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Mr. SELDEN. Thank you, Mr. Cunningham, for a very thorough statement, which certainly answers many questions that were in my mind in connection with this project.

I think Mr. Fascell has another question he would like to ask.

Mr. FASCELL. Mr. Cunningham, if the State of Texas is the legal owner of all the water, by statute, by law, by precedent, and otherwise, why is there any possibility, or why is there any necessity of language in the bill such as you have suggested?

Mr. CUNNINGHAM. First to carry out the stipulation by which the consent was given. And of course the Governor's consent and the State Board of Water Engineers' consent and stipulation was based on our historic Texas law and that is that the State has a naked or bare equitable title holding it as a trustee for the people entitled to its use. Sometimes you can't see the forest for the trees and it may be that I have not been clear in this.

Now, we are talking about storage space, Mr. Fascell. In other words, assume on this basis that all the Federal agencies have said, "That is Texas water and we want nothing to do with the problems of policing it, saying who is entitled to it. We are going to release it to your State when requested by your State Board of Water Engineers."

They have said that time after time after time.

Now, if you set aside

Mr. FASCELL. But to do that, they first have to impound the water. Mr. CUNNINGHAM. Yes, sir.

Mr. FASCELL. And to do that, they first have to have consent which you say has already been granted.

Mr. CUNNINGHAM. A stipulation by the State of Texas and they clearly stipulated that

Mr. FASCELL. Now, just stop right there. If that is true, how can any water user file any claim against the Federal Government?

Mr. CUNNINGHAM. They could on this basis: If you attempt to levy part of the conservation storage costs, then you are selling space behind the dam. The Federal Government is. You are not selling water, you are selling space. But that space

Mr. FASCELL. You may not be selling either one. I don't want to argue with you but you may not be selling either one.

Mr. CUNNINGHAM. That space would have to be occupied by water which by this stipulation doesn't belong to the Federal Government, over which they have no control, and if they sell the space they are going to have to do something about delivering.

Mr. FASCELL. Excuse me, but the State of Texas is going to cede or give an easement or make a grant of some kind of the actual space involved.

Mr. CUNNINGHAM. Only as to the land, because the space I am talking about will be space up in this dam under the control of the Federal Government, and if they are going to control it and say, "We want to sell so much space for $12 million," then they are going to have some responsibility after that, and we feel it is a problem they don't want and shouldn't have.

Mr. FASCELL. Of course you are going on the assumption that the Federal Government is selling space. They may not be selling that at all.

Mr. CUNNINGHAM. We don't think they could sell water at all because they have recognized historically both when Texas was annexed as a State

Mr. FASCELL. The problem is the Federal Government may not want to get into the business of selling space or water.

Mr. CUNNINGHAM. That is exactly our point. We don't want them to.

Mr. FASCELL. Yes, but they still might want to charge you, you see. If we are talking about ownership of water as such, and the rights to its use, and that has been determined as a matter of law between the State of Texas and the Federal Government, how does that involve a water user down the line?

Now, their arguments between themselves or their arguments between themselves and the State of Texas have nothing to do with the Federal Government, if that is true.

So when you come to me now-I mean I know you are an able lawyer, and you start talking about language to avoid something which I think has already been avoided, then I am wondering about what else the language seems to do.

Mr. CUNNINGHAM. Let me get back to it this way, Mr. Fascell. Under the present reports, there is supposed to be $12 million paid by the water users for conservation storage space behind Amistad Dam. Not for water, but for the construction of that dam.

Mr. FASCELL. Let's say X number of dollars, because we don't know what it is yet. I certainly don't. It could be $50 million and it could be $50,000.

Mr. CUNNINGHAM. That is right.

Now, in the first place, if the Federal Government says, "You must pay X number of dollars for this amount of conservation storage space," the first problem it creates is, who is going to pay it? The State of Texas says they are not because their stipulation contained no agreement whatsoever to paying an amount. Secondly, the State of Texas doesn't own the water. They hold it as trustee for the people in Texas as a bare, naked, equitable title for the people. So how would the Federal Government contract with me?

For example, Mr. Fascell, I have a little farm just west of Brownsville in a water district and I claim riparian rights. Now, how in the world would the Federal Government for storage space behind Amistad, contract with me to pay part of the X dollars that has to be paid for conservation storage space?

