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hat is the same proviso that was presented yesterday by Mr. Banster, and he asked that we insert that proviso. Mr. FARMER. I want to be clear about this, Mr. Congressman. May read it? Mr. Rich. Yes. It is the same one that was presented here yesrday. Mr. Farmer. I will say this, that we are willing for any provision , be added here, which says that any water used on these lands shall
subject to the Colorado River compact. If this provision includes anything that would say that before this toney can be made available, the State must take action, then I am elpless to make any agreement as to that.
úr. Rich. We know you yourself personally could not guarantee nat, but it would only give the committee something to work on, nd 'then your State legislature would have some reason to get toether and act before anything could be done.
Mr. FARMER. I would not be a party to attempting to coerce those people, Mr. Congressman, because, let me tell you, as I started to nswer you awhile ago, I have tried to work with those people. Mr. Ricn. Whom do you mean by "those people"!
Mr. FARMER. The people in the Salt River Valley and in the cenral part of Arizona, which constitutes the majority of the populaion of the State. They have taken the position that they feel that he waters of the Gila River, which they appropriated and applied o a beneficial use long before the Colorado River compact was considered, should not have been included in the allocation of waters to the lower basin States.
They have taken that position consistently, and, of course, water from the Gila River never reaches the Colorado River except in times of flash floods, and at that time it reaches the river below all points of diversion to be constructed for the use of waters in the United States.
Mr. SCRUGHAM. Have you completed your statement now, Mr. Farmer, or do you have something more?
Mr. FARMER. I am not through yet, Governor. I would like to offer for the record an excerpt from the Congressional Record under date of July 2, which includes an extract from the opinion of Arthur T. La Prade, former attorney general of Arizona, and Mr. Charles A. Carson, Jr., his special assistant. It is marked here, and I would like to have this included in the record.
Mr. Johnson. There is no objection.
(The following extracts are taken from an opinion rendered to the Colorado River Commission of Arizona by Hon. Arthur T. LaPrade, attorney general of Arizona, and Mr. Charles A. Carson, Jr., his special assistant, on July 12, 1933, and relate particularly to paragraphs (c) and (d) of the Boulder Canyon Project Act, which reads as follows:)
"(c) Also all patents, grants, contracts, concessions, leases, permits, licenses, rights-of-way, or other privileges from the l’nited States or under its authority, necessary or convenient for the use of waters of the ('olorado River or its tributaries, or for the generation or transmission of electrical energy generated by means of the water of said river or its tributaries, whether under this act, the Federal Water Power Act, or otherwise, shall be upon the express condition and
with the express covenant that the rights of the recipients or holders thered waters of the river or its tributaries, for the use of which the same are base sary, convenient, or incidental, and the use of the same shall likewise be schia to and controlled by said Colorado River compact.
“(d) The conditions and covenants referred to herein shall be deemed t5 fe with the land and the right, interest, or privilege therein and water rigtit, i shall attach as a matter of law, whether set out or referred to in the instrue": evidencing any such patent, grant, contract, concession, lease, permit, lictis right-of-way, or other privilege from the United States or under its acitet or not, and shall be deemed to be for the benefit of and be available to the of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyomine u the users of water therein or thereunder, by way of suit, defense, or others in any litigation respecting the waters of the Colorado River or its tributaria
"EXTRACTS FROM THE LAPRADE-CARSON OPINION
“Would the State of Arizona have authority to build a dam across the L** stream of the Colorado River above Boulder Dam, and divert waters thrretto for irrigation and power through ditches, tunnels, and other works actus public domain, without the consent of the Federal Government?
"Congress in the Boulder Canyon Project Act, (c) and (d) of section makes the use of any right-of-way, license or privilege necessary or couri for the use of the waters of the Colorado River or its tributaries, un express condition and with the express covenant that the rights of the matter ents or holders thereof to waters of the river or its tributaries for wbiti' same are necessary, convenient, or incidental and the use of the same, bill. subject to and controlled by said Colorado River compact. In view of the tos going cases and decisions it is clear that Arizona could not construct a di above Boulder Dam without agreeing to the conditions attached. It is pruik in article 8 of the Colorado River compact :
‘Present perfected rights to the beneficial use of waters of the Colorat River system are unimpaired by this contract. Whenever storage cajeriya 5,000,000 acre-feet shall have been provided on the main Colorado River with or for the benefit of the lower basin, then claims of such rights, if apr. 1 appropriators or users of water in the lower basin against appropriators users of water in the upper basin shall attach to and be satisfied from Wain that may be stored not in conflict with article III.
"All other rights to beneficial use of waters of the Colorado River Tsir shall be satisfied solely from the water apportioned to that basin in which to are situate.'
"It is thus apparent that the use of water in the lower-basin States is, ampor ing to the terms of the Colorado River compact, limited to that apportioned article III (a) to 7,500,000 acre-feet per annum and article III (b), 1.000.00 acre-feet per annum included for the Gila River. Arizona, of course, is at bound by the terms of the Colorado River compact, not having ratified the same; but according to the condition attached to the rights-of-way, the nec such waters would be subject to the Colorado River compact although be ratified by the State of Arizona, and the total use of water in the lower-bes States, as defined by the Colorado River compact, would be limited as above a forth."
