mission has been reluctant to grant permits for Colorado River construction because of the obvious benefits to be realized from the use of a coördinated plan of which each individual project should be a part. But to projects in which large sums have been expended in preparatory work, such as the Girand project, the Federal Power Commission is said to stand ready to give preferred consideration upon the withdrawal of the general order of suspension of permits. This general order may be withdrawn at any time that the Commission deems reasonable. is, if the members of the Commission believe that it is unlikely that a unified plan can be agreed upon by the seven states, they will perhaps allow construction of the better projects to proceed without reference to a general plan. This will, of course, make possible the appropriation of water and the vesting of rights.

That

THE PROPER SPHERE OF ACTIVITY OF AN INTERSTATE COMMISSION One of the legal questions of prime importance in Colorado River development is the question of whether or not the seven states may enter into a compact and thereby achieve the legal result of dividing the water of the Colorado in the manner attempted by the terms of the Santa Fe agreement. That Compact, it will be recalled, attempted to apportion a definite amount of water to the upper and lower basins respectively.

But can the apportionment of the waters of an interstate stream, even though ratified by the legislatures of the states concerned and by Congress and in the event that it is finally determined by the courts to be legally sound, be of any practical benefit if there is not a sufficient amount of water in the river to satisfy present users and those who wish to become appropriators,

some of whom now have their applications on file with the state commissions or with the Federal Power Commission or both? Is it within the legal power of a group of states to enter into an agreement with one another, such agreement being sanctioned by the legislative branch of the Federal Government, and by the terms of said agreement superimpose a new system for the determination of rights in the waters of an interstate stream which may conflict with the legal methods already established by the individual states for the determination of water rights? Is it not true that the first step in Colorado River improvement by the coöperative effort of the interested states should be a survey of the water rights now recognized and vested under the laws of the several jurisdictions? Present users must be taken care of regardless of what particular method of improvement is finally selected.

It is also probable that certain applications now on file with the various states would be found to be entitled to priority under the laws of the states having jurisdiction. Such inchoate interests should also be included in the survey. With these data at hand an interstate commission, called a Colorado River Authority in my book, would be in a position to recommend those steps for the development of the stream which would best serve the interests of all parties. Members of such a commission would then definitely know the particular rights affected by any proposed construction project and could attack condemnation and other specific problems with some hope of making progress.

The whole purpose of the present agitation for Colorado River development is, of course, to increase the quantity of water available for beneficial use. This quantity will be determined by the particular plan

adopted for the development of the stream. And this is one point at which the Compact of 1922 has proved entirely inadequate. No mention was made of particular projects. Let it be clearly understood that I do not say that more progress could have been made the past five years if the Compact had referred to definite engineering programs, for perhaps the plan worked out was as much of a forward step as could then be taken. But that it was inadequate, the last five years of inaction and controversy abundantly establish.

The Compact spoke of millions of acre-feet of water without a word about plans for making that water available. It attempted to tamper with the acknowledged system of water rights by asserting that the upper basin should have 75,000,000 acre-feet for use within the upper basin during each ten-year period, and that a like quantity, increased by a million acre-feet per year, should be available for use in the lower basin during each ten-year period.

But to declare that water shall be used in certain quantities in designated places does not make the water available for such use. This was realized by California when the legislature of that state attempted to couple a tangible project-Boulder Dam, contemplated by the Swing-Johnson bill with assertions of the Compact concerning water rights. The manner in which the California legislature proceeded was to make construction of a storage reservoir in the lower basin a condition precedent to California's acceptance of the provisions of the Compact relative to the fixing of water rights. This action clearly shows that California appreciates the fact that an abstract statement concerning rights to water, which is not as a matter of fact available for use, is of little or no value.

The only interstate agreement which will finally gain sufficient support to result in ratification will be one, I believe, in which provision is made for engineering surveys to determine upon the best plan to make available the largest possible quantity of water and also to serve all other purposes of river development such as flood control and power generation. Coupled with these provisions there may very properly be a declaration of the manner in which rights to the water about to be made available may come into being.

