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Mr. Selden. Could I ask you a question at this point, Congressman Kilgore, since you have brought up the subject of the suits that are now pending? In your opinion, what effect, if any, will those suits have on the operation of the Amistad Dam?
Mr. Kdlgore. Depending upon the nature in which the legislation is drawn, it could have no effect or it could have a very considerable effect.
If the legislation here is drawn somewhat on the principle in which the Falcon authorization is drawn, I think it would have none, because Falcon was built and has been in operation while this situation with respect to water rights pertained. If, on the other hand, there were written into this legislation a requirement for repayment, I think necessarily there is no one now who could sign a contract for repayment with any knowledge of what his rights to water may be. He has his own claims, which claims are now in court. He has considerable hope. To be able, though, to contract, he would, of course, have to have a right which he knows to be legally definable.
If the legislation were drawn in such a manner that the right to use of that storage could be in effect bought by someone with color of claim to water, then I think the situation would evidently be chaotic because you would then open up to a promoter the opportunity to come in and purport to buy storage in this structure and thereby to divert water, you tie up, I think a far more difficult legal issue in the pending litigation and probably force the active opposition of hundreds of thousands of people to that type of legislation.
If the situation with respect to the litigation develops in such a manner that the riparian owner has a right to divert his share of the ordinary flow of the river, as is now the position of the Supreme Court, then I know of no way in which his water can be impounded, or he could be charged for the diversion of it because he has under present decisions the right to that water being flowed past his property at all times and the right to divert his fair share of it.
Mr. Fascell. In other words, your position is then that the U.S. Government technically, because of the situation of Falcon, is rendering a service, but can't make a charge for it, legally?
Mr. Kilgore. That certainly is true.
Mr. Fasceix. Anything else would amount to condemnation for which the title owner would be entitled to some type of reimbursement from the Government?
Mr. Kilgore. That is true. There is certainly a very strong legal position, that before you could impound that riparian water you would have to go in and condemn the property right that each landowner has in that riparian water, the United States would, before it has a right to impound it.
If the impounding of it then will require charge to that riparian before it is released
Mr. Fascell. That also brings up a very interesting converse proposition which is, then if the Government is going to build and impound, it must get releases from all of those who have any color of title.
This legislation doesn't contemplate that and it wasn't done at Falcon. That raises an interesting legal point. How did we doit?
Mr. Kilgore. At Falcon? Under the circumstances of no payment requirement
Mr. Fascell. Consent is assumed?
Mr. Kilgore. Under the treaty provision which gives to the State of Texas the privilege to request the release of waters, such waters as may be impounded in Falcon, which perhaps would have been riparian water, may be released upon application of the board of water engineers to the Boundary Commission, the riparian then has his recourse in his request for releases, if in fact there are riparian waters impounded.
Of course, that issue is one of the issues which of necessity must be tried out in the litigation that is now underway. To indicate the extensiveness of it, I think the court costs exceed well over a million dollars.
Mr. Fascell. What you are saying in effect is that under the present setup, the riparian owner can get some water by virtue of a procedure which has been set up and to which he has not actually complained, therefore there is no claim against the United States. I don't know that that necessarily follows.
Mr. Kilgore. The United States has disclaimed any authority by which it impounds waters and retains those waters against a request from the State of Texas. The United States disclaims any obligation to the owner by saying, "Under the treaty the release of those waters is wholly within the province of the State of Texas."
Mr. Fascell. That gets back to this other discussion that we had earlier in connection with the operation of Amistad by the Commission, and that is whether or not it would be mandatory or discretionary, Mr. Hughes, without any conditions. I didn't understand that was the case.
Mr. Kilgore. You did understand from Colonel Hewitt's testimony in the operation to this point the waters had been released upon the request of the State of Texas?
Mr. Fascell. Yes.
Mr. Kilgore. I think if you create a situation which is different from that, you then put the United States in the position of defending against the claim.
