Prior to the construction of the railroads to the lower Colorado the river afforded the only feasible means of entrance into the desert regions of southeast California and western Arizona, and therefore great efforts were made to navigate it. Subsequently, however, navigation on the river practically ceased. The shifting, shallow character of the bed of the stream prevents the maintenance of a permanent channel, particularly during periods of high water and when the river is falling. The improvement of the river for navigation has been considered on several occasions by Army engineers and has always been condemned. (Water Supply Papers, No. 93, pp. 168-169; H. Doc. No. 692,

58th Cong., 2d sess.)

In XXXIII Land Decisions, 391, 395, the Secretary of the Interior says that the Acting Attorney General of the United States, in an official communication to the chairman of the House Committee on the Irrigation of Arid Lands, reported—

that an investigation recently made by that department, at the request of the Department of State, had elicited the fact that there was practically no navigation of the Colorado River except that which was carried on through the medium of a few small light-draft stern-wheel vessels; that it was determined by the experts who conducted the investigation that while the river may technically be classed as navigable, it is not so for ordinary practical and business purposes such as come within a broader meaning of the word "navigable," and that to make it navigable in this latter sense would require a gigantic and perhaps futile financial outlay.

In 1907 Mr. C. E. Grunsky, then consulting engineer for the United States Reclamation Service, in a report on the Colorado River, said:

Owing to unusual difficulties, such as lack of depth on the bars, swift shoal waters, and a tidal bore in the river's mouth, where the range of tide is reported to be upward of 30 feet, there has been practically no commerce on the river below Yuma since 1876, the time of the completion of the Southern Pacific Railroad, which crosses the river at this point. (S. Doc. No. 103, 65th Cong., 1st sess., p. 16.)

In 1914 Army engineers, in pursuance of a resolution of the Congress, investigated the navigability of the Colorado River. In their report, the following statements are found:

There is no commerce on the river at present.

Below Yuma the river flows through a delta country, which is being constantly built up by the large quantity of silt carried by the river. The channel is unstable and can not be made stable at reasonable cost.

The improvement by the United States of Colorado River with a view of developing and improving navigation is not deemed advisable at the present time. (H. Doc. No. 1141, 63d Cong., 2d sess.)

Mr. E. C. La Rue, of the Geological Survey, in a report on the Colorado River and its utilization (Water Supply Paper No. 395), published in 1916, says, at page 198:

It has been conclusively shown by engineers that it is not commercially feasible to maintain a channel on the lower Colorado suitable for navigation. The Colorado River compact, in subdivision (2), Article IV, contains this significant language:

Inasmuch as the Colorado River has ceased to be navigable for commerce and the reservation of its waters for navigation would seriously limit the development of its basin, the use of its waters for purposes of navigation shall be subservient to the uses of such waters for domestic, agricultural, and power purposes.

To be navigable in fact a watercourse must have a useful capacity as a public highway of transportation. The Colorado River does not meet this test. It may have done so in parts, in very early

days, but for more than a third of a century it has been practically devoid of profitable utility as a commercial highway. This is certainly true of the river in and above Black Canyon.

In Harrison v. Fite, 148 Fed. 781, the court says:

To meet the test of navigability as understood in the American law a watercourse should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country through which it runs. It should be practical usefulness to the public as a highway in its natural state and without the aid of artificial means. A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient. While the navigable quality of a watercourse need not be continuous, yet it should continue long enough to be useful and valuable in transportation; and the fluctuations should come regularly with the seasons, so that the period of navigability may be depended upon. More depth of water, without profitable utility, will not render a watercourse navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a watercourse must have a useful capacity as a public highway of transportation.

In Joilet & Chicago Railroad Co. v. Healy (94 Ill. 416) the court sys:

A stream is navigable in fact only where it affords a channel for useful commerce and of practical utility to the public as such.

In Webster v. Harris (110 Tenn. 676, 69 S. W. 782) it is said:

The fact of a navigable stream is whether, in the ordinary state of water. it has capacity and suitability for the usual purposes of navigation, ascending or descending, by vessels such as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels.

