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 claimsnot 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, can 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. SELDEN. 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 short

age 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 by 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 within 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

laws of Texas and by virtue of long and continuous beneficial use. Certainly, there is no justice, at this late date, in a Federal agency capturing our source of water and demanding payment for its release, particularly when that agency cannot guarantee the delivery of water to any given user.

We have not asked the Federal Government to construct Amistad Dam. In fact, if it were not for the humanitarian consideration for life and property in the Del Rio-Laredo reach of the river, we would be here vigorously opposing the construction of any type of dam at the Amistad site.

It would be sheer nonsense for the people of my district to participate in the cost of construction of a dam 500 miles away without any assurance that we would ever receive any of the benefits from that dam. In the first place, conservation storage in Amistad Dam is not economically feasible until all other more favorable locations are developed. We have heard testimony here that the cost of conservation storage in Amistad Reservoir would cost $12 million, and that this storage space will yield only about 86,000 acre-feet additional water per year on the average.

The U.S. Section of the International Boundary and Water Commission has prepared a report on the feasibility of constructing three channel storage dams along the Rio Grande below Falcon Dam. This study shows that a system of three small dams in the river channel below Falcon Dam, costing about $72 million would yield about 140,000 acre-feet of additional water per year on the average.

While the channel storage dam project shows a benefit cost ratio of about 7.5 to 1, it cannot be financed and constructed at this time because of the unsettled litigation of water laws in Texas.

We believe that the inclusion of conservation storage space in the Amistad Dam project is an obligation of the Federal Government under the terms of the 1944 Treaty with Mexico. In the treaty of 1944, the Governments of the United States and Mexico agreed to jointly construct a series of dams and reservoirs which would provide maximum development of the water resources of the Rio Grande. I fail to see why the water users on the Rio Grande are obligated in any way to make a greater contribution toward fulfilling a treaty obligation than any other section of the country.

in

In conclusion, let me briefly summarize the position of the people

my area.

First, we are opposed to payment of any kind for the privilege of diverting water from the Rio Grande because:

(1) We have already established a right to divert water from the Rio Grande under the laws of Texas and by virtue of long and continued beneficial use;

(2) A contribution to the cost of Amistad Dam would not guarantee the donor any of the benefits of the project.

Second, we believe that the construction of Amistad is an obligation of the Federal Government under the terms of the 1944 Treaty with Mexico.

Gentlemen, I appreciate the opportunity of appearing here before this committee and conveying to you the thinking of our people in regard to the Amistad Dam project.

Thank you.

Mr. SELDEN. Thank you, Mr. Parish.

Are there any questions?

Thank you Mr. Smith and Mr. Parish.

Mr. Kilgore, will you introduce your next witness.

Mr. KILGORE. The next witness is Mr. Paul Y. Cunningham of Brownsville, who is the attorney for Cameron County Water Control and Improvement Districts 5 and 6, of Brownsville, and Los Fresnos, Tex., respectively, and Cameron County Fresh Water Supply District No. 1 of Port Isabel. Mr. Cunningham has also been active in the water litigation that has been described to the committee.

Mr. SELDEN. Mr. Cunningham, we are happy to have you appear today. You may proceed.

STATEMENT OF PAUL Y. CUNNINGHAM, BROWNSVILLE, TEX., ATTORNEY FOR CAMERON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICTS 5 AND 6, AND CAMERON COUNTY FRESH WATER SUPPLY DISTRICT NO. 1

Mr. CUNNINGHAM. Gentlemen of the committee, you have my printed statement and in it I have set out on page 5 of it, the suggested new section 3, with some brief amendments we have suggested, and in my printed statement I have underlined on pages 5 and 6, in that portion of it, the additional words that we have added in it.

I simply state this for easy reference. I do not know whether the section that Mr. Kilgore printed underlined the changes or not.

Gentlemen, my name is Paul Y. Cunningham. I am a practicing attorney at Brownsville, Tex. I am 52 years of age; I have been a practicing attorney for 29 years.

Mr. Kilgore has stated the water districts I represent. Water District No. 5 is the last pump to take water from the Rio Grande River.

On the map you can see where the river makes a sharp loop to turn back north. The No. 5 pumps are just above that sharp loop and you can see how far down we are.

I would like to discuss briefly and concisely with you gentlemen of the committee, in connection with your hearings on H.R. 8080, certain basic facts dealing with:

(a) The lawsuit in the 93d State District Court of Texas, in which the conflicting claims between "riparian claimants," and "appropriative claimants" will be settled and determined under the laws of Texas, as to the waters impounded and released from Falcon Dam, in the four Texas Counties of Starr, Hidalgo, Willacy, and Cameron, which form the lower Rio Grande Valley; and

(b) The control and distribution of the waters from Falcon Dam now being carried out by the court and which is being paid for by the water users in the lawsuit; and

(c) A brief suggested amendment to section 3, of H.R. 8080, in keeping with the stipulation under which the State of Texas approved the feasibility report on Amistad Dam.