The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1913-08-06
LEASING WATER POWER.

a 'Orcllle rlNcT \nub bdNiSabio
stream) in Northeastern Washington
State which is much commended in
! some of the Eastern papers. The lease
provides that the lessees shall develop
$50, 900 horsepower in the vicinity of
Spokane. The lease has no fixed term,
and may run in perpetuity, provided
the lcssees observe the provisions of
what IS called "tbe general dam act -
of 1901, aud fully comply with the
provisions of the lease. This lease
fixes rate of s cents per kilowatt
per hour as the maximum rate to bo
charged the public for the electric en-
ergy developed. The licensee may use
the power developed for the manufac-
ture Of nitrates, but is not allowed to
charge more than about one-fifth Of
the present market rate for such nj
trates; the purpose, it is explained,
being to encourage the production OF
this chemical fertilizer at chenp rates
in this country The rental to be paid
10 the government, TO be dependent
upon the charge to the public for cleo
tricity. ''tbe lower the rate, the less
the rent - The lease provides that
within three years at least $4,000
horse power must be developed, and the
rates remain fixed the same for this
80, 900 horsepower as for the $4,000
horse power that is ultimately to be de-
velopcd
All this gives some promise of good
results. but the basic question Is, what
right has the government TO lease that
strcam7 Ii is and has been at all times
the accepted doctrine in this country
that the State has complete jurisdic-
tion of all the waterways within its
borders. save only the navigable wa
ters These navigable waters are con-
trolled by the United States, so far
as they relate to navigation. The q.
s. Senate expressly denies the control
by the United States Government
Of the Connecticut river for any other
purpose than navigation. The right
of the company that was developing
to use the stream for that purpose un-
der charter OF the State, was upheld
by Senatorial vote. In this Pend
d 'OreiIle river lease it appears that
the United States assumes the right
of control over the river, because Of
its ownership of the land over which
the stream runs; that is, the govern
mcni extends its riparian rights to in
cludc also the water flow. doctrine
unsound and unprecedented. This is
very large question, which ultimate
" must come to the Supreme Court of
the United States for final decision.
In .lc meantime. the States arc en-
tirely safe in dealing with the non
navigable waters within their borders,
on the basis that they have the exclu
sivc right TO the control and disposal
of the same.
We are glad to see that the State
authorities of Utah arc moving in the
direction OF protecting the interests
of the state from Federal Intrusion
upon the lines indicated. AS to the
rights the government owns the land
doubtcdlv has all the riparian rights
attached to each ownership, but such
rights give no rightful control over
the streams themselves. II has been
admitted at all times that the State
has complete control Of the waterways
within It's boundaries, aud as there are
no uavicable waters within the State
Of Utah. tthe claim that Green river
is raVigable being entirely ncgllble,)
the control of the waters in Utah nm
qucstiouabIy belongs to the State. This
right has been assumed in all the
States from the first, and 1t is en-
bodied in our statutes which provide
means whereby applicants for the use
Of water may obtain the right Of such
use from tho State. Our statutes re-
throughout The State Applications to
the state Engineer. under those stat
utcs for the right of use OF water are
among our most commonplace routine
OF law and of procedure. And the
right of the State to thus legislate and
approve wafer T1UDIS mas never netn
questioned As matter Of fact, it
cannot bc questioned because the law
from the first has given such rights
to the States universally, eXcept only
IN the matter of the control of naviga.
ton in navigable waters.
AS we have pointed out many times
heretofore, the basis under which the
Federal Government claims the right
10 dispose Of water powers bv lease
| or otherwise. is because of it's owner
! ship Of the land: but the ownership of
the land does not in legal sense give
the right of disposal of the water. 4
! claim to the water founded on riparian
rights must work in an indirect man
ner, in so far as the Government g
claim goes. the same as in any riparian
claim; but it is a direct encroachment
and assault upon the universally con.
cedcd right Of the State to control the
waters within its borders.
We arc glad to see, accordingly, that