laws of Texas and by virtue of long and continuous beneficial use. Certainly, there is no justice, at this late date, in a Federal agency capturing our source of water and demanding payment for its release, particularly when that agency cannot guarantee the delivery of water to any given user.

We have not asked the Federal Government to construct Amistad Dam. In fact, if it were not for the humanitarian consideration for life and property in the Del Rio-Laredo reach of the river, we would be here vigorously opposing the construction of any type of dam at the Amistad site.

It would be sheer nonsense for the people of my district to participate in the cost of construction of a dam 500 miles away without any assurance that we would ever receive any of the benefits from that dam. In the first place, conservation storage in Amistad Dam is not economically feasible until all other more favorable locations are developed. We have heard testimony here that the cost of conservation storage in Amistad Reservoir would cost $12 million, and that this storage space will yield only about 86,000 acre-feet additional water per year on the average.

The U.S. Section of the International Boundary and Water Commission has prepared a report on the feasibility of constructing three channel storage dams along the Rio Grande below Falcon Dam. This study shows that a system of three small dams in the river channel below Falcon Dam, costing about $72 million would yield about 140,000 acre-feet of additional water per year on the average.

While the channel storage dam project shows a benefit cost ratio of about 7.5 to 1, it cannot be financed and constructed at this time because of the unsettled litigation of water laws in Texas.

We believe that the inclusion of conservation storage space in the Amistad Dam project is an obligation of the Federal Government under the terms of the 1944 Treaty with Mexico. In the treaty of 1944, the Governments of the United States and Mexico agreed to jointly construct a series of dams and reservoirs which would provide maximum development of the water resources of the Rio Grande. fail to see why the water users on the Rio Grande are obligated in any way to make a greater contribution toward fulfilling a treaty obligation than any other section of the country.

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In conclusion, let me briefly summarize the position of the people my area.

First, we are opposed to payment of any kind for the privilege of diverting water from the Rio Grande because:

(1) We have already established a right to divert water from the Rio Grande under the laws of Texas and by virtue of long and continued beneficial use;

(2) A contribution to the cost of Amistad Dam would not guarantee the donor any of the benefits of the project.

Second, we believe that the construction of Amistad is an obligation of the Federal Government under the terms of the 1944 Treaty with Mexico.

Gentlemen, I appreciate the opportunity of appearing here before this committee and conveying to you the thinking of our people in regard to the Amistad Dam project.

Thank you.

Mr. SELDEN. Thank you, Mr. Parish.

Are there any questions?

Thank you Mr. Smith and Mr. Parish.

Mr. Kilgore, will you introduce your next witness.

Mr. KILGORE. The next witness is Mr. Paul Y. Cunningham of Brownsville, who is the attorney for Cameron County Water Control and Improvement Districts 5 and 6, of Brownsville, and Los Fresnos, Tex., respectively, and Cameron County Fresh Water Supply District No. 1 of Port Isabel. Mr. Cunningham has also been active in the water litigation that has been described to the committee.

Mr. SELDEN. Mr. Cunningham, we are happy to have you appear today. You may proceed.

STATEMENT OF PAUL Y. CUNNINGHAM, BROWNSVILLE, TEX., ATTORNEY FOR CAMERON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICTS 5 AND 6, AND CAMERON COUNTY FRESH WATER SUPPLY DISTRICT NO. 1

Mr. CUNNINGHAM. Gentlemen of the committee, you have my printed statement and in it I have set out on page 5 of it, the suggested new section 3, with some brief amendments we have suggested, and in my printed statement I have underlined on pages 5 and 6, in that portion of it, the additional words that we have added in it.

I simply state this for easy reference. I do not know whether the section that Mr. Kilgore printed underlined the changes or not.

Gentlemen, my name is Paul Y. Cunningham. I am a practicing attorney at Brownsville, Tex. I am 52 years of age; I have been a practicing attorney for 29 years.

Mr. Kilgore has stated the water districts I represent. Water District No. 5 is the last pump to take water from the Rio Grande River.

On the map you can see where the river makes a sharp loop to turn back north. The No. 5 pumps are just above that sharp loop and you can see how far down we are.

