TABLE 4.-Lower Colorado Basin resources [Values in acre-feet] Average yearly water supply---- Utah... Nevada New Mexico____ Arizona Total TABLE 5.-Arizona Water Production, Colorado River Basin [Average yearly water supply; values in acre-feet] Gila River system: Gila River at Kelvin.. Aqua Fria at Glendale__ Hassayampa Consumption above gauging stations.. New Mexico production Gila at Guthrie, Ariz__ 4, 600, 000 225,000 75,000 443, 000 743, 000 3,852, 000 4,595, 000 787,000 1. 470,000 609, 000 181, 000 23, 000 50.000 3, 120, 000 San Francisco at Clifton_.. Total 244,000 199, 000 443, 000 2,677,000 Gila system production in Arizona___. Representative TAYLOR. Mr. Chairman, may I ask the witness one question? The CHAIRMAN. Yes; we shall be glad to have you do so. Representative TAYLOR. Mr. Carpenter, Senator Ashurst has asked you a number of questions concerning whether or not Colorado would claim the right to any revenue derived from the use or sale power in the lower basin, and you have said that we would not. As I understand it, your answer is based, as you have intimated, upon the Colorado River compact? of Mr. CARPENTER. Yes, sir. Representative TAYLOR. Colorado does not waive any rights that we would obtain by the unconditioned ratification of the seven States' compact. Mr. CARPENTER. Not at all. Representative TAYLOR. And anything more or anything less than that we do not claim. And your assumption as to our rights would not interfere with what the Government of the United States may do, or with any rights that we would obtain by virtue of Arizona and all the other States entering into that seven State compact without reservations? Mr. CARPENTER. That is correct. My answer is predicated the assumption of regulation of the river and use of the waters under the compact. Up until that time there is only one position we can take in Colorado, and that is one of absolute control of the river in our State. Representative TAYLOR. Colorado is not waiving any rights that she may have, especially to any State that has not joined the compact. concerning the use of that water or the power that may be derived therefrom? Mr. CARPENTER. We are not waiving our rights either under the compact or without the compact. Senator ASHURST. Arizona is invited to enter into a compact which does not comprehend power. Here comes a letter trying to read into the compact something which the compact does not dis cuss. Gentlemen now urge Arizona to ratify the compact and begin to attempt to read into it and to hint and to threaten that they are going to read into it clauses to suit themselves, and I desire that these questions shall be fully understood. Mr. CARPENTER. The compact does comprehend power, but if the compact is adopted, the State of Colorado will make no claim for any power or allocation of power, as a matter of right, from any structure in the lower river below Lee Ferry. The State of Colorado or her citizens might be bidders in the open marketSenator ASHURST. I understand Mr. CARPENTER. But we will make no claim, as a matter of right, if the compact is approved. If the compact is not approved we reserve every right we now possess, and will expect to enforce them whenever necessary. Senator PHIPPS. Mr. Chairman, at that point let me say that while, of course, Mr. Carpenter as a witness is stating his belief and opinion, anything which he says can not in any measure bind the authorities of the State of Colorado. Senator JOHNSON. That is what I was wondering. Senator PHIPPS. And neither would anything I might say in my capacity as a Senator be binding upon the State of Colorado But Mr. Carpenter's understanding of what the attitude of Colorado really is and will be is exactly in accord with my own, although we have not discussed the question between us. I think the Senator may be unnecessarily disturbed on that point. Granting that some large power development is imitated upon the waters of the Colorado, undoubtedly Colorado industries may require some of that power Senator ASHURST. I understand. Senator PHIPPS. And those in control of the distribution of that power may be only too glad to have that outlet for what they may produce. And without going into any of the legal phases as to Arizona's right to collect a tax or toll-I personally dislike the term royalty in connection with power produced on the stream-I contend that Arizona, as Nevada or other States, where works are constructed in her territory, has the right to tax that property in the same manner that she taxes other individual property, and I can not see that any reasonable tax which Arizona, Nevada, or California might impose upon a structure on their own territory would in any manner be objected to by the neighboring States. Senator ASHURST. Nothing I have said would indicate that anybody