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be regarded as an experiment. It has worked. It is today a model for study and emulation by other countries confronted by a similar need. The two countries are indeed fortunate that they have this international body to undertake the Amistad Dam project, which is still another and even greater project in international cooperation and in joint development of an international river.
The Department of State is most appreciative of the committee's evident willingness to give this bill and the Amistad Dam some measure of priority. We shall be glad for any opportunity to assist the committee in its consideration of the project. Commissioner Hewitt has testified for both the Department and the United States part of the International Commission. Departmental officials will be available to assist him and the committee in any possible respect.
Thank you, Mr. Chairman.
Mr. Selden. Thank you very much, Mr. Osborne.
I note that the Bureau of the Budget, in its letter of September 2 to the Secretary of State, which is on page 151 of Senate Document 65, stated it would reserve comment on the Department's proposed amendment to section 3, saying that it had requested the views of the Department of Justice.
Do you know whether or not those views have been obtained and, if so, whether they were received by the Department of State?
Mr. Osborne. They were received very late last week. They made only the comment that if the first perfecting amendment that I have suggested here were introduced into the bill, they would find the bill satisfactory. So this perfecting amendment meets
Mr. Selden. If the perfecting amendment that you have suggested is included in the bill, then your original amendment to section 3 is satisfactory with the Bureau of the Budget?
Mr. Osborne. Yes, sir.
Mr. Selden. Mr. Fascell.
Mr. Fascell. No questions.
Mr. Fisher. I would observe as far as the author of the bill is concerned, I can think of no objection that would be made to the suggested amendment as that has been described.
Mr. Selden. Is that also true as far as the suggested amendment is concerned?
Mr. Fisher. I haven't studied that, but I think so.
Mr. Selden. Mr.Kilgore.
Mr. Kilgore. Mr. Chairman, in the first place, I think the statement is a very fine statement. The amendment which modifies it, I take it, would modify the authority of State with respect to the release of waters and is one I am not sure that I understand the full import of.
I wonder if you would tell me right where it appears again so I can write it in here?
Mr. Selden. Mr. Kilgore, if you have a copy of the committee print, you will find the suggested amendments have been written in in italic. You may be able to follow it better if you will refer to the committee print.
Mr. Ktlgore. Mr. Osborne, do you have any idea what would be the nature of a request which would not be practicable or practical?
Mr. Osborne. It is at least theoretically possible that the State of Texas might ask for more water than there was available in the dam for release for irrigation purposes.
Mr. Kilgore. Is that the only contingency that you are seeking to approach here?
Mr. Osborne. To be perfectly honest, it is not directed to any particular contingency. This is the only one I could think of. The problem here is that the Commissioner has responsibilities regarding the release of water for various purposes, hydroelectric power, flood control, irrigation. As it appears in this original print, it would appear that he would have to release water on every occasion when the State of Texas asked him to. Obviously you couldn't require him to release water when it isn't practicable to do so.
If that wasn't specifically stated in the draft—that is the only contingency that I have thought of. Maybe you know of others.
Mr. Kilgore. I know of no others. I was thinking if that is the only one, perhaps it could be approached with more clarity by making the limitation whenever available or whenever water was available, so there would be no possibility that some years hence there could be an interpretation that the limitation is broader than is now intended.
Mr. Osborne. The only difficulty is that we don't know what will happen in the future. The Commissioner, as far as release of water for irrigation purposes is concerned, is obviously going to follow the desires and needs of Texas. If we bind him too much in this respect, events might arise that we can't now anticipate.
Mr. Kilgore. Do you know whether or not such events have arisen with respect to the operation of Falcon?
Mr. Osborne. I don't believe they have.
Mr. Kilgore. The question occurs to me, the treaty limitation which in the first part of your statement you make reference to, the limitation on the authority of the United States and the recognition of the vesting of that authority by treaty in the State of Texas, is it not possible that the limitation you are now suggesting may be inconsistent with the original treaty provision and with your objection to the language of the bill which seeks to place some U.S. control over what the treaty recognizes as a purely State authority?
