As to the Colorado River, the fact that it is an international stream does not confer upon the Federal Government any greater power or right in respect to the control of the stream than the Government would have if the stream were not international, unless the Government should go ahead and make a treaty with Mexico, in which the Government might bind itself to assume some degree of control and management of the river in which event, and only in which event, the Government would possess an authority which otherwise would be lacking.

Again assuming, as I have been asked to assume, that the stream is navigable, my opinion is that the navigability thus assumed does not confer upon the Government any power of regulation or control which is not in some way connected with the regulation of commerce upon the river. The proposed Boulder Dam is not to be built as a means of regulating or promoting commerce in any way. In fact, the expected result is to be that commerce will be more than ever interfered with by the interception of water with which to fill the great reservoir and by the withdrawal of the water from the river and from the reservoir for the pupose of irrigating lands. The effects of the reservoir is therefore to ruin commece and not to pomote it. The effect has nothing whatever to do with the regulation and promotion of commerce, and, therefore, the navigable quality of the river would not confer upon the Federal Government any more power, right, or authority over the Boulder Canyon project that the Government would possess if the stream were nonnavigable instead of navigable.

In conclusion, I may add, touching the question of whether or not it would be possible to so amend the bill as to protect the upper States, that the question is involved in such grave doubt that no upper State would dare risk the validity of the attempt. The protection of the upper States by Congress would involve an atempt on the part of the Congress to effect a distribution or division of water between the States or the group of States. It is doubtful if there can be found anywhere in the Constitution an express or an implied power to effect any kind of a division whatsoever of the waters of the Colorado River system, although it is certain that in the event of controversy the Supreme Court of the United States would have the auhoriy to make a division under its constitutional power to determine controversies between States. Since the Federal Government does not possess any riparian right in any of these States and is therefore not the owner of any of the unused or unappropriated water in the States where the dam is to be built or, for that matter, in six out of the seven States of the basin, it follows that the Federal Government has no property right in respect to the waters upon which to base an authority to divide them among the States, and since the United States has not made a treaty with Mexico requiring the United States in anywise to effect a division of the water between the States, the Congress would have no power to make a division based upon the international character of the stream. And, finally, since the purpose of the Boulder Canyon project bears no relation to the regulation of commerce, there is nothing in the interstate commerce clause of the Constitution that confers upon Congress the power to divide the water between the States. Thus it would seem that the authority of the Federal Government is not to be extended beyond what it would be if the stream were not international in character and if it were, as I believe it is, nonnavigable.

Respectfully submitted.

L. WARD BANNISTER.

(Thereupon, at 12.15 o'clock p. m., the committee adjourned until Wednesday, February 21, 1924, at 10 o'clock a. m.)

COMMITTEE ON IRRIGATION AND RECLAMATION,

HOUSE OF REPRESENTATIVES,

Washington, D. C., Thursday, February 21, 1924.

The committee met at 10 o'clock a. m., Hon. Addison T. Smith (chairman) presiding.

The CHAIRMAN. Mr. Bannister will

resume.

92265-24-PT 1-14

Mr. RAKER. Mr. Chairman, before we proceed, I desire to present the following letter to the chairman, and I want it to go in the record:

Hon. ADDISON T. SMITH,

FEBRUARY 21, 1924.

Chairman Committee on Irrigation of Arid Lands,
House of Representatives, Washington, D. C.

In re H. R. 2903.

MY DEAR MR. SMITH: As a member of the committee, I respectfully submit to you and the committee that the following-named gentlemen be requested to appear for examination before the Committee on Irrigation of Arid Lands for the purpose of giving their testimony and such data as may be presented relative to the hearing now being conducted on H. R. 2903:

1. Mr. Harry Chandler, of Los Angeles, Calif.

2. Mr. A. B. West, vice president and general manager of (a) Nevada-California Power Co.; (b) Holton Power Co., Riverside, Calif.

3. Mr. Lawrence Phipps, jr., of the Southern Sierra Power Co., Riverside, Calif. Mr. Phipps is now in Washington, so I am advised.

4. Mr. John B. Miller, president, and R. H. Ballard, vice president and general manager of the Southern California Edison Co., of Los Angeles, Calif.

5. Mr. Harry Stetson, of New York and Philadelphia, and his consulting engineers, Gen. George Goethals and Mr. W. D. Clark.

In presenting this matter to the chairman I ask that the committee request the chairman that it is the sense of the committee that the chairman request these several gentlemen to appear before the committee in regard to H. R. 2903 and if they fail to appear after being requested, that such action be then taken relative to their being required to appear as in the judgment of the committee may be most desirable.

