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that they will not interfere with the fair rights of the Northern States.

What I think the Northern States really fear the most is the acquisition of a priority in the flood waters of the Colorado River by reason of the fact that they are held back and conserved at the dam, and then pass through the penstocks and the power plants that will be constructed at the dam.

The use of water for power is a beneficial use, and under the Colorado . Wyoming decision such use would give a prior right. But I think the committee should have in mind this physical situation: That there will be this great dam and the penstocks will come out from the proper point in the dam and go to the power plant. Now, the Government is going to control the flow of water through the dam, penstocks, and power plants; the bill provides that the title to the dam rests in the Federal Government, and no one is going to build a power plant at the dam and use that water for the development of power without getting a contract or license from the Government.

It is perfectly permissible in the bill to provide that the Federal Government in giving any license or contract conferring a power privilege, without which the water will not be used for power, shall insert appropriate provisions that will protect the rights of the Northern States.

If this one proposition alone is relied upon, it will pretty well protect the rights of the Northern States.

But that is not all by any means. Over that dam, when built, the river, which now flows in tremendous volume at some times of the year and has little or no flow at other times, will be flowing in an even stream at all times: the water will be let out gradually; and the Northern States, I think, probably will have some fear that appropriations will be made of this regulated flow of the river. That, of course, is not nearly as important to the Northern States as the appropriation for power, because all of the water would pass through the power plants. But take the regulated flow of the river below the dam; that water will be diverted almost entirely, at least in canals that will be built by the Government, and there will have to be some appropriate contractual arrangement before that water is put to beneficial use there and a water right is created, and it would be perfectly proper in the bill to provide the conditions under which any right should be created.

Take it in California, where possibly the main uses will come. Take the Coachella water district, for example; it will have to make a contract with the Government for the use of the water that is diverted through the All-American Canal, and in the contract there will be a provision for specified repayments to the Government of its proportion of the construction cost. And it would be perfectly proper for the bill to direct the Secretary of the Interior to insert, in addition to the provisions as to the repayment, certain provisions as to the attachment of water rights, so that those rights will not interfere with the rights of the Northern States. And the same would be true in regard to the Imperial Valley.

So that by reason of the Government's control of the canals that will take the regulated flow out, it can attach conditions to prae

tically all the users of water, that their rights shall be subservient to whatever rights are defined as proper for the Northern States.

But that is not all. There is still another ground upon which the Federal Government has the power to interpose in an act like this. which will gather in practically any other possible rights that might accrue that would be prejudicial to and acquire priorities over uses in the Northern States.

I refer to the undoubted authority of the United States over the public domain. The Constitution, as you are aware, specifically gives Congress full control over the disposition of the public domain.

There are two things necessary before water rights can become vested under the appropriation laws of the Western States. In the first place, there must be a rather technical paper appropriation under the laws of the different States. In the second place, the water must be applied to a beneficial use under that paper appropriation. There must be a physical appropriation of the water to the land.

Now, as a matter of fact, all of the water that is going to be regulated down below the dam, assuming that it can all be appropriated under the laws of Arizona or the laws of California or some other State, that is appropriated by filing an application and having that allowed by the States-hardly a bucketful of that water can be applied to a beneficial use on the land without the person desiring to apply it coming to the Federal Government for some right of way or privilege over the public domain.

It is perfectly permissible for the Congress, by reason of its control over the public domain, to provide in the case of anyone getting a right of way or a privilege of any kind for the application of water from the Colorado River to beneficial use on the land, that there shall be as a condition of that right of way provision that he shall not claim any rights inconsistent with the rights of the Northern States. as they may be defined.

There is nothing new or extraordinary in anything that I have suggested. The Federal Power Commission has continually attached conditions to permits it grants.

I am reading now from the third annual report of the commission. They started adding conditions to permits granted reported in the second annual report, but it has become very common in the permits that have been granted more recently. For instance, here is a permit granted for the Deschutes River, in Oregon, "license *** be for 50 years and to require that the right to use the water for power purposes be subordinate to the needs of irrigation on the upper river" (p. 243).

