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which may be fixed, for convenience, as October 1, 1904. The quantity of water so applied to beneficial use can readily be ascertained, because the reclamation Service has during the past year made a number of careful Surveys, and has mapped substantially all of the cultivated areas in the lower courses of the r1Wer.
The further appropriation of water from the Colorado River in Nevada, Arizona, and California should be allowed only with the approval of the Secretary of the Interior, and all appropriations of water heretofore or hereafter allowed for irrigation purposes should be appurtenant to specific tracts of land, and beneficial use should be the basis, the measure, and the limit of the right.
Those who have already constructed canal systems would be fully protected by this arrangement, as they will be allowed to carry the water already benefiCially used, making reasonable charges therefor as in the past, and would be allowed to extend their systems subject to the approval of the Secretary of the Interior.
The report is submitted in duplicate.
The SECRETARY OF THE INTERIOR.
Mr. BIEN. It was substantially that Congress should establish some means of determining the land that was actually irrigated at the time, and recognize the water rights for those lands.
The CHAIRMAN. As valid?
Mr. BIEN. As valid.
Mr. HAYDEN. In that connection, objection was made yesterday— and it seemed to me with some force—by Mr. Yager, representin the Coachella district, that if such a priority was to be recognized, that it should be limited to the lands now irrigated, inasmuch as the total area included within the boundaries of the Imperial irrigation district is larger than the land actually in cultivation. It seems to me that that fault could be cured by inserting in line 15, after the word “land ”the words “now irrigated ”; so that it would read: “Shall have a water right secondary to that of lands now irrigated within the present boundaries of the Imperial irrigation district.” That would confine the bill to a recognition of a priority acquired by actual application of water to the land.
The CHAIRMAN. Yes; and just permit me—and would exclude lands within the district which have not been irrigated.
Mr. HAYDEN. Yes; it would put.such dry lands on a parity with the lands outside of the Imperial irrigation district, because that is their actual physical condition now.
Mr. BIEN. That raises a large question for the Imperial irrigation district. It is under obligation to furnish water to all the lands within the district, and have built the works with that in view, and except in occasional years of shortage would have sufficient water to irrigate all the irrigable lands within the district. At least, that is my understanding. I have never seen any thorough study of it, but it is claimed that they would be able to furnish an ample water supply to all the irrigable lands within the district.
r. HAYDEN. Your idea is based upon the theory that an appropriation of water may be acquired by commencing construction and pursuing it diligently with a view to finally placing water on the land. Do you think, so far as the Imperial irrigation district is concerned, they have done enough to acquire an appropriation of water for lands not yet irrigated that such lands should be granted a better right to water than lands for which no work has been undertaken up to this time? 185833—20—36
Mr. BIEN. That was the claim, and I think it is well substantiated by the history of the district.
The CHAIRMAN. You would not recommend any amendment at all restricting to the lands that have now already been watered, but would just leave it as it is?
Mr. BIEN. I would not like to say, because I have not studied that phase of it.
The CHAIRMAN. Don't you think it would be very dangerous to do so?
Mr. BIEN. There should be no drastic legislation to cut out lands that are not now being irrigated without thorough study of the conditions.
Mr. TAYLOR. We don't want to cut them out, but the question is whether or not, if there was 150,000 acres in the Imperial district right now that have never had a drop of water on them, why should they be given a prior right to other lands just outside of that line, that have never had any water on, and that will be irrigated by this new construction the same as this land in the Imperial Valley would be irrigated ? And the question is whether or not these lands not heretofore irrigated should all stand on the same basis as to priority right, assuming that there would be enough water hereafter for all of them, but if for any unforseen emergency-suppose all the dams wash out some year, the question is then whether or not east mesa should be dried up absolutely in order to furnish water for a lot of other lands that have not yet had water on them, that were brought in at the same time they were brought in?
Mr. BIEN. I understand that much of this land has been paying charges, for the water right, but for one reason or another they have not been using it.
Mr. TAYLOR. I don't think we want to go to settling that in this committee anyhow.
The CHAIRMAN. Would it be your judgment that it would cause inost perplexing complications to undertake to restrict it to the lands that have already been irrigated in the district ?
