provided in the upper basin if that basin is to be able to put to beneficial consumptive use its allotted share of Colorado River water. 3. The Colorado River storage project will provide such necessary storage and is essential to the full economic development of the water resources of the upper basin. 4. The plan of the Colorado River storage project to finance the construction of the necessary holdover reservoirs through the revenues derived from the sale of power generated at hydroelectric plants and to utilize a portion of such revenues to assist in the financing of so-called participating projects which meet certain fixed criteria is approved. 5. In connection with the Glen Canyon Reservoir, Colorado directs attention to the fact that this reservoir, which is located but a short distance above Lee Ferry, will yield substantial benefits to the lower basin, one of the most important of which is the detention of silt and the resulting prolongation in the useful life of Lake Mead. The official representatives of Colorado should strive to obtain some recognition by the lower basin of these benefits and, if possible, a sharing by the lower basin of such matters as reservoir losses. 6. The Echo Park unit is a desirable feature which has the full support of Colorado. 7. Authorizing legislation should contain appropriate provisions for the recapture for use within the upper basin of power generated by the Colorado River storage project when and if any of such power is sold or transmitted for use within the lower basin. 8. Specific provision should be made in authorizing legislation to assure that no rights vest in the use of water for power generation in units of the project which will prevent or handicap the beneficial consumptive use upstream of the waters of the Colorado River system to which any upper basin State is entitled. 9. Colorado has no objections to the report of the Secretary of the Interior on participating projects except that Colorado urges that further study be given to the La Plata and San Miguel projects, which are urgently needed, in order to develop, if possible, a feasible plan therefor and except as hereinafter noted. 10. The report and the supplemental report of the Secretary of the Interior practically ignores any development of Colorado River system water in Colorado. For this reason, Colorado cannot accept the report and supplemental report as now submitted. As conditions precedent to Colorado approval of the report, provisions must be made therein, or in the authorizing legislation, which will assure the following water development in Colorado: (a) The Cross Mountain unit must be included within the initial authorization for construction as of part of the first phase of the project. (b) There is no doubt that further consumptive use of water in Colorado is directly dependent upon high upstream storage. To provide therefor there must be included in the initial authorization approximately 3 million acre-feet of total new storage on the Colorado River and its tributaries above Grand Junction, Colo., a substantial portion of which shall be located on the upper reaches of the Gunnison River. The known reservoir sites which might accomplish this objec tive are Curecanti on the Gunnison and DeBeque on the Colorado River. Additional investigations may disclose other sites. There is little doubt but that the stated amount of storage will be needed. The Secretaray of the Interior is urged to expedite the investigation and study of projects which will furnish the requested storage. 11. Denver, the capital city of Colorado, desires to divert water from the Blue River, a tributary of the Colorado River, for municipal and industrial uses in the Metropolitan Denver area. The rights of Denver to take and divert such water are alleged to be in conflict with rights for the use of water stored in Green Mountain Reservoir and taken through the Green Mountain powerplant for the generation of power. Green Mountain dam, reservoir, and powerplant constitutes a unit of the Colorado-Big Thompson project of the United States Bureau of Reclamation. The controversy over the relative rights of Denver and the Green Mountain project are in litigation in a lawsuit now pending in the Supreme Court of the State of Colorado and in another lawsuit now pending in the United States District Court for the District of Colorado. It would be improper for this board to attempt to invade the province of the courts or to influence the pending litigation. The board has no intention of doing either. The feasibility of the proposed Denver-Blue River diversion depends. among other things, on the outcome of this litigation, or on some alternative thereto which satisfactorily protects the Colorado-Big Thompson project. Upon the condition that the legal availability of a reasonable quantity of water for the Denver-Blue River diversion be established, either by litigation or some other arrangement, and the condition that such project be otherwise feasible, the board approves the Denver-Blue River project for inclusion as a participating project in the authorization of the Colorado River storage project or for such other Federal legislative or administrative action as may be requested by Denver. 12. The board recommends that Denver and the representatives of the west slope in Colorado make every effort to arrive at a harmonious solution of the unfortunate transmountain diversion controversy which for years has created dissention in Colorado. The board pledges that it and its staff will be ready to assist in the amicable settlement of this prolonged conflict. 13. The director of the board and the Colorado member of the Upper Colorado River Commission are directed to do all things necessary and proper to effectuate this resolution. 