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F. The provisions of this
section shall run to the Benefit of and be available: to the States of Colorado, New Mexico, Utah, and Wyoming, and to the users. of water therein, by way of defense or otherwise, in any litigation respecting the waters of the Colorado River.
G. Nothing herein shall be deemed to constitute a relinquishment by the United States as of any of its 'rights in 'respëcť to navigation, except and otherwise than by approval of a compact between the States referred to.
The CHAIRMAN. I question its relevancy.
Mr. Carr. The relevancy of this, Senator McNary, is, that it can be argued with much force that the Federal Government should not use either its money or its agencies to do an injustice to any section when it is doing an act of justice to another section, if it can avoid it.
The CHAIRMAN. You' argue that may have to do with this committee recommending whether Congress shall appropriate money to construct a dam?
Mr. CARR. Well, there will be violent opposition to your appropriating money to construct a dam when that will do an injury to people in Senator Kendrick's State for example. If, by putting a provision in that bill you can avoid that injury, it would seem proper. Do I make it clear?
The CHAIRMAN. I take a different view of the functions of this committee, but if you want to make a statement, try to keep out of the hearings irrelevant matters. Much of this matter has been brought out at the House hearings.
Mr. CARR. I think a quarter of the time occupied in the House hearings was taken up by discussion of this matter, and I think I can do it in 10 minutes more, which will save considerable time.
The CHAIRMAN. Very well.
Mr. CARR. The proper measure of protection would seem to be generally that extended in the compact, because six of the States have ratified, and we assume that that would be the one the committee would consider, and this proposed reservation is based on that assumption.
The first two paragraphs provide that the Government in administering the dam and project shall comply with and observe first the terms of the compact, if it is finally ratified, and if not, in the interim, the terms expressed in the inchoate compact.
Those first two paragraphs contain one ground or protection which is not particularly important. We do not claim it to be, but it will be of some protection.
The next ground of protection is contained in paragraph A, and is an effective one. There is a difference of opinion as to whether or not the Federal Government as such, by reason of its proprietorship over the public domain, has any rights in the innavigable waters of a river. Mr. Hamale, of the Reclamation Service, and certain Government officials say it has. That idea is violently combatted by most of the representatives of the Western States, who say there isn't anything in it. But at any rate, Section A covers either theory, and provides that the rights that the Government has or gets by reason of the construction of this dam and project, either which it has by virtue of its national authority or which it may acquire by making an appropriation under the laws of Nevada, and Arizona, shall be subject to the terms of the compact. And that
any one claiming under the Government takes subject to the same limitations. This is a sweeping protection in the upper States.
The next ground is in paragraph B, and that is, I think, even more sweeping in character.
Senator JONES of Washington. Well, just a moment. Isn't there something left out of this paragraph A? It says at about the middle:
or otherwise, as well as the rights of those claiming under the United States, shall be subject to and controlled by such“ compact and, pending and until the ratification and going into effect thereof, said Santa Te compact.”
Mr. Carr. I don't think there is anything left out. As a matter of draftsmanship we endeavored to secure brevity by the use of the definition. I think a study of that will show that it is covered.
Senator JONES of Washington. It means that “* and, . pending and until after the ratification and going into effect thereof," they shall be subject to the " said 'Santa Fe compact.""
Mr. CARR. Yes.
The second ground, I think, is one of the most effective, because as I pointed out, what the Northern States fear the most, and have the most occasion for fearing, is the use of water for the generation of power at the dam. Now, nobody is going to get the right to use that water for that purpose without securing a contract or concession or privilege from the United States, if, for no other reason because the United States owns the land. Now it is perfectly proper to put a provision in such a contract that the holder is subject to these general terms protective of the Northern States. Any one, taking under a contract containing such a provision, would be bound.
