APPENDIX "K."

IN THE MATTER OF APPLICATION UNDER THE BURTON ACT FOR THE ISSUE OF PERMITS TO DIVERT WATER FOR POWER FROM THE NIAGARA FALLS ON THE AMERICAN SIDE AND TO TRANSMIT ELECTRICAL CURRENT, DEVELOPED FROM WATER POWER ON THE CANADIAN SIDE, INTO THE UNITED STATES.

Opinion by the Secretary of War.

Ten or more applications have been filed in this Department for the issuing of permits by the Secretary of War, part of them for the diversion of water for power from Niagara Falls on the American side, and the remainder for the transmission of electrical currents, developed from water diverted from the falls on the Canadian side, into the United States. These applications are filed under what is known as the Burton Act, passed June 29, 1906, and entitled "An act for the control and regulation of the waters of the Niagara river, for the preservation of Niagara falls, and for other purposes."

The first section of the act forbids the diversion of water from the Niagara river, or its tributaries in the State of New York, except with the consent of the Secretary of War, as authorized in section 2, with a proviso, the meaning of which is not here important.

The second, fourth, and fifth sections of the act I set out in full, as follows:

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"§ 2. That the secretary of war is hereby authorized to grant permits for the diversion of water in the United States from said Niagara river or its tributaries for the creation of power to individuals, companies, or corporations which are now actually producing power from the waters of said river, or its tributaries, in the state of New York, or from the Erie canal; also permits for the transmission of power from the Dominion of Canada into the United States, to companies legally authorized therefor, both for diversion and transmission, as hereinafter stated, but permits for diversion shall be issued only to the individuals, companies or corporations as aforesaid, and only to the amount now actually

in use or contracted to be used in factories, the buildings for which are now in process of construction, not exceeding to any one individual, company or corporation as aforesaid, a maximum amount of eight thousand six hundred cubic feet per second, and not exceeding to all individuals, companies or corporations as aforesaid an aggregate amount of fifteen thousand six hundred cubic feet per second; but no revocable permits shall be issued by the said secretary under the provisions hereafter set forth for the diversion of additional amounts of water from the said river or its tributaries until the approximate amount for which permits may be issued as above, to wit, fifteen thousand, six hundred cubic feet per second, shall for a period of not less than six months have been diverted from the waters of said river or its tributaries, in the state of New York: Provided, That the said secretary, subject to the provisions of section five of this act, under the limitations relating to time above set forth is hereby authorized to grant revocable permits, from time to time, to such individuals, companies or corporations, or their assigns, for the diversion of additional amounts of water from the said river or its tributaries to such amount, if any, as, in connection with the amount diverted on the Canadian side, shall not injure or interfere with the navigable capacity of said river, or its integrity and proper volume as a boundary stream, or the scenic grandeur of Niagara falls; and that the quantity of electrical power which may by permits be allowed to be transmitted from the Dominion of Canada into the United States, shall be one hundred and sixty thousand horse power: Provided further, That the said secre tary, subject to the provisions of section five of this act, may issue revocable permits for the transmission of additional electrical power so generated in Canada, but in no event shall the amount included in such permits, together with the said one hundred and sixty thousand horse power and the amount generated and used in Canada, exceed three hundred and fifty thousand horse power: Provided always, That the provisions herein permitting diversions and fixing the aggregate horse power herein permitted to be transmitted into the United States, as aforesaid, are intended as a limitation on the authority of the secretary of war, and shall in no wise be construed as a direction to said secretary to issue permits,

and the secretary of war shall make regulations preventing or limiting the diversion of water and the admission of electrical power as herein stated; and the permits for the transmission of electrical power issued by the secretary of war may specify the persons companies, or corporations by whom the same shall be transmitted, and the persons, companies, or corporations to whom the same shall be delivered.

"§ 4. That the president of the United States is respectfully requested to open negotiations with the government of Great Britain for the purpose of effectually providing, by suitable treaty with said government, for such regulation and control of the waters of Niagara river and its tributaries as will preserve the scenic grandeur of Niagara falls and of the rapids in said river.

"§ 5. That the provisions of this act shall remain in force for three years from and after date of its passage, at the expiration of which time all permits granted hereunder by the secretary of war shall terminate unless sooner revoked, and the secretary of war is hereby authorized to revoke any or all permits granted by him by authority of this act, and nothing herein contained shall be held to confirm, establish, or confer any rights heretofore claimed or exercised in the diversion of water or the transmission of power."

The third section provides a punishment for violations of the act, and the method of enforcing it.