It may be said to be a matter of common knowledge that the Colorado River, particularly in and above Black Canyon, is devoid of practical usefulness to the public as a highway in its natural state. In fact, measured by the standard of commercial and profitable utility, the entire stream above Yuma has long since ceased to be a navigable watercourse

Returning now to the sections of the new bill, which I was analyzing in a very general way and had reached section 8, I would say that section 9 of the new bill is practically the same as in the former bill. Section 10 is practically the same as in the former bill, except that a subfund of the reclamation fund is created in which to place funds for the constructin of the projects contemplated by the bill. Section 11 is practically the same as in the former bill. Section 12 is also the same, but with added provision in reference to "net investment" whereby lessees of power rights, upon recapture, shall have returned to them all moneys paid and used for construction purposes. Section 13 is a new section. It provides for approval of the proposed six-State compact. Section 14, which is the last section of the bill, is new. It makes the proposed act supplementary to the reclamation law.

I believe, Mr. Chairman, that is all I wish to submit.

The CHAIRMAN. Very well, I wish to ask you a question or two. Turn to page 8, section 6, of the new bill, line 19. You have omitted much of the section that appeared in the origin draft of the bill. known as S. 727.

Mr. MATHEWS. I think that is largely a matter of rearrangement of the material.

The CHAIRMAN. Where is that provision which you have omitted and which reads as follows.

But the total cost of all irrigation canals and appurtenant structures which may be constructed hereunder shall be charged equitably against such lands, in accordance with the benefits they derive therefrom as may be determined by the Secretary of the Interior.

Is that an omission? Is that answered somewhere else?

Mr. MATHEWs. I think that is answered in section 1, and that cost must be repaid within 20 years.

The CHAIRMAN. Well, that does not cover the point.
Senator ODDIE. You will find it at the top of page 3.

The CHAIRMAN. The point I am making, Mr. Mathews, and I called to the attention of the committee at El Centro, Calif., is that this provision I think is a wise one which you have omitted in the recent bill, because it follows the purposes of the reclamation act of 1902 as a proper charge against the land that derives the benefit. Without that statutory guidance how is the Secrtary of the Interior to place different charges upon lands, some of which have full water rights, and some a portion of the water rights and some no water right whatever. Where is there any provision in the present bill giving the Secretary of the Interior authority to classify lands according to the benefits of the water?

Mr. MATHEWS. That is section 1.

The CHAIRMAN. But that does not cover it.

Senator JOHNSON. It is the proviso at line 19, page 2, Mr. Chairman, I will read it:

Provided, however, that no expenditures for the construction of canals or appurtenant structures authorized hereunder shall be made until the lands to be irrigated thereby shall have first been legally obligated to repay their proper portions, according to benefits, as may be detemined by the said Secretary, of the total costs thereof, together with expenses of their operation and maintenance, to the United States in accordance with the terms and conditions of repayment prescribed in the Act of Congress approved June 17 1902.

The CHAIRMAN. That in a measure does cover it. I noticed the omission there, in section 6 of this new bill, and have not had a chance to read the entire bill.

Mr. MATHEWS. I think that covers it. And at the end of that same section there is added a provision which we puzzled over quite a good deal, requiring repayment within 20 years after completion of canals and appurtenant structures of the Government's expenditures covering canals and such structures.

The CHAIRMAN. That suggests this inquiry, which makes it awkward for some of us; the principles of the national plan of reclamation adopted in 1902, and modified by subsequent Congresses, whereby the irrigator pays his proportionate cost of canals and construction of dams. He is allowed, not 20 years within which to pay, but he pays annually 5 per cent of the gross production measured by a period of 10 years. To some of us who have projects in our States that conform to that law, this is quite a departure therefrom. Why should not we have uniformity in matters of this kind rather than a special situation in a portion of the country?

Mr. MATHEWS. I probably can only deal with it in a practical way. I regard the all-Americal canal as an exceptional case.

It

not only is interstate and national, but it is international; it has an international aspect. It has an international aspect fraught with possibilities for trouble which are worthy of consideration. It contemplates the removal of the means of obtaining water for Imperial Valley to the territory in the United States, so that the territory concerned will be under the jurisdiction of the Government of the United States as regards its water supply, instead of the Republic of Mexico. It is a project costing a very large sum of money. The settlers in that valley, not having reclamation aid, and being denied even Federal bank loans, are still in a state of struggle in the development of their valley. Therefore seeking to have protection for their water supply from Mexico, and seeking to put the basis for the construction of the canal where they can manage it, it seems to me the Congress would be justified in making an exception in favor of that particular territory as against any ordinary case of recla mation.