In other words, when an inventory of all the water rights now existing on the Colorado shall have been made by an interstate commission, and when a survey of the most economic engineering plans for the development of the river shall have been completed, we will know how much water will be added to the present available supply. Knowing this, and knowing that the particular project determined upon for the development of the stream is the best and most economic method, the interstate commission could then undertake the next problem of suggesting the method or methods of creating legal rights to the water about to be made available. This portion of the work of the interstate commission might take the form of a suggested uniform water code for the interested states to be applicable only to the quantity of water made available by the completion of the engineering project finally selected.

The procedure outlined in the preceding paragraphs may seem to require too long a period of time before results could be realized. But those who have watched the situation during the past five years must be convinced that actual construction of Boulder Dam, the most widely heralded project on the Colorado, is now more uncertain than has been the case at any previous time

within the past five years. This is due to the fact that instead of making a survey of the whole river for the purpose of determining the best manner of developing it as an asset of the entire region, and therefore of the nation, greatest emphasis has centered around the question of the most feasible method of securing flood control for Imperial Valley and a water supply for southern California. And there are some who go to the extent of saying that plans now proposed for these specific purposes are not at all the most economical which might be devised to realize the desired ends.

Events of the past half decade clearly show that the most essential single thing for an interstate Colorado River commission to do is to provide a forum where the contentions of all parties may be submitted for consideration upon their merits. These contentions may relate to engineering, economic, or legal data. But whatever their nature, they should be available for scientific study and analysis by all interested parties. Had there been such an interstate commission in operation the past five years it is quite probable that the assertions of the Arizona High Line Association and of the sponsors of a gravity line from the mouth of the San Juan across southern Utah, across Nevada and California to the Imperial Valley, either would have been verified or exploded by the present time in a manner carrying conviction. As it is, these questions and a host of others of similar nature, to say nothing of the legal controversies, serve only to confuse the public.

CONTRACTING CONSERVANCY

DISTRICTS

Assuming that an interstate compact between the seven states will some day provide for an interstate commission whose duties will approximate

those above described, and assuming further that such commission will have completed the inventory of water rights existing prior to construction of any particular project on the Colorado and will have heard all arguments relative to the best engineering plan to be adopted, thus fostering an intelligent public opinion, and assuming further that such a commission also will have aided in working out the legal questions centering around the determination of water rights in the use of the additional quantity of water made available by the proposed new construction, the next step in Colorado River development should be the organization of conservancy districts to contract with each other relative to existing water rights and water rights which will be brought into existence by reason of the appropriation of water not now available but which will become available upon the construction of the engineering works finally believed to be the most desirable. In fostering the organization of these districts in the interested states an interstate commission would have an important part to play.

The general plan of organization of these districts might be similar to that of the conservancy districts of Ohio and New Mexico. These districts, analogous in some respects to irrigation and drainage districts of the various states, permit a large degree of local control of the coöperative enterprise. The primary purpose of the legislative act of Ohio is to provide a means whereby the owners of property in areas threatened by floods may organize for their mutual protection. However, this act 2 also states that its purposes include that of "providing for irrigation where it may be needed.' New Mexico's statute, as might be

2 104 Ohio Laws 13-64, February 5, 1914. 3 Laws of New Mexico, 1923, Chapter 140, pp. 211-278, March 12, 1923.

expected, places more emphasis upon the reclamation features of the conservation program, though provision is also made for meeting flood dangers.

In other words, both Ohio and New Mexico have provided a method by which the owners of the land affected by a particular project may determine the manner in which that project shall be controlled and administered. This manner of dealing with the problem conserves the benefits of local selfgovernment. By means of the organization of a number of conservancy districts in the states of the Colorado Basin, the groundwork would be laid for a series of contracts among such districts with respect to definitely determined water rights. But before these districts can be organized, the route of the main aqueducts which will eventually constitute the best unified system of development to serve the largest number of interests or purposes in the entire basin must be determined. Only in this manner will it be possible to know the areas which will be directly affected by the development and therefore included within the proposed conservancy districts.