Most respectfully,

JOHN E. RAKER, M. C.

The CHAIRMAN. We will give this consideration in executive session.

Mr. LEATHERWOOD. Of course, Mr. Chairman, I want to renew my request in connection with this letter, so that it may not be lost sight of. At some time before the hearings close, I desire to have Senator Ashurst called; and Colonel Fly is already here, I understand, and will be in attendance.

The CHAIRMAN. Yes; he is waiting to be called.

Mr. RAKER. Of course, it is understood, Mr. Chairman, that I did not include in that letter Mr. O. C. Merrill, the executive secretary of the Federal Power Commission, because he is an official of the Government, and I assume will be here.

The CHAIRMAN. We have him on the list.

Mr. RAKER. Yes; so I understood. I thought I would give him time. I think these gentlemen will all come without any question, in answer to a nice, courteous letter from the chairman.

The CHAIRMAN. Mr. Bannister, will you resume your statement? TESTIMONY OF MR. L. WARD BANNISTER, OF DENVER, COLO

Resumed

Mr. RAKER. Mr. Bannister, just to recapitulate a little: I understood you yesterday to say that it seemed to you that the only thing necessary would be to put in the dam somewhere on the Colorado River, just for the purpose of controlling the floods relative to the Imperial Valley and the Arizona side. Did I understand you correctly?

Mr. BANNISTER. I spoke of the dredging of the channel and building up the embankments, and then, possibly, of some minor dam.

Mr. RAKER. Well, is that your theory?

Mr. BANNISTER. Do you mean of how it should be solved? Mr. RAKER. Is that your theory, that the relief should be extended in that way to the Imperial Valley and the lands in Arizona?

Mr. BANNISTER. Do you mean is that my theory of ultimate relief or of temporary relief? If you are referring to the ultimate, permanent situation, I think there ought to be a large dam in the southern basin.

Mr. RAKER. Well, that is not the exact point.

Mr. BANNISTER. Well, I have not the personal knowledge to answer that question; but simply judging by what I have heard, I imagine it should be the Boulder Canyon, or the Black Conyon slightly below, or else the Glen Canyon. But I am not the advocate of any site.

Mr. RAKER. Where do you get your theory or idea that there should be a dam constructed for the purpose of handling the floods alone?

Mr. BANNISTER. Well, what I had in mind was the protection of the people of the Imperial Valley; but I think the compact will be ratified very shortly, and then we can enter upon whatever permanent construction is to be made.

Mr. RAKER. Well, let us leave the compact out of the question for the moment; let us get down to the physical conditions. What induced you to come to the conclusion that there should be a dam just for the purpose of controlling the floods?

Mr. BANNISTER. I have not come to that conclusion, Judge Raker. Mr. RAKER. I understood you to say yesterday that you thought they could be relieved by putting in a dam?

Mr. BANNISTER. Only as a temporary matter; and I will say this, that the upper States would have the same objection to the mere flood-control dam that they would to the larger dam except that the objection would be on a leser scale; because any dam that you put in there will, as a matter of fact, although put in by the Government for only one purpose-flood-control-nevertheless be actually used by appropriators below for appropriation purposes. Therefore, unless the dam were a very small one, and not causing any substantial inroad upon the river, the upper States would have the same objection, only on a smaller scale, that they would have to the larger dam,

Mr. RAKER. Is there any present urgent need, as it affects human life, by virtue of the waters of the Colorado River, up above Lees Fery, at any of the recesses of the river at the present time?

Mr. BANNISTER. Do you mean human life in danger above Lees Fery?

Mr. RAKER. Yes.

Mr. BANNISTER. I do not know of any such danger above Lees Ferry.

Mr. RAKER. Is there any development that is going on now for the purpose of protecting any large number of people, or any small number, from inundation or destruction otherwise from the river? Mr. BANNISTER. At a point above Lees Ferry?

Mr. RAKER. Yes.

Mr. BANNISTER. If there is, I do not happen to know about it.

Mr. RAKER. Do you draw any distinction between the condition. of the people in Imperial Valey and in Arizona relative to their dire necessity of having protection, on the one hand, and what might eventually develop in the upper recesses of the river, on the other hand?

Mr. BANNISTER. Do you mean what might develop in the upper recesses of the river with respect to the protection of human life? Mr. RAKER. Anything.

