Mr. KILGORE. On the other hand, the United States would assume the payment of the indebtedness of the Republic of Texas and would assume title to the public domain.

The first alternative-and whether or not it was the first in the article or not, but the first as I have described it here, was the alternative under which Texas became a State in the Union. She retained her public domain and paid off her own public debt, of the Republic of Texas after she became a State. That, of course, meant that such of her navigable streams as were a part of the public domain when she was a republic were retained.

Mr. SELDEN. I think that point is important and it should be made very clear in this record.

If you would like to include anvthing further on that particular subject in the record, Congressman Kilgore, please do so.

Mr. KILGORE. I will be glad to do so. It won't be difficult. It has been thoroughly researched in connection with other issues, such as the tidelands.

(For additional information, see supplementary statement of Frank Y. Hill, p. 246.)

Mr. CUNNINGHAM. I have just been handed by Mr. Murray, who is a member of our delegation and who will later speak to the committee and who is also chairman of the-he is a Texas Representative in the Texas House of Representatives as chairman of the water committee in the house, and he has just handed me the Senate Bill 359, by which the area for Falcon Dam was authorized, and it was authorized by a regular statutory act.

It authorized the Governor of the State of Texas to grant to the United States in accordance with the conditions hereinafter set out, such of those portions of the bed and banks of the river in Hidalgo, Starr, and Zapata Counties as may be necessary or expedient in the construction and use of the storage and flood control dams and their resultant reservoirs, diversions, works, and appurtenances thereto provided for in the treaty between the United States of America and the United Mexican States, concluded February 3, 1944.

I will not read the rest of it, but in effect it is a grant. They reserve all mineral rights and gravel and a few other things. In the nature of an easement. When we grant an easement, we use the word "grant," also.

Mr. FASCELL. That is the right answer. There is no point in trying to settle that problem here.

Mr. CUNNINGHAM. I honestly can't say, Mr. Fascell. They reserved so many things that it was the surface that went to the Federal Government.

Mr. FASCELL. Mr. Cunningham, let me ask you now, is there such statutory authority for Amistad?

Mr. CUNNINGHAM. No, it will have to be passed when requested, except when the Governor gave the stipulation and the State Board of Water Engineers, they had been authorized by legislation so to do with the conditions that are set out in the stipulation and which are set out in the feasibility report and which this committee has.

Legislation was passed authorizing them to enter into the stipulation with the U.S. Government for the construction.

Mr. FASCELL. Entered a stipulation to do what?

Mr. CUNNINGHAM. For the construction of Amistad, but as I say, there will be addition to the legislation after the engineers give them the exact surveys of the ground and the areas and so forth that they

want.

Mr. FASCELL. Then, as I understand it, there is no explicit statutory authority with respect to, let's say "easement" from the State of Texas to the U.S. Government with respect to the construction of the Amistad Dam.

Mr. CUNNINGHAM. Yes, I would say there was. Consent is given. All that is left to do-as governments are, it will take another act of legislation when the

Mr. FASCELL. Let me see if I understand you correctly: In Falcon you had express statutory authority by act of the Texas Legislature?

Mr. CUNNINGHAM. That is right.

Mr. FASCELL. Which was the grant of an easement. But with respect to Amistad, you have a delegation from the legislature to the Governor, who then in turn can act with the Federal Government, to give this same kind of "grant" over the beds and banks, or whatever that is, of the river?

Mr. CUNNINGHAM. Well, under the general constitutional authority given to the Governor and the State Board of Water Engineers as one of the agencies under his executive branch of the government, he would have the authority under local legislation as well as the constitutional enactments to enter into the stipulation.

Then when the exact bounds and descriptions of the location of Amistad Dam are known, further legislation will be enacted by which he will specifically describe it, just like you would describe it in a deed.

Mr. FASCELL. Do you mean that was done in this prior act?

Mr. CUNNINGHAM. Yes, sir.

Mr. FASCELL. Legally, has consent of the State of Texas been granted or hasn't it?

Mr. CUNNINGHAM. I think it has; yes, sir.

Mr. KILGORE. If you will yield, there, perhaps you would want to incorporate into the record the copy of this particular senate bill 359,2 which Mr. Cunningham has described.

Mr. FASCELL. Let's put it in as an appendix.

Mr. KILGORE. I am unable to tell from a cursory reading of it whether or not the authority is contained in this particular enactment that would permit the Governor of Texas to convey to the United States the necessary lands at the Amistad site, but I can tell that certainly in a portion of the area of the river named in this bill, additional authority was given to the Governor to convey such tracts as may be applied to him for conveyance by the Commissioner of the United States Section of the International Boundary.

Mr. FASCELL. Another thing I am trying to determine in my own mind is whether or not the action of the Governor is purely executory as a result of authorization granted by statute.

Mr. CUNNINGHAM. I can more fully answer you now, Mr. Fascell. If you will refer to page 136 of the feasibility report, which is Senate

2 See app. III, p. 266.

3 See app. I, p. 257.

Document No. 65, published September 9, 1959, that refers to article 7472(e) of the Revised Civil Statutes of Texas, which provides that upon receipt of any engineering report submitted by a Federal agency seeking the Governor's approval of the Federal project, the Board of Water Engineers shall study and make recommendations to the Governor as to the feasibility of the project, and the Board shall cause public hearings to be held.

Then, continuing on page 137-and I will not attempt to read it— or may I ask, do you gentlemen each have this?

Mr. FASCELL. Yes; we are looking right at it.

Mr. CUNNINGHAM. Then you will notice, Mr. Fascell, it shows then how the hearings were held and how the construction was approved, subject to certain stipulations that were to be included for the protection of the rights of the citizens of the State of Texas in the use of the water.

