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Mr. WELLING. Providing, of course, those people pay any assessed charges that may be made against them. Mr. DAvis. That is exceedingly desirable, and the widest possible cooperation, of course, is necessary in order to get this done in the cheapest and most feasible manner. I think, however, that the resent law, so far as the legal power is concerned, is already vested in the secretary. The CHAIRMAN. That was just what I was going to suggest. Mr. DAVIs. Under the Warren Act he could make cooperative agreements with the irrigators to share in this storage, just as he has under the Pathfinder and other reservoirs that have been constructed under the reclamation act, and under which the water is delivered under the Warren Act to various districts interested. Mr. TAYLOR. Let me interrupt you there. Supplementing what Mr. Welling has said, as I understand it, you have one power site withdrawal already up in Grand County, in Colorado, near my home, and if that dam should be put into the Grand River there, which is the Colorado River—the Colorado River is the Grand River—if that should be put in, it not only covers above one-third of the whole county, but covers the city of Kremling 85 feet deep in water . and destroys an immense amount of property in my State, and I was wondering whether or not there ought to be some provision in here that would protect our people against this vast storage proposition for the benefit of the people down below, and more especially in section 15, which provides that the natural flow of the Colorado shall first belong to the Imperial Valley, and the second right to these other mesas. Some of our people up there have been irrigating for a great many years before anybody was in the Imperial Valley. Mr. DAvis. Well, Mr. Taylor, this section 15 provides for the natural flow of the river “diverted under the provisions of this act.” Mr. TAYLOR. I understand. Mr. DAvis. That does not apply to anything above. Mr. TAYLOR. Well, probably that is the construction, but we are a little bit skeptical about this act of Congress ignoring, as you might say, all the rest of the river up there and legislating for this Imperial Valley country. - I may say, Mr. Davis, that we have the impression that we ought to add some little proviso there, to just carry out what you say is the law anyhow, but to allay the possibility of any fears that our reclamation projects and our irrigation works up in Colorado have. and more particularly the lands and towns that will be flooded if this storage proposition is carried out. Mr. DAVIs. Mr. Chairman, in answer to the gentleman from Colorado, I think the best answer is the one that I made previously, a year ago before this committee, and which I think it is not undesirable should be enacted into law, and that is this: That with my knowledge of the physical conditions in the Colorado Basin I do not consider it physically feasible to interfere with the water supply of the lower river by developments on the upper river. Mr. WELLING. You have said that before to this committee, and I am glad to have you repeat it. Mr. DAVIs. If any inhibition could be written into this that would make that the permanent policy of the Government, I think it would be a good one.
Mr. HAYDEN. Let Mr. Davis prepare such an amendment.
Mr. TAYLOR. I would like to have something of that kind go into this bill, because it will satisfy Wyoming, Colorado, and Utah, those three States up there.
Mr. DAvis. I want to say this much in addition, provided the water is not carried out of the basin, and provided that the flow of the river is not stored during the low-water months.
The CHAIRMAN. What was that last proviso?
Mr. DAvis. That the water is not stored in the additional storage reservoirs on the headwaters in the low-water months. Of course if they begin storing water in August it would interfere with the people below, but nobody wants to do that.
r. TAYLOR. No; they store water in May and June.
The CHAIRMAN. The economical and equitable way is, that the whole Colorado River must be treated as a unit pretty much, I would say.
Mr. DAVIs. Yes.
The CHAIRMAN. And all of the reservoirs.
Mr. DAVIs. Yes. And the effect of storing water during May and June, which are the high-water months, and during the spring and winter, for that matter, but especially in May and June, and using that upon the upper lands is not injurious to the lower valley, because it stores it in months when they have an excess, and there is some return seepage. If it is not taken out of the basin, that augments the flow in the fall, and especially there is a benefit in such months as October, when the return flow would probably be as great as any other month, and when they don't use any water for diversion in those colder countries.
. The CHAIRMAN. In other words, regulate and equalize the distribu
Mr. DAVIS. It has that tendency; yes, sir.
Mr. HAYDEN. Would it be feasible, Mr. Davis, for you to prepare an amendment to the bill which would amount practically to the reenactment of the existing law with respect to the right to sell surplus water, etc., wherever reservoirs are constructed and provide for these other matters you have mentioned?
