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draft horses, the work potential in this fall is that of 150,000,000 men, nearly twice our population of men, women, and children.

The great companies at the Falls have created in good faith power plants to lessen the hardships of human labor, to aid transportation, to illuminate the night hours, and to add to the wealth of two nations. The power houses for the most part are architecturally excellent, harmonizing with the scenic surroundings, and the mechanical wonders wrought in solving the engineering problems of the utilization of this great head and volume of water rival as a spectacle the scenic grandeur of the Falls and add to the attractiveness of the region.

It therefore appears proper to permit and foster such ultimate developments in addition to those already in force as are compatible with the perpetuation of the scenic grandeur appreciably undiminished.

Provided there be no large increase in uplake diversions, the possibilities of continued and extended use of power at the Falls are conditioned upon the construction of regulating works in the Niagara River to avoid the wasteful outflow of the water of Lake Erie. The injury to the scenic grandeur of the Falls and the interference with the navigable waters of the Niagara River and Lake Erie, due to uplake diversions, and the injury and interference coming from periods of drought would be largely obviated by impounding in the lakes a portion the winter outflow. During the months of December to April, inclusive, enough water may be saved to hold the lakes to a proper and economical level to the betterment of navigation and yield a surplusage to partially offset diversions at the Falls. This is a practicable engineering proposition, but as the power companies are beneficiaries they should pay a fair share of the cost of the work (p. 75).

The desirability, as well as the justice, of amending the Burton Act so as to permit the Niagara Falls Power Co. to divert water to the full capacity of its tailrace tunnel are plain.

In view of the intimate bearing of this investigation upon the interests of the company, and as an acknowledgment of the helpful cooperation of the company, it is believed to be advisable to furnish the company with a copy of this report, and permission to do so is requested (p. 139).

[House Document No. 246, Sixty-second Congress, second session.]

As to the effects of diversions, to the extent at present authorized, on the integrity and proper volume of the Niagara River as a boundary stream, it is not apparent that the river through these diversions has suffered. The upper and lower river still continue to discharge approximately the same volume of water, the diminished flow being only over the cataracts and the rapids immediately above. Over this portion the stream, while appreciably decreased, still maintains sufficient width and depth to effectively delimit the boundary. Moreover, it remains impassable and continues to discharge immensely more than many of the smaller international boundary streams and has considerably more than double the flow of the St. Marys River.

It is determined that the total authorized diversion of the American companies, together with the present consumption of the Ontario company, will lower the depth on the American Fall about five-eighths inch and decrease the volume of flow about 5 per cent. As the lowering will result in unwatering little, if any, of the crest line, and as the decreased flow will be scarcely appreciable, it may be considered that the changes on the American Fall are unimportant (p. 12). In so far as the inspections disclose, the several companies diverting water in the United States from the Niagara River or receiving electrical power in the United States transmitted from Canada have at all times complied with the provisions of their permits (p. 15).

In conclusion, it is due to the several companies and their officers to express appreciation of their generous cooperation in making supervision easy and effective and of their courtesy in acceding to every suggestion or request from this office (p. 16).

No clause bearing upon scenic conditions was incorporated in the transmission permit of the Niagara Falls Power Co. (p. 18).

EXHIBIT A.

Monthly mean levels of Lake Erie referred to mean sea level at New York.

Year. Jan. Feb. Mar. Apr. May. June. July. Aug. Sept. Oct. Nov.

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1895 571.79 571.10 571.02 571.23 571.58 571.68 571.66 571.52 571.54 571.30 570.81 571.07 1907. 573.18 572.57 572.28 572.74 572.83 573.11 573.26 572.95 572.81 572.67 572.60 572.57 1908. 572.98 572.46 572.73 573.28 573.52 573.49 573.35 573.14 572.67 572.08 572.13 571.91 1910. 571.33 571.04 571.62 571.92 572.48 572.45 572.37 572.17 571.90 571.98 571.84 571.68 1911.. 571.36 571.05 571.08 571.20 571.78 571.89 571.90 571.87 571.30 571.33, 571.87 1571.67 1571.52

571.36

572.80

572.81 571.90

1 Assuming that December, 1911, will be about 0.2 below November, as has been the case in 1908 and 1910, the average mean level for 1911 will be 571.52, as given above.