I would like to discuss briefly and concisely with you gentlemen of the committee, in connection with your hearings on H.R. 8080, certain basic facts dealing with:

(a) The lawsuit in the 93d State District Court of Texas, in which the conflicting claims between "riparian claimants," and "appropriative claimants" will be settled and determined under the laws of Texas, as to the waters impounded and released from Falcon Dam, in the four Texas Counties of Starr, Hidalgo, Willacy, and Cameron, which form the lower Rio Grande Valley; and

(b) The control and distribution of the waters from Falcon Dam now being carried out by the court and which is being paid for by the water users in the lawsuit; and

(c) A brief suggested amendment to section 3, of H.R. 8080, in keeping with the stipulation under which the State of Texas approved the feasibility report on Amistad Dam.

BACKGROUND OF THE LAWSUIT

In 1949 the four Texas counties forming the lower Rio Grande Valley began suffering severe shortages of water available in the Rio Grande River. This became progressively worse. In 1951 it became catastrophic. For example, Brownsville, a city of 38,000 people, had water for not more than 48 more hours, after which it would be without sufficient water to even maintain pressure in the water mains for fire protection, and sanitary purposes.

To digress on that, the hospital at which time a member of my family was in had water for only 24 more hours. They were on a small main which had trouble and they had water for only 24 hours and it was the only hospital serving the city in which I live.

The same was true, to a somewhat lesser, but still serious extent, in all other cities and towns in the valley. A first suit was filed in Brownsville, in the 103d State District Court, in 1951, asking that the court take into its judicial custody and control the small amount of water then flowing in the river, and to distribute it for essential domestic uses for the preservation of life and health of the peoples on the farms, and in the cities and towns. This was done by the court. Thereafter, most of the water users in the four counties entered into a voluntary agreement for the allocation, distribution and policing of the available water in the Rio Grande. To do this we hired a water master, and paid all of the costs of this voluntary program. Please remember, at that time, the same as now, the Rio Grande River is the lifeline of all the lower Rio Grande Valley. Without it, and its water, we cannot possibly survive.

Our voluntary program of proration of the river water remained in effect even after Falcon Dam went into operation. Falcon Dam became operable in August of 1953. In September of 1953, we had the terrible hurricane that swept up through Mexico and up to the reaches of the Rio Grande, which flooded the upper river cities and towns, but which did bless us by filling Falcon Dam to its capacity 2 years ahead of schedule. After that, however, we did not have our normal inflow into Falcon, and by midsummer of 1956 we were down to the last 50,000 acre-feet of U.Š. water in Falcon Dam. And that is when our pending lawsuit was filed in the 93d District Court in Hidalgo County.

The 1956 lawsuit was originally filed by several of the cities and towns in the lower valley, asking the judge of the 93d District Court to take the last 50,000 acre-feet of water in Falcon Dam in his judicial custody and control, and to distribute this water solely for necessary domestic use, in fair proportion, to all the people in the four counties. The presiding judge of that court, after hearing, entered such order. Thereafter, the State of Texas intervened in this lawsuit, asking the court to take all of the U.S. share of water in Falcon Dam, and the river, into its judicial custody and control, and to determine those lands and people lawfully entitled to the water under the law of the State of Texas. Concurrently therewith, certain water districts and individual landowners also intervened as plaintiffs requesting the same things requested by the State of Texas; and these plaintiffs laid claim to the waters of the river under what in the Texas law are known as "appropriative rights." The appropriators

alleged, in substance, that certain other water districts, lands, and individuals, in the four counties, claimed the normal flow of the river as "riparian" owners, but that their "appropriative rights" were on the same, or better, footing as "riparian rights," and they named as defendants a large number of riparian claimants, both individually and by class. The individual and class defendants, and other intervening defendants, then made their claims as "riparians," asserting in substance their claims to the normal flow of the river as part of the title to their lands.

Eventually, after all parties were made, there were and are now about 500 named parties in the lawsuit, including water districts, individual farmers, water users, and cities and towns; and there were about 400,000 acres of land specifically described in the lawsuit, with the entire 750,000 acres of irrigated land in the lower valley involved by class, and about another 1 million acres claiming some water right but not then under irrigation because it was not in a water district, or had not facilities to take water from the river, or being not suitable for irrigation at that time.