Mr. DAVIs. Possibly. I think that we could. If we should say that nothing in this bill should interfere with the provisions of the Warren Act, that might be sufficient for that part. Then, as to the other part, that neither shall it interfere with the water right, the storage, and use of water.
Mr. HAYDEN. Yes.
The CHAIRMAN. There is something here about the Republic of Mexico, but that does not bear on this necessarily. That is section 16:
SEc. 16. That for irrigation of lands in the Republic of Mexico the Secretary of the Interior is hereby authorized and empowered to dispose of any waters which are or may become available under the terms if this act and not now or in the future necessary for irrigation of lands lying within the United States, on such terms as said Secretary may prescribe, without incurring any obligation for delivery of any specific quantity of water at any future time, conditioned upon the right being given to the United States, or its citizens, to maintain protective levees in Mexico jointly with the Government of Mexico or property owners therein.
Mr. HAYDEN. That is designed only to take care of the Mexican situation?
Mr. DAVIS. Yes; that is all that is for.
Mr. HAYDEN. There has been some discussion here as to what section 15 means; and since we have the advantage of the presence of Mr. Bien, who is the attorney for the Reclamation Service, I would like to have him discuss that section a moment for the benefit of the committee, if he will.
The CHAIRMAN. Very well; Mr. Bien will be heard.
STATEMENT OF MR. MORRIS BIEN, ASSISTANT TO THE DIRECTOR
OF THE RECLAMATION SERVICE.
Mr. BIEN. The section reads: SEC. 15. That as to the natural flow of the Colorado River diverted under the provisions of this act, all lands in the State of California outside the present boundaries of the Imperial irrigation district reclaimed by means of the works constructed hereunder shall have a water right secondary to that of the lands within the present boundaries of said Imperial irrigation district.
Now it is my understanding that that section merely provides that the water now diverted on behalf of the Imperial irrigation district should be recognized as of a higher order of priority than the waters that are carried to any of the other lands contemplated by this act. It relates solely to the natural flow, which excludes any consideration of stored water.
Mr. TAYLOR. Mr. Bien, of course it provides for storage, which we contemplate making rather elaborately, I expect, and the question was whether or not you can always determine what is natural flow and what is storage if we are going to make the greatest use of the drainage of this basin out there. Of course, it does involve a great deal of storage, and we want to help that in every way we can, of course, for the benefit of that whole country. We don't want to allow it to be open to litigation as to whether or not some of the storage water is natural flow or whether they are claiming natural flow at one time of the year and using storage at another, or some other questions that might be construed by some courts to mean that Congress, by reason of its supposed jurisdiction over the Colorado River and its tributaries, has gone in and passed an act here that was a blanket over everybody else, and that might be jeopardizing the rights of the other States or the irrigators in other States to store water on that river themselves or use the water they already have on the river, like the Grand River project up there at Grand Junction or the other projects all along the river there.
