of and shall be prosecuted by the Department of Agriculture under the direction of the Secretary of Agriculture, except as otherwise provided by act of Congress; and that in their reports upon examinations and surveys the Secretary of War and the Secretary of Agriculture shall be guided as to floodcontrol measures by the principles set forth in section 1 in the determination of the Federal interests involved.

Under section 3 it is provided:

That hereafter no money appropriated under authority of this act shall be expended on the construction of any project until States, political subdivisions thereof, or other responsible local agencies have given assurances satisfactory to the Secretary of War that they will (a) provide without cost to the United States all lands, easements, and rights-of-way necessary for the construction of the project, except as otherwise provided herein; (b) hold and save the United States free from damages due to the construction works; (c) maintain and operate all the works after completion in accordance with regulations prescribed by the Secretary of War.

Then there are three provisos which I shall not read, but I want to read the fourth proviso:

And provided further, That the Secretary of War shall determine the proportion of the present estimated cost of said lands, easements, and rights-of-way that each State, political subdivision thereof, or responsible local agency should contribute in consideration for the benefits to be received by such agencies..

I call your attention, Mr. Chairman and gentlemen of the committee, particularly to that language "should contribute in considera-tion for the benefits to be received by such agencies."

Then there is this further proviso in section 3:

And provided further, That whenever not less than 75 per centum of the benefits as estimated by the Secretary of War of any project or useful part thereof accrue to lands and property outside of the State in which said project or part thereof is located, provision (c) of this section shall not apply thereto; nothing herein shall impair or abridge the powers now existing in the Department of War with respect to navigable streams: And provided further, That nothing herein shall be construed to interfere with the completion of any reservoir or flood-control work authorized by the Congress and now under way. Under section 4 which, in my judgment, defines the limit and scope and purpose of any agreement or compact between the States, it is provided:

The consent of Congress is hereby given to any two or more States to enter into compacts or agreements in connection with any project or operation authorized by this act for flood control or the prevention of damage to life or property by reason of floods upon any stream or streams and their tributaries: which lie in two or more States, for the purpose of providing, in such manner and such proportion as may be agreed upon by such States and approved by the Secretary of War, funds for construction and maintenance, for the payment of damages, and for the purchase of rights-of-way, lands, and easements in connection with such project or operation.

A compact made in conformity with section 4 of the Flood Control Act of 1936 would not be required to have any further consent by Congress, for Congress has given advance consent to the making of a compact which would have to do solely with flood control, and only with the apportionment of funds to be provided by the several States. The States are required to agree to a compact, for what purpose-to provide funds for construction and maintenance, the payment of damage, and the purchase of lands, rights-of-way, and

easements.

Then follows this language:

No such compact or agreement shall become effective without the further consent or ratification of Congress, except a compact or agreement which provides that all money to be expended pursuant thereto and all work to be performed thereunder shall be expended and performed by the Department of War, with the exception of such reasonable sums as may be reserved by the States entering into the compact or agreement for the purposes of collecting taxes and maintaining the necessary State organizations for carrying out the compact or agreement.

It is our view, gentlemen, that the Flood Control Act of 1936 contemplated the construction of dams and reservoirs for the sole, immediate purpose of flood control, making provision in section 5 onlythat penstocks or other similar facilities, adapted to possible future use in the development of adequate electric power may be installed in any dam herein authorized when approved by the Secretary of War upon the recommendation of the Chief of Engineers.

As we view it, this was a flood-control act, pure and simple, with no more than a wise provision for penstocks in those structures, or in connection with those dams where sound judgment would suggest, as a matter of economy, that penstocks be included at the time of construction rather than subsequently, if they did lend themselves to power development.

This act contemplates, in our opinion, the construction of Federal projects, to be participated in by contributions by those States and political subdivisions or localities to be directly benefited by the construction of flood-control dams and reservoirs.

It contemplates, in our judgment, Federal control of Federal projects, constructed with 75 percent, approximately, of Federal money, and about 25-percent contribution by the State or local political subdivision, the title of the projects, of course, to be in the Federal Government. I do not see any reason why it should be contended that the Federal Government intended by this language that it should provide 70 or 75 percent of the money, that it should construct the project or reservoir, which reservoir may very well include water power, or potential water power, on navigable streams, or the tributaries of navigable streams, over which Congress has uniformly, without exception, since 1920, maintained and exercised the congressional right to regulate and control such reservoirs-I do not see how when a local contribution is made thereto, the communities merely agreeing among themselves as to their respective proportion of the funds to be provided for rights-of-way, easements, and lands to be purchased, damages to be paid, and maintenance to be provided for-how the project may be transformed into a State project or a State-owned project.