Secondly, how would they deliver? In other words, I can't conceive the State of Texas would say "All right, the Federal Government may then sell X million dollars of conservation storage space."

Mr. FASCELL. It might be a charge against the State of Texas. I don't know.

Mr. CUNNINGHAM. They have specifically disclaimed so in their stipulations and historically in the use also of Falcon.

Mr. FASCELL. But the difference at Falcon is that the water users have consented to the impoundment of water as such and have at least a voluntary agreement among themselves as to the release and distribution.

Mr. CUNNINGHAM. Those conditions are not true up the river and we know there are thousands of very rough and troublesome prob

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lems connected with them before you finally can get them worked out to where you can distribute water the way it ought to be fairly, with pro rata shares between people.

Mr. FASCELL. So the point you are making is, if the Federal Government impounds the water at this dam and then charges a water user for any reason, such user would then claim or contend, or could contend, that the Federal Government has no right to make such a charge because while it has the consent to impound the water, it has no right to the use, and the water users have not consented to that, and therefore no charge can be made?

Mr. CUNNINGHAM. That is right.

Mr. FASCELL. But that is extremely debatable when you have already consented. The State of Texas has already consented. Mr. CUNNINGHAM. I agree with you on that, but then

Mr. FASCELL. I don't know whether you want to hold your trustee liable or not but the legislature having acted and the Governor having acted I am a little bit at a loss to understand the fine distinction of the contention. And mind you, I have raised this question all along in these hearings. I want to be sure I understand what the possibilities are legally and attempt to provide for them properly and reasonably. So that is the reason I am trying to analyze very carefully exactly what it is you are talking about.

Mr. CUNNINGHAM. And please understand, Mr. Fascell, I certainly do not claim to be the final authority on water matters. As I have gone through the years on it I sometimes wonder if I shouldn't start over again because I seem to get more confused. But it simply highlights again the things you have said, that the old principle that we have heard since we grew up, that we don't think the Federal Government should go out borrowing trouble by selling conservation storage space in Amistad because it creates those very problems which I am not sure about and which

Mr. FASCELL. But it would stir up a lot of litigation.

Mr. CUNNINGHAM. It certainly will.

Mr. FASCELL. More than there has been already.

Mr. CUNNINGHAM. We will have more trouble, and we have more now than we can look after and we don't want any more.

Mr. SELDEN. Mr. Kilgore?

Mr. KILGORE. I would like to add to the record at this point some information. In a further examination I find that the particular portion of the Texas law which was referred to earlier giving to the Governor of Texas authority to convey with some limitations the bed and banks of the Rio Grande, in the lower area of the river, was amended later in 1955 and the particular county in which it is proposed that the Amistad Dam be built was named, in the added authority given to the Governor so that no additional legislation on the part of the State of Texas is required, insofar as the Governor's authority to grant to the United States such title

Mr. FASCELL. Does that include water?

Mr. KILGORE. No. I think this limitation perhaps should be noted. I am quoting from the bill :

Provided, however, That nothing herein shall be construed as divesting, limiting, or otherwise affecting the property rights, including, but not by way of

4 See app. III, p. 267.

limitation, the riparian rights, under the laws of the State of Texas, of the private owners of land abutting the Rio Grande River in the counties herein referred to. The authority herein granted to the Governor of the State of Texas extends only to the bed and banks of the Rio Grande River to the extent that title to such bed and banks is by law vested in the State of Texas ***

Mr. FASCELL. So, in other words, then, specifically excepted from this legislative enactment-right?-are the rights of water users, that is specifically riparian rights. In other words, whatever rights the riparian owner had under the law, under this statute he still retains. Mr. KILGORE. Not only the riparian but the appropriative. Mr. CUNNINGHAM. Either one would still retain his rights. Mr. KILGORE. As you will notice, it says, "Not by way of limitation." Mr. FASCELL. Then, Mr. Kilgore, do you agree that this is not acceding to the Federal Government of any rights?

Mr. KILGORE. Yes. All that the legislature did in this enactment was to give to the Governor the authority to give to the United States the physical right to locate a reservoir there, but fully retained within the State of Texas all control over water, or any other rights which existed.