Mr. Osborne. I don't believe so. What we are talking about here, it seems to me, is more mechanics than substance. The mechanics of how the Commission may release at given times and so forth is something that we can't anticipate 50 years hence.
However, the intent of both the bill and the treaty is that Texas shall make the distributions of the water and there is no question whatsoever about that.
Mr. Kilgore. Mr. Chairman, I wouldn't want to belabor the point at this time. I think perhaps it might be well to note that I don't think that the courts have ever indicated there should be a construction placed upon language which would require an officer to do something which cannot be done, which is inconsistent with matters of practicality as to life and safety, and I would prefer to have an opportunity to discuss this further with the committee.
Mr. Fascell. That raises a question. I haven't seen the treaty provision. If it involves the use of water that would be available and the determination of the discretion on the Commissioner as to whether it is to release it on demand to the State of Texas, I think it is something that we should get straightened out right away. It either must or need not.
Mr. Selden. We will have to go into this matter very thoroughly. If the Department would like to comment further on it now, I think it would be appropriate to do so.
Mr. Fascell. It looks like more substance to me than procedure. It involves the question of the demand on water and the title to the water.
Mr. Osborne. The title of the water until released, of course, is U.S. water. As soon as it is released, it is Texas water.
Mr. Fascell. Does the Commission have the sole authority to release the water?
Mr. Osborne. I believe so, as requested by the State of Texas. He has to be guided by the State of Texas.
Mr. Fascell. You mean it can only release on demand?
Mr. Osborne. Commissioner, would you like to comment on this point I
STATEMENT OF COL. LELAND H. HEWITT, COMMISSIONER U.S. SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO
Colonel Hewitt. Insofar as our operations in connection with Falcon are concerned, I don't think we have ever had any conflict with the using agencies on the waters which are released from Falcon. I don't anticipate we are ever going to have any on the releases to be made from Amistad.
Insofar as releases are concerned from Amistad, we would expert to make releases in accordance with the demands from the State of Texas. We would reserve, however, the privilege of making additional releases when it would not be detrimental to the users in the State. • •
Mr. Fascell. That makes three qualifications I have heard. Is this what you are doing, Colonel, with respect to the waters at Falcon? You release pursuant to demand but reserve the right to release whenever you want to?
Colonel Hewitt. That is not true in Falcon because that is the end of the line. We release at Falcon only for irrigation purposes downstream.
Mr. Fascell. On demand?
Colonel Hewitt. Yes. At Amistad the situation would be somewhat different in that Falcon is a recapture reservoir from which water can be released for the use of people downstream. Amistad releases could be used to generate further power when it would not interfere with the agricultural use of the water going down the river.
Mr. Fascell. You would release on demand, but reserve the right to release otherwise?
Colonel Hewitt. That is correct; yes, sir.
Mr. Fascell. Now, the question is whether or not that is pursuant to legal authority or is that an interpretation?
Mr. Kilgore. The additional authority that the Commission has to make releases at Amistad at times other than those requested by the State of Texas is an entirely different thing, I think, than that of restricting the release authority of the State.
As I would interpret the amendment, it would propose to place a limitation on the authority of the State to request releases and have that request complied with.
As I understand the situation which Colonel Hewitt presents, he presents a situation in which he is not concerned with the limitation, not concerned with seeking authority not to release when the State requests it, but wants the authority to release at times other than when the State requests it.
Mr. Fascell. You have two propositions.
Mr. Kilgore. I think it would be a somewhat different matter. I think clearly no one would want to interfere with his authority to release water from Amistad for recapture at Falcon in accordance with whatever his orderly procedures are. I am not sure that would be the effect of the amendment.
Mr. Fascell. You are concerned about restrictions on the mandatory delivery of water?
Mr. Kilgore. When so requested by the State.
