BACKGROUND OF THE LAWSUIT

In 1949 the four Texas counties forming the lower Rio Grande Valley began suffering severe shortages of water available in the Rio Grande River. This became progressively worse. In 1951 it became catastrophic. For example, Brownsville, a city of 38,000 people, had water for not more than 48 more hours, after which it would be without sufficient water to even maintain pressure in the water mains for fire protection, and sanitary purposes.

To digress on that, the hospital at which time a member of my family was in had water for only 24 more hours. They were on a small main which had trouble and they had water for only 24 hours and it was the only hospital serving the city in which I live.

The same was true, to a somewhat lesser, but still serious extent, in all other cities and towns in the valley. A first suit was filed in Brownsville, in the 103d State District Court, in 1951, asking that the court take into its judicial custody and control the small amount of water then flowing in the river, and to distribute it for essential domestic uses for the preservation of life and health of the peoples on the farms, and in the cities and towns. This was done by the court. Thereafter, most of the water users in the four counties entered into a voluntary agreement for the allocation, distribution and policing of the available water in the Rio Grande. To do this we hired a water master, and paid all of the costs of this voluntary program. Please remember, at that time, the same as now, the Rio Grande River is the lifeline of all the lower Rio Grande Valley. Without it, and its water, we cannot possibly survive.

Our voluntary program of proration of the river water remained in effect even after Falcon Dam went into operation. Falcon Dam became operable in August of 1953. In September of 1953, we had the terrible hurricane that swept up through Mexico and up to the reaches of the Rio Grande, which flooded the upper river cities and towns, but which did bless us by filling Falcon Dam to its capacity 2 years ahead of schedule. After that, however, we did not have our normal inflow into Falcon, and by midsummer of 1956 we were down to the last 50,000 acre-feet of U.S. water in Falcon Dam. And that is when our pending lawsuit was filed in the 93d District Court in Hidalgo County.

The 1956 lawsuit was originally filed by several of the cities and towns in the lower valley, asking the judge of the 93d District Court to take the last 50,000 acre-feet of water in Falcon Dam in his judicial custody and control, and to distribute this water solely for necessary domestic use, in fair proportion, to all the people in the four counties. The presiding judge of that court, after hearing, entered such order. Thereafter, the State of Texas intervened in this lawsuit, asking the court to take all of the U.S. share of water in Falcon Dam, and the river, into its judicial custody and control, and to determine those lands and people lawfully entitled to the water under the law of the State of Texas. Concurrently therewith, certain water districts and individual landowners also intervened as plaintiffs requesting the same things requested by the State of Texas; and these plaintiffs laid claim to the waters of the river under what in the Texas law are known as "appropriative rights." The appropriators

alleged, in substance, that certain other water districts, lands, and individuals, in the four counties, claimed the normal flow of the river as "riparian" owners, but that their "appropriative rights" were on the same, or better, footing as "riparian rights," and they named as defendants a large number of riparian claimants, both individually and by class. The individual and class defendants, and other intervening defendants, then made their claims as "riparians,” asserting in substance their claims to the normal flow of the river as part of the title to their lands.

Eventually, after all parties were made, there were and are now about 500 named parties in the lawsuit, including water districts, individual farmers, water users, and cities and towns; and there were about 400,000 acres of land specifically described in the lawsuit, with the entire 750,000 acres of irrigated land in the lower valley involved by class, and about another 1 million acres claiming some water right but not then under irrigation because it was not in a water district, or had not facilities to take water from the river, or being not suitable for irrigation at that time.

THE BASIC CONTENTIONS AS TO WATER RIGHTS IN THE LAWSUIT

Basically, the lawsuit resolved itself into two contending forces. On the one hand were the appropriators, who were generally the plaintiffs, and on the other hand the riparians, being generally the defendants. The basic claims of these two contending forces can be crystallized as follows:

(1) The riparian claimants asserted their claims under longestablished cases in Texas which have held that lands which were originally granted by the Spanish or Mexican Government when Texas was under either or both of those nations, and abutting on the Rio Grande, carried with them as part of the title, the inherent right to satisfy the normal needs of that land from the normal flow of the water, leaving sufficient flow to satisfy the normal needs of other riparians below him; and that riparian rights, being inherently part of the title of the lands, were superior to appropriative rights.

