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STATEMENT OF HON. ABRAHAM KAZEN, JR., STATE SENATOR, STATE OF TEXAS

Mr. KAZEN. Mr. Chairman, my name is Abraham Kazen, Jr. I am the State Senator from the 21st senatorial district of Texas, which includes all of the counties bordering on the Rio Grande River from the Val Verde-Maverick County line through Starr County, which is below Falcon Dam, a distance of over 300 river-miles. Hence, my interest in this legislation. My colleagues in the Texas Legislature from the lower valley-as you can see I represent only one county from the lower valley-and I have tried through the years to agree on legislation on this question of water rights. There were so many diversified views that we in effect came to a dead end. We got to the point where we said it will be impossible to determine water rights by legislation. Those decisions should be made by the courts. The courts are the proper place for rights to be decided.

And that is the attitude and the position which I take at the present time with reference to this bill.

I supported House bill 881, which has been previously discussed this afternoon, giving the Governor of Texas the authority to grant to the United States those portions of the bed and banks of the Rio Grande as may be necessary or expedient in the construction and use of the storage and flood control dams and their resultant reservoirs, diversion works and appurtenances thereto, provided for in the treaty between the United States of America and the United Mexican States concluded February 3, 1944. As you will notice, that authorization includes the site or sites in the entire portion of the Rio Grande River where all three dams called for by the treaty could be built, and the State of Texas does not have to pass any further legislation in this connection. Previously, we had passed similar legislation authorizing the granting of rights to the United States for the construction of Falcon Dam, and incidently, all of us up and down the river pitched in and helped the lower valley to secure the construction of Falcon, because we knew that eventually they would come in and help us secure the other dams provided for by the treaty. This has been the spirit of cooperation that has existed in the past and I hope that it can continue to exist in the future. The only thing that I object to and quarrel with on this occasion is that the question of water rights should not be referred to or taken into consideration by any authorization bill passed by Congress. Water rights, as far as we are concerned, are something that the State courts or the State legislature should decide.

Mr. Chairman, I believe that after the discussion this afternoon, your committee is now aware that the waters of Texas rivers belong to the State of Texas, and, therefore, it should be the exclusive duty of the State to make distribution of any and all waters. In this connection we have gone one step further in the Texas Legislature by passing a bill which designates the Texas Board of Water Engineers as the appropriate agency to regulate the taking of waters from any reservoir or dam constructed on an international stream, and we have also in order to alleviate the fears of downstream users, made it a penal offense for anyone without legal right to water, to divert, appropriate, use, or otherwise interfere with the passage of the waters

that are destined for downstream use or storage. The only question which is not settled at this time is the question of ownership by individuals, and I believe that that question should not be settled or even taken into consideration in the bill now pending before you. Since, I repeat, this is a question for the State to decide. I believe in being straightforward and frank when testifying before a committee such as this. I have been a member of the Water Committee of either the House of Representatives or of the Senate of Texas for a period of 14 years, and my experience has been that the members of the committee appreciate receiving the facts as they actually are. I think that all of us up and down the river below and above Falcon Dam will agree that the Federal Government should not attempt to control the distribution of the water since that is the law, and secondly, that since by treaty, the United States is bound to build conservation storage space behind these dams, it will be done. Speaking for the middle area, I say to you that we do need conservation storage in Amistad, but we should not as individual users be placed in a position where we would have to pay for that space. As I have pointed out to you earlier, the diversified rights that exist, make it impossible for users to enter into a contract with the Federal Government for the purchase of definite amounts of water. I believe that the committee understands the conflicts involved in this proposition. The majority of the people whom I represent along the Rio Grande are individual users. The only water district which exists in my senatorial district is in Maverick County. You can well imagine how hard it is for me to represent so many individuals with so many different claims. Hence, my inability to reach complete agreement on legislation with my colleagues from the lower valley. They represent water districts in their area, and I daresay that practically every user belongs to a district, and it is much easier for them to get their people together as they have done in this instance today.

I have pointed out to you the two things that are of interest to us in this bill, and I believe that this bill, in this respect, should have only these two features, Congressman Fisher. The other problems we can go back home and decide for ourselves, either in the courts, or if need be by legislation. We take the position that the Congress should not create any more problems for us than we already have. This problem of water rights exists today as you have heard previously this afternoon. However, we are well underway in solving it. When we do this, we will be in pretty fair shape.

