or over the use of any Government structure-such a thing does not exist, but assuming it could exist, it seems to me they might get into a court; but if they have at any place to cross public land or ask for a Government license or permit, or seek or accept the benefit of any Government work, that could be controlled, as I understand Mr. Carr's position, by this legislation.

Mr. CARR. Of course we all recognize that anybody can go into court. I am sure that under a provision like this the upper States could not maintain an action before the Supreme Court to throw it all into court, because they could not show where they were going to be injured or where they had any justiciable rights.

Mr. HAYDEN. No one can get into a court unless he can show an injury.

Mr. RAKER. You can get in but you can not stay.

Mr. CARR. Let us get it down to a concrete case. The agency that would be in the best position to do this would be the Imperial Valley project.

Mr. RAKER. There is no question that if you adopted that compact a hundred times, if the Imperial Valley water user's rights were interfered with by anybody above, they would have a right to go into court and have them adjudicated.

Mr. CARR. Of course nobody can affect vested rights under the Constitution of the United States.

Mr. RAKER. Of course not.

Mr. CARR. What we are dealing with-and that is the gist of the Northern States' contention-is the creation of new rights which will create priorities that will be injurious to them 15 or 20 years from now when they desire to hold back the flood water. I think that can be met by an appropriate provision here that will fully protect them.

Mr. LEATHERWOOD. As I understand your position, you indirectly manifest some sympathy for us, that we would not be able to get into court at that time.

Mr. CARR. I am not afraid you would try to get into court with the Imperial Valley using all water that comes by, with a good appropriation therefor. I am not worried about that. And if a provision like the one I have suggested is put in this bill it seems to me the upper States would be in an extremely good position. Mr. Leatherwood. When Mayor Bacon was here the other day he read Mr. Bannister's position. A preliminary report came out on this project and there was a hearing before the Secretary of the Interior and everybody was invited to come in, and when he was talking on this particular project Mr. Bannister had this to say: Now, Mr. Secretary, the remarks I want to make go to the method by which I think it possible to protect an upper State like Colorado.

I am reading from page 312 of Senate Document 142, Sixtyseventh Congress.

He said:

The first point was that where the development is to be by a private enterprise acting under the Federal Power Commission, there should be included in the license and permit granted to the holding company a provision whereby the water used in connection with the project should be considered subject to the right of equitable division on the part of other States upon that same

stream, and in that way, as a matter of law, I take it that no matter what the will of the private company might be, no encroachment could be made upon the water of the other States.

Then he takes up the question of Government construction, which was the matter under consideration.

Again, if the development, instead of being carried on by a private company, should be carried on by the Government itself, I think that the rights of other States can be fully protected if in the statute passed by Congress and if in the regulations made by the department appropriating the money and authorizing the enterprise there were inserted a provision similar to that which I have mentioned as being appropriate to license and permits granted to private parties by the Federal Power Commission.

Now, Mr. Bannister did not have any doubt at that time that the Congress could protect the water rights of upper States. I might say in the records of the Girand file with the Federal Power Commission at the present time there will be found a suggested reservation to be attached to Girand's permit if it is granted.

Mr. HAYDEN. I wish you would insert that suggested reservation in the record.

Mr. RAKER. Who presented that?

Mr. CARR. My information is that it was presented by Mr. Carpenter of Colorado.

Mr. RAKER. For the Girand people?

Mr. CARR. No. That is my information. He suggested that he had worked out a reservation that could be attached to the Girand application, and suggested that we do that and it might be of some assistance to us in framing an appropriate reservation for this

measure.

Mr. RAKER. Who is Mr. Carpenter?

Mr. CARR. He was the official representative of the State of Colorado on the Colorado Commission, and I believe is the official representative of the State to-day.

Mr. RAKER. I am wondering whether or not on the question of this compact it is the hope that it will repeal, if ratified by the States and adopted by Congress, that provision in the act defining a navigable stream and thereby take from the Government the power to ever control the Colorado River as a navigable stream. That is something that I have tried to find out, but nobody has answered me, and I am wondering whether or not that that is not the crux of the whole matter and the objections when they talk about the compact. I can never get anybody to explain that when anybody brings it up.

Mr. CARR. I think I can enlighten you a little.

Mr. RAKER. You might as well give us all the facts; put all the facts on the table as well at one time as another. Nobody has explained that yet.

