Mr. BURGES. No; they cover only two divisions, and they are only a tax lien, rather than a mortgage lien. The point I make is that it is not a mortgage lien as recognized by the Federal farm loan banks. It is simply a tax collected annually, as is any other tax. We organized originally, on the Rio Grande, water users' associations, as, I believe, was generally done throughout the West, and we executed a mortgage on all our lands to secure the repayment to the Government. We executed mortgages to the association, and the association made a general contract with the Government. Mr. LEAVITT. That irrigation district has kept up its obligations with the Government, has it? Mr. BURGES. Yes. Mr. LEAVITT. Is that so in this case, and are the conditions similar to those there? Mr. BURGES. The soil in the Pecos Valley is certainly not inferior to that in the Rio Grande Valley. The growing season is superior. Mr. LEAVITT. How do the costs per acre compare between the two projects? Mr. BURGES. The cost on the Pecos project would be a little more than one-half as much as that on the Rio Grande. Mr. LEAVITT. Then you reason that if the Rio Grande meets its obligations in full, this proposed project will be able to do as well? Mr. BURGES. Yes; I feel that is sure. Mr. LEAVITT. That brings me to this question: From what has been stated, I am willing to say that I am rather sympathetic toward the idea. There seems to be an obligation on the part of the Government because of the history of the project above it, but Congressman Hayden knows the difficulty of getting a bill passed when the department makes an adverse report on it. Perhaps we could advance this project, since all the conditions would appear to be, thus far at least, favorable, by substituting for this, the present legislation calling for the kind of study that would develop all of these things, and then bring that in in accordance with the principle of legislation we passed in the Sixty-eighth Congress to the effect that new projects should require a study of probable water supply, etc. Mr. BURGES. I think we can show that at this time. I believe we will show by Doctor Mead himself that every condition is satisfactory to the department, except one, and that is their fear of a leaking reservoir. We expect to show by him that the soil conditions are satisfactory, and that the climatic conditions are satisfactory, and that the growing season is longer than that on the Rio Grande, the altitude not being so great. We farm down there all the year, practically speaking. I believe we shall show by Doctor Mead at this time this is my expectation after discussing this with him-that all those conditions are satisfactory to the Government now. There is only one thing that balks them, and I understand that. The law of Congress provides that they shall not undertake any construction before the Secretary of the Interior has certified that all conditions are satisfactory. One of the conditions with us is not satisfactory, and we meet it frankly in the beginning with the admission that it is not satisfactory. We deeply regret that we can not get an absolutely water-tight reservoir. There is at Elephant Butte a reservoir 200 feet deep, and the amount of water that goes through there is negligible. It is a rock-bottom foundation. The reservoir holds whatever is put into it, and the amount lost, except by evaporation, is negligible. The geology of the Pecos country does not warrant us in the belief that such a water-tight reservoir could be found at Red Bluff. Mr. LEAVITT. But you do not think you should be denied the project on that one account? Mr. BURGES. No; we think we can make a success if we can arrest that flood water at Red Bluff as this reservoir would do it. The main dam itself will, we confidently believe, not only from a study of the ground itself, but also from experience at the McMillan reservoir, handle every bit of the water after this reservoir is built. We could handle to-day two or three times the leakage of the McMillan reservoir and not lose an acre foot of water. Mr. LEAVITT. By differential dams and these canal intakes? Mr. BURGES. Yes; and the two available at Zimmerman and Imperial to catch any water that we do not want at the time and which leaked out in the meantime. Mr. WINTER. The law requiring the Secretary of the Interior to require certain things before he can make a favorable recommendation has in mind that the project is feasible and that the money advanced will be repaid to the reclamation fund. Your position is that, notwithstanding this leakage, your project is feasible and will ultimately return the money to the reclamation fund. Mr. BURGES. Yes; and the answer that is made to that by the department is that they are not willing to assume responsibility for the statement that it would return the money in spite of the leaking reservoir. We want to be frank with the committee in this connection. Mr. WINTER. That is where you take issue with the department? Mr. BURGES. Yes; and there only. Mr. LEAVITT. They are willing to bind themselves for the repayment of this money, regardless of that condition? Mr. BURGES. Yes; we will show the committee in detail the situation as it exists to-day. The canals are constructed, and are in operation