Now, with regard to the amendment to section 3, which has been previously discussed, and a copy of which has been made part of the record, I agree with the observation of the gentleman from Florida"as we already have the authority sought under this bill, why say anything about it?"-I respectfully suggest, if I am in order, that you read over the wording in a copy of this amendment which I have prepared and marked "A." The essential part of it says that the conservation storage of said dam is hereby dedicated to the State of Texas. Let the State of Texas do what it wants with it. It will be the exclusive responsibility of the appropriate authority of Texas to distribute the available U.S. share of waters of the Rio Grande. I submit to you that that is all that is necessary in this bill.

However, if the committee sees fit to compromise the position of the various interests along the river, then I suggest that the wording in the amendment which has heretofore been submitted to you be changed to read, "the conservation storage of said dam is hereby dedicated to the State of Texas, and the State of Texas having stipulated that the amount of water that will be available for use in the United States below Falcon afer the proposed dam is placed in operation will not be less than the amount available under existing conditions" and so on. In other words, the proposed amendment which the previous witnesses today submitted to the committee is susceptible to the interpretation that the entire conservation storage is dedicated to the proposition that below Falcon the flow shall be the same as it has been previously. It could mean that the entire conservation storage is dedicated to that proposition, and I don't believe that this was their intention. Under the amendment handed you now, and is marked "B," and which I read to you a moment ago, the State of Texas could dedicate that part of the conservation storage that would be necessary for the purpose of assuring that the riverflow shall not be diminished.

I am sorry that I have taken so much of your time. I did not have a prepared statement, but while I was sitting back there listening to the testimony, and to the questions raised by Mr. Fascell, it occurred to me that I might be some help to the committee, by trying to clear up some answers to his questions. The point which Mr. Fascell brought forth: Why mention these things if you don't have to? Why create any problems by adding surplus words to this bill when there is no need for it?-is very well taken. Mr. Fascell, I agree with your observations.

Mr. Chairman, I thank you for the opportunity and the privilege of appearing before you, and I am sorry that I have taken up so much of your time.

(The amendments referred to follow :)

AMENDMENT A

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 conservation storage of said dam is hereby dedicated to the State of Texas.

AMENDMENT B

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 conservation storage of said dam is hereby dedicated to the State of Texas, and, 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, 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. SELDEN. Thank you, Senator. We are pleased to have heard from you.

STATEMENT OF HON. O. C. FISHER, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Mr. FISHER. Mr. Chairman, before you conclude for the record I want to state that as author of the bill as far as I am concerned-of course, I realize the committee will redraft this bill in a number of respects-let me say I am quite willing to accept the proposed amendment. I think it would be well to take into consideration the suggestion made by the Senator who just testified.

I want to make one other brief statement with particular reference to the testimony by Mr. Mills, and two or three others where reference was made to the estimated cost of the conservation storage.

As I recall, Colonel Hewitt developed that subject but, just to nail it down in the record, I have before me a letter from Colonel Hewitt. dated August 12, after H.R. 8080 was introduced in which he answered certain questions I submitted to him, one of which was this:

What is the estimated United States share of the cost of the conservation. storage at Diablo?

The answer:

The United States share of the cost of the conservation storage proposed at the Diablo site is estimated to amount to $12 million on the basis of the incremental method of allocation, with flood control a prime requisite in the project.

Mr. KILGORE. With respect to the proposed language of the amendment, I think there is no question but that everyone who is here has a common understanding of what is intended and I have no doubt but what the able members of the staff and the subcommittee, and their working with us that we will be able to arrive at a satisfactory answer. Mr. SELDEN. Are there any further statements or questions?

If not, let me say again that we have enjoyed having you gentlemen with us here today and we appreciate the statements that you have made.

The meeting is adjourned.

(Whereupon, at 5:55 p.m., the committee adjourned.)

The following statements were submitted for inclusion in the record :)

STATEMENT OF GERALD D. BECKER, CITY ATTORNEY OF AND FOR THE CITY OF EAGLE: PASS, TEX.