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Here is one in California. This permit is not to be considered as effective or intending to affect the present status of water rights on the San Diego River and its tributaries.

Here is another one in California (p. 246).

Here is one in your State, Mr. Chairman, Idaho, involving a project on the Snake River, the license to contain a special condition that the rights of the license to use the waters of Snake River for power be subordinated to the use of such water for irrigation (p. 253).

There are many of these special conditions.

Here is one on page 258 as to a river down in Alabama, in which they have many conditions.

So it is a very common matter for the Federal Power Commission to insert reservations in regard to the use of water for power that such use will not affect irrigration rights or other rights of upper

users.

Mr. LEATHERWOOD. I would like to have you elaborate a little on one thought there. Take the Idaho case. Is it your contention there that the act of Congress there is final?

Mr. CARR. I do not understand you.

Mr. LEATHERWOOD. Is it your contention that the act of Congress defining the rights on the Snake River in the case to which you just referred in Idaho--I say, is that final?

Mr. CARR. I was not talking about the act of Congress; I was talking about the Federal Water Power Commission in granting permits for power privileges.

Mr. LEATHERWOOD. Then, put it this way. Do you think that determines the relative rights of the agriculturists and the power manufacturer?

Mr. CARR. I take it that it does. It amounts to a contract. It is a contract between the licensee and the Government, and it is obviously for the benefit of the third persons, namely irrigation users, and the contract is enforcable.

Mr. LEATHERWOOD. Mr. Carr, do you not see that back of all this theory if there is a controversy as to these relative rights, that you must, after all, go to the proper tribunal, which is a court of competent jurisdiction to determine those rights?

Mr. CARR. Why, Mr. Leatherwood, if you and I draw up a contract and we do not agree as to its construction, we have to do that. If this compact is ratified, you will have to go to the court of ultimate resort to get it construed and enforced.

Mr. LEATHERWOOD. But you are advocating a theory here by which an upper basin State that is no party at all to the transaction would be bound by some limitation placed upon a right in the lower river.

M. CARR. No; the people in the lower basins are the ones that are bound, the provisions would be for the benefit of the people in the upper basins and the only way that any conflict would arise would be if the upper basin should hold back the water in the far distant future. They have got the water and they can hold it back. Mr. LEATHERWOOD. Hold back how much water?

Mr. CARR. Suppose they held it all back. Who is going to complain? The lower basin people are not going to complain. Now suppose every right they have got is on the condition that they shall not complain over the Northern States holding back all the water. They could not go into court, a court of equity, they would not get anywhere.

Mr. LEATHERWOOD. Are you advocating the passage of a law by Congress that would give unlimited right to the upper States to impound the water?

Mr. CARR. I carefully suggested that I was not taking up that question at this time. I presume that in defining the right of the Northern States the basic principles of the compact should be fol

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lowed. I am discussing the legal authority of Congress to pass a bill like this and inserting appropriate provisions to protect the rights of the upper States. Congress has not the right to do this on various grounds. When these grounds are all combined I don't think you can find any loop hole in the protection afforded water users in the upper States.

Mr. LEATHERWOOD. Is it your thought that there should be something in the way of amendment that would give the upper States the right to impound the water?

Mr. CARR. I do not say that. I said that I thought the limitation that would probably appeal to the committee would be a definition of the rights of the upper States conforming precisely to the terms of the compact.

Mr. LEATHERWOOD. Very well. I suppose you have in mind, then, that the act itself shall define the right as to the quantity of water the upper States may impound, that is your position?

Mr. CARR. Yes. For illustration, define it as the compact defines it, or if you have any other definition I would be glad to consider

that.

Mr. LEATHERWOOD. Very well. We will suppose, then, this bill is so amended as to give to the upper basin States the right to impound and hold back 7,500,000 acre-feet?

