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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. 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. Smith. The United States was not a party.
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.
Mr. Fascell. You and I know if I am not a party to a lawsuit it does not mean a thing to me.
Mr. Smith. Yes, I know that.
Mr. Fascell. I am just trying to inquire as to what your knowledge is or your position is with respect to any rights or claims— not claims, any rights or interests of the Federal Government in and to water as such on the Rio Grande. This is something I still do not understand.
Mr. Smith. I do think this, that the Federal Government has different rights in other States than it does in Texas. Now, they have impounded. We have been pretty badly hurt by the impounding of the waters in the Elephant Butte. The old timers tell me how the waters from the melting snows up in the Rockies used to come through the lower Rio Grande Valley right at the time we had heavy irrigation in May and June of each year and that was very helpful but that has been cut off by construction of Elephant Butte Dam. We have lost that water and the water we are getting originates in the State of Texas.
Mr. Fascell. Well, the question that occurs to me is whether, if the Federal Government acted in the construction of a dam at Amistad and impounded waters, the users below Falcon would have the right or claim against the Federal Government for impounding the water? Is there a basis for a lawsuit?
Mr. Smith. There are many legal questions in what you say. I think the lawsuit would have to be directed either against the State of Texas or the State of Texas bringing the suit as trustee, to have the court advise the trustee how to administer its trust, so to speak; that would be the simplest lawsuit, I would say, to adjudicate the rights.
Whether the State would do it would depend upon the officials who hold the various offices.
In the lower valley in Hidalgo County the Board of Water Engineers and the State of Texas are parties to that suit and they are asserting in court the position that the State wants the rights adjudicated so they will know how to administer their trust.
Mr. Fascell. In other words, what you are saying then is that the State of Texas by statute, is the trustee of the water?
Mr. Smith. That is right.
Mr. Fascell. If it has any claims or the Federal Government has claims, Texas would be a principal party?
Mr. Smith. The State of Texas, yes. I think they would be a principal party. There is a legal question that maybe a couple of water users could litigate against each other without making the State a party but we think the State ought to be a party.
Mr. Fascell. The only thing I am worried about, under the theory of this Texas statute, if the Government went ahead to build this dam and impounded the water for purposes as contemplated under the legislation, whether the State of Texas as trustee, or the water users would have a cause of action.
Mr. Smith. Do you mean against the Federal Government?
Mr. Fascell. Yes.
Mr. Smith. I would say they would, if the Government just came in and did it without agreement, but in this case there has been
agreement between the State of Texas and the Federal Government on it. The State of Texas through the Governor and the Board of Water Engineers have requested the legislation subject to some stipulations that they have written into their language, endorsing the project as being economically feasible and so forth, and one of those conditions is that the water be dedicated to the existing users, which is the
Mr. Fascell. But that raises another question. Wouldn't the State have to give its consent by way of statute? I mean, ean the Governor not bind the State in agreement with the Federal Government? I do not know. I am just asking.
Mr. Smith. Well I do not know either. I think all they have so far is the Board of Water Engineers' and the Governor's approval. I think there is a Texas statute providing that procedure and it is possible that it is all that is necessary.
Mr. Selden. Mr. Kilgore.
Mr. Kilgore. Mr. Chairman, I think that there is a subsequent witness, Mr. Cunningham, who is specifically prepared on this particular issue and in addition to that, I think maybe the committee's attention should perhaps be directed to subparagraph (c) of paragraph 8 of the resolution of the U.S. Senate, by which resolution the advice and consent of the Senate was given to the adoption of the 1944 Water Treaty with Mexico, which paragraph contains this language:
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 United States Section of the International Boundary and Water Commission, or the United States 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.
As I say, I think there will be another witness who is specifically prepared to discuss the issues involved. Mr. Seldest. Any further questions? The Chair recognizes Mr. Parish.
STATEMENT OF W. D. PARISH, MANAGER, HIDALGO AND CAMERON COUNTIES WATER CONTROL AND IMPROVEMENT DISTRICT NO. 9
Mr. Parish. My name is W. D. Parish and I am general manager for the Hidalgo and Cameron Counties Water Control and Improvement District No. 9 in Mercedes, Tex.
I very much appreciate the opportunity to appear here before this committee to express the views of the people of my district with regard to the proposed construction of Amistad Dam.
Experience has shown that areas far downstream from any storage reservoir usually experience prolonged water shortages. A prime example of this is the El Paso Valley below Elephant Butte Dam. The Elephant Butte Dam was originally constructed to impound water for use in the El Paso Valley. It provided an ample water supply for these lands for a few years, then the construction of dams on the tributary streams in New Mexico and Colorado began. As a result of the use of great amounts of water far upstream of Elephant Butte Dam, the El Paso Valley has experienced a severe water shortage for the last several years. The people of the El Paso Valley have had little success in obtaining their rightful share of Rio Grande water as most of the diverters upstream from them reside in New Mexico and cannot be brought into Texas courts.
We are most apprehensive about the construction of Amistad Dam 500 miles upstream from our pumps because water released from it for our use must run the gauntlet of over a million acres of dry land.
Mr. Garland F. Smith, attorney for our district, has pointed out the areas along the Rio Grande, between Amistad and Falcon Dams which could logically expand under a claim of riparian rights to water if encouraged Dj the construction of Amistad Dam. He has testified that there are, in Spanish and Mexican grants alone, 1,114,828 acres of land which may lay claim to the stored water behind Amistad Dam.
If you assume that this land would require a minimum of 2- acrefeet of water per acre per year, then it would require 2,229,650 acrefeet of water per year to irrigate the land in Spanish and Mexican grants.
I would like to digress at this point to reiterate that there has been testimony already that some of these lands are diverting up to 8 and 9 acre-feet per acre per year, for irrigation purposes.
This does not include lands patented by the State of Texas which occupies a comparable river frontage. In the report submitted to the committee by the International Boundary and Water Commission, it is stated that the average annual yield of U.S. waters from the joint operation of Falcon and Diablo Reservoirs is estimated to be 1,603,000 acre-feet, which is 626,650 acre-feet less than the annual demand which could be made by the Spanish and Mexican grant lands above Falcon Dam alone.
We have studied the report prepared by the U.S. Section of the International Boundary and Water Commission concerning the feasibility of Amistad Dam and the comments of various governmental agencies contained in appendixes I, II, and III thereto (S. Doc. No. 65,86th Cong., 1st sess.)
We are very much concerned about the position taken by the Bureau of the Budget in their "Analysis of Amendments to H.R. 8080 recommended by the Bureau of the Budget" contained in section B of Appendix III of the above referenced document. The amendment proposed by the Bureau of the Budget would include the following provision in section 3 of H.R. 8080:
Provided, That the dam shall not be operated for irrigation or water supply purposes unless suitable arrangements have been made with the prospective water users for repayment to the Government of such portions of the costs of the dam as shall have been allocated to such purposes by the Secretary of State.
We want to go on record as being opposed to any policy requiring payment of any kind for the right to divert water from the Rio Grande.
My district was organized in 1906 and has been serving lands witftiin the district with water from the Rio Grande continuously since 1908. We have complied with the laws of the State of Texas governing the diversion of water from its streams and we feel that we have established the right to divert water from the Rio Grande under the