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The Department of the Interior has a further vital interest in the construction and operation of the proposed Diablo Dam and Reservoir. This interest stems from the Secretary's statutory responsibilities (act of June 18, 1954, 68 Stat. 255) for allocation of capital investment to power and marketing of electric energy generated at the downstream Falcon Dam. The law provides that the energy must be marketed at rates to recover costs of producing and transmitting the energy and amortizing the allocated capital costs.

Although an interim power rate schedule is in effect, it has been the Bureau of Reclamation's position that a final allocation of costs to power cannot be made until the upstream Diablo Dam and Reservoir are planned in detail or constructed, so that the firming effect of such storage on generating capacity at Falcon can be reflected in the power benefits. Several years of operating experience at Falcon may be required to form a basis for agreement in this matter. On May 1, 1957, we advised the Secretary of State that we expect to use data and power system experience in the determination of a proper allocation of costs.

The report of the U.S. section of the IBWC concludes that construction of a Federal powerplant would not be economically justified on the basis of costs estimated by the U.S. section and energy values or benefits assigned by the regional office of the Federal Power Commission. That office concluded that dependable capacity could not be assigned with the proposed type of operation and that all energy generated at Diablo would be classified only as fuel-replacement energy with an at-site value of 1.7 mills per kilowatt-hour. The regional office of the Federal Power Commission concedes, however, that this value does not necessarily determine the rates at which energy could be sold either at the site or at the market. Our present contracts for the sale of power from Falcon Dam, which are based on capacity being available a percentage of time, indicate that higher revenues than 1.7 mills can be anticipated at the Diablo project. Revenues from the sale of power generated at the Falcon Dam hydroplant during 1958 averaged 3.2 mills per kilowatt-hour.

The report of the Bureau of Sport Fisheries and Wildlife, U.S. Fish and Wildlife Service, dated September 1958 and included as appendix A to the report of the U.S. section of the IBWC, is a review draft and was circulated for the comments of interested agencies. We are attaching a copy of the report approved by the Bureau of Sport Fisheries and Wildlife, U.S. Fish and Wildlife Service. It is requested that this report, dated November 1958, be substituted as appendix A for the preliminary report dated September 1958, and that the discussion on page 113 of the report of the U.S. section beginning on line 5 and ending on line 18, "A survey of sports fishing benefits * * * would therefore be approximately $176,000 annually" be deleted and the following paragraphs substituted.

"Although this project will create an impoundment type of fishing and increase total fisherman use in the project area, it will also destroy, through inundation of part of the Devils River, one of the most valuable reaches of stream fishing in Texas. Mitigation of this stream fishing loss, as separably identifiable from reservoir fishery gains, could be achieved through the development described in paragraph 89 of the November 1958 report of the Bureau of Sport Fisheries and Wildlife at a cost of $544,000. In the judgment of that Bureau, the value of the fishery losses to be mitigated would justify this expenditure. The unique nature of this type fishery in this part of Texas merits adoption of the mitigation measures.

"The Bureau of Sport Fisheries and Wildlife is of the opinion that, if this mitigation measure is not included in the project plan, the reservoir fishery benefits should be reduced by this amount which would represent an annual equivalent of $19,200 over a 50-year period or $14,900 over a 100-year period when amortized at 2%-percent interest.

"The Bureau of Sport Fisheries and Wildlife has evaluated the fish and wildlife benefits of the project, exclusive of the Devils River fishery losses, in terms of the lowest cost alternative justifiable single-purpose project which would provide comparable benefits. The capital cost of this alternative project and the corresponding measure of the benefits, which in the judgment of that Bureau justify it, would be $4,672,600. This would represent an annual equivalent of $164,900 over a 50-year period or $127,600 over a 100-year period when amortized at 2% percent. These benefits are dependent upon adoption of the recommendations in paragraph 99 of the appended report."

By mutual agreement with water resource construction agencies of the Federal Government, it has become customary for the reporting officers to incorporate in their reports specific references to the recommendations made by the U.S. Fish and Wildlife Service and to the actions thereon proposed by the reporting agency. We believe it would be helpful if the U.S. section of the Commission were to include in its report specific references to the recommendations of the U.S. Fish and Wildlife Service for preservation and enhancement of fish and wildlife resources and a statement of the U.S. section's proposed action.