and are efficient. Drainage has been provided where it is needed, and is efficient. Homes have been built, and the land is under cultivation, and the settlers are reasonably well stocked with equipment and machinery. This is not an attempt to establish a civilization, but it is an attempt to save one already in existence and that had flourished before the water supply was cut off. They have schools and churches and community development there. The towns of Pecos, Barstow, and Grand Falls are good typical American rural communities to-day, and are supported by this valley, but they are impoverished by the conditions of the last few years. Mr. LEAVITT. Do you think those lands would be capable of paying the Government an additional $50 or $60 an acre if this did not prove a success? Could they pay out from a practical standpoint? Mr. BURGES. They are meeting the interest and paying the principal on those obligations to-day under the most adverse conditions the valley has ever known. I think that conditions are due largely to the increased use of water above. The Southwest has gone through a drought period of six or seven years and it will equal anything of that kind ever known. I have lived there for 33 years, and I have never experienced a more protracted and widespread drought. This seepage will come back through the soil on either side of the river and make springs. Mr. ARENTZ. Are your State laws so that the rights or title to these seepages would be confined to the use of the water users under the reservoirs now existing, or can others file on them and be outside of the provision of the Government storage water? Mr. BURGES. The natural conditions are such that the land upon which they must use it is a part of this district. Mr. ARENTZ. These seepages would depend upon the conformation of the strata immediately surrounding this territory? Mr. BURGES. Yes. Mr. ARENT2. If you had a formation deep enough you might have these seepages occurring 10 or 15 miles away? Mr. BURGES. Yes. Mr. LEATHERWOOD. You people, with full knowledge of the geology of the country and the conditions existing, are perfectly willing to bind yourselves absolutely to return to the Government the cost of construction contemplated in this proposed bill? Mr. BURGES. Yes, sir; they are willing to assume the risk, and I have no doubt that they can meet it. Mr. LEATHERWOOD. The security is such that in assuming the risk they would have to repay the Government. Mr. WINTER. I am glad that you have explained that dimunition of the water supply there has resulted largely from a series of dry years, because I was unable to see where the establishment of the project above would take away this water purely from evaporation. In addition to your drought, it is possible that there is a loss of water because of the upper project. Now, to what degree does that upper project affect you? Mr. BURGES. There is a doubling of the use of water above as a result of the reservoir. To make the upper project an economic success, they brought in about twice as much land as they had previously had under cultivation. That makes an additional drain upon the water supply. It made it worth while to make that drain because it gave them that water year in and year out. Mr. WINTER. How long has the upper project been in operation? Mr. WINTER. Over this additional area that you speak of? Mr. WINTER. Is it a fact that evaporation in that section and this upper project is extraordinary? Mr. BURGES. Yes, sir; it is nearly 6 feet per annum. Mr. ARENTZ. The measured stream flow above the McMillan Reservoir has deducted from it the loss by seepage and the evaporation, and these lessen the amount of water delivered to the Pecos Valley. Mr. BURGES. Not only that, but since the building of that reservoir they have doubled the use of water by increased cultivation of land. Mr. ARENTZ. But if there has been an adjudication of rights as to allocation to the Pecos Valley and elsewhere, it seems that it should result in an equitable distribution of water, regardless of evaporation or anything else. Mr. BURGES. That becomes an intricate problem. Mr. ARENTZ. Is the flood condition on the Pecos like it is on many streams in California, when the ground along the lower reaches of the river becomes saturated at flood times? Mr. BURGES. I can not answer that, but I will answer the other part of the question. There is this question: The Carlsbad project claims the right, that they have the right, to irrigate 25,000 acres, and they were irrigating about half of it. They claimed that they were proceeding in good faith, and with reasonable expedition, to bring all of that land under cultivation, and that any delay that may have resulted in their doing it was due to misfortune that was not in their control, such as the washout of their dam, and that their rights are as good and as old or older than anybody else's for that amount of water. That is a question about which I could express an opinion, but it would only be my opinion, and I do not think it would be valuable to anybody. I have felt that litigation between these two valleys is the last possible resort, and I think that is the feeling in both valleys. As Mr. Hudspeth told you, the commissioners were appointed, all of the