14. Copies of this resolution shall be forthwith transmitted to the Governor of Colorado and to the members of the Colorado congressional delegation. Senator WATKINS. Any questions, Senator Anderson? Senator ANDERSON. No questions. Senator WATKINS. I have no questions. Thank you very much for your statement. Judge Breitenstein will you come forward please? STATEMENT OF JEAN S. BREITENSTEIN, DENVER, COLO. Mr. BREITENSTEIN. My name is Jean S. Breitenstein and my address is 2501 Albion Street, Denver. At the outset, Mr. Chairman, I have one thing which embarrasses me. The young lady who mimeographed my statement put my new title at the head of it. There should be no implication at all that I am testifying here in any official capacity. I am here as a private citizen, on my own time and my own expense. I might say that after I was confirmed for the office which I now hold, the question arose as to my testifying in support of this legislation. I submitted to the chief judge for the Court of Appeals of the Tenth Circuit the question as to whether or not I should take my oath of office or defer until I appeared before your committee. I secured from him a letter, signed by the Judicial Council of the Court of Appeals of the Tenth Circuit, in which they unanimously say that I should take the oath of office and there would be no impropriety in my. appearing here and testifying. I have a photostatic copy of that letter which I would like to submit for your files so there will be no question raised. Senator WATKINS. That will be received. (The letter referred to follows:) UNITED STATES COURT OF APPEALS, TENTH CIRCUIT, JEAN S. BREITENSTEIN, Denver, Colo. DEAR MR. BREITENSTEIN: The Circuit Council of the United States Court of Appeals, Tenth Circuit, composed of the five circuit judges of the circuit, has given consideration to the inquiry in your letter of June 1, 1954, addressed to me as chief judge of the circuit. You asked the circuit council to advise you of its opinion with respect to the propriety of your testifying before the Subcommittee on Irrigation and Reclamation of the Senate Interior and Insular Affairs Committee, relative to a bill now pending for the authorization of the Colorado River storage project, after having qualified as United States district judge for the District of Colorado. 49500-54-19 We understand that for many years you have been attorney for the Colorado Water Conservation Board and for the Colorado member of the Upper Colorado River Commission; that you have resigned as attorney for such board and member; that because of your long connection, as attorney for such board and member, with Colorado River Basin problems, you have acquired a knowledge of pertinent matters of fact and law especially qualifying you to give valuable testimony to such subcommittee-testimony with respect to matters peculiarly within your knowledge and not obtainable from any other witness. We further understand if you do appear before such subcommittee and testify, you will receive no compensation of any kind therefor and will personally pay expenses of travel and maintenance incurred in connection therewith. We understand no matter of disqualification is involved, because you will be disqualified to sit in matters involving the Colorado River Basin, with respect to which you have acted as counsel in the past. The council has carefully considered your inquiry and, in the light of what we regard as pertinent facts, it is our considered judgment that you should immediately qualify as United States district judge for the District of Colorado; that you should testify, when requested, before the Subcommittee of the Senate Interior and Insular Affairs Committee, and that there will be no impropriety in your so testifying after you have qualified as United States district judge for the District of Colorado. Respectfully, SAM G. BRATTON, Circuit Judge. WALTER A. HUXMAN, Circuit Judge. ALFRED P. MURRAH, Circuit Judge. JOHN C. PICKETT, Circuit Judge. ORIE L. PHILLIPS, Chief Judge. Senator WATKINS. I might say your reputation in the field of water development is so well known that I think the committee might have considered subpenaing you if you had not voluntarily appeared. We want to get the benefit of what you know about this upper Colorado River Storage and just because you were put on the bench, do not think you can deprive the committee of having your valuable information on this legislation. I am sure you have not been in a judicial term long enough to feel that it would be anything which would disqualify you in making your statement. Mr. BREITENSTEIN. That is right, Mr. Chairman, and I might say just to get into the record the experience I have had, I worked on Colorado River matters with some continuity since 1927. For many years I was the attorney for the Colorado Water Conservation Board and also I have been the Colorado member of the Upper Colorado River Commission. Before I go into the prepared statement that I have, I would request that the statements which I gave before the House committee in hearings on H. R. 4449, be made part of the record here. I think I will not read them so there will be no duplication, but if they could be put into the record as they appear at pages 308 to 313, I believe it might be helpful. Senator WATKINS. Mr. Breitenstein, in view of the fact that the information referred to is already available is the House Hearings. I think it advisable to make the information part of this committee's files rather than to duplicate it here. Mr. BREITENSTEIN. In the prepared statement that I have, the matter covered by subdivision 2 has been gone into by other witnesses and it would be repetition for me to mention that. Accordingly, I would like to begin on page 3, subdivision 111, that is, that the project is within the spirit and intent of the reclamation laws. As the project is planned, the principal holdover reservoirs