neer to appropriate the same amount of water by storage in a reservoir nearthe same place as the Gooseberry Reservoir is contemplated-in effect attempting to usurp the Sanpete water filing No. 9593 should anything happen in the future to defeat the Sanpete plan to construct the reservoir and utilize the storage rights it now has.

I respectfully request permission of the chairman to leave the record open in this matter for the filing of the State engineer's decision which should be forthcoming very shortly after the hearing set for May 24, 1963.

Now, with respect to the north Sanpete watershed work plan which is before you for consideration. I am sure you are well aware of the various governmental agencies, both State and Federal, who have been involved with its preparation and who are interested in seeing that it receives your approval, in order to obtain participating funds from the Federal Government. You have already heard from others, who have discussed the various aspects of the work plan so that I will try to avoid repetition thereon. Included within the overall watershed work plan and forming a substantial integral component part thereof is the proposed construction of a reservoir to store water arising in the upper drainage area of Gooseberry Creek located in Sanpete County and the construction of a tunnel to effect a transmountain diversion of such stored waters to the upper Sanpete Valley area. I venture to say without fear of contradiction that were it not for this phase of the project there would be no opposition to the work plan. Howerer, since the development, conservation, and utilization of the water resources of our State are so vital to our economy, there is scarcely any project in the State involving the further appropriation and utilization of water which does not meet with firm opposition from people who feel that their long vested water rights may be affected and impaired. Even in the more recent development of underground water there is constant opposition to further drilling to tap these last available water resources. I am proud to report, however, that in many instances these difficulties have been worked out by amicable agreement between the parties involved. In other situations where the parties cannot mutually resolve their differences the laws of our State, as do the laws of all the States forming a part of this great country of ours, provide a full and adequate procedure for the determination of the rights of the opposing parties and the enforcement thereof.

Usually when the local State administrative agency has resolved the matter and the courts have subsequently, upon full review and consideration, made a final determination of the rights involved the matter is placed at rest and both sides proceed in accordance with the court's decision. In the instant matter, however, the Federal Government, and through it your honorable body, has become involved because it is sought to obtain financial help under the provisions of Public Law 566.

In the past, water users in Carbon County have questioned the water rights involved in the proposed construction phase of the work plan, the availability of water for storage and the economic feasibility of the project. While each of these matters has heretofore been considered, fully reviewed, and resolved by both governmental agencies and the courts, the opposition to the program seeks now to defeat the entire project by urging the Federal Government to withhold any financial help. While I personally believe that the matter should have been put at rest by the decisions heretofore made by the courts, the State agencies and the Federal agencies involved, I shall endeavor to review for you the facts which I believe not only persuaded the other agencies in reaching their conclusions, but which will be helpful and beneficial to you in reaching yours. The water rights involved in the proposed project are principally covered by application 9593 on file in the office of the State engineer for the State of Utah, by which it is proposed to appropriate 15,000 acre-feet of water from Gooseherry Creek by placing a dam across Gooseberry Creek at what is known as the "Narrows," site in upper Gooseberry Valley, in Sanpete County. The water thus appropriated will be a supplemental supply for Sanpete County upon lands described in the application within the proposed project.

The application was filed in the State engineer's office on September 11, 1924. and bears a priority as of that date. It has been twice litigated in the courts where it has received court approval and the time for construction of the reservoir and tunnel extended so that the application is in good standing today. Initially, the matter was heard by the district court of the seventh judicial district on appeal from the ruling of the State engineer. On February 11, 1939, the court made its findings of fact, conclusions of law, and entered its decree in favor of the Sanpete application. Among other things Judge Oscar W. McConkie

specifically found "that at the time of the filing of said application No. 9593, there was unappropriated water in the said Gooseberry Creek at the point where it is sought to store said water and to divert the same from said Gooseberry Creek, and that from time to time and from year to year, and has ever since that time been water over and above all prior appropriations and subject to be appropriated under said application, and that no rights of the defendants, or either of them, will be prejudiced by the granting and approval of said application of the plaintiff, John L. Bench, No. 9593, and that the said plaintiff is entitled to have his application approved and to have such approval made of record in the State engineer's office of the State of Utah."

The second court hearing began in December 1958, after the State engineer had granted an extension of time to the Sanpete Water Users Association to prove up on its application 9593. This case ultimately went to the Supreme Court of Utah, where the decision of the State engineer and the trial court was affirmed. In its opinion, the supreme court briefly reviewed the history of the project as it appeared in the record of the trial before the lower court, as follows:

"The evidence shows that while the appeal was pending in the district court from the original rejection by the State engineer of the application in 1924, those interested in the application and the plan to construct a dam to obtain the water from Gooseberry Creek at a point known as the narrows site and which was generally known as the Gooseberry project had plans drawn up for the construction of a tunnel and applied for public funds either under the Works Progress Administration or the Case-Wheeler Act to help in the consummation of this project. They were unable to obtain these funds when it was discovered that there had been no decision on the appeal.