(2) The appropriators claimed rights in the water of the Rio Grande under various statutes of the State of Texas enacted after Texas became a republic in 1834. Most of the statutes providing for appropriation of waters of the Rio Grande were enacted in the early 1900's. These first provided for a system by which the owner of land would file a certified filing in the office of the county clerk of the particular county.

To digress at that point, the district 5 which I represent was originally under a certified filing in which a number of individuals stated in substance "We are joining together to build a canal for a certain area of land, and we hereby certify that we are going to serve 25,000 acres of land located in the eastern end of the Espiritu Santo grant in Cameron County, Tex., and that we will take annually from the river between 50,000 to 100,000 acre-feet of water."

They filed that only in the office of the county clerk in the county seat and that was known as a certified filing because up to that time the State had not enacted what we know as our appropriative statutes.

So that we became a certified filing, which has the same status, when I talk about it to you, as an appropriative right. This certified filing simply claimed a definite number of acre-feet of water from the Rio Grande and recited it was claiming this water to be used to irrigate several thousands, or several hundred thousands, of acres of lands which were usually described only in a general fashion and not with specific boundaries. Later the State of Texas required such filings to be made with the State Board of Water Engineers. By the same statutes, the certified filings theretofore filed were all validated, or at least were left without hindrance as they then existed. Under these later statutes, which are still to the same effect to this day, an application was made to the State Board of Water Engineers to appropriate so many thousands of acre-feet of water, annually, from the Rio Grande for a specified acreage. These were almost always uniformly granted in the early years, with the result that the U.S. share of water in the Rio Grande has been overappropriated three times in the State of Texas. In recent years, the State board has granted but few applications.

The above is an oversimplification of the basic facts and issues. To illustrate, it has been many times stated by the leading officials and lawyers of the State of Texas that the water lawsuit filed in 1956 in the 93d State District Court, which is still pending, is the most important and far-reaching piece of litigation concerning water rights that has been tried in the State of Texas; and it is a reasonable and fairly accurate statement that we have spent, and will spend, over $2 million in court costs, fees of the special water master and his staff, and fees and expenses paid by the various water users in this litigation. We are having a hard time paying the cost of the lawsuit, but it is a price we know we have to pay, someway, somehow. We learned a bitter lesson in the bad years in the late forties to 1951 when there was not enough water, and no control of what we had.

CONTROL OF DISTRIBUTION OF WATERS OF THE RIVER

Mr. Fascell, I will try to answer some of your questions as soon as I talk a little bit about the control, if I may please, sir.

From our previous bitter experiences we had learned how essential it was to control the distribution of the waters of the river, to the various claimants. In the pending lawsuit in the 93d District Court, a Special Water Master was appointed, he being the same water master who had acted in that capacity under our voluntary proration prior to 1956. We know our Special Water Master to be a man of rare ability and impartial judgment. Under orders of the court, the Special Water Master allocates, distributes, to the various water users in the lower valley, embracing some 750,000 acres of land for irrigation, and all the cities and towns, the U.S. share of waters in Falcon Dam. Using the lawsuit as our vehicle we have thus preserved the status quo since 1956, and each claimant to water has received his pro rata share of water from Falcon Dam. Undoubtedly the final judgment in the lawsuit will determine some claims to water as being substantially inferior to others, and some as not being proper claims; but pending that final judgment, all of us contenders, whether riparian or appropriator, were all agreed that there must be an orderly distribution of

the available water and that we had to pay the price for it. This we have done. And though it has been, and still is, a strain on us to pay the price required, we felt it essential to carry out two necessary steps concerning the waters of the river, those being:

(1) To completely determine under the laws of Texas the persons and lands entitled to use the waters of the Rio Grande, and the division and allocation thereof between riparian and appropriative claimants, in the four counties of the lower Rio Grand Valley; and

(2) To have an orderly distribution, and effective policing, of the water, so that those adjudged to be entitled to it, would get it. I sincerely state to this congressional committee that as a result of our past experiences, we feel it is an absolute necessity to have adjudication of water rights, and effective control of the distribution, of the waters of the Rio Grande. I might point out that there is another lawsuit pending in the State district court at Laredo, Tex., of an injunctive nature, by which the city of Laredo, has sought to protect its supply of domestic and municipal water from the upriver users in the Del Rio-Eagle Pass area. However, this suit makes no attempt to adjudicate water rights, nor to control and police diversions from the river. It is unfortunate that the State agencies of the State of Texas do not as yet have sufficient statutory authority nor the money or personnel, to police the river. We hope and feel that some day with commonsense, fairness and good judgment, this can be fully accomplished by the State.