The National Park Service will be pleased to cooperate with project sponsors in further studies on recreational potentials, development, and use. We appreciate the opportunity of reviewing your proposal. Sincerely yours,

Fred G. Aandahl, Assistant Secretary of the Interior.

APPENDIX III

A
Rio Grande River Projects

CHAPTER 483 1

S.B. 359

AN ACT To facilitate the construction of certain projects on the Rio Grande River under the Treaty of February 3, 1944, between the United States of America and United Mexican States by authorizing the Governor of the State of Texas to grant the title of the State of Texas to such of those portions of the bed and banks of the Rio Rrande River in Hidalgo, Starr, and Zapata Counties, Texas, as may be necessary or expedient for the construction of any of the works provided for by such Treaty, but reserving to the State of Texas all minerals subject to certain conditions under which such minerals may be explored for, produced, or developed ; and declaring an emergency

Be it enacted by the Legislature of the State of Texas:

Section 1. The Governor of the State of Texas is hereby authorized to grant to the United States of America in accordance with the conditions hereinafter set out, such of those portions of the bed and banks of the Rio Grande 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, diversion works, and appurtenances thereto, provided for in the Treaty between the United States of America and United Mexican States, concluded February 3, 1944.

Sec. 2. When the United States Commissioner, International Boundary and Water Commission, United States and Mexico, shall make application to the Governor of the State of Texas describing the area which is deemed necessary or expedient for use under said Treaty, the Governor shall issue a grant for and on behalf of the State of Texas to the United States of America conveying to it the area described in the application, which said grant shall reserve unto the State of Texas all minerals except rock, sand and gravel needed by the United States in the operation or construction by the United States or its agents of any of the works described in Section 1 of this Act subject to the proviso that the minerals so reserved to the State shall not be explored for, developed or produced in a manner which will at any time prevent or interfere with the operation or construction by the United States of America of any of the works described in Section 1 of this Act; and providing further, that prior to exploring for or developing such reserved minerals the written consent and approval of the United States Section International Boundary and Water Commission, United States and Mexico, or its successor agency, shall be obtained as to the proposed area sought to be explored or developed by the State of Texas, including, but not by way of limitation, the location of and production facilities for oil and/or gas wells. Successive applications may be made by the said United States Commissioner, and successive grants may be made to the United States of America by the Governor for and on behalf of the State of Texas, embracing various tracts within the limits herein specified, and no time limit shall be imposed upon such grants; provided, however, that nothing herein shall be construed as divesting, limiting, or otherwise affecting the property rights, including, but not by way of 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 whether under the civil law, or common law, or Court decisions

'Vernon's Ann. Civ. St., art. 5248g. 266

of the State of Texas or otherwise; provided, however, that any grant or grants made to the United States of America in accordance with this authority shall contain a reservation that in the event any part of the property so granted shall ever cease to be used for the purposes set out within this Act for a continuous period of five years after the beginning of such use, the part or parts of said property which are not so used shall immediately and automatically revert to the State of Texas after the expiration of said five year period.

Sec. 3. The fact that the procedure hereby authorized is urgently required in order that the United States of America may proceed with its obligations under said Treaty, and the crowded condition of the calendars in both Houses of the Legislature, create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be, and the same is hereby suspended; and this Act shall be in full force and effect from and after its passage, and it is so enacted.

Passed the Senate, May 12, 1949: Yeas 30, Nays 0; June 13, 1949. Senate refused to concur in House amendments, and requested appointment of Conference Committee; June 20, 1949, request granted; June 27, 1949, Senate adopted Conference Report: Yeas 28, Nays 0; passed the House June 9, 1949, with amendments: Yeas 132, Nays 0; June 20, 1949, House granted request of Senate for appointment of Conference Committee; June 27,1949, House adopted Conference Report: Yeas 123, Nays 0. Approved June 30,1949. Effective June 30,1949.