"After the court's decision in favor of the application the Sanpete interests pushed the effort to obtain approval of their plans for the construction and were surveying and making appraisals of the rights-of-way which has to be acquired for canals and the tunnel when World War II commenced, which put an end to the possibility of obtaining funds from the Works Progress Administration or the Case-Wheeler Act. However, the Bureau of Reclamation had long been interested in irrigation and storage projects along the Price River of which Gooseberry Creek is a tributary and had included as one project the Gooseberry project along with the Scofield Reservoir which serves the Carbon County interests and which is located several miles below the place where the Gooseberry Reservoir is planned. At the behest of the Sanpete interests, the Reclamation Bureau had made various studies, surveys, and reports with the view toward building the dam and tunnel to use the water covered by the application now owned by respondent, Sanpete Water Users Association. During World War II the Carbon County water users wanted their reservoir rebuilt by the Reclamation Bureau without waiting until work could be done on both projects as one. Rather than make it impossible for either project to be built at that time, those interested in the Gooseberry project deferred to the wishes of Carbon County interests, among whom are the appellants herein. Scofield Reservoir was rebuilt with financial aid from the U.S. Government."

Interrupting my quotation from the opinion of the supreme court and referring specifically to the cooperation received by Carbon County interests in the rebuilding of the Scofield Dam, I wish to point out that a general meeting was held to discuss that problem February 4, 1962. Minutes were kept of this eventful meeting attended by representatives from Carbon County (including the cities of Price and Helper), Sanpete County, the Bureau of Reclamation, and industry. Representing the Carbon interests, Mayor J. Bracken Lee, of Price, stated:

"We, the people of Carbon County, are trying to see if we can get this declared an emergency by the Government, and advance the immediate funds for the construction, as it cannot be satisfactorily repaired, then we could go on with our present plans of organizing conservancy districts, and later on enter into an agreement with the Sanpete people to permit them to come in with us as copartners in the entire development."

Thereafter, Mr. Elmo Irons, a representative from Sanpete, said:

**** that if the Scofield Dam would be in any way delayed or hindered by the efforts of his group to further the Gooseberry project, he was sure they would be glad to step out of the way and lend all power in accruing one project, if this were deemed most important, but that the two projects had been linked in unity, as one, and to, at this time, separate them bring undue difficulties. This was agreed to by Mr. Lee and Mr. Jerman, Mr. Jerman stating that it would never merit consideration as two as the appropriated funds were alloted as one, and should be considered as one.

I further quote from the recorded minutes:

"There was at this time a great deal of comment on the necessity of the Gooseberry Dam for possible water conservation to that district, as it was stated by one member of the coal industry, that with the proposed steel plant being now a certainty for Utah, it would be necessary to have coal to further this proposed plant, and with the additional coalfields located in Sanpete County it would seem that the coal from those fields would be used for that purpose, and surely the Gooseberry Dam would furnish the water so necessary to mine that coal. It would, also, further our national defense, and bring industry to that community."

Thereafter, approval was obtained to rebuild the Scofield Reservoir with Federal funds. (Carbon County water users were charged $100,000 out of the total construction costs of approximately $1 million and $116,000 was set up as Sanpete's share, to be paid later.) In connection with this project the U.S. Government entered into an agreement with Carbon Water Conservancy District and Price River Water Conservation District by which the overall program of developing the Scofield and Gooseberry Reservoirs was worked out. This agreement has been commonly referred to as the tripartite agreement and will be further discussed later. However, at this point I would like to return to the supreme court's summary of the history of the Gooseberry project, as contained in its opinion:

"After World War II ended, applicant again made plans to proceed with work on the tunnel and applied to the Utah Water and Power Board for a loan of $90,000 which with private funds available to it would have been sufficient to construct the tunnel. This loan was not made, however, because the Reclamation Bureau indicated that it would like to work on a project called the Mammoth project somewhat downstream from the Gooseberry project which would produce more water for the Sanpete County Water Users. This project was to be tied in with the Bureau's projects on the Colorado water system.