Mr. CARR. I was at Santa Fe as an observer while the commission was in conference there. The sessions were executive, but when you are around at a meeting of that kind you get certain impressions and ideas that are usually somewhat accurate. The situation as I got it was this: There was a strong movement by at least six out of the seven States to bring about a situation where all rights of the National Government would be relinquished to the States. That was opposed by representatives of the United States Government.

There was a somewhat bitter contest over this, and finally in drawing the compact I think an earnest effort was made to leave things in an exact status quo. Because of the insistence by Mr. Hamele, attorney for the Reclamation Service, I believe. The compact provides that even though it is ratified by the States, that when the matter of approving the compact comes before Congress, Congress may approve it in all respects except in respect to that provision which declares the river to be nonnavigable. I think that was put in at the instance of Mr. Hamele, and so the right of Congress is protected there.

Mr. HAYDEN. Mr. Raker said that nobody had answered questions about navigation. If you will look at the questions I asked relative to the compact, on page 3, you will observe that I asked Secretary Hoover, who was the representative of the United States on the

commission:

Why is the use of the waters of the Colorado River for navigation made subservient to the domestic, agricultural, and power uses, as provided in paragraph A of Article IV?

His answer is:

This article is an expression of the views of the commission as to the relative importance of the uses to which the waters of the river may be devoted. It is recognized that on many streams navigation is a paramount use, but on this particular river navigation is negligible in fact. As expressed in the language adopted, the river "has ceased to be navigable for commerce."

It does not declare in nonnavigable or unnavigable, but that it "has ceased to be navigable for commerce."

This is a true statement of the existing situation. Below Yuma there is but little water in the river bed. The Laguna Dam above Yuma has made navigation between points above and below it physically impossible, and the construction of further dams in the development of the river will prevent navigation at other points, even if it were now physically possible. Power structures, irrigation dams, and navigation can not conveniently exist together. It was therefore felt that the very great possible use of this water for power and irrigation far outweighed in economic importance the very slight and largely theoretical uses which might be made for navigation, and this paragraph was drafted accordingly.

Mr. RAKER. I appreciate that, and I read it. The same contention has been made over many other rivers, particularly the San Joaquin and Sacramento Rivers; but nevertheless in this there is not a word said that the Federal Government surrenders. If it should approve that provision it has absolute control over the Colorado River so far as the upper part of the river is concerned. I bring that in because in talking about the compact there are two parties to this, and the Federal Government under that compact surrendered all of its rights for the purpose of adjusting this matter between the States. That is the true situation.

Mr. CARR. I do not think that is exactly correct; or rather, in fairness to the representatives of the Federal Government, it should be remembered that they put a special provision in there leaving it up to the Congress to determine whether the surrender should be made. That is in the compact.

I was going, in addition to this, to refer to one or two things that were brought up by Mr. Ballard yesterday, that I think possibly are entitled to consideration.

He spoke about flooding the market with power when 600,000 horsepower was brought in. I am not an engineer, but I talked a good deal with engineers, and I understand they will explain this to you. I simply suggest, so that a vague impression that may have resulted from his remarks will not become a fixed impression, that when that dam is built, say up to the 350 feet, there will be 250,000 horsepower come in, which is somewhat less than the amount Mr. Ballard thought he would need for his company. Of course as the development goes on the horsepower developed will be greater; a greater power will be secured.

You understand that no major power project could be brought in to exactly fit a growing market. Always when a major project comes in there is some more power than is needed. and then the next year it may be the market can absorb all the power developed, and it may the next year become necessary to call on steam power. That is an incident of the business.

Mr. SWING. You mean that the present project as conceived contemplates bringing in power before the dam has reached its full height, so that after the third or fourth year will begin the generation of some power which will be increased as the dam reaches its full height and is filled with water?

Mr. CARR. Yes; when the dam is built up to about 350 feet, roughly speaking, I think there will be a quarter of a million horsepower available, and then as the dam goes higher more horsepower will be developed, so it will fit the market as near as possible to fit any market by the development of any major hydroelectric project.

Mr. HAYDEN. In connection with the question of navigation, I have here the annual report of the Governor of Arizona for 1894, and I should like to direct attention to a brief extract, found on page 58. The governor at that time was Louis C. Hughes. He states:

I desire to again call your attention to the Colorado River, which subject was referred to at length in my last report, and am pleased to state that Congress at the last session directed the Secretary of War to cause a preliminary examination to be made of the river above Yuma to the highest point of navigation. The result of this examination is of great importance, as I am reliably informed that the Mexican Government will make a survey at extreme low water (which will be in December) of that part of the river within its border, with a view to immediate improvement. It is believed that that Government will build works at Port Isabel and lay moorings. This done, coal could be delivered at Yuma at $6 per ton, as against $14, and lumber in cargo lots from Puget Sound ports for $10 per thousand, as against $25 and $30, the present cost.

