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Arizona stands here today to take advantage of every benefit of
Boulder Dam project, and Mr. Farmer reads, as they always do these conferences, he reads the Boulder Canyon Project Act as the sis of the whole thing, but they secured from the United States i preme Court the statement that it did not bind them in the slight
way. It is extraneous to their history and to the question which involved here. VVe feel justified in saying to Arizona that it shall have accrued ; it great benefits of this, just like all of the rest of us, but that rizona shall not get benefits to our disadvantage.
Mr. Rich. You say we should not develop the lower river to the *t riment and expense of the upper basin?
Ir. Ray. Yes, sir. Nr. Rich. In your judgment, is the lower basin being developed v to the detriment of the upper-basin States! Mr. Ray. In this respect, Mr. Congressman: If the Gila Valley roject should go through, there is allotted to California 5,362,000 rre-feet of water. Mr. Ricu. Where do they get that water? Mr. Ray. Every drop of it comes from Boulder Dam. Mr. Rich. All of it? Mr. Ray. Yes; they get all of it there.
Mr. Rich. Where will this Gila Valley project take water out of he Colorado River?
Mr. Ray. Down here [indicating on map] near Yuma; but the vater comes from the dam.
Mr. Rich. What effect will that have on California if they take it lown there?
Mr. Ray. California will always be bound, Arizona not being bound by the compact.
Mr. Rich. But they take the water out before it comes to the Gila Valley project?
Mr. Ray. California !
Mr. Ray. They take it out of the dam. California will get her water all right. There will be no question about that.
Mr. Rich. How could the Gila Valley project in any way affect California
Mr. Ray. I do not think the Gila Valley project can affect California.
Mr. Rich. All right; if it takes it out after it comes into the State of Arizona, how can it affect in any way the States above there where you have the water first!
Mr. Ray. This is all storage water here, Mr. Congressman. We are required to turn down under the compact 75,000,000 acrefeet of water within a period of 10 years, whether we have any water left or not.
The State of Arizona is a prior-appropriation State, and yet they are not bound by the compact.
Mr. Rich. In other words, you would have to let it flow through to that extent?
Mr. Ray. Yes; following those decisions in the cases of Kansas v. C'olorado, Wyoming v. Colorado, and every case under the prior
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appropriation doctrine in the Western States where that doctre prevails.
Mr. FITZPATRICK. Can you explain what burden you assumed in the upper basin States that Arizona did not assume?
Mr. Ray. Yes, sir; I can. We assumed every burden in the war that we have asked Arizona to assume, that is a quieting diviso of the water rights, but Arizona quite honestly disagreed.
Mr. FITZPATRICK. I want to find out the burden you assumed. Mr. Ray. We assumed the burden of turning down from these arra in here, down past Lees Ferry, 75,000,000 acre-feet of water in ai 10-year period.
Mr. FITZPATRICK. But you all benefit out there from the approprs tion from the United States; is that not true?
Mr. Ray. Oh, no; not in the slightest. We would get none of : water, if that is the import of your question. We would not get a drop of this water.
Mr. FITZPATRICK. That is what I am trying to get at. Mr. Ray. We would not get a drop of the impounded water [indicating). * Mr. FITZPATRICK. Who will get the benefit of that impound water?
Mr. Ray. Only those areas of land which lie physically below the dam. That means the State of California, primarily, and seconds the State of Arizona.
Mr. FITZPATRICK. Then why are you bound up above there so the you cannot use the water flowing through the States?
Mr. Ray. The limitation upon that under the Six-State Compact with the consent of the United States, is that we cannot use it to t'i extent of the primary 75,000,000 acre-feet over a 10-year period. We must turn it down under the provisions of our State compact, an we cannot use it, and, Congressman, if the legislation had been & ferent, if instead of turning down 75,000,000 acre-feet in a 10-year period we have been required to turn down 150,000,000 acre-feet, r: would have turned it all down and could have had no possible benefits thereafter from the river.
Mr. FITZPATRICK. Well, were you put to any expense or burden bi signing this compact ?