"The Sanpete interests obtained a number of extensions of time within which to make proof from the State engineer while these projects were being surveyed and planned on their behalf and in which over $100,000 was spent by the Bureau of Reclamation and the Utah Water and Power Board. Just prior to applicant's latest request for an extension of time from the State engineer is decided to build the tunnel without waiting for action from the Reclamation Bureau whose activities in its behalf were at least delayed because of appellants' protesting the appropriation by Congress of any money for the Gooseberry project which had been recommended by the Bureau of Reclamation. It implemented this decision by applying for a loan from the Utah Water and Power Board and hiring an engineer to prepare plans and specifications. This engineer caused preliminary excavations work to be done from which he obtained sufficient facts to make final plans for the construction of the tunnels so that actual work could be commenced."

The court went on to conclude that the applicant (North Sanpete Water Users Association) was entitled to a further extension of time in which to proceed with the construction of the reservoir, tunnel, and other storage and diverting works.

While the matter was pending before the courts, conferences were being held with the representatives of the State and Federal Government to see if financial assistance would be available to assist with the project where and if the matter was resolved favorable to the applicant. The Bureau of Reclamation continued its water studies on the Price River and its tributatries, particularly for the purpose of developing other water storage projects to meet the future needs of Carbon County. The Sanpete people also learned that under the Federal Watershed Protection and Flood Prevention Act (Public Law 566), considerable improvements were being made in various areas in the State of Utah and even within the local area. It was therefore decided, after full discussion with the water and power board and the local representatives of the Bureau of Reclamation (and with the approval and complete cooperation of both), to apply to the Secretary of Agriculture for Federal assistance under the Watershed Protection and Flood Prevention Act in preparing and carrying out plans for works of improvement for the North Sanpete watershed project.

Application for assistance in planning and carrying out the works of improvement contemplated in the North Sanpete area was made by the local organizations and approved by the State agencies involved, whereupon the Soil Conservation Service began its survey work. The work plan now before you is the

result of the thorough and exhaustive study made by the Soil Conservation Service, utilizing the studies and data accumulated over the years by the State of Utah and agencies of the Federal Government as well as its own basic research and statistical data.

Although the foregoing should amply demonstrate the legal, as well as the moral justification for approval of this project, I would like to discuss briefly the matter of the priority of water rights.

First, let me joint out that we are concerned here with storage rights as distinguished from direct flow rights. The very first users of water along a given river or stream utilized the direct flow from the source during the growing season to irrigate the crops and for domestic consumption. Later it became necessary to impound the water during periods if high runoff, when little or no use could be made for irrigation, and to store it until such time as the need arose to supplement the natural flows of the streams. These storage rights have always been required to recognize the rights of the "direct flow users." And in the present situation those having prior rights downstream need have no concern that they will be deprived of the water to which they are legally entitled.

Insofar as storage rights are concerned, the oldest storage right exists up above the Gooseberry Valley area in the head of Gooseberry Creek where a group of early settlers in Sanpete constructed some small reservoirs, called the Fairview Lakes, which impound and store the early runoff waters in the tops of the mountain and by circuitous canal divert the water into Sanpete Valley. (Under the proposed watershed work plan the storage rights in the Fairview Lakes will be transferred to the Gooseberry Reservoir and the water released through the diversion tunnel at a considerable saving in cost and water loss.) The right to store water in Scofield Reservoir derives from two applications. Application 1035 (certificate No. 2046) is for 12,020 acre-feet with a priority of August 30, 1906. This is the only other storage right on the upper river which is prior to application 9593 (the application involved in the contemplated construction of the Gooseberry Reservoir.)

The other application to store water in Scofield Reservoir is 8989a for 17,980 aere-feet with a priority of October 11, 1937. These two filings make up a total of 30,000 acre-feet and are the only filings owned by Carbon County water users which authorize and permit the storage of water in Scofield Reservoir.

Initially the storage right covered by application 1035 contemplated storage in the Mammoth Reservoir just a short distance below the proposed Gooseberry Reservoir. (The storage right was later moved downstream after the Mammoth Reservoir Dam went out in 1917.) While the right was maintained upstream at the Mammoth site there was a court adjudication setting forth the rights of the direct flow users and the storage filings. This decree, commonly referred to as the Morse Decree, determined that the direct flow users had a right to 1,600 acre-feet of water from the sources of Cabin Hollow and Gooseberry Creek. Under such decree approximately 1,600 acre-feet of water should be allowed to go on downstream from the contemplated Gooseberry Reservoir. From the best available information, based on the water supply studies and engineering data on the tightness of the dam construction, it is estimated that there will be an annual seepage loss through the dam of approximately 2,830 acre-feet well in excess of the amount necessary to supply the direct flow right on the stream.

