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Mr. Fascell. Despite the fact that peaking power takes regulated flow and despite the fact it is also a secondary or incidental purpose.

Mr. Jones. Peaking power, sir, is classified in two or three different categories. One is seasonal peaking power, available for three or four months out of the year, if this covers the peak load season it has value. Peaking power can also be daily peaking power.

Now, both types would be available at times from Amistad, and there would be times none would be available, merely a reserve capacity. This plant would then be put on a reserve or standby basis, with the understanding that it could be used for 2 or 3 hours if necessary in an emergency.

And it could be also used as spinning capacity. Integration into a power system involves many facets with which I am sure this committee is not familiar. Those things were considered by us.

Mr. Fascell. I wondered if you weren't overgenerous in your evaluation of the type of power in arriving at the best and highest use. I wonder if you shouldn't have maybe classified this as straight dump power.

Mr. Bates. We certainly couldn't justify any offer we have made on straight dump power.

Mr. Fascell. In other words, it wouldn't be worth anything to you as dump power?

Mr. Bates. No, sir.

Mr. Fascell. You wouldn't come get it under any conditions at any price?

Mr. Bates. I couldn't say we won't come get it at any price. But it would be valued perhaps about that indicated by the Federal Power Commission, to us.

Mr. Fascell. If it were classified as dump power, you wouldn't consider building a plant at the site?

Mr. Bates. No, sir.

Mr. Jones. An assumed area peaking pattern was considered in their studies. The Boundary Commission study indicated that it could meet the condition required to generate peaking power 80 percent of the months. That means 80 percent of the months for 50 years. Maybe that is all but 2 months of the year, or maybe it is all but 4 months in 2 years, or 10 months in 5 years.

Mr. Selden. Mr. O'Hara?

Mr. O'hara. No questions.

Mr. Selden. Mr. Burleson?

Mr. Burleson. No questions.

Mr. Selden. Mr. Fisher?

Mr. Fisher. No questions.

Mr. Selden. Mr. Kilgore?

Mr. Kilgore. Let me see if I understand what you are talking about on the peaking power potential at Amistad being greater than that at Falcon.

Do you reach that conclusion on the assumption that water can be released from the Amistad site and recaptured at Falcon for use below Falcon so that at periods of time when there would be no demand for irrigation below Falcon, water could be released from Amistad and run through the penstocks for power, recaptured at Falcon for later use, and thereby there would be no loss of water?

Mr. Bates. That is right.

Mr. Fascell. Is that going to be done at the demand of the Water Commission of Texas, release of the water at Amistad for that purpose, with their consent and approval, or is it an inherent power in this legislation for that purpose?

Mr. Kilgore. Insofar as the water destined to be used below Falcon is concerned, I would think that the matter as to whether it can be stored in Amistad and left there, or released from Amistad and captured at Falcon would be within the judgment of the Boundary Commission unless the Boundary Commission subjugated the irrigation right to the extent that their practice resulted in loss of some of that water.

Mr. Fascell. I follow you all right.

Mr. Kilgore. If that doesn't happen, I think the right is within the United States.

Mr. Fascell. The Texas Water Commission can say, "We don't want you to release water out of Amistad, not right now."

There is that possibility. I mean, it is a possibility.

Mr. Kilgore. If that is conservation water and if the State of Texas would make a valid position that the release of the water at the time when there was no demand for it for irrigation would result in loss of some of that water for irrigation purposes, I think that would be a very likely possibility.

It would have to involve, I think, a subjugation of the irrigation priority in the treaty to power or some other cause to the detriment of the irrigator

Mr. Fascell. I am interested in this: In order to deliver peaking power you have to have a regulated flow 80 percent of the time, which means unless you have agreement in advance that this will be releasable, then I think it raises a question. That is the only point I make.

Mr. Bates. I believe our letter to them is clear in that matter, that it had to be done under the conditions you outline, or else we couldn't use it. And it would not be paid for, there would be a penalty.

Mr. Kilgore. I think the ,record will reflect that something over 90 percent of the irrigated lands on the basin under consideration are below Falcon.

So, when you are releasing water for irrigation purposes at Amistad site, you would assume over 90 percent of it is subject to recapture at Falcon, therefore the release of water for peaking power purposes would be feasible; you could release it at whatever period of the day is indicated for peaking purposes, because more than 90 percent of it is going right down to be recaptured anyway.

Mr. Seluen. If there are no further questions, Mr. Bates, we thank you for your appearance and statement. Also, we appreciate the statement and appearance of Mr. Jones.

Mr. Fisher. Mr. Chairman, I have a letter here from J. C. Epperson. May I have that inserted in the record?

Mr. Seluen. Without objection, it will be included in the record at this time.

(The letter referred to is as follows:)

International Brotherhood Of Electrical Workers,

Local Union 66, Houston, Tex., February 29,1960. In re H.R. 8080, Diablo Dam project. Hon. Clark Fisher, House Office Building, Washington, D.C.