For the foregoing reasons, it is my opinion that your question must be answered in the negative, and that the State of Arizona does not have the leza right to build a dam across the main stream of the Colorado River, abort Boulder Dam, and divert waters therefrom for irrigation and power
, throne ditches, tunnels, and other works across the public domain, without the conseli of the Federal Government. Yours very truly,
ARTHUR T. LAPRADE,
Attorney General CHAR. A. CARSON, Jr.,
Mr. FARMER. I should like also to offer an opinion of Mr. Moore
the Head Gate Dam, across the Colorado River in Arizona. I would like to have this included in the record. May I, Gov. nor? Mr. SCRUGHAM. Yes, sir. (The opinion referred to is as follows:)
HEAD GATE DAM, ACROSS COLORADO RIVER IN ARIZONA
SENATE AMENDMENT TO H. R. 6732
1. The project and its purposes : Head Gate Dam, the canal and incidental orks, are designed to divert and use 500,000 acre-feet of Colorado River ater per year for irrigation of 100,000 acres of Colorado River Indian Reserition in Arizona, about 150 miles south of Boulder Dam. Six thousand acres ! this land are now under irrigation. None of its is in private ownership or subject to entry or purchase. The Indian Service plans to make the reclaimed reservation available for attlement by such members of the Navajo and other tribes as may elect to move from their present locations, large areas of which have become barren nd unproductive on account of erosion due to overgrazing.
2. The United States relation to the Colorado River compact: Article VII f the compact reads:
"Nothing in this compact shall be construed as affecting the obligations f the United States of America to Indian tribes."
By subsection (b) of section 13 of the Boulder Canyon Project Act, which atified the coinpact, it is provided :
"(b) The rights of the United States in or to waters of the Colorado River ind its tributaries howsoever claimed or acquired, as well as the rights of hose claiming umder the United States, shall be subject to and controlled by aid Colorado River compact."
By paragraph (a) article III of Colorado River compact, the "exclusive beneficial consumptive use of 7,500,000 acre-feet of water” of the Colorado River per annum, in perpetuity, are apportioned to the upper-basin States, consisting of Colorado, New Mexico, Utah, and Wyoming, and the lower-basin States, consisting of California and Nevada, respectively.
As the United States, by the provisions or subsection (b) of section 13, Boulder Canyon Project Act, above quoted, agreed to be bound by the division of the waters of the Colorado as apportioned between the upper- and lowerbasin States by the Colorado River compact it, in effect, became and is a party to that interstate treaty.
Therefore, it cannot draw upon water apportioned to upper-basin States for irrigation of public or Indian lands in Arizona, California, or Nevada, nor acquire any priority of right against the upper-basin States by a priority of use in the lower-basin States or in Arizona.
3. Arizona and the compact: While Arizona is named in the compact as a party and is designated as one of the lower-basin States, its legislature de. clined to ratify the treaty and accordingly it is not a party to it and its name, wherever it appears therein, should be disregarded.
4. Nevada and the compact: Due to topographic conditions, Nevada cannot economically put to use more than 300,000 acre-feet per year of Colorado River water.
5. California and the compact: Pursuant to the requirements of subsection (a) of section 4 of the Boulder Canyon Project Act, California, by act of its legislature, agreed “irrevocably and unconditionally with the United States and for the benefit of the States of Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming, that the (its) aggregate annual consumptive use (diversions less returns to the river) of waters of and from the Colorado River shall not exceed 4.400,000 acre feet of the waters apportioned to the lowerbasin States by paragraph (a) of article III of the Colorado River compact (7,300,000 acre-feet per year) plus not more than one-half of any excess or surplus waters unapportioned by said compact." The unapportioned water is estimated to be 1.500.000 acre-feet annually.
Hence, with California legally and Nevada topographically restricted to aggregate annual uses of 1,700,000 of the 7.500,000 acre feet per year apportioned to the lower basin by paragraph (a) of article III of the compact,
plus one-half of unapportioned waters, the remainder of the water so app tioned, amounting to 2,800,000 acre-feet per year plus one-half of the fin or surplus unappropriated water, estimated at 750,000 acre-feet per year. be used in the United States only for irrigation of public and Indian lark Arizona. There are no lands in private ownership in that State to which tiwater can be economically applied.
Therefore, unless so used, the water apportioned to the lower basin in California may not and Nevada cannot use, aggregating 3,750,000 acre-feel je? year, necessarily will flow down the river, after generating power at Bek Dam, and be available for use on about 1,000,000 acres of irrigable lani 2 Mexico, just below the border.
A conservative, capital value of this water, with the regulated for p vided by Boulder Dam, for irrigation in Mexico is $25 per acre-foot or a free value of $88,750,000. Its value for use in the United States is twice as L.
The upper-basin States apparently would prefer to present this water Mexico, free of charge, rather than to have it used in the United States $. a gratuity was not intended by the Colorado River compact or by Concs
JAMES R. MOORE. Special Assistant Attorney General for Arica WASHINGTON, D. C., July 1, 1935.