There are a great many canals and ditches in this stream up there in my country, and I was just sort of inquisitive to know whether or not we ought to have some saving clause in here. I do not want to be any dog in the manger on the thing at all; I have always been insisting on section 8 of the reclamation act going into these acts, going into the Hetch Hetchy act, going into the water-power bill, and all the other bills, so as to reserve inviolate our State rights to appropriate waters and use them in our States under our State laws, rather than allowing Congress to come in and control our water rights. I don't think Congress has got any business legislating on water rights very much. I have always been a pretty strong stickler for our State rights to control the water, and I don’t want the Forest Service or the Interior Department or Congress to be taking them away from us. Mr. SMITH of Idaho. Is not that the effect of section 15? Mr. TAYLOR. What do you mean? Mr. SMITH of Idaho. To be legislating with reference to the control of water rights which come within the control of the States? Mr. TAYLOR. That is what I am asking about. I am rather leery, to use the popular expression, of those provisions there for storage and for determining—Congress regulating the water flow. Now, if that is the law of California, which undoubtedly it is, the prior rights of appropriation and beneficial use will give these Imperial Valley people a right ahead of the others, and it would seem to me that on hereafter diversion they may have to prorate to that, but the appropriation heretofore made under the State law ought to be sufficient, and I was wondering if we just added to this bill that section 8 of the reclamation act—that nothing in this act shall be construed to interfere with the States rights to determine it on priority and its own question of appropriation and diversion and beneficial use, etc., if that wouldn't be enough for those Imperial Valley people and for these east mesa people without Congress legislating on that subject. That is what I am a little bit skeptical about. I do have the impression that the Reclamation Service has been kind of grasping and reaching out to get control of this water business, and we have always been rather reluctant to allow them to take that away from us, to control the water rights. Mr. BIEN. The object of this section, as I understand it, was to recognize the right of Imperial Valley to use the natural flow of the river as they have used it heretofore. There has been a question regarding the legality of their right to take that water, because the Colorado is a navigable stream, and I think it is the underlying idea of the section to validate that right. The application of this section in practice means, as I understand it, simply that rights which have been established heretofore by Imperial Valley should be prior to the rights of the new lands brought in under this same system. Mr. TAYLOR. That would go, as a matter of course, in any court, wouldn't it? Everybody would have to recognize that. Mr. BIEN. I would say yes. The CHAIRMAN. Now, this is just to preserve their existing right to water and recognize it as the right, a legal right. Mr. BIEN. It is to give a standing to a right that has been questioned. The CHAIRMAN. In other words, it would legalize the right, then 2 Mr. BIEN. Yes. Mr. SMITH of Idaho. If that right is contested, though, Mr. Bien, would the matter come up in the State courts? Mr. BIEN. Being dependent upon a Federal statute the Federal court would have jurisdiction. The question is a contest between the Imperial Valley and the new lands brought in. It doesn't involve any other rights. The rights in Colorado and Utah that have been established from the natural flow of the Colorado River would not be affected by this clause, as I see it.
Mr. TAYLOR. Would it hurt anything to put a clause in there to that effect?
Mr. BIEN. No; not at all; for the reasons given by Mr. Davis, that the physical effect would not be felt below; and the other reason that the natural flow is pretty well established at this time on the lower Colorado River.
The CHAIRMAN. Now, let me ask a question right there. The purpose, as I understand you, is not only to preserve whatever rights that they did have, but to really legalize the right that they have been exercising all the time, which has been questioned heretofore, not under State law but under Federal law, because this is the Colorado River from which the water is taken, and it is a navigable stream; therefore, the weakness of their water-right title has been wherein it involves Federal law, not State law, because it is a navigable stream? Mr. BIEN. That is my idea.
The CHAIRMAN. Now, that was, wherein existed the weakness of their title to this water right, as I understand it, and this would now legalize that; and let me ask you further, why should you not legalize this right that they have been exercising, since you are going to distribute this same right to take water from the Colorado River to other land and new water users? Why not do natural justice here in conformity with the irrigation law, namely, priority in time; that is, whoever has a prior right, whoever has first exercised the right to the use of the water, that that shall give him a priority over any subsequent comer? It is all in conformity with irrigation laws in general, isn't it?
Mr. Bien. Yes, sir. This section has special value in this case in order to forestall possible controversy between the lands in the Imperial district and new lands as to their respective water rights. The Imperial Valley has, by practice at least, established the use of certain water. Now, it is conceivable that the new lands hereafter coming in may question the legality of the Imperial district water right, and I think such a controversy should be forestalled. Whatever may be the legality of the Imperial Valley water right, we must recognize the fact that it has been actually used for 18 years back and to a very large extent for the last 12 or 15 years.
The CHAIRMAN (interposing). Just a moment, if you will permit me. And a whole community, a large community, and a prosperous community with great production has been built up on that, upon the use of that water? Mr. BIEN. Yes, sir.
The CHAIRMAN. And it would be against public policy to just ruin this community, which would be the result, to question the legality of their title?
Mr. BIEN. About 16 years ago Congress started to do that and passed a resolution calling upon the Secretary of the Interior to report on the conditions existing in Imperial Valley and its water rights and to make a recommendation as to what should be done. The Department of the Interior made such a report, but Congress took no action.
Mr. HAYDEN. Have you a copy of that report available ?