because, undoubtedly, if political subdivisions come in and apply for power, the very first application will come from the old and established communities, and the power will be absorbed, and there may not be any left when later developments come, especially in the interior of Arizona; that is, when applications come from political subdivisions there. I do not know the exact purpose of the framers of the bill, and I can not say anything one way or the other as to that provision. I simply make the inquiry.

I notice this also: That this bill establishes what are familiarly known as "preferred uses to water." It provides that the most favored uses shall be the domestic use, and then irrigation, and then

power.

Now, is that order of preference, or any preference at all consistent with the laws of the States in which these uses are to be made?

Mr. LITTLE. Will you state that again, that order?

Mr. BANNISTER. I think I am right in saying that the bill provides that the first preference is flood control; and then comes domestic use, and then irrigation, and then power. Or is domestic use put upon the same basis as irrigation? I have forgotten. Mr. SWING. They are put in one class.

Mr. BANNISTER. They are put in one; then, that would make three: First, flood control, which we may ignore. That does not interfere with anybody's use. And then, second, domestic use and irrigation; and third, power.

Now, is that order of preference contrary to the laws of the States in which these uses will be made? For instance, I know that in Mr. Hayden's State, as I recall it, the preference is first in favor of domestic use, and then irrigation, and then power. My recollection is that it is in that order that the water commissioner of that State is authorized to grant permits. California, I believe I may be wrong-has no preferential uses under its appropriation law, and Nevada, I believe, has none.

Mr. SWING. Under the decisions of the Supreme Court, however, I think domestic use, every where is considered the highest use; it is in California.

Mr. BANNISTER. Well, I am not objecting to preferred uses. We have them in our own State: First, domestic; second, irrigation; and third, manufacturing. But I doubt if this order of preference as given in this bill is the same order of preference prescribed by the different States in which the uses will be made.

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