Looking more closely at the language of the New Mexico Act we find that it provides that the district court sitting in and for any county of the state, or any judge thereof in vacation, is vested with jurisdiction to establish conservancy districts. These districts may be entirely within or partly within and partly without the judicial district in which said court is located. A partial list of the purposes for which the conservancy districts may be formed is as follows: preventing floods; regulating stream channels by changing, widening and deepening the same; regulating the flow of streams; constructing irrigation and drainage works or systems; coöperating and contracting with the federal or any state

government to promote the agricultural resources and marketing facilities of the district.

The manner of organizing the district is by petition filed in the office of the clerk of the court vested with jurisdiction. Such petition is to be signed by one hundred owners of land or by a majority of the owners of land situate within the limits of the territory proposed to be organized into a district. trict. In the event that private or public corporations own lands within. the proposed district, such corporations are proper parties to sign the petition. Moreover, any city interested in some degree in the improvement, upon proper action by its governing body, may alone file the petition already mentioned. Following the hearing of any protests against the organization of the district, the court is to declare the district organized and give it a corporate name by which it is thereafter to be known.

The remaining articles of the New Mexico Act refer to the powers and duties of the board of directors of the conservancy district, appraisals of benefits, and financial administration.

Upon the organization of these conservancy districts in the states interested in the development of the Colorado the way would be cleared for a series of contracts between the various districts as parties, by which to determine the details of the use to which available water might be placed and the terms of remuneration for such use. Plans for the necessary construction work might also be handled by contract between the districts concerned.

In accordance with the Act of August 11, 1916, conservancy statutes of the kind suggested would also be applicable to the public lands of the United States lying within the conservancy district, upon the approval of • Chapter 319, 39 Stat. 506.

the Secretary of the Interior and subject to certain exceptions mentioned in the act. Briefly stated, the purpose and effect of this statute is to empower the Secretary of the Interior, following the presentation of a proper application therefor, to investigate the plans and financial and physical resources of irrigation districts theretofore or thereafter organized pursuant to the law of any state, and, if he shall find and conclude that any such district has planned and is executing an altogether meritorious and feasible irrigation undertaking, to grant his approval of its plan and undertaking, provided a majority acreage thereof is not unentered land. Upon such approval and upon compliance by such districts with certain conditions in said act specifically set forth, all unentered public land and land which has been entered, but upon which final certificate which final certificate has not issued, shall be amenable to the state laws governing the district to the same extent and upon like terms as are privately owned lands within said districts.

CONCLUSION

In conclusion it may be said that the Compact drafted at Santa Fe in 1922, which has been the subject of innumerable conferences since that date, will perhaps never be ratified by the seven states in its present form because of its failure to mention a specific engineering project to make additional water available. Its inadequacy in this respect creates a situation in which the upper states cannot allow any construction to proceed in the lower basin before the compact is ratified, and the lower states, particularly California,

cannot afford to ratify until the support of the entire basin for storage facilities in the lower basin is guaranteed to the lower states. But an understanding of the present Compact and the discussions which have centered around it, are of the greatest importance if the fundamental issues which surround the Colorado are finally to be resolved into a unified plan of action.

As one observes the present situation he is led to inquire if the experience of the past five years has not shown that a new approach to the problem would be advisable. Instead of attempting to apportion the waters of the stream before a unified engineering plan has been worked out and accepted by the seven states, the United States and Mexico, why should there not be an interstate commission created by the use of the interstate compact clause of the Federal Constitution for the purpose of examining all proposed plans for the development of the river? By means of the discussion which would accompany such a process there is reason to believe that confidence would be developed so that every representative and senator from the interested states would be ready to vote for the particular project decided upon. To develop this confidence should be the first and fundamental purpose of an interstate commission. It does not seem possible to develop it by discussing rights to water which is not yet available for use. But if everyone believed that a specific engineering plan for the development of the entire river would get the maximum use out of the stream, a continuing interstate commission would have something upon which to proceed.