Mr. Fascell. That was the point I was making. I had understood earlier there was some reservation as to the mandatory nature of the release of the waters.
Mr. Kilgore. In addition to the treaty obligation, there is a valid reason that the United States does not want to assume that obligation.
Mr. Fascell. Because of the fact when you construct the structure you are impounding. Whether you do it with consent or without consent is a pure legality.
Mr. Kilgore. What you have here is a situation in which you have a severe flood problem and the treaty of the United States with Mexico to build this structure does dictate that despite these other problems,■ the legal problems arising out of water rights, that the structure proceed and be built rather than waiting for whatever period of time would be required while these very knotty problems are sought to be ironed out.
Mr. Fascell. I want to get more basic, as I become familiar with, this problem, and that is whether or not in this legal position there is a. recognition of a public right in the U.S. Government to any of thewaters.
Mr. Kilgore. Somebody else might answer that better than I could.
Mr. Fascell. Apparently there may not be any. Then we are assuming that there is a public responsibility only, and that is based on the damage to life and property. This is the only public nature as far as the U.S. Government is concerned.
Mr. Kilgore. And the treaty obligation.
Mr. Selden. In connection with Mr. Kilgore's statement, let me ask you this: Did the Bureau of the Budget take into consideration these pending suits when it made the recommendation that there be repayment of water supply and irrigation cost?
Mr. Hughes. As far as I know, we did not specifically, Mr. Chairman.
Mr. Kugel. I think we were aware of the existence of these suits and of the general difficulty on water rights in the basin. I think what we were expressing was a general policy which has been followed for water resource projects.
Mr. Selden. Did you apply it to this specific case, with the implications that he pointed out?
Mr. Kugel. No, sir.
Mr. Selden. Do you think that would have any effect on your recommendations?
Mr. Hughes. I feel, Mr. Chairman, we would be inclined to have our recommendation stand anyway. We would recognize that there are complexities here, perhaps pretty serious ones. It seems to me, however, that an equitable allocation of cost could be worked out, given the assumptions and presumptions
Mr. Selden. I would like to request that the Bureau of the Budget look into this matter further and give us additional information in view of the water rights in the basin and the pending lawsuits.
Mr. Hughes. We will be glad to do that.
Mr. Fascell. I would like to approach it from this standpoint: I can see how you can't charge a man for water he already owns. I can see how you could charge him for a service that he is not now getting.
I would like to determine if there is any feasible method under current procedures where such a determination can logically and reasonably be made. In the present situation above the Falcon Dam, anybody who is a water user—when the structure is built you will have a regulation that does not exist. If this is worthless, then we ought to know it.
Mr. Hughes. Well, we will attempt to work with the Department and reconsider this.
Mr. Selden. Are there any further questions?
If not, sir, we want to thank you for your statement and for the information you have given us. It may be that we will have to call on you again.
Mr. Hughes. Thank you. I would like to make two additional comments: First of all, I want to make it clear that, as I believe the Department of State representative has stated this morning, the President has urged that legislation to accomplish the purpose of H.R. 8080 be enacted and Ave accordingly strongly urge enactment of suitable legislation.
The second thing I wanted to mention was this: There has been no discussion of our first recommendation and I am not sure what this means. We consider this point of very fundamental importance in connection with this legislation. I think the most cogent way of indicating our concern here and the President's concern, is to make reference to the President's budget message language dealing with a similar requirement in the defense area where he has specifically requested its removal.
I can cite you the message if you would like and read it for your record.
The language is on M-18 of the budget message as printed:
In the budget message for 1959, again for 1960. I recommended immediate repeal of the section 601 of the Act of September 28, 1951 (65 Stat. 365). This section prevents the military departments and the Office of Civil and Defense Mobilization from carrying out certain transactions involving real property unless they come into agreement with the Committees on Armed Services of the Senate and the House of Representatives. As I have stated previously, the Attorney General has advised me this section violates fundamental constitutional principles. Accordingly, if it is not repealed by the Congress at its present session, I shall have no alternative thereafter but to direct the Secretary of Defense to disregard the section unless a court of competent jurisdiction determines otherwise.