Dear Sir: I would like to take this opportunity to express to you our feelings on the above project.

Local Union No. 66 of the IBBW believes in the American way of life which, of course, includes free enterprise along with free labor. Therefore, it is our sincere belief that the best interests of all Americans and Texans, in particular, could be better served if the power facilities at the above mentioned project were allowed to be developed by investor owned utilities.

The officers and members of Local No. 66 wish to commend you for your efforts on this bill, of which we understand you are the sponsor. Thanks for your efforts. Sincerely,

J. C. Epperson, Business Manager.

Mr. Kilgore. Mr. Chairman, may I submit a further statement from Frank Y. Hill for the city of Laredo and Laredo Chamber of Commerce.

Mr. Selden. Without objection, those statements will be included in the record.

(The statement referred to is as follows:)

Supplementary Statement Of Frank T. Hill, Attorney, For The City Of Laredo, Tex., And Representing Webb County, Zapata County, And Laredo Chamber Of Commerce

Chairman Selden and gentlemen of the subcommittee, with your leave I beg to file this supplement to my written statement presented before your committee on February 10, 1960, in order to further develop the position of the city of Laredo in respect to certain proposed provisions of H.R. 8080.

As previously stated the city of Laredo strongly supports the construction of Amistad Dam and the enactment of authorizing legislation for the reasons set out in my original statement. However, certain proposed provisions of the bill profoundly concern the city of Laredo and it is to these provisions of the bill that I now speak so that the committee may have the facts and may know the position of the city of Laredo.

The city of Laredo is a Spanish pueblo town on the Rio Grande River, as will hereafter be more fully stated, and deraigns its rights to the waters of the river for municipal purposes and the use of its individual inhabitants from the Crown of Spain through the chain of sovereign governments of which it has been a political subdivision down to the present time and its status of a home rule city under the Constitution of the State of Texas.

The city's title to its water rights originated with the grant from the Crown of Spain to the Pueblo of Laredo, and such title was successively recognized and validated by the Government of Mexico, the Republic of Texas and the State of Texas, and the United States, never at any time acquired any character of rights or claims adverse to such title, and the city of Laredo does not now nor ever has recognized any right in the Federal Government or the State of Texas to appropriate, control, or levy a charge on the riparian water taken by the city from the normal flow of the river.

In respect to the floodwaters of the Rio Grande which are the property of the State of Texas, the city recognizes the State's authority to allocate such waters, but does not recognize the right of either the State or Federal Oovernmen to impound, divert, or allocate the riparian or normal flow waters of the stream, for to do so would be a taking without compensation a property right vested in the city for 200 years.

There can be no question but that the State of Texas owns and holds the public waters of the State of Texas in trust for the people.

The Republic of Texas, under its Constitution, held title to all its public lands, navigable streams, and public waters, including the banks and beds of flowing streams (Constitution of the Republic of Texas ratified by the vote of the people, September 5, 1836).

Under the Articles of Annexation, the State of Texas retained all the public domain theretofore held by the Republic of Texas under the provisions of such articles, to wit:

Joint Resolution of the Congress of the United States March 1, 1845 (5 U.S. Stat. 797);

Joint Resolution of the Congress of the Republic of Texas; approved June 23, 1845;

Joint Resolution of the Congress of the United States, December 29, 1845

(9 U.S. Stat. 108), admission of the State of Texas into the Union.

Section 2 of the Joint Resolution of the U.S. Congress cited above provides,

among other guarantees, that the State of Texas "shall also retain all the vacant

and unappropriated lands lying within its limits" and such condition was given

effect in the subsequent articles cited above.

The State of Texas, in its first Constitution of 1845 which was approved by the U.S. Congress as being in compliance with the terms of annexation, declared the State to be vested with title to the public domain held by the Republic of Texas.

Acting by virtue of this constitutional provision, the legislature enacted the following law:


"Property of the State.—The waters of the ordinary flow and underflow and tides of every flowing river or natural stream, of all lakes, bays, or arms of the Gulf of Mexico, and the storm, flood or rainwaters of every river or natural stream, canyon, ravine, depression or watershed, within the State of Texas, are hereby declared to be the property of the State of Texas, and the right to the use thereof may be acquired by appropriation in the manner and for the uses and purposes hereinafter provided, and may be taken or diverted from its natural channel for any of the purposes expressed in this Chapter."

The ownership dominion and control by the State of Texas of its public lands and the banks and beds of its flowing rivers, its flood and storm water and all runoff surface water has been historically recognized by the State and Federal courts and by the U.S. Government in the many transactions between the Government and the State in development projects on the rivers and streams of Texas, including the Falcon Dam. The question is so well settled that it no longer is in issue:

Goldsmith & Powell v. State, Texas civil appeals, 159 S.W. (2) 534 (error refused).

South Texas Water Co. v. Bieri (Civ. App. 247 S.W.) Motle v. Boyd (116 Texas 82, 286 S.W. 458) (Texas Supreme Court). Recent case of Martinez v. Maverick County Water Control and Improvement District No. 1, et al. (219 Fed. 2d 666 (5th Circuit)), holding that the ownership of and riparian rights in the waters of the Rio Grande is a question for the State courts.