It is important that the Government complete its work of improvement begun in 1884 between The Needles and Eldorado Canyon. For every dollar expended there is permanent improvement and reduces the cost of mining in that vicinity.

The river below Yuma is mostly in Mexico, but as navigation is free it will prove a great highway of commerce to the United States if we come to import large quantities of coal, coke, lumber, and export ores, cattle, and grain. With the present river conditions transport steamers carry from tidewater to Yuma 700 tons in three and a half days.

The following from Capt. J. A. Mellon, who has seen 30 years' service on the river, may prove instructive:

"The Colorado has been navigated continuously since 1852 by steamers, those now in use being 150 feet keel by 30 feet beam and measure 240 tons, drawing 20 inches without load, and will carry 10 tons for every inch you sink them; we also tow a barge which will carry 150 tons on 2 feet of water. The old steamers formerly used were only 90 feet long by 24 feet beam. The river is navigable for 465 miles from its mouth at all seasons, or, in other

words, to Fort Mohave. During the summer we can go 140 miles farther to Rioville, where the Virgin empties into the Colorado, making 605 miles of waterway.

"During the winter or low-water season, the last 140 miles is impassable on account of bowlders in the channel and cobblestone bars, which, with a little Government aid, could be removed and the river made navigable at all seasons for over 600 miles from its mouth. This would open a way for the farmers of the Virgin and Muddy valleys to market their crops; the sale deposits on the Virgin could be worked and the sulphur and gypsum of the Black Canyon would be made valuable."

Mr. HAYDEN (continuing). Navigation on the Colorado River was destroyed by the construction of the transcontinental railroads. Mr. RAKER. The reason I refer to that was the provisions in the water power bill describing navigable streams, and what a navigable stream is. Whether this is a navigable stream now or whether new construction is necessary to make it navigable is a question. That was to get it before the committee.

The CHAIRMAN. The committee will resume its sittings on this bill next Tuesday morning.

(Mr. Carr submitted the following paper:)

ART. 15. The herein license is issued subject to the conditions and limitations following, lettered A, B, C, D, E, and F.

A. The licensee hereunder does hereby admit, recognize, acknowledge, assert, and affirm that the impounding, diversion, or use of water for the development of power hereunder is and shall be subservient to the use and consumption of the waters of the Colorado River and its tributaries for domestic and agricultural purposes and for municipal purposes other than the generation of electric power, and shall not interfere with or prevent use for such dominant purposes whether such uses have been initiated before or after the initiation of water rights under the laws of the State of Arizona by this licensee.

B. The licensee hereunder does hereby admit, recognize, acknowledge, assert, and affirm that the impounding, diversion, or use of water for the development of power under this license is and shall be subservient to the impounding, diversion, or use for power purposes of the waters of the Colorado River and its tributaries wholly within the States of Colorado, New Mexico, Utah, and Wyoming, whether prior or subsequent in time to the impounding, diversion, or use of water by the licensee.

C. The licensee agrees that upon the ratification of the so-called Colorado River compact signed at Santa Fe, N. Mex., on November 24, 1922, paragraphs A and B of this article 15 of this license shall become inoperative as of the date of this license, and the terms and provisions of such interstate compact shall become operative to the same extent as though such terms and provisions thereof were herein set out at large in lieu of said paragraphs A and B.

D. During the term of this license the licensee will not assert, pleat, or contend in any legal or equitable proceeding, or before any tribunal of whatsoever nature, as against the United States or any State thereof, or as against any user referred to in paragraphs A and B hereof, that the conditions of this article 15 in any way affect or interfere with the laws of Arizona or are inconsistent with the provisions of the Federal water power act.

E. This license is issued and the use of the site or sites herein described is hereby granted upon the express conditions and limitations contained in this article 15, which are incorporated herein at the written request of the licensee herein named for the benefit of the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming, and each of them, and of any and all users of water from the Colorado River or its tributaries referred to in paragraphs A and B hereof; and the licensee hereby consents that said States and users of water, or any one or more of them, may at all times assert and maintain the provisions of this article 15 against this licensee by way of defense or otherwise.

F. The terms and conditions of this article 15 shall be binding upon the licensee herein, his heirs, administrators, executors, and assigns.

(Thereupon, at 12 o'clock, the committee adjourned.)