Mr. Fisher. Perhaps I should make some comment on that. I put that in the bill on my own initiative.
There is some precedent for it. I would not want to persist in it. It is being done with some other committees now, as you know. The Public Works Committee is doing it, and others. As far as I am concerned, as author of the bill, I would not persist in it at all. I realize the validity of the President's point.
Mr. Fascell. What you are saying, in effect, is if the Executive is going to execute the contract, let him do it; and if we want to put conditions and terms in the law, let's do that and quit beating around the bush.
Mr. Hughes. That is right.
Mr. Fascell. If we want to insist that one of the provisions in the contract shall be that if a lease is made to a private utility that there shall also be a wheeling provision to REA's, we had better spell it out in the law and not beat around the bush.
Mr. Hughes. Yes.
Mr. Fascell. This other way is a sort of a backdoor approach which is not good for anybody.
Mr. Hughes. That is right.
Mr. Selden. If there are no further questions, thank you very much, Mr. Hughes.
Colonel Hewitt is still with us and ready to answer any questions that the committee members might propound. Since he has been answering questions all along, it may be that most of the questions that have come to mind have been answered.
If there are any further questions, I know he will be glad to give us the answers to them.
Mr. Fisher. By way of clarification a little bit further, since the subject has not been presented in question form to Colonel Hewitt: In regard to the incremental issue, I would like to have the benefit of the colonel's ideas about that. He has been in this business a long time. I do know there are a number of precedents for it. I do know that this project is quite different from many of those the Budget Bureau evidently had in mind, in that it is primarily flood control as spelled out in the treaty.
I would like to ask Colonel Hewitt if he has any comment based upon his experience in the past and his knowledge of the peculiar situation applicable to this particular project as to whether the incremental method may properly be applied?
STATEMENT OP COL. LELAND H. HEWITT, COMMISSIONER, U.S. SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO
Colonel Hewitt. I believe the incremental method has been used •on many different occasions of which we can cite a few. Whether or not the incremental method should be used here is up to the Congress to decide. I think that we can, or we should realize that there is the possibility that had it not been for the treaty we would have recommended the construction of a dam for flood control alone. But with the treaty provisions being what they are, I believe that it would be impossible to comply with the treaty without making this a multipurpose structure.
Mr. Friedkin can give you examples of where this incremental method has been used and has been approved by the Congress for construction.
STATEMENT OF JOSEPH F. FRIEDKIN, PRINCIPAL ENGINEER SUPERVISING, U.S. SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO
Mr. Friedkin. We have one specific case recently. In the case of the Burns Creek Dam on the Palisades project in Idaho, the reference is House Document 14, 85th Congress, 1st session. The primary purpose of the dam was for power. There was added an additional 100,000 acre-feet of storage for conservation purposes. The benefits were nearly equally divided. The conservation storage was allocated on the incremental basis with power being the primary thing in that •case.
Mr. Fisher. That would be one of the more recent cases.
Colonel Hewitt. I believe also there is a precedent, although I am unable to cite the law, whereby in the construction of flood control features that a community may contribute to the cost of the conservation storage and not pay for it until they use it. But at any rate, the additional cost, defending the incremental method, is the additional cost of providing that incremental storage rather than the A—i7 method.
Mr. Fascell. I am trying to get through my head, since the bill as written does not provide for repayment, what the actual effect of providing by legislation is the incremental system.
Mr. Friedkin. Mr. Fascell, your question is well taken. With no requirement for repayment, there is no reason for an allocation of cost.
Mr. Fascell. It doesnt have anything to do with the monetary value of power as it would relate to a benefit-cost ratio.
Mr. Friedkin. No, sir. The total benefits to costs is one matter. Separately, it is the question of repayment because your total benefits can far exceed the cost of the dam as in this case.