THE BASIC CONTENTIONS AS TO WATER RIGHTS IN THE LAWSUIT

Basically, the lawsuit resolved itself into two contending forces. On the one hand were the appropriators, who were generally the plaintiffs, and on the other hand the riparians, being generally the defendants. The basic claims of these two contending forces can be crystallized as follows:

(1) The riparian claimants asserted their claims under longestablished cases in Texas which have held that lands which were originally granted by the Spanish or Mexican Government when Texas was under either or both of those nations, and abutting on the Rio Grande, carried with them as part of the title, the inherent right to satisfy the normal needs of that land from the normal flow of the water, leaving sufficient flow to satisfy the normal needs of other riparians below him; and that riparian rights, being inherently part of the title of the lands, were superior to appropriative rights.

(2) The appropriators claimed rights in the water of the Rio Grande under various statutes of the State of Texas enacted after Texas became a republic in 1834. Most of the statutes providing for appropriation of waters of the Rio Grande were enacted in the early 1900's. These first provided for a system by which the owner of land would file a certified filing in the office of the county clerk of the particular county.

To digress at that point, the district 5 which I represent was originally under a certified filing in which a number of individuals stated in substance "We are joining together to build a canal for a certain area of land, and we hereby certify that we are going to serve 25,000 acres of land located in the eastern end of the Espiritu Santo grant in Cameron County, Tex., and that we will take annually from the river between 50,000 to 100,000 acre-feet of water."

They filed that only in the office of the county clerk in the county seat and that was known as a certified filing because up to that time the State had not enacted what we know as our appropriative statutes.

So that we became a certified filing, which has the same status, when I talk about it to you, as an appropriative right. This certified filing simply claimed a definite number of acre-feet of water from the Rio Grande and recited it was claiming this water to be used to irrigate several thousands, or several hundred thousands, of acres of lands which were usually described only in a general fashion and not with specific boundaries. Later the State of Texas required such filings to be made with the State Board of Water Engineers. By the same statutes, the certified filings theretofore filed were all validated, or at least were left without hindrance as they then existed. Under these later statutes, which are still to the same effect to this day, an application was made to the State Board of Water Engineers to appropriate so many thousands of acre-feet of water, annually, from the Rio Grande for a specified acreage. These were almost always uniformly granted in the early years, with the result that the U.S. share of water in the Rio Grande has been overappropriated three times in the State of Texas. In recent years, the State board has granted but few applications.

The above is an oversimplification of the basic facts and issues. To illustrate, it has been many times stated by the leading officials and lawyers of the State of Texas that the water lawsuit filed in 1956 in the 93d State District Court, which is still pending, is the most important and far-reaching piece of litigation concerning water rights that has been tried in the State of Texas; and it is a reasonable and fairly accurate statement that we have spent, and will spend, over $2 million in court costs, fees of the special water master and his staff, and fees and expenses paid by the various water users in this litigation. We are having a hard time paying the cost of the lawsuit, but it is a price we know we have to pay, someway, somehow. We learned a bitter lesson in the bad years in the late forties to 1951 when there was not enough water, and no control of what we had.

CONTROL OF DISTRIBUTION OF WATERS OF THE RIVER

Mr. Fascell, I will try to answer some of your questions as soon as I talk a little bit about the control, if I may please, sir.

From our previous bitter experiences we had learned how essential it was to control the distribution of the waters of the river, to the various claimants. In the pending lawsuit in the 93d District Court, a Special Water Master was appointed, he being the same water master who had acted in that capacity under our voluntary proration prior to 1956. We know our Special Water Master to be a man of rare ability and impartial judgment. Under orders of the court, the Special Water Master allocates, distributes, to the various water users in the lower valley, embracing some 750,000 acres of land for irrigation, and all the cities and towns, the U.S. share of waters in Falcon Dam. Using the lawsuit as our vehicle we have thus preserved the status quo since 1956, and each claimant to water has received his pro rata share of water from Falcon Dam. Undoubtedly the final judgment in the lawsuit will determine some claims to water as being substantially inferior to others, and some as not being proper claims; but pending that final judgment, all of us contenders, whether riparian or appropriator, were all agreed that there must be an orderly distribution of