Mean level of Lake Erie, 1860-1875, 572.8.

Mean level of Lake Erie, 1860-1895, 572.6.

Mean level of Lake Erie, 1895-1910, inclusive, 572. 13.

EXHIBIT B.

Lowering at crest of Horseshoe Fall with Lake Erie at level existing in 1911.

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NOTES RE REPORTS PUBLISHED IN SENATE DOCUMENT 105, SIXTYSECOND CONGRESS, FIRST SESSION, AND IN HOUSE DOCUMENT No. 246, SIXTY-SECOND CONGRESS, SECOND SESSION.

(By Mr. C. C. EGBERT.)

The actual facts relating to the effects of the diversions of water by the power companies at Niagara Falls upon navigation and the scenery are somewha confused and hidden by statements in regard to the effect of diversions from the Great Lakes above the Niagara River and in regard to the effec.s due to natural changes. Statements of opinions and prophecies as to future conditions also tend to diver the casual reader from reaching a correct conclusion. On the other hand, a careful analysis brings forth actual observations of results which show that the effects of the diversion by the power companies upon navigation and upon the scenery were at the time of the observations insignificant so small, in fact, as to indicate that further diversions by the American companies up to the limit provided by the international treaty of May 13, 1910, will be inappreciable to any but a skilled observer, using most refined methods of determination.

The determination of the effects of the diversions of water by the power companies at Niagara are largely based upon data obtained during the shutdown of the Niagara Falls Power Co. during part of July and August, 1908, as described in Chapter VIII in Senate Document 105. The effect of the diversion upon the water levels of Lake Erie is best determined by noting the effect upon the slope of the river between the Buffalo gauge and the Austin Street gauge at Black Rock. Quoting from page 28 of Senate Document 105, "The change in the discharge due to backwater effect at Black Rock is of much importance in this discussion because it is used in determining the lowering of Lake Erie due to river diversion."

In Table 40, on page 42 of Senate Document 105, are given the daily mean water-surface elevations between July 13 and August 6, 1908, inclusive, includ

ing days before, after, and during the shutdown.

The engineers of the lake survey compare these elevations by computing and correcting them for a common lake water-surface elevation, and determine therefrom that the diversion of 6,210 cubic feet per second from the Chippewa-Grass Island Pool results in a lowering in the backwater at Austin Street of 0.028 foot (about

inch). It is more direct, and perhaps more free from errors of method and of calculation, to note the effect by comparing the elevations of water surface at Austin Street on days of similar lake levels. This has been done below in Table No. 1 on days upon which the mean daily water-surface elevations, as shown by the Buffalo gauge, did not vary more than 0.02 foot. The lake levels shown by the Buffalo gauge being equal, the fall in the river between the Buffalo gauge and the Austin Street gauge in Black Rock indicates the discharge of the river. TABLE NO. 1.-Comparison of daily mean water-surface elevations taken from table No. 40 on page 42 of Senate Document 105.

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The effect of the diversion of 6,210 cubic feet per second from ChippewaGrass Island Pool, as shown by the above comparison, is 0.005 feet (less than one-sixteenth of an inch), an amount less than the probable error of observation and of the measuring instruments. This method of comparison, while showing a smaller effect, does not change the conclusion stated on page 49, namely:

"While the measurements of the lake survey have shown with certainty that changes in the outflow of the Niagara River have had no appreciable effect toward lowering Lake Erie in the past 10 years, it is equally certain that Lake Erie has already been lowered 3 to 4 inches by reason of the diversion of water tributory to the Niagara River through Chicago, Welland, and Erie Canals."

