Girand application being on file and approved by the State; and the application of the other company being on file, and they can comply with the State laws of California, Arizona and Nevada: Under those conditions, what is there to prohibit the Federal Power Commission from immediately acting and allowing those applications, and. thereby preventing or prohibiting action by the Government-or, rather, putting the thing in such shape that the Federal Government would not be justified, even if it wanted to, in constructing a dam in the Colorado River?

Mr. CARR. Legally there is no obstacle, Judge Raker; you are entirely correct in that.

But I do think that, after the Congress in 1920, directed a governmental agency to make a report as to the proper means of development of the Colorado River; and after that report has been made, and after legislation, such as this, has been presented to carry out the recommendations of that report; and after there have been long-extended hearings; and, if, after, full consideration, one branch of the Congress adopted legislation carrying out the recommendations-I think the indirect or moral effect of all these circumstances would be such that no executive agency like the Federal Power Commission would grant any application that would be inconsistent with the interests of the Government project,

Mr. RAKER. I am afraid that is an assumption that would not be justified by the facts, or under any circumstances, because they do not intimate in these reports-and I have been asking you these ques tions for that purpose-they do not for a minute consider the fact that there is pending legislation by which the Government would construct this project, nor is there any evidence before the committee as yet-it may be presented before we get through-that the Government, through its officials, has made any attempt on earth to acquire any rights toward complying with the local laws of the States relative to appropriation or diversion of water for agricultural, domestic, or even electrical purposes,

Mr. CARR. Well, of course, you are undoubtedly right: if some such legislative action as you suggest was taken, it would make the situation legally safe.

Mr. RAKER. I am just trying to find out the status in which we are working if we should work on the matter for months, and before we concluded another branch of the Government could sweep the whole thing from under our feet?

Mr. CARR. Yes; but we feel that if the lower House should act on this legislation, we would be reasonably safe in believing that the way would be left clear for the project to be carried out.

Mr. HAYDEN. Do you consider the action taken by Congress. wherein the Secretary of the Interior was authorized and directed to make an investigation of the best method of protecting the Imperial Valley to be of any greater effect than the other law passed by Congress, authorizing the appointment of a commissioner to take part in the negotiation of a compact between the States for an equitable apportionment of the waters of the Colorado River?

Mr. CARR. No: but I think there are circumstances which an executive board like the Federal Power Commission would have in mind before taking any action.

Mr. HAYDEN. Congress has acted twice with respect to the Colorado River.

Mr. CARR. Yes, sir.

Mr. HAYDEN. Congress acted once to authorize an investigation to determine the best means of protecting the Imperial Valley; it acted again in recognizing the necessity for an equitable apportionment of the waters of the Colorado River. A commissioner was appointed, who took part in the negotiations that led up to the agreement known as the Colorado River Compact?

Mr. CARR. Yes, sir. And the Federal Power Commission in its action had the Colorado River compact clearly in mind: it appears running through its reports that they have been in consultation on that. Let me see if I can turn to something else along that line. I have here the minutes of a meeting of the Federal Power Commission on December 13, 1923, which are found in the third annual report of the Federal Power Commission, page 92, and which read as follows:

The executive secretary stated that the Colorado River Commission had reached an agreement as to the apportionment of waters of the Colorado River pursuant to the act of Congress creating that commission; that this agreement will be submitted for ratification by Congress and by the legislatures of the States involved; and that it is desired by said cenmission that any license Issued by the Federal Power Commission shall be made expressly subject to the provisions of the agreement. He also submitted a telegram from W. S. Norviel, of Phoenix, Ariz., stating that the execution of the Colorado River Compact by said commission seems to have removed opposition to the 'Girand project and urging that the commission grant a license therefor, Action was deferred until the matter could be taken up by the chairman with Secretary Hoover and with the President.

So it shows in the formal proceedings that they paid attention to that-

Mr. RAKER (interposing). Have you or your people made any representations to the Federal Power Commission that, in view of the fact that there is legislation pending, the commission should proceed and state their attitude and opinion

Mr. CARR (interposing). Yes, sir→→→→

Mr. RAKER (Continuing). Just a moment: let me finish-as to what they would do, supposing the compact was approved and this legislation was not disposed of before that time, whether they would hold up any of these applications until the pending legislation was finally disposed of?