The State is admittedly receiving a direct flood-control benefit from the project, but making no more than 25 percent or 30 percent contribution toward the total cost thereof. All the history of waterpower legislation as to which I am informed, and legislation as to which I am informed touching navigable streams or their tributaries where potential water power was or may be involved, runs in one direction, namely, that the Congress of the United States has a definite policy as expressed in the Federal Power Act, under which there is delegated to the Federal Power Commission, and other agencies of the Federal Government, the power to carry out the policies there laid down, but reserving, as I believe, of course, it should, for all

future time the right of further development of those natural resources of the Nation over which Congress has uniformly asserted, and in which it has been uniformly supported in its assertion by the Supreme Court, in all navigable streams and the tributaries of such streams, where water power is involved.

If the compacts now under consideration had followed the provisions of section 4, that is, if the States had agreed among themselves as to the respective proportion of funds to be provided by them for the purchase of land, the payment of damages, acquisition of easements, and so forth, there would not be any compacts, as I understand it, before Congress now, and there certainly would be no necessity of submitting them to Congress. The presentation of the matter to Congress grows out of the fact that the compacts have gone far beyond any direct or implied power under the Flood Control Act of 1936, in that, in the first place, there is an explicit reservation in them of title to the land on which the projects are to be constructed, whereas the act provides that the States may enter into compacts, with the advance consent of Congress, to provide funds for construction and maintenance, payment of damages, and for the purchase of lands, rights-of-way, and easements in connection with such projects, or their operation.

Mr. ZIMMERMAN. What is a right-of-way?

Mr. McNINCH. It is the right to go upon land, of course.

Mr. ZIMMERMAN. Where is the fee simple title?

Mr. MCNINCH. The fee simple title may be in an individual or a corporation, so long as the right-of-way is in the Federal Government. Mr. ZIMMERMAN. After all, a right-of-way is simply an easement. Mr. McNINCH. Yes, sir; it is an easement.

Mr. GRISWOLD. The easement may run with the fee simple title to the land.

Mr. McNINCH. I would interpret this to mean that it may not be, and probably is not, either necessary or advisable, that the Federal Government own all of the land which is in any way necessary or useful in connection with a project, but the Federal Government certainly should own the fee simple title to that portion of the land upon which structures are built, because when a structure is built upon the land of another, the structure becomes the property of the other party.

Mr. ZIMMERMAN. Railroads do not follow that practice. They simply procure an easement. They do not buy the fee simple title. Mr. McNINCH. No.

Mr. ZIMMERMAN. And they place permanent and lasting structures upon such lands.

The CHAIRMAN. Pardon me, please, but the rule of the committee has been to permit the witnesses to make their statements. Will you reserve your questions about rights-of-way?

Mr. ZIMMERMAN. Certainly.

Mr. McNINCH. I am not offering the slightest objection, Mr. Chairman.

The CHAIRMAN. I am invoking the rule in your behalf.

Mr. MCNINCH. I thank you. We regard the fundamental defect in, or the main objection to, the compacts as presented for your approval, the fact that the title to the land is not to be vested in the Federal Government, because it is to be taken in the name of the State or States,

and then the States are to lease to the Compact Commission such lands as are necessary or useful for the purpose of constructing the reservoirs, or the dams and reservoirs, but there will then reside in the State, under these compacts, the title to the land, and whatever else that may carry with it. They would require the Federal Government to make, as I interpret it, an outright grant of seventy-odd percent to the State or States, because it is after the title is in the State that the project is constructed. The only reservation to the Federal Government under the compacts, as I understand it, is the right of the Secretary of War to direct the manner and method in which the reservoir shall be operated for flood-control purposes and in the protection of navigation. So that, it seems to me, it would be an outright grant of 75 percent, or 70 percent, whichever it may be, to the States; and furthermore, a complete surrender of whatever interest the Federal Government might have in the potential water-power rights on these navigable streams or the tributaries thereof.