Therefore, we urge that the Congress, as a matter of law, is without authority to impose conditions in the authorization bill whereby the State of Texas or any riparian diverter on the river below Amistad Dam is compelled to purchase the impounded waters or conservation storage.

The Texas courts have upheld the Spanish doctrine of riparian rights attached to the land of the Spanish and Mexican grants as patented by the State of Texas, which includes practically all the land abutting the river below the Amistad site. Under this doctrine riparian waters may not be impounded, since the riparian diverter, as a matter of property right, has the right to have the normal flow pass his riparian land abutting on the stream. The city of Laredo claims such riparian right.

The same situation applies to all riparian lands abutting the river in Webb and Zapata Counties. These riparian lands compose approximately 90 percent of the river land in the two counties with approximately 200 individual owners. These owners in respect to riparian rights stand on an equal footing with the city of Laredo, deriving their title from the same source.

The State of Texas, having control of the releases of water from the Amistad Dam, would be required by law to give effect to such right in its ordered releases. However, neither the State of Texas nor the Federal Government could compel the riparian diverter to pay for this water since it is his by right of law. The above is stated to demonstrate to the committee that the proposal of the Bureau of the Budget to require repayment of the cost of the conservation portion of the dam by the sale of water to diverters below the dam, is not only unsound in law but in fact is impossible to implement. The riparian question is only one of the many legal impediments and fact situations cited in other statements before the committee that rule out the repayment of the conservation cost in the construction of the dam.

The history of the 1944 treaty with Mexico shows that it was the intention to provide for a treaty dam and the proceedings contain nothing to the effect that the implementation of the treaty was conditioned upon whether the U.S. water could be sold to pay for the conservation cost. Unless the treaty itself so provides the U.S. Government is bound by its obligation to proceed with the construction of the dam with available public funds. Therefore the authorization bill should contain no provision in respect to such repayment.

To further indulge the patience of the committee and to buttress the position of the city of Laredo as a "pueblo" riparian town the following is shown. The city's claim is based upon the following:

The City of Laredo was founded in the year 1767 by the Spanish Government by a public act of foundation known as the "Vicita-General", by a Commission appointed by the Marquez of Croix, Viceroy of Spain, composed of the Lieutenant Captain-general of the Province of New Santander, later called Taniaulipas. and the Secretary of the Royal Council. The Vicita states, "It is now ordered to proceed to the execution of the resolutions as provided in Chapter 4th, of the Royal patent dated at Buen Ritrio on the 29th of March 1763.

The "General Decree of Vicita" as recorded in book "A", page 148, of the
AVebb County, Texas, Records. The "Vicita-General" as archived in the
General Land office of Texas.
City of Laredo v. MacDonnell (Tex. Sup. Ct.) 52, Texas, 511.
Texas Mexican Railway v. Jarvis, 7 S.W. 210.

Royal Register of Oct. 15, 1754; 2 White, Rec. 62; Lib 4 tit. 12, Laws

2-5-8-11-12; 2 White Rec. 48; Hall-Mexican Law 17-38 ; Royal "Cedula" of

Oct. 15, 1754; Esp. Art. 12.

The State of Texas, by Letters Patent No. 233, dated July 18, 1884, patented to

the City of Laredo its town tract, by virtue of the Grant from the Crown of

Spain, dated 1767, and confirmed by Act of the Legislature approved Sept. 4, 1850,

as Survey No. 799, Webb County, Texas.

The special legislative charter from the State of Texas granted February 23, 1911, now in force, contains the following provisions in respect to the confirmation of property rights and riparian rights of the city:

"sec. 49. All rights, property, actions, franchises, choses in action, penalties,■ and forfeitures which are owned or have accrued to said city under any law heretofore in force, shall be vested in and possessed by the corporation hereby created, and no suit pending shall be affected by the passage of this Act, but the same shall be prosecuted or defended by the corporation hereby created.

"sec. 50. All the toll, ferry, bridge, and riparian rights along the Rio Grande river now enjoyed, owned, or claimed by the city of Laredo, and all rights of whatever nature granted to said city, or claimed by it under the Crown of Spain, shall remain in full force and effect."

From the above it will be seen that the municipality of Laredo, as presently incorporated, succeeded to all the rights and powers of the original town or "pueblo," and is vested with all the rights, titles, and privileges granted to the pueblo and its inhabitants.

By the terms of the Treaty of Guadalupe Hidalgo, ratified May 30, 1948, and the provisions of the several relinquishment acts of the Republic of Texas and of the State of Texas, and authorities of other States, it is well settled law that the property rights vesting under the laws of Spain and Mexico particularly as to "pueblo towns," validated and guaranteed to the owners thereof, their heirs and assigns, that the laws of Spain then in effect are controlling as to the nature and extent of these rights.

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