Paragraph B is of similar character. It deals with any rights acquired by anyone under any Government canal. The upper
. States say that subdivision A would be all right, but the Colorado River, after the dam is constructed, will have a regulated flow, as distinguished from a very erratic flow which it now has, and it is not clear that the water rights acquired by the Government at the dam would cover the regulated flow, so that some one might come in in the lower States and make an appropriation of the regulated flow, and get a right which would be prejudicial to the upper States. Now, subdivisionu C covers that. But that does not catch all rights that might arise.
Subdivision D will catch any rights that might accrue from the project that are not covered by the preceding provisions. The theory of it is this: That to secure an appropriation of the regulated flow of the river below the dam required two acts, first, the making of a paper appropriation, and second, the putting of the water to a beneficial use. Now until it is put to a beneficial use no right vests. There isn't any right that amounts to anything. In order to put the water to beneficial use it will be necessary, with exceptions too trivial to require attention, for anyone making the appropriation to secure some rights in respect to the public lands.
Take the group of cities of southern California, which feel they must get an additional water supply, and have got to take it from
the Colorado River water supply. They can appropriate water under the laws of the State of California, but this doesn't mean anything until they can put it to use, and before it can be put to use they will have to get rights over the public domain. The Govern
any. Congress has the plenary ment does not have to give o right over the public domain.
Therefore, in order not to do an injustice, it is perfectly proper for Congress to say that any rights that accrue by reason of appropriations of water, for the application of which to a beneficial use, permits or rights of way are secured from the United States shall be subject to the conditions Senator ASHURST. Rights of way.
Mr. CARR. Rights of way shall be subject to the condition that the holder will not claim any rights inconsistent with the rights of the upper States.
Then there are some other provisions the purpose of which are apparent on their face.
Mr. Hamale, of the Reclamation Service, appeared before the
Now to a large extent this is an academic question, because the weight of opinion is that there is plenty of water in the river if it is fully conserved. But I can appreciate why representatives of the northern States say they want to be protected.
Senator ASHURST. Now, you propose this ans an amendment to the bill?
Mr. CARR. Yes, sir. Section 8 of the bill does not mean anything.
Senator Ashurst. What is going to happen if all this is translated into law, as you propose ?
Mr. Carr. Why, I think the upper States would get a very fair measure of protection.
Senator ASHURST. Yes; but you said you were going to tell us how the matter could be composed, and no injustice done to Arizona.
Mr. CARR. Yes; I think if this provision is put in, it would represent a fair measure of protection to the upper States. It represents a very earnest attempt to prepare such a provision and to meet the grounds for delaying this legislation that we have encoụntered at all times. There is a general public impression that nothing can be done until a compact is agreed upon.
Senator Jones of Washington. Your idea is that if this is put into the bill it makes the ratification by Arizona unnecessary?
Mr. CARR. Well, I would like to see Arizona ratify.
Senator Jones of Washington. I understand that, but your idea is that it makes it unnecessary?
Mr. Carr. It accomplishes the same purpose.
Senator KENDRICK. Let me ask you a question. Have you considered the constitutional rights of the six States that have already given their approval and signed this compact through their legislative assemblies? Have you considered the constitutional rights of those six States to ratify this compact separately from Arizona so far as they are concerned ?
Mr. Carr. Yes, sir. I don't think that it amounts to anything, of course, unless the six States by themselves enter into a new and separate compact.
The CHAIRMAX. You think that the absence of the one State would nullify the compact among the others?
Mr. Carr. Yes, sir. I think there is no doubt about that. All of the acts authorizing the negotiation of a compact so provide.
Now, there isn't anything new or original in the views I have expressed. This plan of handling the situation is not entirely ours. Mr. L. Ward Bannister, of Denver, who appeared before the House committee, also appeared before the Secretary of the Interior at a hearing which he held at San Diego on a preliminary draft of his report on the project, and there said—and this is published in Senate Document 142, which on file:
The first point is that where the development is to be 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 the 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 waters of the other States.
And then he points out that if the Government built the project, a provision in the measure or even a regulation of the department in charge would accomplish the same end.