It may perhaps be surprising to those who have not given the matter careful consideration that observations of July 13 to August 6, 1908, did not indicate a larger difference in the discharge of the river due to the diversion. The reasons for the small differences may be explained as follows: The intakes of the Niagara Falls Power Co. and of the hydraulic company are located close together near the so-called weir at the head of the rapids and immediately below islands. and grass-covered shoals, so that water entering the intakes is diverted through shallow, tortuous, and weed-obstructed channels, which results in a localized lowering in the Chippewa-Grass Island Pool, which lowering reduces the flow over the so-called weir into the upper rapids by an amount approximately equal to the diversion.

While it is said above that the results as compared in Table No. 1 do not change the conclusion quoted from page 49, the difference, however, casts a shadow of doubt upon the predictions of the effect of further diversion, which predictions are based upon the lowering of backwater at Austin Street of 0.028 foot, due to diversion of 6,210 cubic feet per second.

28305-12-6

[Senate Joint Resolution 143, Sixty-second Congress, second session.] MEMORANDUM BY THE NIAGARA FALLS POWER CO. INDICATING INJURY TO EXISTING INTERESTS BY PASSAGE OF THIS JOINT RESOLUTION, UNLESS AMENDED.

This joint resolution purports to be an amendment of the Burton Act for the control and regulation of the waters of the Niagara River for the preservation of Niagara River and for other purposes, approved June 29, 1906, in view of the provisions of the treaty between the United States and Great Britain, proclaimed May 31, 1910.

By article V of this treaty, it is declared to be the desire of both the high contracting parties to the treaty that the limitation of diversion of waters from the Niagara River shall be accomplished "with the least possible injury to the investments which have already been made in the construction of power plants on the United States side of the river, under grants of authority from the State of New York, and on the Canadian side of the river, under licenses authorized by the Dominion of Canada and the Province of Ontario."

It is assumed therefore, that the controlling purpose of the treaty, as thus solemnly declared, is to be observed in the legislation of Congress with reference to the subject matter of the treaty.

The act of June 29, 1906, was adopted in consequence of a special message of the President of the United States asking and recommending legislation for the protection of Niagara Falls in anticipation of and without waiting for the negotiation of a treaty. Therefore, and in advance of actual demonstration of the necessity therefor, the act, necessarily complete in itself, imposed restrictions not only upon the diversion of Niagara waters within the State of New York, but also upon the amount of power to be transmitted into the United States from the Dominion of Canada and there developed from the Canadian Niagara waters.

Considering first the diversion of waters on the American side, it is to be observed that the several amounts authorized and permitted under the act of the Secretary of War, were as follows:

Niagara Falls Hydraulic Power & Manufacturing Co.
Niagara Falls Power Co-----

Lockport Hydraulic Co--‒‒‒

Total

Feet. 6, 500

8, 600

500

15, 600

This diversion of this amount of Niagara water from the American Falls has proved absolutely inappreciable to the naked eye of the disinterested observer. As to the Niagara Falls Power Co. it has been found that the computation of the waterways commission of 8,600 cubic feet per second was insufficient to furnish the flow of water actually in operation at the time that the waterways commission was in session, and also is unequal to the production of the 100,000 horsepower which the waterways commission intended to allow.

It is unnecessary to amplify this memorandum by references to the testimony but the printed report of the hearings before the Committee on Rivers and Harbors in 1906 (H. R. 18024) will fully sustain this proposition.

It being understood then that by the allowance of 8,600 cubic feet per second it was intended to provide for the existing requirements of 100,000 horsepower in use by the Niagara Falls Power Co., serious and unintended injustice has resulted to that company by the limitation of 8,600 cubic feet. Actual demonstration showed that the amount would yield only about 82,000 horsepower and that to produce the 100,000 horsepower intended for the Niagara Falls Power Co. it was necessary for that company to have 10,500 cubic feet per second. In other words, an increase of 1,900 cubic feet per second. This being added to the aggregate amount of 15,600 feet allowed upon the American side, would make a total of 17,500 feet.