Mr. Ray. No; we were not put to any burden, except to turn t's water down, but as to expenses we were not put to any expense.
Mr. FITZPATRICK. You made the statement that they did not assum the burden that you assumed in the upper States. What was that burden?
Mr. Ray. This is the burden we did assume, that notwithstanding practically every drop of the water which they use in the lower basin arises in our upper-basin States, we agreed to and assumed the burden of turning down that water, 75,000,000 acre-feet in each 10-year period. That was our burden.
Mr. FITZPATRICK. Do you have use for it up there? Mr. Ray. We have additional arid lands that need irrigation. If the Congress of the United States will give us some money to secure the necessary facilities we would have use, of course, for all of the water which we were permitted to retain. The benefit that we gn from signing this compact, and this is essential to remember, &
pulsion that we quid pro quo. it has been
he quieting of our title to the water which we retained. The beneit that they got was the compulsion that we turn down water which re conceded they had title to, and it was a quid pro quo.
Mr. Rich. You have never had use for the water, so it has been to hardship on you up to this time?
Mr. Ray. No; it has not, up to this time.
Mr. Rich. You do not intend to develop this until the Federal Jovernment gives you the money to develop it?
Mr. Ray. Well, we are developing it, and have developed and paid for some of the developments. We are using some of it, and our State would, of course, and will do a good deal of development on it whether the Federal Government comes into it or not.
Mr. Rich. If you get the money from the Federal Government, you will continue the development?
Mr. Ray. Where you are anticipating development, it is more necessary to go to the Federal Government, where you anticipate it far in advance. Of course, the time will come when we will do our own development out there, but not so quickly as it came in California.
Mr. FITZPATRICK. What would you think of the Federal Government stopping all contributions and letting the States develop their own water resources ?
Mr. Ray. I could be more favorable to that if I came from California where they have already had $500,000,000, but in Utah we have not had it, so I think just after we get ours they should stop it. Of course, from a practical standpoint, that would have to be the answer.
Mr. FARMER. Mr. Chairman, could I say a few more words?
FURTHER STATEMENT OF THE HONORABLE LAWRENCE LEWIS,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO
Mr. Lewis. Perhaps it would help clarify the problem to outline briefly the law of waters which prevails in the States of the Colorado River Basin. In all of those States a right to the use of water is initiated and perfected by diversion of water from a natural stream or lake and applying it to beneficial use.
Under the common law "doctrine of riparian rights” or “riparian doctrine", a riparian landowner is entitled to have the waters of a natural stream continue to flow as they have flowed from time immemorial, subject to the reasonable uses of other riparian landowners. But 75 or 80 years ago, when agriculture was first undertaken by settlers in the region now included in the irrigated-land States, it was realized that this common-law "riparian doctrine" in regard to the waters of natural streams was not suitable or applicable to conditions in those regions. Consequently, this "riparian doctrine” was early rejected by our territorial courts and there was formulated and adopted the "doctrine of prior appropriation", or "appropriation doetrine", under which he who first diverts the water of a natural stream and applies such water to beneficial use, regardless of the locus of such beneficial use, acquires a prior right or "priority”, to the extent of such use, against all subsequent appropriators up and down the
Tbiado River that this appated-land
stream. This “appropriation doctrine” is frequently summarized ! the maxim "First in use, first in right."
This “appropriation doctrine" is the law in all the States in Colorado River Basin. Furthermore, the United States Supreme Court has held that this "appropriation doctrine" is applicable to a interstate stream in the irrigated-land States; and, still further, the a prior water right or "priority", initiated and perfected under this "appropriation doctrine," constitutes a prior, paramount, and a forceable right against all subsequent appropriators up and downt't stream, from its source to its mouth, regardless of State lines.
Now, gentlemen, I wish to state Colorado's position in regard to this Gila Valley project.
Of the water which goes into Lake Mead behind Boulder Dam percent of all of it arises in the State of Colorado. Sixty-five percent of the water which goes by Lee's Ferry—the dividing pa between the upper and lower basin States-originates in the Star of Colorado.