Mr. BANNISTER. Well, if you mean human life, I should say the lives of the people in Imperial Valley are just as sacred as those of the people of Colorado. I would protect them anywhere. I once lived in California. I have nothing but the highest regard and affection for that State.

Mr. RAKER. We will put it the other way: Do you make any distinction now as to the actual condition of relief in Imperial Valley and Arizona as compared to a future prospective, theoretical development in the upper reaches of the river?

Mr. BANNISTER. Well, Judge Raker, as I get your question it is this: You are balancing what you call the needs of human life in the Imperial Valley against the future economic development of the upper States?

Mr. RAKER. Is that not the situation?

Mr. BANNISTER. In answer to that question, I should say this: That if those two are inconsistent, which they are not, I would even sacrifice the Imperial Valley to the upper States; because that valley represents 50,000 people and $100,000,000 in property; whereas you have also at stake the future of nearly 2,000,000 people in four of the upper States. But I do not believe that human life is quite so closely involved in the Imperial Valley; and I believe it is possible and probable, as a temporary measure, to relieve the situation by the dredging of the channel and the building up of embankments.

Mr. RAKER. Would that be your theory of proceeding relative to the development of the Lower Colorado River?

Mr. BANNISTER. For temporary relief; but I say that on that my judgment is not very good. I have not seen that section.

Mr. SINNOTT. Will you allow me to ask him a question, Judge Raker, before he gets away from that?

Mr. RAKER. Certainly.

Mr. SINNOTT. You spoke about the people below appropriating the water and then you were diverted. What did you wish to say about that?

Mr. BANNISTER. The point I had in mind was this: That if the Government were to build a dam for flood purposes, and not at all for the purpose of appropriation for either agricultural or power uses, yet, nevertheless, the people living below the dam, having a right under State law, as they do, to go to the river and make appropriations, through such ditches as they, independently, may choose to construct, could appropriate the water of the river and have the benefit of the waters stored in advance. And we should have the same objection to the acquisition of priorities against the upper States in that manner, if the principle of interstate priority be the law, that we should have against appropriations coming from a dam constructed for the specific purpose of permiting appropriations to be made.

Mr. SINNOTT. Could they acquire a right against the Government building the dam? I had in mind the Chandler-Dunbar decision, where it was held that the Government had a right to rent the water flowing over the dam in a dam constructed for the purpose of navigation.

Mr. BANNISTER. Your question is, What is the right of an appropriator—and I am assuming now that you are referring to power purposes as against the Government, in respect to water which the Government allows to flow over its dam, where the dam is not constructed by the Government for the purpose of appropriations, but, let us say, for flood control?

Mr. SINNOTT. Well, the Government might temporarily permit it to go over, with the right to rent the water afterwards; as I remember the Chandler-Dunbar decision, it permitted the Government to rent that water right.

Mr. BANNISTER. I should say that where the Government does not build a dam for the purpose of permitting appropriations, but nevertheless appropriations are made of the waters, there the appropriator gets his right from the State, the State of Arizona or the State of Nevada, and not from the Federal Government. I think it is true that this same appropriator would receive from the Federal Government a right to connect his plant with the dam. But that is a mere physical connection of works and works; and I think that the water right would come from the State of Arizona and be subject to the law of Arizona.

Mr. SINNOTT. But did not the Supreme Court hold in that case that there was no objection to the Government renting the usufruct of the water?

Mr. BANNISTER. I can not answer as to what the court held in that case, because it has been so long since I have seen it. Mr. SINNOTT. That is my recollection of the case.

Mr. BANNISTER. But with respect to the relative powers of the State and Federal Government, I would even go so far as to say this: That even where the Government builds a dam for the purpose of enabling power to be generated, or water to be used for agricultural purposes, and even if the Government itself is the appropriator, the Government would receive its appropriation right, not from the Federal Government, but from the State of Arizona; if the dam be built in that State, and like any other appropriator, would have to apply for a permit under the laws of the State of Arizona.

If the dam is on Government property, or if the canals are on Government property, then they are there by virtue of a land right obtained from the United States; but when it comes to the water right, the water right is received, not from the Federal Government, but from the State.

Now, that is the fundamental law of every one of six of the States of the Colorado River Basin, including Arizona and Nevada. Mr. SINNOTT. Well, as I recall the Chandler-Dunbar case, while the Supreme Court held that the State owned the bed of the navigable stream, of course, it was subject to the dominant right of the Federal Government to protect the navigability of the stream? Mr. BANNISTER. Yes.