Serious doubt is entertained as to the existence of a parallel example, as a precedent, with respect to a U.S. boundary and treaty dam project of this: nature-one having assigned to it the set of priority purposes specified by the terms of the basic treaty-upon which logically might be predicated repayment of construction expenditure whereby an existing, incorporated city of a State, heretofore, presently, and hereafter dependent upon the boundary of waterfor domestic and municipal purposes, would be required to pay for such waters: by reason of the construction and existence of a Federal treaty dam within the source of its water supply.

The position of the incorporated city of Eagle Pass, Tex., therefore, is essentially this:

1. The practical need for including substantial U.S. conservation capacity at Amistad Dam is dictated by a combination of circumstances. The 1945 treaty between the United States and Mexico provides that there will be such storage capacity as is needed to conserve the maximum quantity of the waters of the Rio Grande. The Government of Mexico can be expected to have conservation storage at Amistad. The agreement between the Mexican section and the U.S. section of the International Boundary and Water Commission provides for such storage. Thus, U.S. storage is founded upon entirely different reasons than those which would dictate conservation storage being included in Corps of Engineers or reclamation projects.

2. It is not contemplated that any additional land be put in irrigation within the city of Eagle Pass. The gain in conservation water will be slight, indeed; and to impose upon municipal inhabitants, any burden in the form of repayment of the conservation storage costs would be entirely inequitable. The benefit resulting from proposed conservation storage at Amistad Dam bears no ordinary relationship to the cost of the storage; hence it would not be economically feasible to assess that by cost on land under irrigation which land would gain very little in the way of increased water.

3. U.S. conservation storage at Amistad Dam, other than by virtue of the treaty obligation referred to above, appears mandatory if U.S. water users and diverters are to protect the position they now hold against an adverse set of circumstances which could result if Amistad were to be constructed to provide such conservation storage space for Mexico but none for the United States. Under the provisions of the treaty between the two countries, the division of water in storage is arrived at by a measurement of the water as to its tributary source in accordance with specified percentages of ownership of water by the respective countries, from certain named tributaries. This basic rule applies so long as the total conservation space in a given reservoir is not being used; and as a result one country may, for a period of time, be permitted to use the storage capacity belonging to the other country, in storing such measured water, so long as the excess storage does not deprive such other country of her own needed storage potential.

4. By operation of the treaty, when the total storage capacity of a given reservoir is reached, the ownership of the water therein would then revert to the two respective countries in a percentage fixed by the treaty, without distinction as to the sources of such water or who may have "owned" it prior to reservoir capacity having been reached. For practical purposes let it be imagined that Amistad Dam were constructed with conservation storage space for Mexico but none for the United States. Mexico could, as she wished, release her stored water from Amistad for recapture in the downstream storage capacity at Falcon Dam, thereby raising the total water storage at Falcon to the conservation limitation of the reservoir; and this, by operation of the treaty, would result in the United States losing title to any water which might then be in storage in Falcon under U.S. ownership, if that amount of water exceeded the allowable U.S. storage at Falcon.

5. It is submitted that to require water users and diverters on the U.S. side to pay for conservation storage at Amistad would be to require such citizens of the United States to defray the cost of a treaty obligation of this country, which treaty obligation does not produce any material conservation benefit to such citizens but produces, on the other hand, serious consequences to them if there is no U.S. storage at Amistad Dam, by taking from them a water storage capacity and potential which they now have.

6. Historically and geographically, the city of Eagle Pass is situated on the U.S. bank of the Rio Grande by virtue of the availability of river water so vital to the existence of such municipality and others similarly situated (estimated total, approximately 500,000 inhabitants) below the Amistad site. Upon or subsequent to the construction of Amistad Dam, to require such a city to commence and continue to pay for use-priority water, so vitally needed for municipal and domestic purposes, would virtually penalize the municipality, and its inhabitants in turn, for there existing-a use penalty inequitable, impractical, and wholly without the intent of the basic authority: the treaty, itself.

7. Since, to date, the city of Eagle Pass at such location, upon the U.S. bank of the Rio Grande, in the main has enjoyed an adequate supply of municipal waters therefrom and has based the evolution, planning, and extensive cost of

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