The plain purpose of the act is to restrict, as far as lies in the power of the Congress, the diversion of the water from the Niagara river above the falls in such a way as to reduce the volume of the water going over the falls, and the plan of Congress in so doing is to effect this purpose by directly prohibiting the diversion of water on the American side, and by taking away the motive for diverting water on the Canadian side, by denying a market for electrical power generated on the Canadian side in the United States. The prohibition in the act is not absolute, however. It is clear that Congress wished, so far as it could, to accomplish its purpose with as little sacrifice of the pecuniary interests of those who had actually made investments, on the faith of the continued unrestricted diversion of water on the American side, or the continued unrestricted transmission of electrical power from Canada into the United States, as was consistent

with the preservation of the integrity and volume of the Niagara river passing over the falls.

The International Waterways Commission, a body appointed under a statute of the United States to confer with a similar body appointed under a statute of Canada, to make recommendations with reference to the control and government of the waters of the Great Lakes and the valley of the St. Lawrence, have looked into the question of the amount of water which could be withdrawn on the American and the Canadian side of the Niagara river without substantial injury to the cataract as one of the great natural beauties of the world, and after a most careful examination they have reported, recognizing fully the necessity of preserving intact the scenic grandeur of the Niagara Falls, that it would be wise to restrict diversion to 28,600 cubic feet a second on the American side of the Niagara river (this to include 10,000 cubic second feet for the Chicago drainage canal), and to restrict the diversion on the Canadian side to 36,000 cubic feet a second. This report was in answer to a resolution of Congress calling for an expression of opinion, and thereupon Congress provided that the Secretary of War should be permitted, but not required, to issue permits in the first instance for the diversion of 15,600 cubic feet on the American side of Niagara river and in the Erie canal, to persons or corporations actually engaged in the diversion of water and its use for power on that side, for six months, with leave to increase the same after six months shall have shown the effect of such diversion, if it will not affect the scenic grandeur of the falls. Congress further provided in the act, with reference to the power generated on the Canadian side, that the Secretary of War should be authorized, but not required, to issue permits for the transmission of 160,000 horse power from the Canadian side to the markets of the United States, and then provided that he might issue revocable permits for the transmission of a larger amount, provided that the total amount transmitted, together with that generated and used on the Canadian side, should not exceed 350,000 horse power, or the equivalent of the diversion from the falls of about 28,000 cubic feet of water.

I have already said that the object of the act is to preserve Niagara Falls. It is curious, however, that this purpose as a limitation upon the granting of permits by the Secretary of War is only specifically recited in reference to his granting of permits for diversion of additional amounts of water over 15,600 cubic

feet on the American side, which are to be limited to "such amount, if any, as in connection with the amount diverted from the Canadian side, shall not interfere with the navigable capacity of said river or its integrity and proper volume as a boundary. stream, or the scenic grandeur of Niagara Falls." This peculiarity in the act is significant of the tentative opinion of Congress that 15,600 cubic feet of water might be diverted on the American side and 160,000 electrical horse power might be transmitted from the Canadian side without substantial diminution of the scenic grandeur of the falls. Undoubtedly Congress left it to the secretary to reduce this total thus indiciated in the matter of permits, if he differed with this intimation of the Congressional view. Acting, however, upon the same evidence which Congress had, and upon the additional statement made to me at the hearing by Dr. John M. Clark, State Geologist of New York, who seems to have been one of those engaged from the beginning in the whole movement for the preservation of Niagara Falls, and who has given close scientific attention to the matter, I have reached the conclusion that with the diversion of 15,600 cubic feet on the American side, and the transmission of 160,000 horse power from the Canadian side, the scenic grandeur of the falls will not be affected substantially or perceptibly to the eye.

With respect to the American falls, this is an increase of but 2,500 cubic feet a second of what is now being diverted, and has been diverted for many years and has not affected the falls as a scenic wonder.

With respect to the Canadian side the water is drawn from the river in such a way as not to affect the American falls at all, because the point from which it is drawn is considerably below the level of the water at the point where the waters separate above Goat island, and the Waterways Commission and Dr. Clark agree that the taking of 13,000 cubic feet from the Canadian side will not in any way affect or reduce the water going over the American falls. The water going over the falls on the Canadian side of Goat island is about five times the volume of that which goes over the American falls, or counting the total as 220,000 cubic feet a second, the volume of the Horseshoe falls would be about 180,000 cubic feet. If the amount withdrawn on the Canada side for Canadian use were 5,000 cubic feet a second, which it is not likely to be during the three years' life of these permits, the total to be withdrawn would not exceed 10 per cent. of the volume