438 BOULDER CANYON PROJECT ACT-SEC. 14 necessary or convenient for the use of waters of the Colorado River or its tributaries, or for the generation or transmission of electrical energy generated by means of the waters of said river or its tributaries, whether under this act, the Federal water power act, or otherwise, shall be upon the express condition and with the express covenant that the rights of the recipients or holders thereof to waters of the river or its tributaries, for the use of which the same are necessary, convenient, or incidental, and the use of the same shall likewise be subject to and controlled by said Colorado River compact. (d) The conditions and covenants referred to herein shall be deemed to run with the land and the right, interest, or privilege therein and water right, and shall attach as a matter of law, whether set out or referred to in the instrument evidencing any such patent, grant, contract, concession, lease, permit, license, right of way, or other privilege from the United States or under its authority, or not, and shall be deemed to be for the benefit of and be available to the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming, and the users of water therein or thereunder, by way of suit, defense, or otherwise, in any litigation respecting the waters of the Colorado River or its tributaries. (45 Stat. 1064; 43 U.S.C. § 6177) 1. Colorado River Compact NOTE OF OPINION The declarations in sections 1, 8(a), 13 (b), and 13(c) of the Boulder Canyon Project Act that the Secretary of the Interior and the United States shall be subject to and controlled by the Colorado River Compact, were made only to show that the Act and its provisions were in no way to upset, alter, or affect the Compact's congressionally approved division of water between the Upper and the Lower Basins. They were not intended to make the compact and its provisions control or affect the Act's allocation among and distribution of water within the States of the Lower Basin. Arizona v. California, 373 U.S. 546, 567 (1963). Sec. 14. [This act a supplement to the reclamation law.]-This act shall be deemed a supplement to the reclamation law, which said reclamation law shall govern the construction, operation, and management of the works herein author. ized, except as otherwise herein provided. (45 Stat. 1065; 43 U.S.C. § 617m) Excess lands 2 1. General NOTES OF OPINIONS The general structure of the Boulder Canyon project act indicates that it was not meant to exist independently but rather as a part of the legislative scheme embodied in the Federal reclamation law. Solicitor Harper Opinion, M-33902 (May 31, 1945), in re applicability of excess land provisions to Coachella Valley lands. The power of the Secretary of the Interior to apportion and distribute Colorado River water among and within the Lower Basin States through the execution of con tracts for its use is subject to a number of standards and limits in the Boulder Canyon Project Act. These include (1) the limitation in § 4(a) of 4,400,000 acre-feet on California's consumptive uses out of the first 7,500,000 acre-feet of mainstream water, leaving 3,100,000 acre-feet which the Secretary properly has apportioned by contract in the quantities of 300,000 acrefeet to Nevada and 2,800,000 to Arizona; (2) the provision in § 6 setting out in order the purposes for which the Secretary must use the dam and reservoir; (3) the § 4(b) requirement for revenue provisions in the contracts adequate to ensure the recovery of the expenses of construction, operation and maintenance of the dam and other BOULDER CANYON PROJECT ACT-SEC. 16 works within 50 years after their construction; (4) the directive in § 5 that water contracts for irrigation and domestic use shall be only for "permanent service"; (5) the recognition given in § 8(a) to the Colorado River Compact, which means that the Secretary and his permittees, licensees and contractees can do nothing to upset or encroach on the Compact's allocation of water between the Upper and Lower Basins; (6) the application by § 14 of general reclamation law except as the Act otherwise provides; and (7) the protection given in § 6 to "present perfected rights." Arizona v. California, 373 U.S. 546, 583–85 (1963). 2. Excess lands The provision of section 14 of the Boulder Canyon Project Act declaring it to be a supplement to the Federal reclamation law incorporates the 160-acre limitation into 439 the Project Act. Solicitor Harper Opinion, M-33902, at 6 (May 31, 1945), in re applicability of excess-land provisions to Coachella Valley lands. Where a Federal statute provides that the reclamation laws shall govern the construction, operation, and management of project works, the excess land provisions of the reclamation laws are thereby carried into effect unless the terms of the statute provide otherwise. Solicitor Barry Opinion, 71 I.D. 496, 501-08 (1964), in re application of excess land laws to private lands in Imperial Irrigation District. 3. Interchange of funds This section was construed in Comptroller General's decision A-41637, dated June 14, 1932, in connection with the Boulder Canyon Project item in the Appropriation Act for fiscal year 1932. Sec. 15. [Investigations and reports regarding use of water-Appropriation of $250,000 authorized.]