CONTROLLED AREA The Falcon Reservoir and the river from there to the gulf is marked blue, to designate a "full control" of the diversions, under the orders of the 93d District Court of Hidalgo County, Tex. Along this reach diversions are made for 760,000 acres in the lower Rio Grande Valley of Texas, which receives water under court order. And I believe Mr. Parish will indicate the four counties receiving this water in which those 760,000 acres are located. One of them is Willacy County which lies north of the southern counties that are there and is not shown too clearly. In addition to taking jurisdiction of the waters in the reservoir and the river, the court appointed a water master with deputies to carefully supervise pumping and distribution of water to parties designated by the court. This method of control is working satisfactorily, and this area is the only area under full control. The absence of similar control upstream from Falcon Reservoir, considered with the threats posed by construction of Amistad, bring the water fight to our doorstep with three lines of defense. Mr. FASCELL. Right there may I ask you a question? Mr. SMITH. Yes, sir. Mr. FASCELL. In this control phase, is the U.S. Government or the Commission a party to that suit? Mr. SMITH. No, sir. (Continuing) (1) Federal legislation: To incorporate into the authorizing legislation language which will, if it does nothing more, put the world on notice that the Rio Grande is overappropriated and overdrawn, and that development of new lands is economically hazardous; (2) State administrative action: To have the board of water engineers of our State enter all additional orders to exhaust their powers to protect our prior beneficial uses of water; and (3) Texas courts: The adjudication of water rights in Texas courts. While, to survive, we must fight on all three fronts, we are concerned here before this committee with the first line of defense only. THREAT OF RIPARIAN SPANISH AND MEXICAN GRANTS Now to understand the necessity of this I have outlined just a little further statistical information, a part of which is the threat of riparian Spanish and Mexican grants. These issues are in litigation in the Texas courts. Spanish and Mexican grants abutting upon the Rio Grande, it is contended, might have a riparian right of irrigation. Of itself this would not shock the man with a common law concept of water rights, or riparian rights for small tracts along the river. But Spanish and Mexican grants are big, and run back from the river 15 miles or more. Such riparian rights, its advocates contend, has a built-in "dog-in-the manger" aspect such that a holder of such a right may, at any time, start taking water, regardless of how long he allowed the water to pass his property unused, or that such action will destroy the investments of prior beneficial users downstream. If such claims are upheld by Texas courts, the lower Rio Grande Valley, which has been under irrigation for 50 years, cannot survive as an irrigated area. We have outlined these large Spanish grants in red on the large map. Beginning with the Don Antonio de Rivas Grant of 163,927 acres of land, we proceed next to the Antonio Guerra Grant of 14,018 acres, then the large Joaquin Galan Grant of 262,463 acres, the Santo Tomas Grant of 57,523 acres, followed by a series of porciones 15 miles deep running to the headwaters of Falcon Reservoir in Zapata County, Tex. These grants in the area designated either "uncontrolled" or "potentially controlled" total 1,114,825 acres of land that could assert this Spanish and Mexican riparian right of irrigation. Mr. FASCELL. Is it also contended that successors in interest are entitled one way or another to riparian rights? Mr. SMITH. That contention is being made. Mr. FASCELL. Whether or not property fronts on the river? Mr. SMITH. Whether or not it fronts on the river presently. In other words, contention is made that they have the rights to irrigate to the back of the Spanish grant regardless of Mr. FASCELL. Is it also contended that the riparian right went with the grant and it is not severable from the parcels of land despite the fact that subsequent instruments may or may not have conveyed riparian rights? Mr. SMITH. I would say that is the contention that the holders. of that right are making. Now that is not settled Texas law. Mr. FASCELL. I understand that, but that is the contention made? Mr. SMITH. That is right. Mr. FASCELL. Even though the legal instruments of title may not have riparian rights transferred on their face? Mr. SMITH. That is correct. They take the position that the cutoff doctrine does not apply. If they convey land fronting on the river and reserve the back land they still have the riparian right. That is their contention. They contend that from the Treaty of Guadalupe Hidalgo which guarantees to the Mexican owners the same property rights they held under Mexico. That is the legal theory behind it. We have not calculated the acreage of the Texas patent land which fronts on the river. These may likewise claim a riparian right to irrigate. I will ask Mr. Parish to run the pointer along that patent land. You