Bed And Banks Of Rio Grande In Certain CountiesGrants To Federal

Government

CHAPTER 324
H.B. No. 881

AN ACT Amending Section 1 of Chapter 483 of the Acts of the Fifty-first Legislature,
Regular Session, 1949, codified as Section 1 of Article f>248g, Vernon's Civil Statutes
of Texas, so as to include within its terms and provisions the Counties of Brewster,
Cameron, Hudspeth, Jeff Davis, Kinney, Maverick, Presidio, Terrell, Val Verde, and
Webb, Texas; and declaring an emergency

Be it enacted by the Legislature of the State of Texas:

Section 1. Section 1 of Chapter 483 of the Acts of the Fifty-first Legislature, Regular Session, 1949, codified as Section 1 of Article 5248g, Vernon's Civil Statutes of Texas, is hereby amendedx to read as follows:

"section 1. The Governor of the State of Texas is hereby authorized to grant to the United States of America in accordance with the conditions hereinafter set out, such of those portions of the bed and banks of the Rio Grande in Brewster, Cameron, Hidalgo, Hudspeth, Jeff Davis, Kinney, Maverick, Presidio, Starr, Terrell, Val Verde, Webb 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, diversion works and appurtenances thereto, provided for in the Treaty between the United States of America and United Mexican States, concluded February 3,1944."

Sec. 2. The fact that the present law does not authorize the Governor of Texas to grant title to portions of the bed and banks of the Rio Grande in Brewster, Cameron, Hudspeth. Jeff Davis, Kinney, Maverick, Presidio, Terrell, Val Verde, and Webb Counties on behalf of the State of Texas to the United States of America, the fact that such authorization is urgently required to enable the Federal Government to proceed with the construction of dams, diversion works and appurtenances thereto in such Counties, and the crowded condition of the calendars in both Houses of the Legislature, create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be, and the same is hereby suspended, and this Act shall be in full force and effect from and after its passage, and it is so enacted.

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Passed the House, April 29, 1955: Yeas 137, Nays 1; House concurred in Senate amendments May 6, 1955, by a viva-voce vote; passed the Senate, as amended, May 4.1955: Yeas 29, Nays 0.

Approved May 24,1955.

Effective 90 days after June 7,1955, date of adjournment.

International Boundary And Water Commission,

United States And Mexico,

United States Section,
El Paso, Tex., March 22, WHO.
Hon. Armistead I. Sei.den, Jr.,

Chairman, Subcommittee on Inter-American Affairs,
Committee on Foreign Affairs, Bouse of Representatives, Washington, D.C.

Dear Mr. Selden : In reviewing testimony before your subcommittee regarding the Amistad Dam project it occurs to me that the question of providing conservation storage may not have been fully clarified.

As was brought out in the testimony, article 5 of the Water Treaty provides for the construction of the dams required for the conservation, storage and regulation of the maximum quantity of the annual flow of the Rio Grande in a way to ensure the continuance of existing uses and the development of the greatest number of feasible projects within the limits imposed by the water allotments specified. The same article requires that in planning the construction of such dams the International Boundary and Water Commission shall determine the most feasible sites: the maximum feasible reservoir capacity at each site; the conservation capacity required by each country at each site, taking into consideration the amount and regimen of its allotment of water and its contemplated uses; and the capacities required for silt detention and flood control. As stated in Commission Minute No. 207 and this Section's feasibility report on the project, the conservation capacity required by each country at Amistad (1,686,000 acre-feet for the United States and 1,314,000 acre-feet for Mexico) was determined by its Section of the Commission, and the capacities required for the other specified purposes were determined jointly by the two Sections, the total capacity being 5,660,000 acre-feet.

Under the terms of article 5 of the Water Treaty the costs of construction, operation and maintenance of the international storage dams provided for by that article are prorated between the two Governments in proportion to the capacity allotted to each country for conservation purposes in the reservoir at such dam. On the basis of the above-stated conservation capacities at Amistad, the division of costs of the dam would be 56.2 percent to the United States and 43.8 percent to Mexico.

A decision by the United States not to provide conservation storage at Amistad would not be in accordance with the treaty and would mean that if the dam were constructed with conservation capacity for Mexico alone, Mexico would have to pay, in accordance with article 5, the entire cost of construction, operation and maintenance. This, I am sure, Mexico would be unwilling to do. The result would be no agreement, no dam at the Amistad site, and failure to provide the much-needed flood control as well as other benefits of the project to the two countries.

I should add that as was brought out in the testimony, if Mexico should be willing to build, operate and maintain Amistad dam at is own expense, providing conservation capacity for Mexico only, it would be able under the terms of the treaty to use substantial quantities of U.S. waters by virtue of being able to conserve such U.S. waters as would otherwise waste to the Gulf of Mexico because of insufficient conservation capacity available to the United States.

Sincerely yours,

L. H. Hewitt, Commissioner.

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