was the Colorado River Compact,20 which was agreed to at that time by all the participating states with the exception of Arizona. Since then Utah has rescinded her action while the adherence of California is conditional on the building of the Boulder Canyon Dam by the Federal Government. An international agreement is also necessary because Mexico has approximately a million acres of land irrigated or available for irrigation in the Colorado Basin. To further complicate the matter the Mexican projects have been developed largely through American capital and water for the Imperial Valley (California) is brought through the Mexican-American Canal, which is largely located in Mexican territory.

Two engineering problems in connection with irrigation are serious. One is the danger of diverting water from a wide, erratic stream that flows through a shifting channel as does the Colorado on the top of the delta ridge dam. The other is the difficulty of keeping open canals in a region where the water is so heavily charged with silt. During flood stages the water carries all the silt that it is able to transport. The size of the silt particles depends upon the speed of the stream. Records kept of conditions in the Imperial Valley irrigation area indicate that the beds of many of the canals were raised between two and five feet in a period of three years. This reduction in capacity which is slightly noticeable in the larger canals and especially critical in the smaller laterals makes a larger number of canals necessary or constant dredging in order to keep the channels open. The cost of

20 For the complete text of the compact see 67th Congress, 4th Session, House of Representatives, Document No. 605. An excellent discussion is also given in the "Colorado River, History, Seven States Compact and Future Development," by Walter Gordon Clark.

keeping the canals open varies from $50 to $60 per mile." The Imperial Water Company No. 1 maintains in the neighborhood of 400 miles of canals.

It has also been noticed that the soil in places is heavily impregnated with alkali. Alkali is the accumulation in the surface layers of excessive amounts of soluble salts, mainly chloride and sulphate of sodium. All desert soils, especially those of the silt variety, that are fine enough in texture to permit capillary rise of water through them, are likely to become alkali. The Bureau of Soils of the U. S. Department of Agriculture has presented a very unfavorable report 22 regarding the alkali conditions of the soils of the Imperial Valley. It advised the planting of crops, such as sugar beets, sorghum and date palms that are suited to alkaline soils and to abandon as worthless the land which contained too much

alkali to grow these crops. The warning was repeated in a later report. The repeated application of water to these lands will have a tendency to increase the alkalinity. This condition will then develop a problem of drainage that has not yet seriously added to the farmers' burden.

Still another fact in regard to irrigation must be realized. What has been the result of irrigation projects already established by the Reclamation Service? Is there a noticeable need at the present time for further development? Bowman 23 states that "the total farming population upon the twenty-four national irrigation projects of the West after twenty-five years of government aid and generosity is but 137,000, a population equal to that of the city of 21 Cory, H. T., op. cit., pp. 1284-1285.

22 Field Operation of the Bureau of Soils, U. S. Department of Agriculture, 1901. A later report appeared in 1903.

23 Bowman, Isaiah, "The Pioneer Fringe," Foreign Affairs, Vol. 6, No. 1, October, 1927, p.

61.

Hartford, Conn., or Grand Rapids, Mich." He further emphasizes the fact that "the most trifling improvement of agricultural practice in settled communities will accomplish much more in the production of agricultural products and the growth of population than all the millions that have been poured out upon the irrigation projects of the West in a quarter of a century." Further irrigation development at present appears of doubtful necessity.

POWER DEVELOPMENT

Power development as the keystone of the arch of Colorado River conditions is the hope of those interested. By the sale of power they expect to pay largely the high cost of flood control and irrigation water storage. From a production point of view, their hopes are justified. Nature has been so kind that the average discharge of the river (see page 7) together with its steep gradient and numerous power sites is sufficient to develop from five to six million horsepower of hydroelectric energy. The U. S. Geological Survey has recommended thirteen power sites 24 that would produce 5,743,000 horsepower with maximum use of the water in the Upper Basin.

Three problems vital to the full realization of this ambitious program must be considered. In the first place, storage for flood control and for power development is in striking conflict.25

"Flood control reservoirs need to be kept empty and ready for flood service, while power development reservoirs need to be kept full to ensure steady power." The noted engineer, Arthur E. Morgan, believes that it is a grave mistake to try to combine them. The question of cost is also

24 See table, p. 46, Water Supply Paper No. 556, U. S. Geological Survey.

25 Morgan, Arthur E., "The Mississippi," Atlantic Monthly, November, 1927.

paramount. The cost of the Boulder Canyon Project alone, including the erection of a power plant, is estimated in the neighborhood of $75,000,000. If the cost is to be met by the sale of electricity, the question of distance must be considered. It is 250 miles from Boulder Canyon to Los Angeles, the principal market for power. San Diego is approximately 300 miles away; Yuma, Arizona, 250 miles. The principal mining districts in Arizona and Nevada are at a distance greater than 250 miles. Engineers estimate that the Boulder Canyon power would cost $50 per horsepower delivered in Los Angeles where power is now generated by steam at a cost of $40 per horsepower. It appears highly problematical whether power generated in a desert hundreds of miles from available market can be put on a paying basis for many years to come if at all within the lifetime of the men backing the proposition.