Recognizing also the other necessities of the other companies on the American side the treaty raised the maximum limit to "a daily diversion at the rate of 20,000 cubic feet per second," which can not be diminished without inflicting serious injury upon the American companies and a consequent loss upon the entire communities and industries dependent upon these companies. This moderate and reasonable enlargement by the treaty has involved and would involve no appreciable injury to the navigability or the scenic beauty of the Niagara River and Niagara Falls.

Similarly the restrictions of the act of June 29, 1906, as to the transmissior of power from the Dominion of Canada are unnecessary since the ratification of the treaty, and by their continuance inflict great hardship upon the Buffalo and the Niagara frontier of the State of New York.

The treaty permits the Canadian development by the employment of 36,000 cubic feet per second and there can be no sufficient reason why the State of New York and the cities of the State of New York should be deprived of the use of any part of that Caradian power which can be spared from Canada. This particular amount is at the very beginning that which was in contemplation as being an amount entirely proper for development in Canada, and being just sufficient to meet the requirements of the agreements between the Queen Victoria Niagara Falls Park and the several Canadian companies as follows:

Canadian Niagara Power Co-
Ontario Power Co-----

Electrical Development Co----
Niagara Falls Park Railway Co

Welland Canal or its tenants (in addition to lock service)

Cubic feet.

9,500 12,000 11, 200 1,500

1, 800

36,000

This aggregate amount somewhat exceeded and exceeds the aggregate of 350.000 horsepower permitted to be transmitted from Canada into the United States by the act of June 29, 1906, but the provisions of that act authorized a larger importation than would be possible under the treaty if the Canadian use be subtracted therefrom. There is therefore no suggestion of any increase over the possibilities under the Burton Act, so called, but it is submitted that since the maximum of Canadian development has been fixed by treaty there need be no limitation whatever upon the possible benefit to the citizens of the United States from the free transmission into the United States of the power so devel oped in Canada.

It is to be observed also that the jurisdiction of Congress is limited to the regulation of commerce and the protection of the international boundary as such. These ends being safeguarded, the use of the waters for domestic or sanitary or power purposes is within the rights of the State of New York, and the riparian owners, the largest being the Niagara Falls Power Co., which owns more than 2 miles of the river bank.

By message upon Friday, February 17, 1911, the governor of New York called attention to the rights of the State of New York and to the necessity of avoiding monopoly in the use of these waters, points which should be recognized and protected. These considerations have led to the preparation of the annexed amendment to the pending joint resolution covering all these points and the objections of the governor of New York. It is respectfully suggested that without such amendment the joint resolution can not be adopted without great injury and injustice to interests which, as above set forth, it was the object of the treaty to recognize and to save from unnecessary injury.

FRANCIS LYNDE STETSON,
For the Niagara Falls Power Co.

[Senate joint resolution 143, Sixty-second Congress, second session.]
PROPOSED AMENDMENT.

At the end of the joint resolution, page 2, line 9, add the following: "Provided, That in fulfilment of the purposes of Article V of said treaty the several amounts of water of the Niagara River within the State of New York above the Falls which may be diverted under the said act, or under permits of the Secretary of War in pursuance thereof, shall be limited only so that the total diversion within the State of New York of the waters of said river above the Falls of Niagara for power purposes shall not exceed in the aggregate a daily diversion at the rate of 20,000 cubic feet of water per second, and that the Secretary of War shall have authority from time to time to grant revocable permits for such daily diversion in several amounts not exceeding in the aggregate said 20,000 cubic feet per second, nor to any one individual company or corporation as aforesaid a maximum amount at the rate of 10,000 cubic feet per second; such grants to be made and continued only with due regard to the

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