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? 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?
Mr. BIEN. We have it in our records, I am sure.

Mr. HAYDEN. I think that ought to be inserted in the record.

The CHAIRMAN. What was the report? What was the tenor of it? Mr. BIEN. The report was made by the Secretary of the Interior January 6, 1905, reporting on joint resolution approved April 28, 1904 (32 Stat., 591), and was printed as House Document No. 204, Fifty-eighth Congress, third session, copy herewith.

[House Document No. 204, 58th Cong., 3d sess.]

USE OF WATERS OF THE LOWER COLORADO RIVER FOR IRRIGATION.

DEPARTMENT OF THE INTERIOR,
Washington, January 6, 1905.

The SENATE AND HOUSE OF REPRESENTATIVES:

Joint resolution approved April 28, 1904 (32 Stat. L., 591), provided: "That the Secretary of the Interior is hereby directed to institute an investigation of and report to the Congress on the various questions involved in connection with the use of the waters of the lower Colorado River for the irrigation of arid lands in the State of California and the Territory of Arizona, with the view of determining the extent to which the waters of the said stream may be made available for the said purpose through works under the national irrigation act and by private enterprise, and as to what legislation, if any, is necessary to grant or confirm to present and future appropriators and users thereof perpetual rights to the use of said waters for irrigation."

The investigation was confided to the Director of the Geological Survey, who made report under date of December 22, 1904, a copy of which is inclosed.

Under existing conditions neither navigation of this stream nor irrigation interests dependent upon the use of its waters is receiving needed and adequate protection. It is clear, however, that with intelligent and effective control of the stream, whereby the flood waters may be stored and loosed when needed, the navigability of the river can be greatly improved, and at the same time water sufficient for the reclamation of large tracts of arid lands may be diverted and applied for that purpose. This effective control can be secured only by governmental supervision. It is very probable that the use of the river for navigation will decrease, while the necessity for the use of its waters for irrigation will increase, so that the former use will eventually give way to the latter. Whether this results or not, the fact remains that effective control of the river and its waters is demanded by all interests.

In some instances private appropriation of water from the lower Colorado has been effected, and inasmuch as this has been allowed it would perhaps only be just to confirm such appropriations. Any such confirmation should, however, be limited to the quantity of water heretofore actually diverted and beneficially used. The act of June 17, 1902 (32 Stat., 388), commonly known as the "reclamation act," provides that the right to the use of water acquired thereunder shall be appurtenant to the land irrigated. This is a salutary rule and should be made applicable to water rights conferred or granted by the United States. Attention is called to the recommendations made by the Director of the Geological Survey, which meet with my approval.

It is proper in this connection to state that this department has been informed by the Department of State that the Mexican Government has presented a protest against the construction in the Colorado River of any works that will interfere with the navigation of that stream.

Very respectfully,

E. A. HITCHCOCK, Secretary.

DECEMBER 22, 1904.

SIR: In accordance with your instructions of May 16, 1904, I have the honor to submit the following report upon public resolution No. 32, approved April 28, 1904 (32 Stat. L., 591). This resolution is as follows:

"That the Secretary of the Interior is hereby directed to institute an investigation of and report to the Congress on the various questions involved in connection with the use of the waters of the lower Colorado River for the irrigation of arid lands in the State of California and the Territory of Arizona, with the view of determining the extent to which the waters of the said stream may be made available for the said purpose through works under the national irrigation act

and by private enterprise, and as to what legislation, if any, is necessary to grant or confirm to present and future appropriators and users thereof perpetual rights to the use of said waters for irigation."

INVESTIGATION AND REPORT.

The investigation ordered by the above resolution has been carried on by the Reclamation Service, the principal facts being obtained by Mr. J. B. Lippincott, supervising engineer, and his assistants. His work has been confined mainly to the lower river. Additional information concerning reservoir sites and irrigation possibilities has been gathered by various other engineers of the Reclamation Service located in Colorado, Wyoming, Utah, and Arizona.

This investigation is supplemental to systematic work which has been and is being carried on in the survey of reservoir sites, measurements of streams, and related investigations authorized originally in 1888 and described in full in the various annual reports of the Geological Survey and in the series of water supply and irrigation papers. The information obtained is very voluminous, and the details can be found in the various documents referred to and in the first, second, and third annual reports of the Reclamation Service.

The present report is intended to give in the briefest form possible the more important facts and the general conclusions of the studies of Colorado River carried on through many years by various individuals.

VARIOUS QUESTIONS INVOLVED.

The resolution directs that the report shall cover the various questions involved in connection with the use of the waters of the lower Colorado River for the irrigation of arid lands in the State of California, the Territory of Arizona, etc. These questions naturally fall into two groups, viz, physical and legal. The physical questions, namely, those of topography and water supply, have been the subject, as above stated, of long and careful study. The legal questions have been given general consideration such as is necessary from the standpoint of the engineer or business man, but these matters are recognized as pertaining more properly to the cognizance of the legal officers of the department.

PHYSICAL CONDITIONS.

The Colorado River is one of the largest and most important streams of the arid regions. It has its principal sources in Wyoming, Colorado, New Mexico, and Utah, and flows through the Territory of Arizona, forming a portion of the boundary between Arizona and the States of Nevada and California. It then becomes part of the international boundary between the United States and Mexico, and finally crosses a portion of the latter Republic, discharging into the Gulf of Mexico.

The waters of this drainage system are utilized for irrigation of lands in the five States and two Territories named and in the Republic of Mexico. Upon the utilization of its waters is dependent the prosperity of agricultural communities which have been established and are annually expanding in various localities in these political divisions.

The river in its flow varies widely from the high floods of the early spring to the extreme low water of late summer. The discharge during flood months has averaged about 53,000 cubic feet per second and during low-water months 2,500 cubic feet per second. For nine months of each year the flow has usually been below 10,000 cubic feet per second. The average annual discharge has been about 8,000,000 acre-feet.

In its unregulated condition there is not enough water flowing in the stream during the irrigation season to supply the future demands of the fertile but arid agricultural lands along its course. The stream, to reach its full value to the country, must, in the future, be regulated by storage works, so that the large amount of water discharged by the stream will be available at the times when it can be used for irrigation, such storage works being placed at suitable points on the headwaters for the benefit of lands farther downstream.

The river in its natural condition is navigable in its lower course during a considerable part of the year. The navigation is relatively small, and, in the opinion of the Army engineers, it is not advisable to attempt improvements of the channel; nevertheless, the navigation of the river is an important factor in the development of the country. As railroads and other facilities are provided,