WASHINGTON, February 18, 1901.

CHAIRMAN SUBCOMMITTEE FOREIGN AFFAIRS COMMITTEE,

House of Representatives.

SIR: Responding to the invitation extended to me to submit a memorandum relative to H. R. No. 9710, I have the honor to invite your attention to the following:

The representative of the Rio Grande Dam and Irrigation Company, in opposition to the bill under consideration, has stated:

1. That irrigators in the El Paso Valley have been using the "regular flow," "natural flow," or "run of stream," and not the torrential flow.

2. That hitherto the flood waters of the Rio Grande have all gone to

waste.

3. That his corporation does not claim prior right to natural flowage, but that it proposes to appropriate all flood waters not heretofore appropriated.

Since May 1, 1897, the International Boundary Commission has determined the discharge of the Rio Grande at El Paso by a series of continuous measurements by current meter (not less than two measurements per week) and semidaily gauge readings. The results of these measurements, by months and years, are shown in the following tables:

Number of days when discharge of river at El Paso was—

The above data, covering a period of three years and eight months, show a discharge at El Paso varying between 1,232,560 acre-feet in eight months of 1897 and 73,640 acre-feet during the whole of 1899; also that the river was practically dry two hundred and fifty-eight days during the year 1900.

The spring flood of 1897 covered three full months (May, June, and July), during which time 78 per cent of the total discharge for eight months (May 1 to December 31) occurred. The spring flood of 1898 extended over April, May, June, and July, and amounted to 82 per cent of the total flow for the year. During the first seven months of 1899 (no flow in June) 96 per cent of the total discharge for the year passed El Paso. The spring flood of 1900 occurred during the latter half of May and the whole of June, and its volume was 81 per cent of the total discharge for the year.

It appears from the report of Mr. W. W. Follett, C. E., in Senate Doc. No. 229, Fifty-fifth Congress, second session, that in 1895 irrigation in New Mexico covered 197,000 acres.

The Rincon and Mesilla valleys comprise all the irrigable valley lands between Elephant Buttes and El Paso. From the above-mentioned report the following statement of lands irrigated in these two valleys has been compiled:

Irrigation in New Mexico between Elephant Buttes and El Paso.

Appropriation for 13 per cent of the total acreage was made prior to 1848; appropriation for 63 per cent of the total acreage was made between the years 1848 and 1880, and 24 per cent of the total acreage has been appropriated for since 1880. Prior to 1844 the Messilla Valley was overrun by Apache Indians, and the same tribe held sway in the Rincon Valley as late as 1860.

The investigation of the International Boundary Commission (in Senate Doc. No. 229, Fifty-fifth Congress, second session, already referred to) showed that, approximately, 40,000 acres had been irrigated in the El Paso Valley, and that a flow of about 750 cubic feet per second had been appropriated for such irrigation, of which approximately 400 cubic feet per second had been appropriated by the Mexican side of the valley and about 350 cubic feet per second had been appropriated by the Texas side of the valley; that the amount of water used in recent years has fallen much below this amount by reason of lack of water; and, further, that these appropriations of water were of ancient date and were made largely long prior to the appropriations in the Rincon and Mesilla valleys, and only one canal of importance has been constructed within recent years (the El Paso Canal, 1888), and that was in fact merely a change in the outtake of water previously appropriated.

It is believed that the foregoing data justify the following conclusions:

First. The Rio Grande in southern New Mexico and western Texas is purely a torrential stream, and no specific rate of flow can properly be designated as "regular flow," "natural flow," or "run of stream." Any rate of flow between nothing and the maximum daily rate might be classified by various individuals under these various designations. The separation of the waters of the Rio Grande into two classes (regular and flood flow) is not only impracticable but absurd if it be considered that the classifying authority would (in case of construction of the Elephant Buttes project) be officials of a corporation whose income would be dependent upon the amount of water diverted from the stream and whose natural object would be to store as much water as possible. This is given emphasis by the character of the New Mexican irrigation laws, which do not (unless recent legislation so requires) provide for officials vested with authority to supervise and control the use of water for irrigation, and by the fact that a large proportion of the El Paso Valley appropriators have not such political rights as would enable them to employ even the slow method of injunction to redress any wrongs they might suffer.

Second. Irrigators in the El Paso Valley have been largely dependent upon the flood flow of the river for their water supply. These floods may last from six weeks to six months, and they generally occur during the period of greatest agricultural need.

Third. The people of the El Paso Valley are entitled by appropriation to approximately 750 cubic feet of water per second; the appropriation of this water was made not only prior to the inception of the Elephant Buttes project but prior to practically all other appropriations. This appropriation of 750 cubic feet per second was made not for one day or one hundred days per annum, but for that specific amount of water throughout the year, and at the time when the appropriation was made the flow of the river was such as to enable the appropriators to avail of the full amount at practically all times. Various causes, the principal of which is subsequent appropriation above, have diminished the flow of the river to such extent that for thirty-four of the forty-four months covered by the measurements above given in the tables of El Paso discharge, the mean monthly rate of flow fell below the 750 cubic feet per second appropriated.