interests in the valley appeared, including users of water, and negotiations of considerable length were had. I use the term "all users of water," meaning all existing users of water, and they agreed upon the allocation of the water rights. The compact was signed by the representatives of the two States and by the representative of the United States, and was duly reported to the legislatures of both States. This agreement was ratified by the Legislature of Texas and by the Legislature of New Mexico, with a reservation or amendment. Whereas the compact had said that the people in the upper basin of the Pecos River might store, in addition to their present use, 10,000 acre-feet addition, the New Mexico Legislature, at the request of the people in the upper Pecos Valley, struck out the limit of 10,000 acre-feet, leaving them to store as much as they pleased. It is the belief of engineers that that is not important. In the first place, the water that comes down from the high reaches of the river is a negligible factor almost, both to the people of the Carlsbad project and ourselves. They are as much interested in that upper basin as we The amount of water any of us would get from there is trifling. Mr. HUDSPETH. Is not our expectation that the amount of water that would aid us is from below Carlsbad, and comes from the Delaware Creek and the Black River? Is not that where we expect to get our water? are. Mr. BURGES. Yes; not all of it, but the major portion. We would get some water from streams above the McMillan project. Mr. ARENTZ. In addition to general taxes, how much are the water users on the Pecos project in this district assessed? How much does the tax amount to in addition to the general tax in the two irrigation districts per year? Mr. BURGES. It is in the form of a special assessment for operation and maintenance. Mr. ARENTZ. That would have a great bearing upon the question of an additional burden, which might be added to them if this proposed project were consummated. Mr. BURGES. There is some construction cost involved, and it will be touched upon by a later speaker. Mr. LEATHERWOOD. I believe we could facilitate matters by leaving some of these things about which the witness knows nothing for a subsequent witness. Mr. BURGES. I am glad to have the questions asked, because they draw our attention specifically. Mr. ARENTZ. The users of water on Government projects that have heretofore been constructed have come before this committee a number of times, particularly, I think, during the 67th Congress, advocating a decrease in the payments due to the Government due to the heavy burden entailed. If you already have a heavy burden and add to it another burden, the load would be unbearable, and you would have to come before this committee and ask for a writing off. Mr. HUDSPETH. We do not want this project unless we can have it on its merits. We do not want it unless we can show the committee that it is not too heavy to bear. Mr. LEATHERWOOD. I am very much interested in the history of the project as stated by you, particularly in that part where you referred to the fact that back in the 80's there was a use of water in your State from this river. May I inquire whether or not it was possible to initiate priorities merely by beneficial use in the State of Texas at that time? Mr. BURGES. We have perhaps the most peculiar water right law of any State in the Union. We can initiate rights by prior use as to people below us but not as to people above us. There is that peculiarity and the decisions of the Supreme Court of Texas are aggravating to the irrigation interests of Texas. I may say, further, that the matter is now under reconsideration by the Supreme Court of Texas on account of a decision some three years ago still endeavoring to adhere to what I believe irrigation lawyers unanimously agree is impracticable. I refer to a decision in the case of Motl v. Boyd. The result of that decision was to leave the question of the water right in such a perplexing state that practically every irrigation district in Texas sent its representatives to Austin to a conference to consider the effect of this latest decision. That conference was held about three years ago. As a result of it the associations agreed to ask the Supreme Court of the State of Texas to permit briefs to be filed on that subject from all quarters of the State. Fortunately, the supreme court has granted permission to do so. Mr. LEAVITT. Even if that is the law, is it not true that in this particular case there are no lands in Texas above this project? Mr. BURGES. Yes, sir. Mr. LEAVITT. And the Pecos River is flowing from New Mexico into Texas with nothing above this project? Mr. BURGES. There is no land in the State of Texas that can raise the question, therefore the theoretical legal difficulty is great, but the practical legal difficulty is not. Mr. ARENTZ. If the Government had Indian lands above this Carlsbad reservoir it could come back here at any time and say that the law of beneficial use, which applied to all waters in Western States, is nullified and that the Indians had title in the water to the amount filed on even though no acreage had been placed under cultivation. This is a strange theory that our Government has, but |