The CHAIRMAN. I am speaking in a personal way.

Mr. BANNISTER. Very well, as a last resort, suppose the States of California and Arizona can not get together; suppose in addition to that that California has made an offer to Arizona that by others is considered fair, then I would be in favor of taking the sevenState compact on a six-State basis upon certain conditions, which are these: In the first place that the power plant be put over on the Nevada side of the river out of the political jurisdiction of Arizona, so that the appropriation connected with it could not be asserted against the upper States, and I would also require that the lands in Arizona should not be watered from this proposed Boulder Canyon structure, because to do it might be to acquire priority rights against us. Now, if we could have the six-State compact on that basis, then as a last resort I would favor it, and yet it seems to me I see even there an element of danger to the upper States, because of the fact that, as stated before, some of the appropriation acts, namely, the building of this dam and the back flow of water, are in the State of Arizona.

Senator ASHURST. You would not object to a thirsty Arizonian drinking out of the dam, would you?

Mr. BANNISTER. Oh, no; not at all.

The CHAIRMAN. Are there any further questions? Mr. Bannister, we appreciate your very interesting statement. Senator Kendrick, I want to accommodate you the best way I can. Senator Kendrick is interested in having his witnesses heard.

Senator KENDRICK. They will only require perhaps 50 or 60 minutes, and we will have our first witness from Wyoming to-dayMr. Frank Emerson, our State engineer. Mr. Emerson served as one of the State commissioners at Santa Fe in drafting the compact between the seven States.

The CHAIRMAN. Mr. Emerson, will you take the chair, please? STATEMENT OF FRANK EMERSON, STATE ENGINEER, STATE OF WYOMING

Mr. EMERSON. Mr. Chairman and members of the committee, in qualifying to testify before this committee, I may state, or may repeat Senator Kendrick's statement to the effect that I am now State engineer of Wyoming and by consitutional provision, by virtue of that office, have general supervision over the waters of the State and the administration thereof. I may also speak as a representative of Wyoming at the Colorado River Commission at the negotiation of the Colorado River compact and the signing thereof at Santa Fe in November, 1922. I have been interested in particular in Colorado River problems by assumption of the office of State engineer in 1919. I believe that is the first time that the upper States had a voice in matters concerning the Colorado River, so at the time of the meeting of the League of the Southwest in Salt Lake City in January, 1919, there was one resolution passed at that meeting which I wish to refer to later, and in 1919 and 1920 I attended other meetings of the league, one especially at Riverside, Calif. I attended the hearing before Secretary Fall at San Diego, and while I was in the southland I took it upon myself to study the physical

conditions applying to the lower river that I might be informed in the matter.

During the last three sessions of the Wyoming Legislature I have been called upon to take a part in the passage of legislation in regard to the Colorado River. As far as I have heard the testimony of Mr. Carpenter and the other witnesses for the upper States, I can subscribe in a general way to what they have presented. I may be able to supplement and add by presenting certain considerations from the Wyoming standpoint that have come to me largely as administrator of the water supply of the State of Wyoming during the past six years. There are three principal considerations that come to my mind from the Wyoming standpoint. We have had experience in a great water dispute where an understanding between parties in interest has not been had before development has started. and the case, the one particular case that I have in mind, that of the North Platte River, we found that the establishment of rights and the use of water upon the lower river was very detrimental not only to the interests of Wyoming, but I believe to the lower State of Nebraska by reason of the lack of understanding beforehand.

In 1904 the Reclamation Department of our Federal Government filed application for the Pathfinder Reservoir for the construction of five canals diverting water below Pathfinder. They proceeded to construct the Pathfinder Reservoir with a capacity of more than 1,000,000 acre-feet and two canals diverted water from the North Platte River and to which Pathfinder water furnishes supplementary supply in the low water season. After Pathfinder was built, with this large capacity, the Government, in fear that there was not sufficient water in the river to supply anything but the rights established under he North Platte project, proceeded to put an effective embargo against any other development in Wyoming, depending upon the water supply of that great river. They refused to grant right of way for ditches and canals; they refused to allow desert and homestead entries and other entries under our public land laws; and in other ways they very effectively placed embargo against development of our State.