would contemplate a refusal to sell power to the upper States. Senator PHIPPS. Oh, no. Senator ASHURST. I must make this clear. Arizona will not be content merely with taxing industrial developments and plants. Arizona will be content only when she is clearly given the right to levy-I will not confine myself to the word royalty-to levy a tax, a proper and a reasonable tax, upon the kilowatt-hours or horsepower developed. I do not want any misunderstanding. Arizona is a State of slow development, and it must be obvious that we should reserve the right to Arizona in clear and specific terms to levy a tax and to obtain a revenue from the horsepower or kilowatt-hours generated on the Colorado River in Arizona. Mr. CARPENTER. Senator, I understood your question to apply only to the State of Colorado. Senator ASHURST, Yes. Mr. CARPENTER. I just wanted to remind you that Utah is, of course, interested in the Glen Canyon Reservoir. Colorado, of course, has not a direct interest. Senator ASHURST. You will recall that I asked this question of the governor. Mr. CARPENTER. Yes. Senator JOHNSON. The principle that you announce would be, of course, applicable to any of the other States? Senator ASHURST. One principle. Senator PHIPPS. Mr. Chairman, I would like to ask the witness a question or two. Mr. Carpenter, in your testimony yesterday you referred to the attitude of the Reclamation Service on the Colorado River matter, and you were evidently reading from a memorandum there. If you have a memorandum on that subject, will you include that in the record? Mr. CARPENTER. I have a memorandum of part of it. It consists of paragraphs copied from the typewritten report on the Colorado River that is in the offices of the Reclamation Service. It is copied from the discussion of legal problems by District Attorney Eggleston, of the United States Reclamation Service. I have that before me. I will be glad to put this in the record. Senator PHIPPS. You have covered the Henrylyn tunnel proposition in your statement, but this other is not very lengthy, and I thought it would make the record more complete to have those quotations from the declarations of men connected with the Reclamation Service. Senator SHORTRIDGE. As to what point was that, Senator? Senator PHIPPS. As to their desire to control the distribution of the water stored by any dam or other structure that might be placed on the river, or any water taken out for purposes of reclamation. Senator SHORTRIDGE. That the Federal Government had a superior right to exercise control over the subject matter? Senator PHIPPS. Yes; and not only as to Government reclamation projects, but private reclamation projects, they were inclined to assert and exercise rights that are in conflict with what we understand to be the superior rights of the States and the citizens. The CHAIRMAN. Senator Phipps, are you asking for excerpts from a certain public record to be placed in the record of these hearings? Senator PHIPPS. Yes, sir. The CHAIRMAN. Do you desire to have them inserted in the record at this point? Senator PHIPPS. At this point, Mr. Chairman; yes. (The memorandum referred to is here printed in full, as follows:) PARAGRAPHS FROM DISCUSSION OF LEGAL PHASES OF WATER RIGHTS ON COLORADO RIVER, BY W. J. EGGLESTON, DISTRICT COUNSEL UNITED STATES RECLAMATION SERVICE, APPEARING AS PART 19, VOLUME 4, OF A FOUR-VOLUME REPORT ON THE COLORADO RIVER. 66 Arizona and California River Regulation Commission organized by the Los Angeles Chamber of Commerce passed resolutions, filed with Secretary of the Interior. Mention illegal diversions and request that applications for rights of way for conducting water the Colorado River Basin over Government lands be held in abeyance until a survey shows that sufficient surplus and unappropriated water exists to meet such appropriations. The main question which is the basis of this inquiry "What rights to the use of the waters of the Colorado River are invested and must be respected?" can be answered only by an adjudication of the entire basin. The term "adjudication can be used only in its limited sense, and any finding which may be presented as a result of the present investigation will be of no value as indicating rights until they are indorsed, confirmed, and agreed to by the States, the United States, and the individual water users. * * * There is no office or bureau of the Government so well equipped now to furnish any essential fact in regard to this great region, and there can be no individual, company or institution in the future which can make a similar exhaustive and necessarily unbiased investigation. The Reclamation Service, both the legal and engineering sides, must become the repository of all information regarding this subject so that the individual States, Congress or the Supreme