can see that probably occupies a greater frontage on the river than the Spanish grants, and may possibly have an equal acreage, but the Texas patent land would be involved with many other doctrines with a different type of law and it is so complicated that we have not tried to calculate the total amount of acreage involved in those Texas grants. But we have already gone into orbit more or less, so far outside of what the river could irrigate with the Spanish grants alone, that it shows the tremendous threat this is to our situation in the lower valley. We are getting into space age figures when we get into the acreage involved." Mr. KILGORE. Mr. Smith, I think for the record it probably ought to be indicated that when you are talking about these Texas patent lands you are referring to the area from roughly mid-Maverick County all the way up the stream to Fort Quitman? Mr. SMITH. Yes. That would be true. It goes all the way past, and for about 273 miles I believe it is, on upstream from where the big map leaves off to Fort Quitman. Of course, some of that area is mountainous and makes it less of a threat where it is mountainous, but it does not necessarily change the right. Mr. FASCELL. Mr. Smith, as a matter of curiosity, do the Spanish grants come through the State of Texas by way of patents or do they come direct? Mr. SMITH. They came direct to the people. Historically this is true. After these lands came into the State, the Legislature of Texas in 1852 passed what they call quitclaim legislation to clear the title of all of the lands where the Mexican owners had given satisfactory proof of ownership. The State of Texas, to confirm and ratify whatever rights they had, issued patents, which is a matter that is also in this lawsuit and will undoubtedly be construed before we are through with the litigation. Mr. FASCELL. In other words, it is more than a question of whether or not the State acted in the way of disclaimer, or a quitclaim. Mr. SMITH. Yes; that question is being litigated. There are two contentions on it. This, with the 760,000 acres of land in the lower Rio Grande Valley now under irrigation, constitutes 1,874,825 acres, which is more land than the river will irrigate under the most optimistic estimates. This does not consider claims which could be made by Spanish and Mexican grants and porciones, below the headwaters of Falcon Reservoir-and at this point I will ask Mr. Parish to show the porciones and grants below Falcon Reservoir, and of course out of them only 760,000 acres are being irrigated, although the total acreage is far in excess of thatwhich lands are not at this time under irrigation, nor of Texas patent land above or below such point. You will notice between these big grants there are some lands patented by the State of Texas. Only those outlined in red are the Spanish grants. I have no intention to burden your committee with local problems. But these local problems constitute part of the reason for our requested action by your committee in (1) including in the bill the strongest language practical to protect our water supply; and (2) to relieve us of the obligation to pay part of the construction cost of a dam which but for the human need for flood control we would oppose, because of its threat to our water supply, and the fact that it imposes on us the imperative necessity to litigate our water rights and priorities from the gulf to Fort Quitman, a distance of over 767 miles. Mr. SELDEN. Will the gentleman yield at that point. Mr. SMITH. Yes, sir. Mr. SELDEN. To carry out these two recommendations that you made, are you gentlemen proposing section 3 be amended? Mr. SMITH. Yes; that is true. Mr. SELDEN. Without objection from the committee members, I will include section 3 that you have recommended to replace the present section 3 at this point in the record so we will have it to refer to. Mr. SMITH. That is right. That is the amendment I am supporting. (The amended sec. 3 is as follows:) SEC. 3. If a dam is constructed pursuant to an agreement concluded under the authorization granted by section 1 of this Act, its operation for conservation and release of United States share of waters shall be integrated with other United States water conservation activities on the Rio Grande below Fort Quitman, Texas, in such manner as to provide the maximum feasible amount of water for beneficial use in the United States, with the understandings that (a) releases of United States share of waters from said dam for domestic, municipal, industrial and irrigation uses in the United States shall be made pursuant to order by the appropriate authority or authorities of the State of Texas, and (b) the State of Texas having stipulated that the amount of water that will be available for use in the United States below Falcon Dam after the proposed dam is placed in operation will be not less than the amount available under existing conditions of river development, and to carry out said stipulation the conservation storage of said dam is hereby so dedicated, and it shall be the exclusive responsibility of the appropriate authority or authorities of said State to distribute available