Mr. FASCELL. But it is inherent, is it not, that the Federal Government would have the right to impound? Otherwise, why build the dam.

Mr. KILGORE. I think there is no question but what the United States would have the right to impound but here I think is where we come to what is a very clear distinction: The United States has the right to impound, certainly. But the United States does not have the right to retain in conservation storage, waters which under the Texas law a riparian owner or appropriative owner or such other owner of water rights may have vested in him when he, through the Board of Water Engineers or such other agency of the State of Texas, who may be his agent or spokesman, calls on the United States to release that water. The United States has the right to impound it but not the right to retain it, contrary to the vested right of the owner within the State of Texas.

Mr. FASCELL. Then we get back to our original discussion which occurred earlier in the hearings which was whether under the present situation of treaty, agreements, statutes and other documents, that the Commission was required-it is mandatory to deliver water on request of the State of Texas. That is the key to the whole thing, isn't it?

Mr. KILGORE. I think it is true that is the state of the law at this time and I think it is rather significant both to the United States and to the State of Texas that that be the law when this legislaion is passed.

So in the first instance, the United States, to change the law I think, puts itself in a position then of defending in these lawsuits and in defending in a whole series of litigation with respect to water rights, but leaves itself completely clear of that litigation when it maintains the position which position has been maintained up to this point, that the United States has no control over the release and diversion of water from conservation storage. And from the standpoint of the State of Texas, of course, that position, which is historical, would be maintained if we continue that position here.

Mr. FASCELL. Then, as I understand it, two things are necessary: Exclusive the word "exclusive" in the amendment, and, no charges of any kind.

Mr. CUNNINGHAM. We feel there should be none.

Mr. FASCELL. This is what you are talking about.

Mr. CUNNINGHAM. Yes.

Mr. SELDEN. Are there any further questions?
Thank you, Mr. Cunningham.

Mr. KILGORE. The next witness is Mr. Jack H. Drake, of the Lower Rio Grande Water Committee. He is executive vice president and general manager of the Lower Rio Grande Valley Chamber of Com

merce.

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Mr. Drake appeared before the committee at the first hearing and requested a continuance for this testimony.

Mr. SELDEN. We are very pleased to have you back, Mr. Drake, and you may proceed.

STATEMENT OF JACK H. DRAKE, SECRETARY, LOWER RIO GRANDE WATER COMMITTEE, AND EXECUTIVE VICE PRESIDENT AND GENERAL MANAGER, LOWER RIO GRANDE VALLEY CHAMBER OF COMMERCE

Mr. DRAKE. Mr. Chairman and gentlemen of the committee, my name is Jack H. Drake. I am secretary of the Lower Rio Grande Water Committee, and the executive vice president and general manager of the Lower Rio Grande Valley Chamber of Commerce. My home is in Weslaco, Hidalgo County, Tex. I have been a resident of the valley since 1914. I have been in the employment of the Lower Rio Grande Valley Chamber of Commerce for a period of 10 years, serving in the same capacity. As a personal sidelight, if you will pardon it, I am a landowner, having 26 acres in orchard and some farmland, all of which depends completely upon water from the Rio Grande. It is my purpose today to endeavor to briefly identify the Lower Rio Grande Valley, although I recognize our capable Congressman from the 15th Congressional District of Texas, has exposed you to many of its virtues. There are some current facts, dealing with our economy and overall picture I feel that you should have.

The four counties of Cameron, Hidalgo, Starr, and Willacy in the extreme southern tip of Texas are known as the Lower Rio Grande Valley. To the south across the Rio Grande lies Mexico, and to the east beyond Laguna Madre and Padre Island, the Gulf of Mexico. Now, that I have given you the area, I would like to tell you of our growth in population, and, if I may digress at this point, in the back of the brief which you have there is a map which clearly identifies the

area.

Mr. DRAKE. In 1900 the census was 34,401 for the four-county area and in 1920, 85,861; 1930 saw the population increase to 176,452. And in 1940 it had increased to 215,803; 1950 the census reported 319,617 and Sales Management, the bible of businessmen today, estimates our population at 412,300 in the four-county area. We are served by one transit company on a 30-minute schedule throughout the valley. We have one telephone directory, one electric company serving the valley with the exception of Brownsville, one gas company. Our telephone

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