Court will finally and inevitably turn to this service for exact and authentic intelligence on the subject. The need for such intelligence is present. When it will be asked for is a question. But the work of this special investigation should be continued so that the longer the period before the results are used, the more thoroughly digested and comprehensive will be the results submitted. * Since all international questions are in control and custody of Congress and the Department of State and the existing laws and treaties will be noticed and respected by the Supreme Court in any controversy which may be brought before it by the United States, it is apparent that the Supreme Court of the United States will eventually adjudicate the rights in the Colorado River basin. The question will be presented by one State against one other State; all the remaining States and presumably the United States will intervene. Physical conditions and its relative location for the diversion and use of water, make the rights of California the most precarious of any of those in the United States. The controversy which will bring about the adjudication of the Colorado River basin will, therefore, naturally be initiated in connection with the use of water farthest from the source of the river. The Supreme Court of the United States will be the tribunal. It will require facts-a multitude and mass of information difficult to conceive of except to the investigator, who has made long and painstaking study and has literally grown up with the growth and development of the question he is studying. The Reclamation Service is the natural, logical, and should be the responsible fountain head of authentic information from its studies, investigations, compilations, and records of the past 14 years, and with the mass of material covering all recorded appropriations and rights which this report transmits. As suggested heretofore in this report, it will be not only the natural office of this service but its plain duty to complete its work and make sure the results are before the court for the benefit of all the people of the Nation and for all time. The court may then find in a so-called private adjudication of water rights and plans for future development the basis for its decree with few, if any modifications. Such a decree must be administered and enforced. A Federal commission appointed by or under the authority of the court would be the usual vehicle for the execution of the court's findings or right. What commission appointed from private life could be found with the knowledge of and capacity for handling this enormous work or with such resources of executive ability in emergency or with such an unbiased and nonpartisan outlook upon the subject in hand as the Reclamation Service. Senator PHIPPS. Along some lines the Department of Justice has been taking a hand and setting up what we conceive to be obstacles to development, and there is probably some action that should be taken with reference to the waters of these western streams which is not in accord with what we believe to be the policy of the Department of Justice. I think you have some views on that subject that would be enlightening. Mr. CARPENTER. I mentioned in my testimony, I believe, the arguments advanced by the Department of Justice in the second and third oral arguments, and also by brief, in the case of Wyoming v. Colorado, where they contended that the United States of America is the owner of all of the unappropriated waters in our Western rivers, and that those waters are wholly removed from State control and only come under the jurisdiction of the State when segregated by the appropriator in the form of an appropriation. Senator JOHNSON. Who was the individual that made that argument, if you please? Mr. CARPENTER. That was made by the Department of Justice through Solicitor General Davis first, and Assistant Solicitor General Reitler in the third argument. Now, Senator, that policy is said to have had its origin in the department through the work of the Special Assistant Attorney General Ethelburt Ward, of Denver, who is in charge of legal matters of the Reclamation Service. Under him are a number of assistants, and he and his assistants are pressing that theory at this time wherever possible before the Federal district courts in the evident hope of getting a precedent in their favor. The most imminent case is that of the Truckee River in Nevada. I see no more practical way to avoid the promotion of the theory than to prevail upon the Department of Justice to desist from pressing that argument. It is abhorrent to the laws and offensive to the people of all the Western States. Senator PHIPPS. Could not that point be covered by suitable legislation or instructions or authority to the Federal Power Commission? |