I would regard it also as an alteration by Congress of the policy laid down in the Federal Water Power Act of 1920, which was the culmination and result of a long-continued fight between private power interests and the Federal Government. That fight came to fruition in 1920 by the passage of the Federal Water Power Act, under which act the Federal Government exercises jurisdiction over the construction of dams or projects for the development of power on any navigable waters or any tributaries thereof. If I understand the compacts correctly, although that may not have been intended, it is, nevertheless, in my judgment, the inescapable result that if the title is vested in the States, and if the States are to be permitted to develop the power projects, and to dispose of the power there developed, the Federal Government will no longer, in those four States, be in the position that it now is under the Federal Power Act, to give preferential consideration to the rights of States, public bodies, or public districts, or municipalities. The Federal Power Act now requires that that be done in the case of every navigable stream or tributary thereof. That is, if and when there is filed with the Federal Power Commission an application from a private power company or person for a license to construct a power project, the Federal Power Commission must give the preference to States, municipalities, or other public bodies to construct that particular power project and to dispose of the product of the project.

Then you would have 4 States, at least, in which the preferential right of municipalities, local communities, districts, and public bodies would not be assured, as they are now assured, under the terms of the Federal Power Act, of such preferential right, and there would prevail a different policy in all the other 44 States of the Union under the Federal Power Act. Again, although probably not intended, yet the conclusion is inescapable, in my opinion, that those compacts would give a peculiar sectional preferential advantage to those States over all the other States in the Union. In the case of all the other flood-control projects constructed under the Flood Control Act of 1936, the projects would be owned by the Federal Government, and if there should be power involved, the right would reside in the Federal Government to do one of two things: Either to construct the power project, as it is now doing, as you well know, in the case of the T. V. A. projects, Grand Coulee, Fort Peck, Bonne

ville, Boulder Dam, and in a number of other cases, or to license the construction of a power project by a non-Federal agency. In the case of projects constructed by the Federal Government under the Federal Power Act, the States, public bodies, municipalities, and so forth, are given preferential rights to make use of the power inherent in such projects. A Government dam is defined in the Federal Power Act as a dam or other work constructed or owned by the United States, whether built "with or without contribution from others"; so that today in the case of any dam federally constructed wholly with Federal money, municipalities, public bodies, and so forth, including States, have a preferential right under the Federal Power Act to develop the power and to use and control the power developed at that project.

In the case of any Federal dam to which a contribution may have been made, the provision as to use under the Federal Power Act is still the same. It is still the same as to municipalities, districts, public bodies, and so forth. They are to have preferential consideration in the development and use of those projects where the Government constructs a dam and produces power. It is conceivable that a private power company, or parties interested in a private power company, might have a sufficiently good reason to make a contribution to the Federal Government, or, rather, toward the construction of a federally owned dam. They might be interested in doing that because of headwater benefits below or some benefits above produced by such dam useful to a power company operating adjacent thereto. Now is it intended or contemplated by any policy that has been enunciated by the Congress that, because of such contribution by a private power company to a Federal dam, the private company should therefore procure a preferential right to develop the power and sell it? The answer, if I understand the Federal Power Act, is emphatically no; because that act provides that as to a federally constructed dam, whether out of Federal funds wholly or from funds contributed by others, still the States and political subdivisions of States are to have the preference.

Now, I do not know, and have no way of knowing-I cannot even make a guess that is satisfactory to me as to why there should have been difficulty in framing a compact on behalf of the four States that would have complied so perfectly with the Flood Control Act of 1936 as to have made it unnecessary to take the time and suffer the delay that is unavoidably occasioned by any compact that must come to Congress for its consideration and consent, because the act points out a perfectly plain and simple method by which such a compact could have been made for the purchase of land, easements, right-of-way, and so forth. If that had been done, the consent of Congress having already been given to such a compact, flood-control work could now be actually under way. There would have been no controversy or anything for the Federal Government to do; but for some reason, from the States' standpoint, it was seen fit to prepare a compact which contains things that are entirely outside of any language in the Flood Control Act, or any reasonable inference or implication to be drawn from any language in that act, undertaking expressly to reserve to the States the title to the land, the potential power in these projects, and the right to develop it, with the concession to the Federal Government of the right to pay three-fourths of the cost of the project.