During the term of Senator Kendrick as governor he is now a member of this committee-a cooperative investigation was undertaken between the State and the Federal Government on the North Platte River. Engineering studies were made and findings were returned by engineers in regard to the water supply and the use of same from this river. The enumeration between the State and Federal Government provided that the findings and preliminary engineering reports were subject to a review by a board of review, which was to draw the final conclusion and to make the final recommendations in regard to the use and disposal of the water of the river. The board of review report found that there was sufficient water in the river for that development, for the project in Wyoming, after giving due respect to all water rights established and with proper uses in the adjoining State of Nebraska the embargo existed, however, before this board of review report for a period of 12 years, when, as I have stated, by means of the different departments of the Federal Government, development was prevented. Upon entering of the report of the board, which had the approval of the

Governor of Wyoming, the Secretary of the Interior and the director of the Reclamation Service, this embargo was lifted.

Senator KENDRICK. I think, Mr. Emerson, if you do not mind, I would like to ask you state further that when the original project as outlined for the development, and on which the waters of the Pathfinder Dam were to be employed, contained an enormous acreage in the eastern part of the State of Wyoming, and when the reclamation department proceeded with that development they found it desirable, or at least satisfactory to themselves, to drop from the area to be irrigated the greater part of the land within the borders of the State of Wyoming and proceeded to develop Nebraska instead.

Mr. EMERSON. That is true, Senator, but the lesson, the principal lesson which Wyoming draws from the North Platte, by reason of the situation that I have illustrated, causes us to wish to protect ourselves by all reasonable means from the repetition of such a situation upon the Colorado River, a stream with problems much more complicated and involving greater interest than the North Platte.

The second consideration which I might present, which comes to my experience from the standpoint of administrator of the public water supply of Wyoming, is in regard to the futility of resort to litigation as a proper solution of interstate water problems. You have heard considerable of this now famous Wyoming v. Colorado case upon the Laramie River; apparently it was a victory for Wyoming. But, was it from the standpoint of administration, and that is the standpoint by which we must judge the real benefits of any court decision. This case was of no practical benefit to the State of Wyoming.

The court did find, in its wisdom, that by reason of the fact that both States were States common to the doctrine of appropriation, the water, as conceived in our western practice, that the State of Colorado or appropriators in the State of Colorado could not use water from the Laramie River without due consideration for rights established in Wyoming.

It happened that away back in the Eighties appropriations were established in Wyoming for a large flow from the Laramie River, one appropriation for the Wheatland Colony was for 633 cubic-feet of water per second, with 1883 priority. In 1922 I was called as state engineer to consider the situation that existed that season upon the Laramie River. The Supreme Court decision had just been entered saying that Wyoming rights must be respected. The actual fact I found was that our rights of 1883 priority were denied water, while water was allowed for diversion for the LaramieBuford tunnel with the priority of 1909 established by the courts. Why was this? Because the court again in its wisdom, in adhering to our practice under the doctrine of priority of appropriation, allocated a certain annual amount of water for the tunnel, namely 15,000 acre-feet of water per annum. Under the Wyoming and Colorado practice the ordinary rule for the administration of the water of the State is to shut down the junior right when the senior right needs that water, according to his administration, and the administration goes progressively and as the stream flows down, junior right must be closed. The Supreme Court, recognizing that

the right in the lower States must be respected, that the State line was wiped out to a certain extent, allocated a certain amount of water for the year, without saying when it should be diverted, and as a matter of fact the physical condition is such that to-day through their diversion through the Laramie-Buford tunnel, they never have been able to reach the amount of 5,000 acre-feet during the season, although the courts have given them 15,000. It is true they might be able to extend canals and ditches, to tap other sources, but it is doubtful if they ever could reach this amount of 15,000 acre-feet.

We find in Wyoming after much expense and time and energy had been invested in now famous case there was no real benefit to the State of Wyoming, and here I might call attention to the plea of the lower States that in my opinion, if they rightly draw their conclusions from the Wyoming-Colorado case, they will realize that they have no case to-day against the upper States and will not have one for years to come, for, since they allow immense quantities of water to pass down the Colorado River in part of the season, they can not assert a valid claim against the upper States for more water during the low-water season, so I wish to impress upon this committee and those interested in this subject that if we are to resort to litigation as a solution of this great and interesting problem, we would probably find a decision after much money and time had been spent, a decision that would not be to the best advantage of any of the parties in interest.