On some of the questions which you asked, Mr. Fascell, and the reason why I digress at this point in this statement, as I recall, originally when Texas became one of the United States, it was clearly provided in the articles of agreement or annexation, or the contract— where the protocol was worked out-that the public lands and the public waters would remain the property of the State.

As I recall, that involved a question of what the United States would assume with relation to the obligations of the Republic of Texas at that time, and it was a transaction carried out between them so that that was still true of other States, but Texas was one of those which by specific enactment-I believe I am correct in that— did retain ownership and control of its public lands and public waters, which included, of course, the water of the Rio Grande.

Mr. FASCELL. And that has been ratified by congressional act? Mr. CUNNINGHAM. Yes, sir, that is my understanding of it, sir. Then the treaty of 1944 between Mexico and the United States, also--and its provisions clearly recognized that the United States share of the water, that the United States had no legal or equitable rights in it as to claim for its use or distribution.

And when Falcon Dam was built, as I recall there was a legislative enactment authorizing the Governor and the State Board of Water Engineers to grant to the Federal Government an easement for those purposes.

I recall specifically in connection with Anzalduas Dam which is a diversion dam below Falcon, and which is being built to carry out part of the minutes between the Mexican Section and the American Section of the International Boundary and Water Commission, that some of our representatives introduced legislation authorizing at that

time the Governor and the State Board of Water Engineers to execute an easement or permission, whichever you might call it, for the construction of Anzalduas, which is in the river and which will principally divert the water for the Mexican side of the river.

So that consistently and historically the Federal Government and all of its agencies have repeatedly said, "We have no interest in the water. That is your baby, that is your problem, Texas; we want nothing to do with it. You do your own policing, administering, allocating and distributing."

I think I am basically correct that that has arisen through the original articles by which Texas came into the Union, and secondly by the treaties between the United States and the Republic of Mexico.

Mr. FASCELL. Therefore, if the Federal Government today through its Department of Justice contends that as a legal matter the United States owns the water in the Rio Grande, this is an incorrect assumption in law as far as you are concerned?

Mr. CUNNINGHAM. Yes, it is, and it has been my understanding from reading the feasibility report and the other letters and the exchange of correspondence, that I have not understood that they have at any point asserted the right of ownership in the Federal Government in any of the waters, because it is again-and that is why, in the stipulation that the State of Texas has entered into, that carried with it, the easement and consent for the construction of the dam from the State of Texas also.

Mr. KILGORE. Mr. Chairman, I would like to verify Mr. Cunningham's statement.

Prior to the initiation of construction of the Falcon Reservoir, the State of Texas by legislation ceded to the United States or authorized the Governor of Texas to cede to the United States-whether a title or an easement, I don't recall.

Mr. CUNNINGHAM. It was an easement.

Mr. KILGORE. Granting the United States authority to build Falcon Reservoir. There has never been any question in Texas but that the bed and banks of navigable streams which were in Texas belong to the State of Texas, and I don't think the matter has been in issue in the past. Clearly, it was recognized at that time by the United States, as a prerequisite to the actual construction of the Falcon

Reservoir.

Mr. SELDEN. Does this include all rivers in Texas?

Mr. KILGORE. My recollection, Mr. Chairman, is that it does.

Mr. SELDEN. Is that a result of the treaty under which Texas came into the United States, Mr. Kilgore?

Mr. KILGORE. Mr. Chairman, I am getting a little bit outside of the area where I would want to be positive, but my opinion is that it is related to the Treaty of Annexation. The resolution authorizing the annexation of Texas specifically provided an alternative, the alternative being that on the one hand the State of Texas could retain her public domain and also retain the obligation for the payment of her public indebtedness.

Mr. CUNNINGHAM. That is right.