Mr. BIEN. I think it would. It is my understanding of the working of this bill that if there is a large area within the irrigation district that is short of water they would have to buy stored water. There is nothing in the bill that would prevent it, but the irrigation district is limited to the natural flow, and if that should ever be insufficient the district would necessarily make arrangements to get stored water, so that the matter would work itself out automatically.
Mr. TAYLOR. Let me ask you another question, Mr. Bien, still referring to section 15. My understanding is that the object of putting this section in here is first because this water is diverted on a navigable stream over which Congress has jurisdiction, and Congress has never yet formally or officially given permission, has it, to do that?
Mr. BIEN. No.
Mr. TAYLOR. That is the first thing. The second is that it runs around through Mexico, into a foreign country, and comes back into the United States, and that further complicates the matter. Now, they want to change the point or diversion and go up the stream and divert it through a new structure entirely, and by means of a different route through the all-American canal, they now, for those
three reasons, feel that there might be some ground for litigation as to their priority right, and they put this section in. Now, couldn't we put in a clause specifically saying that so far as the United States is concerned, all three of those reasons combined should not be taken in any manner to jeopardize or affect the priority rights of the Imperial Valley to whatever amount of water it has heretofore been entitled to by appropriation—something of that kind—so that we would make a disclaimer by the Government of United States of any right to interfere with their prior right, owing to these three contingencies that might otherwise affect them? In that way we would validate and legalize, so far as the Government can, their right without legislating upon the subject of water rights direct that are under the jurisdiction of the States?
Mr. BIEN. I think that would accomplish what is intended.
Mr. TAYLOR. And it would not be setting a precedent of Congress saying what one party shall have the priority right to water, and that this other person shall have a priority right, and it shall be divided so and so. In other words, I don't like the precedent of Congress dividing the water of any stream.
Mr. YAGER. I would like to ask Mr. Bien, if, in his opinion, Congress has the right to legislate a water right-has the power to legislate a water right? If they have a water right, certainly we can not interfere with it, but by giving the Imperial irrigation district and legislating them a water right, they are discriminating against the outside lands. Now, if they have a water right, we can not touch it nor do we care to.
Mr. TAYLOR. But what harm would there be in Congress by virtue of the fact that this appropriation was made from a navigable stream without authority of Congress, and by virtue of the fact that it runs through a foreign country, and by virtue of the fact that under the provisions of this bill they seek to change the point of diversion and the place of use of a part of it, we might say—or at least the manner of use and distribution, the carrying of the aqueduct—that those facts shall not be construed, so far as the United States is concerned, as interfering with their right.
Mr. YAGER. My contention, Mr. Taylor, if I may make myself clear, is that that is a question for the judicial branch of this Government to determine whether they have a water right or whether they have not a water right; and that the legislative branch has not the power to legislate any specific water right.
Mr. TAYLOR. I fully agree with you on that, but at the same time the State court of California has no right to come in and say that by reason of this company never having obtained permission of Congress to connect with this river, that therefore “ we don't give them a water right.” That is a matter for Uncle Sam to do, and the fact that it runs around through Mexico—this is probably a case that could not occur any place else in the United States; it is a unique proposition, but I was thinking of merely a disclaimer by the Government of estopping people's rights by reason of these things over which the United States has control.
Mr. Rose. There is just one question on that
Mr. BIEN (interposing). I would like to answer Mr. Yager's questions, but I want also to disclaim any idea of entering into a controversy with Mr. Taylor. I do believe that Congress can legislate a water right, and that it has done so. It is, of course, a very big question that some day will have to be decided by the Supreme Court of the United States.
Mr. HAYDEN. As a matter of fact, did not Congress legislate a water right to the Yuma project?
Mr. BIEN. I would not say that it legislated that right but it gave authority to divert the water from a navigable stream. It has done that in two other cases in connection with the work of the Reclamation Service on the Lower Yellowstone in Montana and on the Rio Grande in New Mexico.
The CHAIRMAN. And no such right would have existed without the act of Congress. Mr. BIEN. Not to divert from a navigable stream.
The CHAIRMAN. That is why I say it is proper here to recognize this right.