There is one consideration that it seems to me should appeal especially to this committee, representing as the members do their own State and zealous in their protection, but also representing the interests of this country as a whole. I refer to the highest economical and beneficial use of any water supply. At the meeting of the league of the Southwest in Salt Lake City, 1919, one of the resolutions stated that the highest economic use of the water of any stream comes from the use at the headwaters and progressive use downward. That is as true in Colorado as in Wyoming. In Wyoming we found that use upon the headwaters provides a ground reservoir of great value, and in many instances we found water rights to-day on the lower reaches of the streams are better water rights than those higher up on senior priority. I talked about the situation on the North Platte River, and there was a time when the North Platte River was virtually dry during low-water season. To-day there is a real river passing by that point, primarily from irrigation above. The value of an acre-foot of water, if it is used in Wyoming, is as valuable as in other places upon the stream. It is true that at the present time, due to your wonderful growths in the Imperial Valley, the acre production is large. It takes about 5 acre-feet of water-something in that neighborhood-for your season's use.

In Wyoming, probably 11/4 acre-feet of water only is consumed. There is an actual consumption of water when it is applied to the land, in furthering the growth of the plants and vegetation, there is a consumptive use, but a large part of the water always returns to the stream. In Wyoming we now have established rights, established adjudicated rights, applying to about 435 acres of land upon the Colorado River tributaries. In Wyoming the Green River, rising in Wyoming, is one of the important tributaries; the Little Snake is

another tributary of the Colorado. We have possibility for additional irrigation, that we now estimate at about 765.000 acres. I believe that Mr. Hopkins in his paper on yesterday gave about 1,000,000 as the eventual developement, that we can foresee in the State of Wyoming sometime in the reasonable future. The figures I give are largely from a cooperative investigation upon the Green River, also taken in Senator Kendrick's plan, between the State and the United States. The State has supplemented those investigations under my direction, and I think that the eventual developement that might be expected in Wyoming in the reasonable future will be about 1,200,000 acres, yet I have said 765,000 acres additional, and if we calculate a consumption of 14 acres, we have something less than 1,000,000 acre-feet we may consume annually. The present contribution of the State of Wyoming to the Colorado River is about 2,500,000 acre-feet. After our use of 1,000,000 would be satisfied, we would still allow to pass across our boundaries one and one-half million acrefeet of water, and it is a fact that during the twenty years the Green River has been measured at Green City, Wyo., there has been no noticeable depreciation in stream flow at that point, and I say this. that there is such a thing as consumption use of water. and it does indicate that the return flow is large and I think my allowance of 11 acre-feet of water per acre for the consumptive use in Wyoming is conservative, and it is my judgment we will never use more than the additional 1,000,000 acre-feet from that stream, allowing one and one-half million to go down the stream for the benefit of lower appropriators.

Senator KENDRICK. Is not it true, Mr. Emerson, as I asked the witness yesterday, that our use of the water must necessarily be during the flood tide of the river?

Mr. EMERSON. It is true, Senator, and thereby we provide the best storage for irrigation, and for the supplying of water for the stream below, that is, the ground storage that is where the ground is filled during the flood water season and the water gradually returns to the stream to supplement the supply below during the low water season. We have just as valuable use for the water from the Colorado as they have in Utah, Colorado, or Arizona. In our investigation in one of our irrigation districts, at the head of the Green Valley and I saw the Green River drift drifting over winter feeding grounds of our wonderful open ranges on the Green River, and I saw there about 15,000 head of beef cattle belonging to a group of cattlemen in the vicinity of Big Pine, and they have had a hard time during the last few years. It seemed to me that here was a very important industry, supplying this great Nation's needwe need a supply of meat, and will need it always. Not only can we match California in grapefruit, oranges, and lemons with our beef, sheep, and horseflesh, there are many other valuable uses to which water may be put, and in recent years we have used it in the hay meadows, to supply winter feed; therefore I say the flow in Wyoming is just as important, and we certainly do wish to see the use of water in that State protected by all reasonable means.

Senator KENDRICK. Right there, may I interrupt you again, and illustrating the unusual thing for development in that section, at the present time, within the past few years, when we had an unusual,