Fourth. The total discharge of the Rio Grande at El Paso during

the years 1898, 1899, and 1900 has not been equivalent to a regular discharge of 750 cubic feet per second for that period.

The purpose of the international dam, as proposed, is to provide for the old appropriators of the El Paso Valley a means of obtaining again that to which they have right by priority of appropriation and which has been taken from them by subsequent upstream appropriation; and it makes this provision in such manner as not to interfere with or destroy agricultural interests which have already been developed.

In view of existing conditions, it would scarcely appear just to permit, for the development of new agricultural interests, the construction of a storage reservoir with a capacity of a quarter of a million acre feet when its operation, as proposed, would render impossible the restoration to those among the first appropriators of their property in water which has been restrained.

Respectfully submitted.

P. D. CUNNINGHAM,

Consulting Engineer of the Commission Having in Charge the Investigations for the Equitable Distribution of the Waters of the Rio Grande.

Hon. J. P. HEATWOLE,

WASHINGTON, D. C., February 18, 1901.

House of Representatives.

DEAR SIR: I herewith submit to the subcommittee of the House Committee on Foreign Affairs, of which you are chairman, a brief and argument in opposition to the bill (H. R. 9710) known as the "Stephens bill," and as exhibits thereto: Exhibit A, argument before the Senate by Governor Otero; Exhibit B, extracts from a letter from J. L. Campbell, civil engineer, to the Hon. J. W. Griggs, Attorney-General; Exhibit C, memorial presented to the Senate, being Senate Doc. No. 104, Fifty-sixth Congress, second session.

Very respectfully,

J. H. McGOWAN, Attorney R. G. D. and Ir. Co.

Before the House Committee on Foreign Affairs, in opposition to the bill (H. R. 9710) known as the "Stephens bill," and entitled "A bill to provide for the equitable distribution of the waters of the Rio Grande River between the United States of America and the United States of Mexico, and for the purpose of building an international dam and reservoir on said river at El Paso, Texas."

This Stephens bill is based, so far as its basis may be ascertained from its preamble, upon the alleged violation by the United States, "of the spirit of article 7 of the treaty of peace of Guadalupe Hidalgo." The intent is to make restitution for the alleged wrongs inflicted under disregard of our treaty obligation-not the letter of the obligation but the spirit of it as interpreted by Mexico. That the committee may conveniently consult the article said to be violated, I here give it in full:

ART. 7. The river Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico being, agreeably to the fifth article, divided in the middle between the two Republics, the navigation of the Gila and of the Bravo

below said boundary shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation. Nor shall any tax or contribution, under any denomination of title, be levied upon vessels or persons navigating the same or upon merchandise or effects transported thereon, except in the case of landing upon one of their shores. If for the purpose of making the said rivers navigable, or for maintaining them in such state, it should be necessary or advantageous to establish any tax or contribution, this shall not be done without the consent of both Governments.

The stipulations contained in the present article shall not impair the Territorial rights of either Republic within its established limits. (9 Stat., 928, 929.)

This article was alluded to, but in no wise amended, by article 4 of the Gadsden treaty (10th Stats., 1034), which reads as follows:

ART. 4. (Last clause.) The several provisions, stipulations, and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo del Norte below the initial of the said boundary provided in the first article of this treaty; that is to say, below the intersection of the 31° 47' 30" parallel of latitude, with the boundary line established by the late treaty dividing said river from its mouth upward, according to the fifth article of the treaty of Guadalupe. (10 Stat., 1034.)

It is seen by the above, which gives some insight into the intent of the parties to the treaty, that neither the original treaty nor the Gadsden treaty undertook to deal with the river in any way except to designate it as a boundary between the two countries and to preserve its navigability. The words in the article just quoted-" the Rio Bravo del Norte below the initial of the said boundary provided in the first article of this treaty"-are significant as interpreting the meaning of article 7 of the Guadalupe treaty.

Some reference is made in article 3 of the convention of November 12, 1884, to the river and the preservation of its navigation. (24 Stat., 1012.)

Further reference is also made in the convention of March 1, 1889, article 1 and article 5. (26 Stats., 1513.)

An examination of these treaty provisions will disclose the fact that they only deal with the river where it forms the boundary between the two countries. To avoid all possible doubt on this point, it will be observed that the last clause of article 7 of the Guadalupe treaty expressly provides that the stipulations contained therein shall "not impair the Territorial rights of either Republic within its established limits."

It is therefore quite clear that the "constructions" inhibited were only those that might be built in the stream below the south line of New Mexico. "The navigation * * * of the Bravo below said boundary shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right"-the right of navigation.

A similar construction is given by articles 1 and 5 of the convention of March 1, 1889, supra. The language of article 5, first clause, is as follows:

ART. 5. Whenever the local authorities on any point of the frontier between the United States of America and the United States of Mexico, in that portion in which the Rio Grande and the Colorado River form the boundary between the two countries, shall think that works are being constructed in either of those rivers such as are prohibited by article 3 of the convention of November 12, 1884, or by article 7 of the treaty of Guadalupe Hidalgo, of February 2, 1848, they shall so notify their respective commissioners, etc.