Mr. CARR. Yes.

Mr. LEATHERWOOD. Is it your contention that that would be conclusive upon the upper basin States irrespective of whether the Colorado compact was ever entered into?

Mr. CARR. It would be conclusive against lower proprietors and in favor of upper State users.

Mr. LEATHERWOOD. I asked you if it would be conclusive upon the upper basin States irrespective of whether the Colorado compact was ever entered into?

Mr. CARR. It would be a provision binding on the lower States for the benefit of the upper States.

Mr. LEATHERWOOD. And you think it would be conclusive? Mr. CARR. I think it would be as tight as the compact; I don't think there is a loop-hole that you could find in that plan.

Now, I presume that in any event, in framing such a reservation, which I presume if agreeable to the committee would better be handled through a special committee-and I understand that Mr. Hamele may be heard upon that-but I presume that in the first place any water rights attached would be subject to the compact which the evidence indicates will be ratified very soon, and that pending that it will be subject to the terms of the preliminary compact.

Mr. LEATHERWOOD. And it would be your contention that Congress has power to allocate the waters of this river as between the Colorado River States?

Mr. CARR. I do not say that. I said that the Congress in this legislation, by reason of this being a Government project, by reason of the Government's control of uses of water derived from the project, and by reason of the fact that title to water rights in California is derived from the Government, by reason of Government appropriations and by reason of the fact that appropriations of

water will require use of the public domain, can attach conditions binding upon the lower basin that will protect the upper basin to the same extent that the compact would. In brief, the Government will occupy a strategic position by reason of the project and its ownership of the public domain, such that it may and should so limit rights which will grow out of the project that they will not infringe on rights of upper States, just as such limitations are customarily made in the case of permits issued under the Federal water power act. Mr. SWING. May I paraphrase your idea this way? Your position is that Congress has a right to put a limitation upon any person who seeks to benefit by the works which it constructs under this act? Mr. CARR. Yes.

Mr. HAYDEN. If your theory is correct, what is the necessity for the Colorado River compact?

Mr. CARR. Not very much, except that Congress would undoubtedly not attempt to make any such limitation unless the interested States were more or less agreed. Of course, you raise a question there that is pertinent.

Mr. SWING. There are provisions in the compact in addition to the mere question of water.

Mr. HAYDEN. That is true; but the essence of the compact is water and its apportionment to the several States. If Congress has the power to make the apportionment, why have the compact?

Mr. CARR. There might be conditions where they could not do it. Mr. HAYDEN. What are those conditions?

Mr. CARR. In States, for instance, where there was very little public domain it might not be possible; but where there is such a tremendous amount of public domain, which is something Congress has control over, they can reach all water rights that will be touched in the lower States; but I think your question is really directed to a question of the broad, general policy as to whether Congress in exercise of a broad policy should undertake to do anything like that, and I think Congress would not ordinarily undertake to divide water rights; but here is a case where the matter has been very fully considered, where six out of the seven States have ratified, where, as I understand it, in the other State they lacked one vote of ratification, where apparently there is a pretty general consensus of opinion as to what the fair and equitable division is.

Mr. HAYDEN. Let us see if, under your theory, Congress could do anything to deprive a landowner or group of landowners in the lower basin who now have patents to their land, which is no longer public domain, from exercising their right in the courts to have this whole question of water rights tried out. For instance, suppose the State of Arizona should file a suit on behalf of a group of its citizens who now own land which might be irrigated from the Colorado River, and would be irrigated if the water was stored, and who, by reason of diversions above, would be deprived of water; is there anything to prevent Arizona from filing a suit in the Supreme Court and having the whole issue tried out?

Mr. SWING. You mean to assume that these provisions are put in the bill and the bill is passed?

Mr. HAYDEN. Yes, sir.

Mr. SWING. Well, of course, if they could do this without resorting to the United States Government in any way-over public lands,

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