Mr. FARMER. Gentlemen, I would like to offer further into the record, under date of June 18, 1936, a letter of John C. Page, Anne Commissioner of the Reclamation, a letter to the Honorable ('ai Hayden, United States Senator from Arizona. I would like to hav this incorporated in the record.
(The letter referred to is as follows:)
STATUS OF WORK UNDER EMERGENCY RELIEF ALLOCATIONS
Gila project, Arizona : This project involves the construction of canals, pue} ing plants, and other irrigation facilities. Contract for construction of a se tion of the main canal has been awarded and work is in progress. Oblicaties have been incurred-$1,057,599.79. The unobligated balance of the $1.6 allocation is necessary to purchase materials and supplies for this contra and for supervision by Government forces. The project was contemplated to section 15 of the Boulder Canyon Project Act of December 21, 1928. UNITED STATES DEPARTMENT OF THE INTERIOR,
BUREAU OF RECLAMATION,
Washington, June 16, 1936 Hon. CARL HAYDEN,
United States Senate, MY DEAR SENATOR HAYDEN : I have received your telephone inquiry as to the terms upon which water will be sold to the water users of the Gila projets the water supply for which will be derived from the water stored in the Bouldı! Canyon Dam.
On account of the unsettled condition of the land that will be watered by the Gila project, no contract has yet been executed with the water users of the project. However, the water supply will be derived from the Boulder Cance project, authorized under the act of December 21, 1928 (45 Stat. 1057), aial under the Colorado River compact of November 24, 1922.
In selling water for the Gila project the Secretary must follow the require ments of the Boulder Canyon Project Act, which provides in section 8 (ai as follows:
"The United States, its permittees, licensees, and contractees, and all user and appropriators of water stored, diverted, carried, and/or distributed by t* reservoir, canals, and other works herein authorized, shall obserre and be subject to and controlled by said Colorado River compact in the construction management, and operation of said reservoir, canals, and other works and t? storage, diversion, delivery, and use of water for the generation of power irrigation, and other purposes, anything in this act to the contrary notwith standing, and all permits, licenses, and contracts shall so provide."
Also the first three sentences of section 5 of the Boulder Canyon Project provide as follows:
*That the Secretary of the Interior is hereby authorized, under such general gula tions as he may prescribe to contract for the storage of water in said Servoir and for the delivery thereof at such points on the river and on said nal as may be agreed upon, for irrigation and domestic uses, and generation
electrical energy and delivery at the switchboard to States, municipal corrations, political subdivisions, and private corporations of electrical energy "nerated at said dam, upon charges that will provide revenue which, in addion to other revenue accruing under the reclamation law and under this act, ill in his judgment cover all expenses of operation and maintenance incurred
the United States on account of works constructed under this act and the ayments to the United States under subdivision (b) of section 4. Contracts specting water for irrigation and domestic uses shall be for permanent service nd shall conform to paragraph (a) of section 4 of this act. No person shall are or be entitled to have the use for any purpose of the water stored as foresaid except by contract made as herein stated."
Under the directions of this statute, the water users of the Gila project will e required expressly to contract, in order to obtain water for the irrigation t their land, that their rights are subject to the provisions of the Colorado tiver compact, one main purpose of which is to protect, to the extent stated in he compact the irrigation potentialities of the upper basin from impairment y reason of the earlier use of water downstream. Very truly yours,
John C. PAGE, Acting Commissioner. Mr. FARMER. I want to offer some testimony of Mr. R. F. Walter, hief engineer of the Bureau of Reclamation. It appears in this book. It is hearings before the subcommittee of the Committee on Appropriations of the United States Senate, on H. R. 10630, under date of February 14, 1936.
I would like to offer the testimony of Mr. Walter at this point in the record.
Mr. Johnson. You mean all of those pages?
Mr. Johnson. If there is any special point to it, I have no objection, but I do object to putting in page after page of testimony into this record. We have already exceeded more than 4,000 pages, and that is more than we had last year.
Mr. SCRUGHAM. Give the reference to it.
Mr. Farmer. It is less than two pages, and it states the position of the Bureau of Reclamation, and contains answers given as to the Gila project, as to its effect upon the upper States.
Mr. SCRUGHAM. All of that testimony is germane to it?
Mr. FARMER. Yes, sir. It occurs at pages 61 to 63 of the hearings on the Interior Department appropriation bill for 1937, before the Senate Committee on Appropriations.
I want to say this, that I hope that any of these records that I offer, if they are not printed in the record, will at least be referred to, that they were included in the record.
Then, here is the statement of Mr. John C. Page, Acting Commissioner of Reclamation, made at the supplemental hearings before the subcommittee of the House Committee on Appropriations, in charge of the Interior Department bill for 1937, Seventy-fourth Congress, second session, commencing at page 129 thereof, the testimony of Mr. John C. Page, Acting Commissioner of Reclamation, on the Gila River project of Arizona.
Now, gentlemen, I want that to be considered in the record, but it does not necessarily have to be published but I want due reference made to it, and to be considered by this committee.