United States share of waters of the Rio Grande in such manner as will comply with said stipulation. Mr. SMITH. I appreciate and thank you for your attention. Mr. Parish, general manager of the Mercedes district, will now explain the practical, engineering aspects of this matter. Mr. SELDEN. Mr. Smith, before you leave the witness stand there may be some questions the members would like to ask you. Mr. Fascell. Mr. FASCELL. Mr. Smith, is one of the contentions in this suit the right of prescription or adverse possession? Mr. SMITH. That is a contention in the suit Mr. FASCELL. Made by the present water users? Mr. SMITH. Yes. That is quite a way down the road on the matter of litigation. The lawsuit, itself, will be discussed later. This issue on the riparian right of Spanish grants has actually been severed off into a separate lawsuit in order that we could get a decision on it. That is just a practical proceeding we took. Mr. FASCELL. The right of prescription is at issue? Mr. SMITH. Undoubtedly numerous parties will assert that claim as a basis for their right to water. Mr. FASCELL. You say "will." Do you mean it is not now in litigation? Mr. SMITH. Well, yes, I would say it is now. What I mean is, it has not come to bat in the court as yet. Mr. FASCELL. As a matter of formal defense. Mr. SMITH. Yes, that is right. Mr. FASCELL. I do not understand it. I do not know anything about water rights so you will have to tell me, but how is the U.S. Government excluded from all this? By what theory? Mr. SMITH. I think I can explain that. You get back into your whole process of ownership of public lands-I might explain it this way. I think you could get this easier. If you, for instance, examined an abstract on a title to land, say, in your State I believe you are from Florida, are you not? Mr. FASCELL. Yes. Mr. SMITH. You may have the same background. You would go back and if there was a patent of this land out of the United States of America, then you would trace title back to its source and if your man had a clear chain, his title would be clear. In Texas when you examine an abstract, you trace your chain of title back. If you find a grant out of the Republic of Mexico, the King of Spain, or a patent out of the State of Texas, then you have traced your title back to its source. It goes back to the Treaty of Annexation. The Republic of Texas had incurred considerable debt when it came into the Union. Texas offered the public lands to the United States in exchange for the debt and they finally worked the treaty out where the State kept its public lands and the United States was relieved of the debt and we have a little different title situation there than exists in other States. It is confusing, although we see it real plain. However, it is a confusing situation. That is one thing and the other thing is Mr. FASCELL. I did not mean specifically that way but I meant with specific reference to water as such. The rights to water. To control it. Use it. Impound it. Mr. SMITH. Texas law vests title to public waters in the State of Texas as trustee for the people. That is in legislation. And, as the owners of the waters of these streams, the State of Texas holds the title. Mr. FASCELL. Is it inherent that the Federal Government has no rights or interests in the water? Is that the theory of the legislation? Mr. SMITH. I would say that the ownership in the State of Texas is absolute insofar as the water is concerned. Mr. FASCELL. That is as far as the State of Texas is concerned. Mr. SMITH. Yes, that is right. That is the official position of the State, I am sure, on that point. Mr. FASCELL. Then, do I understand the users of water coming out of Falcon Dam concur in the right or accede to the right of the Government to impound the water and release it? Mr. SMITH. We will say this with respect to the suit in the lower Rio Grande Valley: They have consented through the decree of the U.S. District Court. Mr. FASCELL. If you are not a party to that suit how can you agree to anything against Federal Government? I am at a loss here. Mr. SMITH. I am sorry. I thought you asked if the people had agreed. The parties to the suit have agreed but the Federal Government has not. Now, there is a case on the point. I think I can give you the citation on it. It was Maverick County v. Martinez, I believe that was the style of the case, where this treaty went up for adjudication and the Federal courts held Mr. FASCELL. Which treaty? Mr. SMITH. The treaty under which Falcon Dam is authorized. There is a section in there, which parties sought to be adjudicated, and it went up in the Federal courts and the Federal district court dismissed the case on grounds that the waters belong to the State of Texas; it was a State problem and should be taken into the Texas courts and that the Federal courts had no interest in it and no jurisdiction over it. Mr. FASCELL. The United States was a party to that lawsuit? Mr. FASCELL. That lawsuit did not adjudicate any rights against the Federal Government? Mr. SMITH. No, but a Federal court did state in very plain language that the Federal Government owned no interest in the water. |