Colorado, up to a very few years ago, entirely on its own creti. had been developing its water rights conservatively, as its economs needs required. The States of California and Arizona were desire of having this great project at Boulder Dam constructed. Inderd this dam was indispensable to them. .
Owing to the great variation in flow of the Colorado River le tween times of high water and low water, the construction of a dam was essential to the lower-basin States to regulate the flow of the rindi and to store the floods that come down from the upper-basin Stats at certain seasons for use during times of normally low water. Bu cause of these variations in the flow of the Colorado River, California and Arizona could not make use of the water from this river unless a regulating dam was constructed. The upper-basin State did not need the Boulder Canyon Dam, because it lies down the river from them. But it was indispensable to California and A1zona, if they were to use any considerable amount of water from the Colorado River.
So California and Arizona came to Colorado, they came to ttal, and they came to the other upper-basin States, and they said, "IT are desperately in need of this water from the Colorado River. Federal legislation is essential."
“Because this is an interstate stream and the cost of the dam wil be so great we must ask Uncle Sam to help us finance it.”
Wishing to be good neighbors, we in Colorado and in Utah and in Wyoming, and in New Mexico, said: “We are getting along, we think, very well. We are developing our natural resources with our own money and with the money we borrow on our own credit and are gradually utilizing these waters which arise in our States. We can use these waters slowly as we develop and throughout the years we can continue to use them and develop the mfurther as we need them. We realize, however, that under the legal 'doctrine of appropriation, if you initiate water rights lower down the river by the construction of projects, before we, in our conservative way, construct our proj ects, then, under the principle of 'first in use, first in right' you will obtain water rights which will have priority over water rights
r projects we may wish later to develop. So, it will probably be
our advantage, as well as to the advantage of California and rizona, to enter into an interstate compact. Under such compact le right to water which we may wish to use in projects which we ay later construct will be quieted in our respective States. Meanhile California can get what it needs, namely, the water necessary ► develop this great region down in southern California; and Ariona, as well as California, will have the benefit of a river regulated y this great dam."
So, the consent of the Congress having been obtained, the commisoners of all seven States met at Santa Fe to negotiate a compact, Il seven States were represented, including the State of Arizona. he Colorado River compact was drawn up and signed November 4, 1922, by the commissioners from all seven States, including Krizona. One of the commissioners was our distinguished colleague rovernor Scrugham, who represented Nevada. Mr. Bannister also cas there. The legislatures of six States California, Nevada, Utah, Vyoming, New Mexico, and Colorado--ratified the compact. But Arizona refused to ratify. Arizona said, “We believe we can get nore of this situation if we stay out of the compact."
Now, that is still their position. What is the position at this noment of the upper-basin States!
What we do object to, is the Federal Government taking over $80,000,000 of the money of the people of all of the United States, including the money of the people of the State of Colorado, and spending it down in Arizona on a project which, under the doctrine of appropriation, will create a vested water right which will have priority over the rights of any project in our upper-basin States which we may hereafter construct. Water is the heart of our existence. This Gila Valley project is a pistol pointed at the heart of every one of the upper-basin States.
We say to Arizona “If you get the money to start this $80,000,000 project, are you willing to be bound by the Colorado River compact.?"
"Oh, no", they answer; "we want this money from the Federal Government without condition."
Further, when we offer other suggestions for our own protection, the gentlemen from Arizona say they cannot bind the State of Arizona.
They certainly cannot. Only the legislature of a State, acting within the limitations of its constitution, can bind a sovereign State.
The Supreme Court of the United States has repeatedly held, as was stated by my friend, Mr. Ray, representing the State of Utah, that you cannot bind a sovereign State or the use of the waters in that State by an act of Congress.
The only way for a State to be bound is to have action by the State itself. Consequently, the only protection that we in the upper-basin States can have is for any appropriation of money by the Congress to be made operative only upon condition that Arizona, in its sovereign capacity, shall ratify the Colorado River compact or expressly agree to accept the conditions we have suggested,
When coming to the Federal Government and asking for appropriations for a project which will cost over $80,000,000, Arizona should assume the same burdens and obligations assumed by all of