Problems of power, flood control, water diversion for irrigation and urban purposes and the disposal of silt cannot be solved singly. Together they make up the problem of the most economic utilization of the waters of the Colorado. The flood menace must be conquered within a few years or disaster will result, but consideration of the other factors of the equation is essential, or else in providing for the immediate present mistakes will be made that will prevent the fullest utilization of this great river and postpone indefinitely the complete development of the adjacent states. At present, there are many disputed points. Dam sites cannot be agreed upon. State rights vs. federal control is a burning question. Private corporations are fighting the national government for control. The interested states are unable to agree. These differences will no doubt be ironed out eventually. It is

a gigantic task, however, that must be studied carefully and scientifically in order that the Colorado River, now

a menace, will be eventually harnessed for man's benefit and man's enjoyment.

1

INthe present article it is my purpose

'N the present article it is my purpose

ber of the legal questions in Colorado River development. Numerous briefs have been written by firms of competent lawyers whose professional duty it is to give advice on such questions as whether or not Arizona is correct in asserting her right to tax each unit of power developed within her borders, whether or not Denver may divert water from the Colorado watershed, whether or not there is any possibility of Los Angeles being able to secure title to water which it is anticipated will be stored in Boulder Dam, and a score of other important issues of similar or different nature. Accordingly, in the selection of the subjects treated I have been guided by the belief that a person occupying the position of a disinterested observer and student will be performing the best service by calling attention to the broad outlines of a plan for the improvement of this interstate stream. To such a plan I have devoted major consideration, with the result that many obvious legal questions are omitted from the present paper. But although these be omitted it is with the hope that the plan suggested may prove worthy of consideration and thereby compensate for the neglect of other material.

The topics which are to be discussed in the succeeding paragraphs may be listed as follows: the present importance of the Compact drafted at Santa Fe in 1922, the legal background of the

1 Author of "The Colorado River Compact," pp. xxiv, 527, published by Southwest Research, Los Angeles.

Compact, the proper sphere of activity of an interstate Colorado River commission, and a suggestion that conservancy districts be organized in the interested states for the purpose of contracting with each other relative to Colorado River matters.

PRESENT IMPORTANCE OF THE COMPACT

Without doubt the Colorado River Compact drafted at Santa Fe, New Mexico, in 1922, will continue to be the starting point of all discussion for any plan finally agreed upon to further Colorado River development. Fundamental groundwork was laid by the drawing of that agreement. Nor has the stormy course experienced by the Compact during the past five years served to make the preliminary work of less value. Certain underlying issues are now more widely apparent than was true of the situation several years ago, in spite of the fact that the seven-state treaty is not effective. Arizona's consistent refusal to ratify, California's ratification conditioned upon storage, and Utah's recent step in rescinding her earlier ratification, together with Colorado's insistence that not a shovel of earth be turned for the development of any project in the Colorado below Lee's Ferry before the Compact shall have been accepted by at least six of the seven states-a point of view at one time written into the Swing-Johnson bill but now replaced by the idea that construction may proceed upon acquiesence of the Compact's terms by only three of the interested states have all combined to make the Compact the most important single

controversy.

LEGAL BACKGROUND OF THE COMPACT

From a study of the minutes of the twenty-seven meetings of the Colorado River Commission at which the different paragraphs of the Compact were drafted, and from a careful investigation of other source material, I am convinced that the sponsors of the proposed seven-state agreement thought that such a treaty was necessary as a means of circumventing the prior appropriation system of determining water rights on the Colorado. The Wyoming v. Colorado Case, 259 U. S. 419, decided by the Supreme Court of the United States on June 5, 1922, held that, as between two prior appropriation states, water rights on an interstate stream would be determined upon the basis of prior use irrespective of state lines. This had been for many years a contested point in water rights litigation involving interstate streams, but the possibility of a decision such as the Supreme Court gave in the WyomingColorado case, had been foreseen by those familiar with the question. Coming as it did during the hearings of the Colorado River Commission in different cities of the Southwest preliminary to the Santa Fe meetings, the decision in Wyoming v. Colorado confirmed the fears of representatives of Colorado and other upper basin states that the stage was being set for the permanent appropriation of Colorado River waters by water users of the lower basin states to the everlasting detriment of the upper basin.

The chief factor which contributed to this belief was the more rapid movement of population from the Eastern centers to areas in the lower basin, particularly southern California, than to the areas of the upper basin. Along with the population came an almost

and agricultural purposes because of the general aridity of the lower basin areas. More than this, a large population meant a corresponding political and financial power to build the works required in the process of placing the waters of available streams to beneficial

use.

Little wonder, then, that legal representatives of the upper basin states upon surveying, on the one hand, the rules of law applicable to problems of this kind and, on the other, the trend of events pointing directly to the appropriation of large quantities of water for beneficial purposes in the lower basin at an earlier date than the water would be needed in the upper basin, were spurred by the Wyoming v. Colorado decision to renewed efforts in their attempt to modify the prior appropriation doctrine of water rights with respect to the waters of the Colorado. States of the lower basin had nothing to gain by changing the prior appropriation doctrine so long as development continued under the appropriation system; states of the upper basin had everything to gain by changing that system, for if the prior appropriation doctrine continued to apply, the states of the upper basin might find that, due to its prior application to beneficial use by the lower basin, no unappropriated water would remain for use in the upper basin at the time that the upper basin becomes ready to use it.

While it is true that states of the lower basin had nothing to gain by changing the prior appropriation doctrine so long as development continued under that system, it should be noted that such development, as a matter of fact and until a change of policy by the Federal Power Commission, is at an end unless some uniform plan is made for the Colorado's development. For several years the Federal Power Com