436 BOULDER CANYON PROJECT ACT-SEC. 10 re East Mesa Lands, Imperial Irrigation District. The Secretary of the Interior is authorized by section 9 of the Boulder Canyon Project Act to open for entry under the reclamation laws only those public lands which he finds are "practicable of irrigation and reclamation" by the irrigation works authorized in the Act. Whether a particular area of public land is "practicable of irrigation and reclamation" is a question of fact to be decided by the Secretary, and a mistaken determination made by one Secretary that the area is "practicable of irrigation and of reclamation" does not prevent a subsequent Secretary from reversing the earlier finding on the basis of later and more adequate data. Solicitor White Opinion, M35090 (March 18, 1949), in re East Mesa Lands, Imperial Irrigation District. 2. Veterans preference The veterans preference provision of section 9 of the Boulder Canyon Project Act was not adopted by the Interior Depart ment Appropriation Act for 1938, approved August 9, 1937, for the Gila project (“Gila project, Arizona, $700,000; said Gila projto be subject to the provisions of the Boulder Canyon Project Act * * *"), and the lands in the Gila project are not subject thereto. Acting Solicitor Kirgis Opinion, 57 I.D. 177 (1940). ect *** Sec. 10. [Contract with Imperial Irrigation District not modified-Additional contracts.]-Nothing in this act shall be construed as modifying in any manner the existing contract, dated October 23, 1918, between the United States and the Imperial Irrigation District, providing for a connection with Laguna Dam; but the Secretary of the Interior is authorized to enter into contract or contracts with the said district or other districts, persons, or agencies for the construction, in accordance with this act, of said canal and appurtenant structures, and also for the operation and maintenance thereof, with the consent of the other users. (45 Stat. 1063; 43 U.S.C. § 617i) Sec. 11. [Studies and investigations of Parker-Gila Valley project-Report by December 10, 1931.]-The Secretary of the Interior is hereby authorized to make such studies, surveys, investigations, and do such engineering as may be necessary to determine the lands in the State of Arizona that should be embraced within the boundaries of a reclamation project, heretofore commonly known and hereafter to be known as the Parker-Gila Valley reclamation project, and to recommend the most practicable and feasible method of irrigating lands within said project, or units thereof, and the cost of the same; and the appropriation of such sums of money as may be necessary for the aforesaid purposes from time to time is hereby authorized. The Secretary shall report to Congress as soon as practicable, and not later than December 10, 1931, his findings, conclusions, and recommendations regarding such project. (45 Stat. 1063) EXPLANATORY NOTE Codification. This section originally was U.S. Code, but is no longer shown therecodified as section 617j of title 43 of the under. Sec. 12. [Definitions of terminology employed.]-"Political subdivision" or "political subdivisions" as used in this act shall be understood to include any State, irrigation or other district, municipality, or other governmental organization. "Reclamation law" as used in this act shall be understood to mean that certain act of the Congress of the United States approved June 17, 1902, entitled "An Act appropriating the receipts from the sale and disposal of public land in certain States and Territories to the construction of irrigation works for the rec BOULDER CANYON PROJECT ACT-SEC. 13 437 lamation of arid lands", and the acts amendatory thereof and supplemental thereto. "Maintenance" as used herein shall be deemed to include in each instance provision for keeping the works in good operating condition. "The Federal water power act", as used in this act, shall be understood to mean that certain act of Congress of the United States approved June 10, 1920, entitled "An act to create a Federal Power Commission; to provide for the improvement of navigation; the development of water power; the use of the public. lands in relation thereto; and to repeal section 18 of the river and harbor appropriation act, approved August 8, 1917, and for other purposes", and the acts amendatory thereof and supplemental thereto. "Domestic" whenever employed in this act shall include water uses defined as "domestic" in said Colorado River compact. (45 Stat. 1064; 43 U.S.C. $ 617k). Sec. 13. [(a) Approval of Colorado River compact by Congress-(b) Rights of United States and of all parties claiming under United States—(c) All patents, contracts, grants, etc., subject to compact-(d) All conditions and covenants to run with the land.]—(a) The Colorado River compact signed at Santa Fe, New Mexico, November 24, 1922, pursuant to act of Congress approved August 19, 1921, entitled "An Act to permit a compact or agreement between the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming respecting the disposition and apportionment of the waters of the Colorado. River, and for other purposes", is hereby approved by the Congress of the United States, and the provisions of the first paragraph of article 11 of the said Colorado River compact, making said compact binding and obligatory when it shall have been approved by the legislature of each of the signatory States, are hereby waived, and this approval shall become effective when the State of California and at least five of the other States mentioned shall have approved or may hereafter approve said compact as aforesaid and shall consent to such waiver, as herein provided. (b) The rights of the United States in or to waters of the Colorado River and its tributaries howsoever claimed or acquired, as well as the rights of those claiming under the United States, shall be subject to and controlled by said Colorado River compact. (c) Also all patents, grants, contracts, concessions, leases, permits, licenses, rights of way, or other privileges from the United States or under its authority, 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 |