-The Secretary of the Interior is authorized and directed to make investigation and public reports of the feasibility of projects for irrigation, generation of electric power, and other purposes in the States of Arizona, Nevada, Colorado, New Mexico, Utah, and Wyoming for the purpose of making such information available to said States and to the Congress, and of formulating a comprehensive scheme of control and the improvement and utilization of the water of the Colorado River and its tributaries. The sum of $250,000 is hereby authorized to be appropriated from said Colorado River Dam fund, created by section 2 of this act, for such purposes. (45 Stat. 1065; 43 U.S.C. § 617n) Sec. 16. [Cooperation of commissions or commissioners with Secretary of Interior-Access to records.]-In furtherance of any comprehensive plan formulated hereafter for the control, improvement, and utilization of the resources of the Colorado River system and to the end that the project authorized by this act may constitute and be administered as a unit in such control, improvement, and utilization, any commission or commissioner duly authorized under the law of any ratifying State in that behalf shall have the right to act in an advisory capacity to and in cooperation with the Secretary of the Interior in the exercise of any authority under the provisions of sections 4, 5, and 14 of this act, and shall have at all times access to records of all Federal agencies empowered to act under said sections, and shall be entitled to have copies of said records on request. (45 Stat. 1065; 43 U.S.C. § 6170) EXPLANATORY NOTE Colorado River Commission. Arizona, California, Nevada, and Utah enacted laws creating a Colorado River Commission: 1929 Arizona Sess. Laws, p. 6; 1927 Cali fornia Sess. Laws, p. 1031, amended by 1929 California Sess. Laws, p. 691; 19281929 Nevada Sess. Laws, p. 194; and 1929 Utah Sess. Laws, p. 187. Sec. 17. [Claims of the United States arising from any contract authorized by this act.]-Claims of the United States arising out of any contract authorized by this act shall have priority over all others, secured or unsecured. (45 Stat. 1065; 43 U.S.C. § 617p) 1. General NOTE OF OPINION The provision in section 17 of the Boulder Canyon Project Act that "claims of the United States arising out of any contract authorized by this act shall have priority over all others" entitles the United States thereto only so long as the net proceeds from power development of the All American Canal are in the hands of the irrigation district. Acting Solicitor Kirgis Opinion, 56 I.D. 116 (1937). Sec. 18. [Rights of States to waters within their borders.]-Nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders or to adopt such policies and enact such laws as they may deem necessary with respect to the appropriation, control, and use of waters within their borders, except as modified by the Colorado River compact or other interstate agreement. (45 Stat. 1065; 43 U.S.C. § 617q) 1. State laws NOTES OF OPINIONS Where the government has, as here, exercised its right to regulate and develop the river and has undertaken a comprehensive project for improvements of the river and for the orderly and beneficial distribution of water, there is no room for inconsistent state law. Arizona v. California, 373 U.S. 546, 587 (1963). In choosing between users within each State and in settling the terms of his contracts for the use of stored Colorado River water, the Secretary is not bound, either by section 18 of the Boulder Canyon Project Act, or by section 8 of the Reclamation Act, to follow State law. Although section 18 allows the States to do things not inconsistent with the Project Act or with Federal control of the river, as for example, regulation of the use of tributary water and protection of present perfected rights, the general saving language of section 18 cannot bind the Secretary by state law and thereby nullify the contract power expressly conferred upon him by section 5. Arizona v. California, 373 U.S. 546, 580-90 (1963). Sec. 19. [Consent of Congress given to basin States to enter into compacts. regarding use of water-Representative of United States to cooperate in formulation of compacts-Approval by legislatures and by Congress.]—The consent of Congress is hereby given to the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming to negotiate and enter into compacts or agreements, supplemental to and in conformity with the Colorado River compact and consistent with this act for a comprehensive plan for the COLORADO RIVER COMPACT 441 development of the Colorado River and providing for the storage, diversion, and use of the waters of said river. Any such compact or agreement may provide for the construction of dams, headworks, and other diversion works or structures for flood control, reclamation, improvement of navigation, division of water, or other purposes and/or the construction of power houses or other structures for the purpose of the development of water power and the financing of the same; and for