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?

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 expect 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 down

stream.

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. KILGORE. 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.

Mr. KILGORE. What page are you reading from?

Mr. SELDEN. Page 54.

Mr. FASCELL. Treaty Series 994, is that what you are in?
Mr. SELDEN. This is page 54, section (c).

Mr. FASCELL. That section seems to be pretty clear.

Mr. OSBORNE. Yes, sir, Mr. Selden. The reason for the first substitution, the substitution that was made by letter is that we wanted there to be no doubt that the State of Texas is the one that will make the distribution of water and that this would not under any circumstances be a responsibility of the Commissioner.

The intent is even more evident perhaps than as originally drafted. Therefore, our being perhaps extra cautious by this language is no attempt to remove from the right of Texas to distribute these waters or limit it, but trying to give the Commissioner some authority in case a question should arise where he couldn't actually deliver the

waters.

As I say, it is very difficult to conceive of such a situation. There is no hidden argument that we are not trying to remove any authority from the State of Texas, but we are trying to provide for possible contingencies. The whole intent of our original amendment is to give Texas the right to distribute these waters.

Mr. KILGORE. Mr. Chairman, I am thoroughly in accord with what Mr. Osborne says and certainly recognize that to be the intent of the Department.

I suppose that somewhere, born of caution in legislative matters, I have ordinarily approached these things from this view. Where an effort is made to anticipate a problem too frequently there is an interpretation, a subsequent interpretation of the language which is inconsistent with the original intent.

I am rather inclined to the approach of waiting until the problem arises, then attack it directly with authority which is spelled out specifically to handle the problem. That is the reason for my question. Mr. SELDEN. Are there any further questions?

If not, thank you very much, Mr. Osborne, for your statement. This morning we have with us representing the Federal Power Commission, Mr. Frank L. Weaver, Chief of the Division of River Basins; Mr. John C. Mason, Deputy General Counsel; Mr. Stewart P. Crum, Chief of the Section of Basin and Project Plans.

I understand Mr. Mason has a short preliminary statement and then these gentlemen will be available for questioning by the subcommittee members.

STATEMENT OF JOHN C. MASON, DEPUTY GENERAL COUNSEL, FEDERAL POWER COMMISSION

Mr. MASON. The Commission has not been requested to report on H.R. 8080, the bill under consideration here; therefore, the Commission has taken no position on the bill. However, as part of our work with the other agencies, the Commission was requested to make a report on a report entitled "Proposed Diablo Dam and Reservoir," dated September 1958, prepared by the U.S. Section of the International Boundary and Water Commission of the United States of Mexico.

That letter was transmitted to the Honorable John Dulles, Secretary of State, on December 16, 1958.1 That letter is printed at page 138 of Senate Document No. 65, 86th Congress.

I understand there has been some question raised in the testimony here with respect to the Commission's interest in this dam. In that regard, I would like to point out, I won't go into detail unless there are questions, that we consider the Commission has authority for a report of this type pursuant to section 4(a) of the Federal Power Act, also section 4 (c)-section 4 (c) and section 311.

In addition, section 4 of the 1938 Flood Control Act, as does section 10 of the 1944 Flood Control Act, contemplates construction of penstocks in flood control dams upon recommendation of the Chief of Engineers and the Federal Power Commission. That is a specific statutory authority for our reporting in power matters.

Other than that, Mr. Chairman, we have nothing further to say unless there are some questions.

Mr. FASCELL. Is your responsibility mandatory or discretionary? Mr. MASON. It is discretionary.

Mr. FASCELL. The Commission acted on request of the International Commission?

Mr. MASON. Acted on request of the Assistant Secretary of State.

STATEMENT OF FRANK L. WEAVER, CHIEF, DIVISION OF RIVER BASINS, BUREAU OF POWER, FEDERAL POWER COMMISSION

Mr. WEAVER. In the earlier stages the International Boundary Commission called upon the Commission's regional office in Fort Worth for its views in respect to marketing the power.

Mr. FASCELL. This is how the Federal Power Commission report came about?

Mr. WEAVER. Yes, sir.

Mr. FASCELL. What you are saying, Mr. Mason, is under the citations you have given us, the Commission has the authority to make this report?

Mr. MASON. Yes.

Mr. WEAVER. I think it should be made clear, Mr. Fascell, the Commission's report of December 16, 1958, was in response to a direct request from the Department of State.

Mr. FASCELL. Do we have that report? Is it part of the Senate document?

Mr. SELDEN. It is on page 138.

Mr. FASCELL. That is all there is to the analysis by the Federal Power Commission?

Mr. WEAVER. There are two things, Mr. Fascell. The regional office of the Federal Power Commission sent a letter to the International Boundary Commission and that statement will be found on page 81.

Mr. FASCELL. That is from Edgar S. Coffman to the International Commission. The other is a letter which you have mentioned, from the FPC to the Secretary of State, appears on page 138 of the Senate Document.

1 See app. II, p. 260.