Mr. CARR. Yes, sir. Before the Northern States thought of any rights that they had southern California interests began sending telegrams and protests to the President and to the appropriate Cabinet officers urging that, in view of the fact that Congress had directed an investigation of Lower California, and that, pursuant to that direction, an investigation had been made, and that afterwards a report had been made, no action should be taken that would prevent the carrying out of the recommendations of that report until Congress had had a reasonable time to act upon the recommendations made.

Mr. RAKER. What I want to know and to get into the record, if I can, is whether there has been any consideration of or action taken upon those protests or those recommendations?

Mr. CARR. That I can not state.

Mr. RAKER. Have they taken any position? Have they stated that they will take no action until Congress has passed on this legislation, or similar legislation, by which the Government might proceed to construct these works?

Mr. CARR. Let me see if I can find something here in this report [indicating] that will cover that.

Mr. RAKER. I say that this is all idly wasting time, if they are in that attitude or position-that the only thing they are waiting for is the approval of the compact, and if the compact is approved, if they will then proceed to grant these applications to the private concerns, which would then go in ahead of the Government-under those conditions all of this elaborate work and expense would absolutely amount to nothing, and the Government would be left entirely high and dry, to hold the sack, if you please.

Mr. SWING. I will say that point of view was presented by me to the commission at the time the Girand filing was up, in September of last year; that the commission should defer to Congress, as a matter of comity between coordinate branches of the Government, in view of the authorization of an appropriation in the Kinkaid bill, and the subsequent appropriation bills; and that it should give Congress an opportunity to determine its policy based upon the investigations.

That was pointed out by Senator Carr, that in the decisions that they rendered or came to, to postpone action, or refuse to take action on the Girand filing, they made no reference to the existence of pending legislation before Congress, but referred only to the pending compact between the States.

Mr. RAKER. I am trying to bring that out. So far as I am individually concerned, I do not want to be left in the attitude that I am sitting here not knowing what we are entitled to know as to the attitude of the commission

Mr. CARR (interposing). We are trying to make it as clear as we

can.

Mr. RAKER. I know you people are. But here you are putting in letters and reports purporting to show that, right in the face of the work of this committee, they are ready to go ahead with those projects, without any reference to the pending legislation: and what I want to know is, if you have any information that that letter includes this legislation or any similar legislation?

Mr. SWING. There is no evidence that I can find in the official records of the Federal Power Commission that they contemplate holding up action pending the decision of Congress upon this legislation or any similar legislation.

Mr. RAKER. I will not take any more time discussing the point. Mr. Merrill will appear before the committee: and we will have an opportunity to ascertain his position.

Mr. CARR. I think that is the correct way to find that out.

Mr. RAKER. But I want to call the attention of the committee to the fact that I think this committee ought to have that information. Mr. CARR. I want to make it clear that, unless some affirmative legislation is passed by this Congress, there will not be much left to legislate on.

Mr. ALLGOOD. Gentlemen, unless we let the witness go on, we are not going to get his statement.

Mr. CARR. I would like to answer the question of Mr. Leatherwood.

Mr. LEATHERWOOD. When was it that you made this presentation to the Federal Power Commission of your position that you have been discussing with Judge Raker?

Mr. CARR. I have not the telegrams. We took that position, if I remember correctly, in 1920; it may have been the first part of 1921. Mr. SWING. It was 1921.

Mr. CARR. I think it was at the time that the preliminary report of the Secretary of the Interior was first published. We found out that the Federal Power Commission contemplated granting the Girand application. And I may be wrong, but I believe that was before your people in the Northern States were apprehensive concerning your rights.

Mr. LEATHERWOOD. You think at that time we had no understanding or apprehension concerning our rights?

Mr. CARR. I do not think you appeared at that time before the Federal Power Commission. I may be wrong about that.