will not store and release water for downstream consumptive uses in the upper basin. Their function rather will be to regulate the streamflows and to generate power. However, the stream regulation, which is so provided, will make possible consumptive use projects for agricultural and municipal purposes which could not exist without the stream regulation provided by the holdover reservoirs. Senator WATKINS. You have in mind, of course, the use of that water by exchange? Mr. BREITENSTEIN. That is correct, sir. The engineers have estimated that under historical streamflow records the available firm water supply for the upper basin is only about 4,200,000 acre-feet annually. The compact apportions to the upper basin beneficial consumptive use of 7,500,000 acre-feet annually. The difference between the 2 figures, or 3,300,000 acre-feet, represents the quantity of water which will become available for consumptive use in the upper basin by the stream regulation provided by the large reservoirs. The application of this additional 3,300,000 acre-feet of water annually to beneficial consumptive use is beyond doubt a reclamation project. The generation and sale of hydroelectric power from the units of the storage project is clearly within the Reclamation Act. The April 16, 1906, amendment (34 Stat. 116) to the Reclamation Act of 1902 (32 Stat. 388) shows that Congress contemplated and authorized the development of the power features of reclamation projects. Other amendatory or supplementary legislation shows that throughout the years Congress has authorized, and appropriated funds for the construction of, hydroelectric projects. There are outstanding examples such as Hoover Dam, Parker Dam, and Davis Dam in the lower basin. Section 9 (c) of the Reclamation Project Act of 1939 makes specific reference to the sale or lease of power. The Colorado River storage project is within the traditional concept of a reclamation project. The primary difference between it and the reclamation project of the past is its size. In supporting the Colorado River project the upper basin States believe that they are carrying into effect the principle of the regional water development. Senator WATKINS. May I go back for a moment, Judge? You said the primary difference between this and other projects in the past was one of size. It is because of the large size that the development has not taken place in the past. Mr. BREITENSTEIN. That is absolutely correct, Senator, yes. I agree with that. Senator WATKINS. In other words, if we had gone along piecemeal and gotten an authorization for each project year by year, it would appear to be not as large a project as it now appears. Mr. BREITENSTEIN. If we had been as fortunate as other areas and developed these small projects in the past, this would not be the size that it is. Senator WATKINS. And it is the first time, is it not, within your memory, that we have proposed a comprehensive program for a river system? Mr. BREITENSTEIN. That is correct. This is a comprehensive program for the upper basin. Senator WATKINS. It shows the development and complete utilization of the water, not only for consumptive uses but also for power and any other uses to which water can be put. Mr. BREITENSTEIN. Yes, and it is a use which affects four States. Four States have joined in supporting this project. Senator WATKINS. When I divide it into four, it is not so large, either, is it? Mr. BREITENSTEIN. That is correct. Senator WATKINS. I am asking these questions for the benefit of the other Members of the Senate who may not understand that the way we in the West do. Mr. BREITENSTEIN. Mr. Chairman, next in my statement I have analyzed the two pertinent compacts, the 1922 compact and the 1948 compact. Those have been discussed by others, and if the material appears in the record, I think it would not be necessary to read it at this time. Senator WATKINS. We will have it all appear in the large type. On page 8, I refer to pending litigation in the lower basin. In August 1952 Arizona brought suit against California and certain public entities of the State concerned with the use of Colorado River water. Later the United States intervened. Nevada has filed a motion for leave to intervene and such motion has been granted. This case, Arizona v. California (No. 10 original, 1953 term, Supreme Court of the United States of America), involves controversies of long standing as to the rights of the lower basin States to the use of Colorado River water. The States of Colorado, New Mexico, Utah, and Wyoming are not parties to, or involved in, this lawsuit. In its complaint Arizona presented three basic issues, viz: 1. How is beneficial consumptive use measured? 2. Is water covered by article III (b) of the 1922 compact apportioned water or unapportioned water? 3. How are reservoir losses from lower basin main stream reservoirs to be charged? In their answers and other pleading the defendants have asserted a multitude of issues which appear to be immaterial and irrelevant with perhaps two exceptions, which are: 1. Is Arizona a party to and bound by the 1922 compact? 2. If Arizona is a party to the 1922 compact, does it have any rights under, or may it receive any benefits by reason of, the so-called California Self-Limitation Act (act of March 4, 1929; ch. 16, 48th sess.; Statutes and Amendments to the Codes, 1929, pp. 38-39)? The defendants in this case have requested the Court to appoint a special master to conduct hearings on the controverted issues and to make a report to the Court with recommendations. Arizona opposed this and requested if a special master was appointed, he be limited to the five issues which I have enumerated. However, the Court appointed a master under a general reference. It is not clear at this time whether the master will restrict or limit the hearings in the first |