Again, provisions such as this are continuously being inserted in permits granted by the Federal Water Power Commission,
Now I will read just two or three of these as illustrative of the practice of the commission. Here is one from Montana and Wyoming-permit issued June 28, 1922, to the Big Horn Canyon Irrigation & Power Co. for a project on the Big Horn River-and among the terms prescribed it states that
license, if issued," shall not "be construed as affecting in any way any priority to the waters of the Big Horn River or of its tributaries in respect to the Shoshone project of the United States Reclamation Service."
Here is one in your State, Mr. Chairman-permit for the Columbia River Power Co. for a project there. It contains this condition to
require that the right to use the water for power purposes be subordinate to the needs for irrigation in the upper river.
And I have provisions for permits issued in Idaho and other places. And last year there was a permit issued for a power project
in Utah at the Flaming Gorge site on the Colorado River, which permit was issued subject to the terms of this Colorado River compact, and also that the use of the water should not interfere with the upper irrigation use. So there is nothing unusual about it.
Senator ASHURST. Do you mean subject to the terms of the compact, if and when ratified, or subject to the language of the compact?
Mr. CARR. Your last statement is right, Senator.
Senator KENDRICK. You are quoting from language of the Federal water power act?
Mr. CARR. From permits issued by the commission under the act. And their general power to make regulations and to establish conditions for the issuance of permits and licenses would not have the same solemnity as an act of Congress.
I have covered what I wanted to cover. I hope that as the hearings go on you will find that we have not wasted time by taking this şubject up, and I am quite confident we have not.
The CHAIRMAN. Let me ask you something about the provisions of the bill generally that have not been made clear.
Mr. Carr. Mr. Mathews, who is counsel for the board of publicservice commissioners of Los Angeles, was to take up and discuss the bill and is better able to do so than I. In other words, we have tried to divide up the presentation. He will now give you, Mr. Chairman, the information you ask.
Senator JOHNSON of California. With your permission, we will call Judge Mathews, of Los Angeles, now. STATEMENT OF MR. WILLIAM B. MATHEWS, ATTORNEY AT LAW,
ATTORNEY FOR THE CITY OF LOS ANGELES, LOS ANGELES, CALIF.
The CHAIRMAN. Won't you place into the record your name, address, and occupation ?
Mr. MATHEWS. My name is William B. Mathews. I live in Los Angeles, Calif. My occupation is attorney at law. I am attorney under employment for the city of Los Angeles in respect to its water and power utilities. I have been connected with the city officially and professionally for something over 20 year's. It pays me regular monthly stipend and pays my expenses on this trip.
Senator JOHNSON of California. What is the Los Angeles official body called for which you are the representative?
Mr. MATHEWS. The board of public scervice commissioners, heading the department of public service.
Senator JOHNSON of California. And that has jurisdiction and control over what particular utilities of the city of Los Angeles?
Mr. MATHEWS. The water and power utilities. The city distributes all of the water consumed in the city. It furnishes and distributes a large part of the electric power consumed in the city.
The gross revenue from those two utilities, I should say, approximates $12,000,000 a year. I believe it is said that the city's municipally owned electric utility is the largest utility of that sort owned by any municipality in the country.
Mr. Chairman, for the sake of brevity, but apparently at the risk of some repetition, I have put down the principal points and features of the bill for your information and for the record. I am referring now to bill
The CHAIRMAN (interposing). That is Senator Johnson's and Mr. Swing's bill?
Mr. MATHEWS. Yes. The purposes of the bill are (1) to regulate the river and control its floods; (2) to provide storage for irrigation and other beneficial uses; (3) secure development of electrical power; and (4) to provide homes for ex-service men and women.
I might say in passing, in relation to the term “ beneficial uses," that since the movement started in behalf of this project domestic water has sprung up as a major use because of our necessities in the Southwest.
Senator JOHNSON of California. The last year demonstrated the absolute necessity for more domestic water in southern California, did it not?