Mr. TAYLOR. It has a perfect right to permit them to divert water the same as to build a bridge across a navigable stream, but whether or not they can give a right that will deprive vested rights under the State laws, that is a question.
The CHAIRMAN. I don't think it aims to do that.
The CHAIRMAN. But it will reconstrue—if they have no right to do it, it will be construed that way, that you didn't undertake to do what you could not do.
Mr. WELLING. Did not the Imperial irrigation district come to Congress for the right to divert water from the Colorado River?
Mr. BIEN. My own understanding of the history of the matter was that they originally made their contract with the Government of Mexico.
Mr. HAYDEN. The statement that was made at the former hearing by Judge Swing is that the original promoters of the Imperial Valley irrigation enterprise first came to Congress and asked authority to divert water from the Colorado River within the United States. Hearings were held, but no action was taken by Congress. Then Judge Swing told us that these same parties went to the City of Mexico and obtained a concession from the Government of Mexico to divert water from the Colorado River in Mexico and carry it into the United States. The original intention was that the diversion works should be in Mexico, but a better point of diversion was found in the United States and they simply went there and placed their head gates north of the Mexican boundary line and have diverted water from the Colorado River, a navigable stream, without any authority from Congress.
Mr. WELLING. Then they have got no water right.
Mr. HAYDEN. Legally they have no water right that has been recognized by the Government of the United States; that is, no right to divert water from a navigable stream. Their sole claim to a water right is the actual application of water to the lands within the United States for the past 18 years.
Mr. WELLING. The Army engineers are now forbidding the putting in of a weir to divert water at that point. Isn't that true?
Mr. HAYDEN. The Imperial irrigation district has been granted permission from year to year, and I presume that they will come
again and ask for the same permission when the river goes down this spring. The Army engineers have a perfect right to refuse to issue a new permit if they ,so desire, because Congress never assented to the diversion of any water from the Colorado River by the Imperial irrigation district.
Mr. WELLING. And you people are suing them in the courts?
Mr. HAYDEN. The people under the Yuma project insist that the maintenance of the weir in the stream, which is of rock, is a menace to their farms, because in the event that a sudden flood should come down before the weir is removed the river will very likely wash around the Arizona end of the weir and destroy a vast acreage of land in the Yuma Valley.
The CHAIRMAN. Now, Mr. Bien, was there anything further?
Mr. HAYDEN. I wanted to make one other point clear by a questioni to Judge Bien.
Section 15 says 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 of the present boundaries of the Imperial irrigation district, shall have a secondary water right. Now, do we understand by the term “ diverted under the provisions of this act” that it refers to any water which may hereafter be diverted by works constructed under authority of this act?
Mr. Bien. That is the understanding of the Reclamation Service.
Mr. HAYDEN. In the State of California, on the Yuma Indian Reservation, there is a tract of land that is now irrigated from the Laguna Dam, but that land will continue to be irrigated, not under the provisions of this act but under the provisions of the reclamation act authorizing the construction of the Yuma reclamation project.
Mr. BIEN. Yes, sir; and in section 19 there is a further provision that nothing in the act shall be construed as amending the contract of October 23, 1918, between the United States and the Imperial irrigation district, which makes a rule for distributing the water at Laguna Dam between the Yuma and the Imperial project.
Mr. HAYDEN. We recognize in section 19 the contract of October 23, 1918. Supposing that contract should lapse, what would then be the status?
Mr. BIEN. I should say it would be held that this provision of the contract would be perpetuated by this legislation. Mr. HAYDEN. You are satisfied of that? The CHAIRMAN. What contract do you mean? Mr. BIEN. The contract between the Imperial Valley and the Secretary, which contains a provision regarding the amount of water that shall be turned down for the Imperial district, and protecting the interests of the Yuma water right. I should say that where Congress has recognized a rule of that kind it is lifted out of the contract and is really embodied in the law.
Mr. TAYLOR. That was one reason why I was anxious to have whatever the law was carefully guided. I don't think there is any question but what Congress has got a right to permit somebody to divert water from a navigable stream, but that don't give them the water if there is none there for them. If it is all appropriated otherwise, if somebody else has got a prior appropriation to that water, the fact that Congress lets them take some off does not necessarily guarantee