The CHAIRMAN. You have set forth a very good reason for construction of the canal, and I have no quarrel with that, but that does not answer my case, and it is important to those who have irrigation projects under the present law. You can still have under it what you have expressed so well; you can conform to the statutes and put yourself in the same class as the other Federal reclamation projects.

Mr. MATHEWS. Do you mean to repay in 10 years?

The CHAIRMAN. No, it is based upon 5 per cent of the gross production, based upon a cycle of 10 years. Then you specify particu larly that no part of the cost of construction of dams, or acquisition of lands, or rights of way for reservoirs, or of incidental works, shall be charged against any lands to be irrigated.

Mr. MATHEWS. I see.

The CHAIRMAN. For instance, I have a project in my State, which Secretary Work has not seen fit to go forward and construct, where a large valley is to be used as a reservoir site and 10 miles of railroad track must be moved, at the cost of the irrigators. Some of the great costs are for the acquirement of rights of way, reservoir sites, which may mean demolition of a home or series of homes, but construction of dam is a large element. The question has been asked me: Why should we make an exception of an easy case down in the Imperial Valley, whereas all of the other projects, meet the harsh requirements of a standard law?

Mr. MATHEWS. I believe it is true that under the other projects a project having paid out the cost of the dam the title to the dam passes to the project. Here it is contemplated that the United States will remain forever the owner of the dam. It never reverts to the water users at all. And, fortunately, I might say, and candidly. you have a situation here, an interest namely, power, that is ready to absorb the cost of the dam and not put it upon the farmer and require him to pay the cost.

Senator JONES of Washington. I think our people would a great deal rather the Federal Government would retain the dam than turn it over and make the settlers pay for it.

Senator JOHNSON. May I suggest that under this provision the work would be performed more quickly than under the provision you suggest?

Senator JONES of Washington. Personally I prefer that to the 5 per cent proposition in the present law. But what I refer to now is in reference to cost of the dam. Take it in my State, and they have constructed a dam at a cost of nearly $5,000,000, and the settlers have got to pay that.

Senator JOHNSON. And here is a different plan of paying for the dam.

Senator JONES of Washington. And that is what I say, I should rather have that in my State, where the Government would not put it on the settlers.

Senator JOHNSON. But the payment for the entire dam is to be made from other sources.

Senator JONES of Washington. I should like to see my settlers relieved from payment for the dam, just as you propose to relieve the settlers in this case.

Senator JOHNSON. And I should like to aid you in that.

The CHAIRMAN. What I am trying to bring out is this: Not that I am opposed to the 20-year plan, but it has been suggested to me that if we are to bring this much-needed water into the Imperial Valley it should be done under the law now in existence and to which others must conform. I do not see why the people of the Imperial Valley, if they want additional water, should not pay for rights of way instead of the Federal Government. Why should you insist upon one plan here, whereas the rest of the 16 States where irrigation work is going on there is another plan which is not nearly as easy as this one.

Mr. MATHEWS. Mr. Chairman, I omitted a point which I now beg to submit in connection with the Congress using its jurisdiction and power to safeguard the interests of the upper States. I have a memorandum here showing that Mr. Ottamar Hamelé, at one time chief counsel of the Bureau of Reclamation, upon being asked at a hearing before the House Committee on Irrigation of Arid Lands, the question whether it would be practicable to insert in a former bill for the development of the lower Colorado, a provision safeguarding the upper States, announced that it would be practicable, and suggested a paragraph for every contract made with reference to water and power. (See p. 881 of House Committee Hearings, March 25, 1924.)

Mr. Stephen B. Davis, Solicitor of the Department of Commerce, testified before the House Committee on May 15, 1924, page 1772, as follows:

Mr. RAKER. Prior to the signing of the compact by the seven States and its approval by the Federal Government, could the Federal Government write into the bill the general provisions of this compact whereby the upper States as well as the lower States would be protected as they are attempted to be protected in the compact?

Mr. DAVIS. I would say, expressing my personal opinion, that it would be legally possible to do such a thing.

Mr. Bannister, who was heard at this hearing, and is one of the best authorities on water law in the United States, expressed the opinion that it would not be practicable, by a provision in the act authorizing the project here proposed to fully protect the northern States. Mr. Bannister's position here is in direct conflict with his