such purposes may authorize the creation of interstate commissions and/or the creation of corporations, authorities, or other instrumentalities. (a) Such consent is given upon condition that a representative of the United States, to be appointed by the President, shall participate in the negotiations and shall make report to Congress of the proceedings and of any compact or agreement entered into. (b) No such compact or agreement shall be binding or obligatory upon any of such States unless and until it has been approved by the legislature of each of such States and by the Congress of the United States. (45 Stat. 1065; 43 U.S.C. § 617r) EXPLANATORY NOTE Cross Reference, Upper Colorado River Basin Compact. The Act of April 6, 1949, grants the consent of Congress to the Upper Colorado River Basin Compact. The Act, which contains the text of the compact, appears herein in chronological order. Sec. 20. [Right of Mexico to waters of Colorado River system not affected by this act.]—Nothing in this act shall be construed as a denial or recognition of any rights, if any, in Mexico to the use of the waters of the Colorado River system. (45 Stat. 1066; 43 U.S.C. § 617s) Sec. 21. [Short title.]-The short title of this act shall be "Boulder Canyon Project Act." (45 Stat. 1066; 43 U.S.C. § 617t) EXPLANATORY NOTE Legislative History. H.R. 5773, Public No. 918, Parts 1, 2, and 3. S. Rept. Law 642 in the 70th Congress. H.R. Rept. No. 592 (on S. 728). COLORADO RIVER COMPACT SIGNED AT SANTA FE, N. Mex., The States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming, having resolved to enter into a compact under the Act of the Congress of the United States of America approved August 19, 1921, (42 Statutes at Large, p. 171), and the acts of the legislatures of the said states, have through their Governors appointed as their commissioners: W. S. Norviel, for the State of Arizona; W. F. McClure, for the State of California; Delph E. Carpenter, for the State of Colorado; J. G. Scrugham, for the State of Nevada; Stephen B. Davis, Jr., for the State of New Mexico; R. E. Caldwell, for the State of Utah; Frank C. Emerson, for the State of Wyoming; who, after negotiations participated in by Herbert Hoover, appointed by the President as the representative of the United States of America, have agreed upon the following articles: 267-067-72-vol. I―31 442 COLORADO RIVER COMPACT ARTICLE I The major purposes of this compact are to provide for the equitable division and apportionment of the use of the waters of the Colorado River System; to establish the relative importance of different beneficial uses of water; to promote interstate comity; to remove causes of present and future controversies; and to secure the expeditious agricultural and industrial development of the Colorado River Basin, the storage of its waters, and the protection of life and property from floods. To these ends the Colorado River Basin is divided into two Basins, and an apportionment of the use of part of the water of the Colorado River System is made to each of them with the provision that further equitable apportionments may be made. As used in this Compact: ARTICLE II (a) The term "Colorado River System" means that portion of the Colorado River and its tributaries within the United States of America. (b) The term "Colorado River Basin" means all of the drainage area of the Colorado River System and all other territory within the United States of America to which the waters of the Colorado River System shall be beneficially applied. (c) The term "States of the Upper Division" means the States of Colorado, New Mexico, Utah, and Wyoming. (d) The term "States of the Lower Division" means the States of Arizona, California and Nevada. (e) The term "Lee Ferry" means a point in the main stream of the Colorado River one mile below the mouth of the Paria River. (f) The term "Upper Basin" means those parts of the States of Arizona, Colorado, New Mexico, Utah and Wyoming within and from which waters naturally drain into the Colorado River System above Lee Ferry, and also all parts of said States located without the drainage area of the Colorado River System which are now or shall hereafter be beneficially served by waters diverted from the system above Lee Ferry. (g) The term "Lower Basin" means those parts of the States of Arizona, California, Nevada, New Mexico, and Utah within and from which waters naturally drain into the Colorado River System below Lee Ferry, and also all parts of said States located without the drainage area of the Colorado River System which are now or shall hereafter be beneficially served by waters diverted from the System below Lee Ferry. (h) The term "domestic use" shall include the use of water for household, stock, municipal, mining, milling, industrial and other like purposes, but shall exclude the generation of electrical power. 1. Transbasin diversions NOTE OF OPINION The Colorado River Compact authorizes the transmountain diversion of waters of the Colorado River from their natural watersheds to other watersheds within the Basin States, but not to States outside the Basin. Solicitor Margold Opinion, M-28389 (April 4, 1936). |