However, there is further protection afforded to downstream users so that the construction of the Gooseberry Reservoir and the storage of water from Cabin Hollow and Gooseberry Creek therein will not impair prior rights below. Adequate provision was made for any contingency by the Bureau of Reclamation in the planning and rebuilding of the Scofield Reservoir Dam during World War II. As I previously stated the total storage rights in the Scofield Reservoir were for 30,000 acre-feet which was its then allowed capacity. In planning the reconstruction of the dam the reservoir capacity was increased from 30.000 to 73,000 acre-feet. It was necessary, therefore, to make a further filing with the State engineer for such increased storage right. This was done on March 10, 1942, by the Bureau of Reclamation which filed its application No. 14683 seeking to appropriate 43,000 acre-feet of water from Fish Creek, Gooseberry Creek, and Cabin Hollow Creek (all tributary to the Price River) for storage in the Scofield Reservoir.

Of the total capacity of 73,000 acre-feet, 30,000 acre-feet would satisfy the storage rights then existing, including the right of the Price River Water Conservation District under application No. 8989a for 17,980 acre-feet (which filing has a priority date of October 11, 1937-13 years subsequent to application No.

20-128-635

9593, 8,000 acre-feet is held in the reservoir continuously from year to year for the propagation of fish as stated in the Government's application. The balance of the storage in the reservoir representing 35,000 of the 43,000 acre-feet covered in application 14683 "will be stored in the Scofield Reservoir and released as needed from April 1 to October 31, inclusive of each year, and allowed to flow into Price River to supply existing water rights therein at such time as these rights would otherwise be impaired by the diversion of water for the Gooseberry project from Gooseberry Creek or from Cabin Hollow Creek, both tributary to the Price River system. In other words, said 35,000 acre-feet of water will be held in Scofield Reservoir for exchange purposes in order to permit, without impairing existing rights, unrestricted diversion of water for the Gooseberry project in a manner more fully described hereinafter."

The application further states: "It is proposed to appropriate more water for storage in Scofield Reservoir (35,000 acre-feet) than will be used annually under the Gooseberry project (30,000 acre-feet maximum) in order to provide a holdover in Scofield Reservoir for use in years of deficient runoff."

This application is still pending before the State engineer and constitutes the only basis and right for enlarging the capacity of the Scofield Reservoir when it was rebuilt by the Bureau of Reclamation in 1944-46.

Further to define the rights of the respective parties and to avoid any future misunderstanding, the United States, acting through the Department of the Interior, Bureau of Reclamation, entered into a written contract with the Carbon Water Conservancy District and the Price River Water Conservation District. This agreement, dated October 11, 1943, is frequently referred to as the "triparti" or "tripartite" contract. It specifically details the water rights which are claimed by the parties and protects the interests of the Sanpete people in the construction of the Gooseberry project, as follows:

"12(a) The United States proposes, as the principal feature of the diversion plan (herein called the Gooseberry plan), to build storage and diversion works on the Price River system at a point or points above the confluence of Cabin Hollow Creek and Gooseberry Creek. When these works (herein called the works of the Gooseberry plan) have been constructed and put into operation, the relative rights of the United States and the irrigation district to the waters of Price River shall be as hereinafter stated in this article. ***

"(d) Subject to the conditions precedent stated in subsection (a) of article 13, the United States or its successors or assigns shall have the right to store and divert in any year for use within or without the Price River watershed all of the waters arising in the Price River system at or above the confluence of Cabin Hollow Creek and Gooseberry Creek located in or near section 31, township 12 south, range 6 east, Salt Lake base and meridian. ***"

Subsection (a) of article 13 provides that the rights under article 12 are dependent upon "the principal works of the Gooseberry plan having been completed and made ready for operation," and written notice thereof given to the district.

Further to protect the Gooseberry project, article 13(b) provides in part: "(b) The irrigation district's rights to the use of the waters of Price River and its tributaries, either by way of direct diversion or storage, are agreed to be, as of the date of this contract, only those based on the following applications on file in the office of the State engineer of Utah:

"The irrigation district agrees to assign its application No. 9594 to the United States within 60 days after notice from the Secretary to the effect that Scofield Dam and Reservoir has been completed to the point that there is an active storage capacity available for use of approximately 65,000 acre-feet; that its rights under application Nos. 1035 (certificate No. 2046), 8989a, and 13334, are hereby subordinated to the rights of the United States as defined and agreed to in article 12 hereof, and to whatever permits for the diversion or storage of water that have been or may be procured by the United States within the limits of its rights under this contract; and that all its rights under this contract are subject to the provisions of section 13 of the Boulder Canyon Project Act (45 Stat. 1057).