So that under that legislation there is authority for them to do so, providing the project is approved by the State Board of Water Engineers. It was approved and stipulation was entered into by the Governor and the State Board of Water Engineers approving Amistad Dam.

Shall I proceed or are there other questions that you gentlemen nave on water rights?

Mr. SELDEN. You may proceed.

Mr. CUNNINGHAM. The suggested amendment to section 3, H.R.

8080.

We are in substantial agreement with the proposed section 3 of H.R. 8080, as contained in letter from the U.S. Department of State, dated September 11, 1959, to Hon. Thomas E. Morgan, and appearing on page 150 of Senate Document No. 65 published September 9, 1959. We do suggest certain brief amendments to section 3, as proposed by the Department of State in the above letter, so that section 3 would read 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.

You will notice we have taken nothing from it. We have added only those items which I have underlined in my statement, Mr. Fascell, on page 6.

You will notice under section (b), before the word "development" we have inserted the word "river" to be sure it refers to river development and not to land or industrial or some other type. It is simply to clarify it.

Then we have added a phrase of 16 words, "and to carry out said stipulation the conservation storage of said dam is hereby so dedicated," and then the only other word is before the word "responsibility," we have inserted the word "exclusive."

So that section (b) of the act will clearly specify that the water is dedicated to those entitled to use it, the U.S. share, and that it is the responsibility of the State of Texas and not of the United States to have anything to do with the policing, administering, or adjudicating rights.

You will please note that we have underlined the only changes we have made. You will also please note that we have not deleted, but have added 2 separate words as underlined, and 1 phrase of 16 words as underlined.

We sincerely state that we feel our few additions are meritorious; that they will clarify and aid the proposed section 3; and that the section 3 with the amendments as suggested has the following advantages:

(1) It will clearly and unequivocally carry out the stipulation under which the State of Texas approved the construction of Amistad Dam.

(2) It will place the full responsibility upon the State of Texas, its agencies and courts, to make distribution of the U.S. water, as between any contesting claimants to such water.

(3) It will effectively prevent the United States, and its agencies operating Amistad Dam, from being saddled with various troublesome problems, including such problems as

(a) The complaint and demand of a water user, whether municipal or otherwise, for water which had been released for him, but which never reached him.

(b) The possible demand of a riparian water user for a continual flow past his lands.

(c) A complaint or demand that since the United States has dammed and impounded the normal and flood flow of the river, that it separate such "riparian" and "appropriative" water in its releases.

(d) The possible demand of an appropriative water user for an accounting of the flood water impounded, to which he makes claim under his permit.

(4) It will carry out the provisions of the Treaty under which Amistad Dam is being constructed, that the U.S. share of the waters shall be administered and distributed in accordance with the laws of the State of Texas.

(5) It would leave the United States, and its agencies operating Amistad Dam, free from the turmoil and responsibility of

(a) Having to decide or participate in the adjudication of water rights in Texas, and the nature and extent thereof on the river; and

(b) Having to set aside funds and personnel to control the diversions and uses of water, and adequately police the releases. so effective control is maintained on the river.

We further sincerely urge to you, as a fruitful step that would fully carry out the text of the stipulation by the State of Texas, when it approved Amistad Dam, that there should be no provision

for repayment of conservation storage of the U.S. share of the waters. If conservation storage is to be paid for by U.S. water users, this would inherently create some serious problems under the Texas laws.

Some of the most pertinent of these problems would arise under what both riparians and the appropriators agree is the established rule of law in our State, that—

The waters in flowing streams (Rio Grande) belong to the State of Texas, held in trust for its people, to be administered and distributed to those lawfully entitled to its use under the laws of this State.

Under that established rule of law, and if conservation storage of U.S. waters is set aside to be paid for by the water users of Texas, then a few of the more serious problems would be:

(1) The claim of a riparian that under the Texas law he could not be required to pay for storing water which he was entitled to have flowing by his place to satisfy his needs, since this riparian right was a property right, and part of his title.

(2) The question of whether it might become necessary to condemn both riparian rights and appropriative rights, which would be extremely expensive, in order to then be able to sell back to those same water users a portion of the conservation storage.

(3) The impracticability of being able to contract with any buyer of conservation storage space, and then being able to actually deliver his water over the long stretches of the river involved.

(4) The problem of trying to separate storage or "riparian" water, and "appropriative" water.

(5) The difficulty of a binding contract with any individual, or corporate or municipal entity, without immediately having hundreds of claimants, both riparian and appropriative, assert their priority to have water released and delivered to them before that of the contracting party.

We sincerely suggest that the above reasons, and the fact that the construction of Amistad Dam, and conservation space therein is a treaty obligation of the United States, and not of the water user, are sound and sufficient grounds for the United States to assume and pay for the conservation storage space for U.S. waters. We understand, and believe, that these were some of the reasons why water users in the lower Rio Grande Valley were not asked to pay for the conservation storage space in Falcon Dam.

In conclusion, gentlemen of the committee, we respectfully request that you give full consideration to, and adopt, section 3 of H.R. 8080, as suggested with the above amendments. We feel they are meritorious and serve a beneficial purpose both to the United States and its agencies, and to the water users who will be vitally affected by Amistad Dam. And we hope and trust that you will not require that we water users pay for any conservation storage in Amistad, not only because of the money we would have to pay, but to avoid at the beginning some serious and troublesome problems we feel will arise if any conservation storage space is set aside for sale.

Thank you very much, gentlemen of the committee. If I may answer any further questions, I will certainly attempt to do so.