Mr. Fascell. Let's find out.
Colonel Hewitt. I would like to amend my statement to a slight extent.
During flood periods naturally, for the protection of the dam, additional releases have to be made which cannot be used for agriculture, but to safeguard the community and to protect against loss of life and property we have to make these releases which are not requested by the people in the valley.
I think they have confidence enough in our Commission so that they feel that our method of operation along those lines is satisfactory.
Mr. Kilgore. That is certainly true, Mr. Chairman.
I think there has never been any question raised with respect to the authority of the Commission to release those waters.
Mr. Fascell. Colonel, how about this question of whether or not you have discretionary authority to withdraw or withhold if a request is made?
Colonel Hewitt. That has never been done.
Mr. Fascell. Do you have the authority?
Colonel Hewitt. I don't consider we do if we have the water available.
Mr. Fascell. You must deliver on demand if you have water available?
Colonel Hewitt. Yes.
Mr. Selden. Does this amendment provide you that authority?
Colonel Hewitt. I would think that was the intent of the amendment. However, as I stated before, we have never had any difficulty along those lines and I don't anticipate any in the future.
Mr. Selden. Are there any further questions while Mr. Osborne is available?
Mr. Fascell. Yes. I don't want to ask him particularly, but my native curiosity is aroused as to why you have to provide this authority at all.
Has some question been raised? Is there a matter of technical procedure in operation which is involved here which couldn't arise inother cases? Are we being super-cautious? Why are we doing what we are doing in the way of the suggested amendment? Is it feared that the existing authority leaves discretion in the Commission to refuse delivery upon demand?
Mr. Osborne. I am sorry, I didn't follow that. Our fear is that the section as we originally proposed it ourselves, understand this is the State Department recommendation, was too limiting on the Commissioner in case the demand of the State of Texas for reasons quite beyond anybody's control could not be complied with.
Mr. Fascell. The original amendment was too restrictive and your modification is to expand it?
Mr. Osborne. That is correct.
Mr. Fascell. That is interesting.
Now, I have to get back to the need for the original amendment.
Mr. Selden. Can you throw any additional light on that point for Mr. Fascell as well as the other subcommittee members?
Mr. Fascell. Thank you. I hate to feel so naked and alone.
Mr. Osborne. Perhaps I could ask the Commissioner to help me on this one, too. Do you care to comment on that, the original amendment that the Department of State made?
Colonel Hewitt. I don't have a copy of that amendment.
Mr. Fascell. Are we talking about section 3 now?
Mr. Osborne. Yes.
Mr. Fascell. Let's start from the very beginning. Did the Department submit this legislation?
Mr. Selden. The Department recommended the amendment.
Mr. Fascell. I am talking about the whole bill. I thought it was a departmental recommendation in the first instance.
Mr. Fisher. No.
Mr. Selden. H.R. 8080 is Mr. Fisher's original bill, and the committee staff has drawn up a print which has included in it the amendments that have been suggested by the executive branch of Government.
Mr. Fascell. As I read the original section 3, that was a protective clause for existing users, am I correct?
Mr. Fisher. I think that is a fair statement.
Mr. Fascell. Now it is proposed to strike that out. That means the Department doesn't feel you need a protective clause and proposes something else.
Mr. Ktlgore. I wouldn't want to state what the Department's position would be. They are better able to state it. I think their letter indicates that they think such a clause in the bill would perhaps be inoperative because of the treaty provisions. At least it would be out of place. Their letter of transmittal indicates that.
Mr. Selden. Mr. Osborne, is this suggested amendment to section 3 related to section (c) of the Senate understanding which gave their advice and consent to the treaty?
Section (c) reads—
that nothing contained in the treaty or protocol shall be construed as authorizing the Secretary of State of the United States, the Commissioner of the U.S. Section of International Boundary and Water Commission, or the U.S. Section of said Commission, directly or indirectly to alter or control the distribution of water to users within the territorial limits of any of the individual States.