Mr. RAKER. One other question: Has the Federal Power Commission in its reports or elsewhere, publicly stated, so that it is in writing, that its position was that these developments should be by private individuals as against the Federal Government?

Mr. CARR. Well, as we read the report, we get that.

Mr. RAKER. Can you read that into the record now, so as to give the viewpoint as to whether or not, after we have spent years in preparing for legislation, the whole thing can be swept from under our feet?

Mr. SWING. It would save time if you would let him insert the extracts from the report of Colonel Kelly.

Mr. CARR. I have that right here.

Mr. RAKER. Of course, the saving of time is a good thing. But when I know I have spent a long time at work on a matter of as much importance as this, it does not amount to a "tinker's whoop."

Mr. CARR. On page 187 of the report of the Federal Power Commission for the fiscal year ending June 30, 1922, in a report on the Colorado River development by Colonel Kelly and Mr. Merrill, I find this:

Regardless of the merits of the Swing bill, it must be recognized that it raises questions that kept the Federal water power act under discussion in Congress for 12 years, and it has already stirred up sufficient opposition to make its early passage improbable. The Federal water power act, with the applications made under it, offers a means of immediate action, without the expenditure of any money by the United States. Under it the United States can retain full control of the storage for flood protection, irrigation, and any other necessary activity. The international character of the river is mentioned as a reason for the United States building and operating all projects on the river. There may be international difficulties over diversions in the lower basin, but there is less chance for difficulties over the power developments than there is on the Niagara and St. Lawrence Rivers.

I think that shows their attitude very clearly.

Mr. DAVIS. Read the next paragraph.

Mr. CARR. I have read that.

The CHAIRMAN. This morning!

Mr. CARR. Yes; this morning. I have read the one that favors the granting of the Girand application.

Mr. DAVIS. There is another paragraph in there.

Mr. CARR. Yes here is another paragraph that has been called to my attention, from this same report, page 187, as follows:

Operating power projects on the Colorado River, with the great transmission distances, will be unusually difficult and hazardous. It is not a business the Federal Government will find attractive to enter. If the Government is going to invest in the Colorado River for flood protection or irrigation, it would seem advisable for it to undertake the construction of the Glenn Canyon storage dam and obtain reimbursement under the headwater improvement clause of the Federal water power act.

In other words, their position is practically that stated by Mr. Ballard the other day; that appears from the report that I have

read.

Now, if I may proceed and outline the theories that we have in regard to the power of Congress to protect the legal rights which the upper-basin States may want to exercise sometime in the future or think they may want to exercise in the future-because those rights would only apply if there was not enough water to supply all feasible projects, as the engineers' advice to us seems to indicate that there is.

Now, in the first place, the Government will manage this project; it will manage the dam; and it will manage the reservoirs and canals for a considerable period of years, at least; and it is certainly competent for Congress in the legislation to provide that the Governiment, as the administrator and manager of the project, will conform to whatever definition of rights the committee deems proper to attach in favor of the Northern States.

I presume, of course, Mr. Leatherwood, that it should follow the principles laid down in the compact; I assume that. But I am going to outline first the grounds upon which Congress has control of the situation, without taking up at this present point the measurement of the rights.

Now, in the second place, the Government will have certain rights to the waters that are stored there-certain water rights, as Mr. Bannister expressed it.

It is immaterial for present purposes, I take it, how these will be obtained.

It may have some rights by reason of the ownership of the public domain. I am inclined to think that Mr. Bannister is entirely correct in saying that its water rights will be acquired by appropriation under the laws of appropriation in Arizona and Navada and for the lower developments, possibly, of California.

As to the California rights. Mr. Bannister pointed out that water rights in California deraign title from the Federal Government, in that respect differing from the Northern States; and to that extent the Federal Government would have control of water rights derived in California.

I might say further in that connection that the case of United States. Chandler-Dunbar Water Co., which I presume most of you are familiar with-Mr. Sinnott referred to it the other day--recog nized another class of water rights.

But regardless of how the Federal Government gets the water rights that Mr. Bannister spoke about, it is perfectly permissible in this legislation to define their extent and define their priority, so