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1940 Amendment: Distribution Systems. Section 2 of the Act of October 17, 1940, adds the authority in the second proviso for construction of distribution systems. The Act appears herein in chronological order.

Supplementary Provision: Fish and Wildlife Purposes. Section 1 of the Act of August 27, 1954, 68 Stat. 879, adds authority for the use of the waters of the Central Valley project for fish and wildlife purposes, subject to such priorities as are applicable under previous Acts. The 1954 Act appears herein in chronological order.

Supplementary Provisions: Additional Works. The following Acts of Congress relate to additional works authorized for inclusion as a part of or for integrated operation with the Central Valley project: (1) American River Basin development, Act of October 14, 1949; (2) Sacramento Valley canals, Act of September 26, 1950; (3) waterfowl management works, Act of August 27, 1954; (4) Trinity River division, Act of August 12, 1955; (5) San Luis unit, Act of June 3, 1960; (6) New Melones project (constructed by the Corps of Engineers), Act of October 23, 1962; (7) Auburn-Folsom South unit, Act of September 2, 1965. Each of these Acts appears herein in chronological order.

References in Text: Earlier Authorizations. Section 1 of the Act of August 30, 1935, 49 Stat. 1028, 1038, by approving the War Department report contained in Rivers and Harbors Committee Document Numbered 35, 73rd Congress, authorized the Secretary of War to make a Federal contribution of $12,000,000 to the cost of Kennett Dam on the upper reaches of the Sacramento River then proposed for construction by the Water Project Authority of the State

of California. On September 10, 1935, the President transferred $20,000,000 of funds appropriated under the Emergency Relief Appropriation Act of 1935 to the Secretary of the Interior for construction under the reclamation laws of Friant Dam on the San Joaquin River and related features as part of the Central Valley project. On December 2, 1935, the President approved the finding of feasibility report of the Secretary of the Interior, dated November 26, 1935, thereby authorizing construction of the Central Valley project as a Federal reclamation project under section 4 of the Act of June 25, 1910, and subsection B, section 4, of the Act of December 5, 1924 (Fact Finders' Act). The principal features of the project listed in the report were the Kennett Dam unit (subsequently renamed Shasta Dam), the Contra Costa conduit, San Joaquin pumping system, Friant Dam and Reservoir, Friant-Kern canal, and Madera Canal. The First Deficiency Appropriation Act, 1936, appropriated $6,900,000 for continuation of construction of the Central Valley project. The 1910 and 1924 Acts appear herein in chronological order.

Reference Source. An exhaustive compilation of material relating to the Central Valley project is contained in the 2-volume work entitled Central Valley Project Documents which was prepared under the direction of Chairman Engle of the House Committee on Interior and Insular Affairs. The first volume, "Part 1. Authorizing Documents," was printed as H.R. Doc. No. 416, 84th Cong., 2d Sess. (1956), and the second volume, "Part 2. Operating Documents," as H.R. Doc. No. 246, 85th Cong., 1st Sess. (1957).

Rates 8
Water rights 9

1. Generally

The Central Valley project is a subsidy, the cost of which will never be paid in full, and it is hardly lack of due process for the government to regulate that which it subsidizes. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 295–6 (1958).

Congress having left the determination of the need for particular property for distribution systems under the Central Valley

project to the Secretary of the Interior, the courts have no right to question the manner in which that official exercised the delegated power. United States v. 277.97 Acres of Land, 112 F. Supp. 159 (S.D. Cal. 1953).

6. Water-Contracts

The master contract of September 12, 1949, with the Santa Barbara County Water Agency, and the five member unit contracts by the Agency with the City of Santa Barbara and the Carpinteria, Goleta, Montecito, and Summerland County Water Districts, were held valid by the United States Supreme Court as against objections to the excess land and other provisions, Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275 (1958), reversing Santa Barbara County Water Agency v. All Persons, 47 Cal. 2d 699, 306 P. 2d 875 (1957). The contracts subsequently were held valid by the Supreme Court of California on remand, Santa Barbara County Water Agency v. All Persons, 53 Cal. 2d 743, 3 Cal. Rptr. 348, 350 P. 2d 100 (1960).

Contracts of September 23, 1949, with Ivanhoe Irrigation District and May 14, 1951, with Madera Irrigation District for water service and construction of a distribution system were held valid by the United States Supreme Court as against objections to excess land and other provisions, Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275 (1958), reversing Ivanhoe Irr. Dist. v. All Parties, 47 Cal. 2d 597, 306 P. 2d 824 (1957) and Madera Irr. Dist. v. All Persons, 47 Cal. 2d 681, 306 P. 2d 886 (1957). The contracts subsequently were confirmed by the Supreme Court of California on remand, Ivanhoe Irr. Dist. v. All Parties, 53 Cal. 2d 692, 3 Cal. Rptr. 317, 350 P. 2d 69 (1960).

7-Exchanges

In view of the provision in section 14 of the Reclamation Project Act of 1939 authorizing contracts for exchange or replacement of water or water rights, water delivered to the Feather Water District in the Sacramento River at the mouth of the Feather River as replacement for water diverted by the District from the Feather River can be considered as "stored waters" of the Central Valley project delivered "for" the lands of the District within the meaning of section 2 of the Act of August 26, 1937, as amended. Memorandum of Associate Solicitor Fisher, July 27, 1959.

8.-Rates

It is clearly within the authority of the Secretary under section 9(c) of the Reclamation Project Act of 1939 to charge 267-067-72-vol. I-40

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different rates for water from the Central Valley project delivered for municipal water supply than for water delivered for irrigation purposes. City of Fresno v. California, 372 U.S. 627 (1963).

9.-Water rights

In view of the long history of attempts to resolve disputes with water users diverting water from the Sacramento River, some part of which is attributable to the operation of Shasta Reservoir of the Central Valley Project, and in view of the costs and uncertainties of litigation, it is appropriately within the judgment of the Secretary under the authority of section 14 of the Reclamation Project Act of 1939 to waive payment for past diversions as a part of agreements with the diverters requiring payments for future diversions. Dec. Comp. Gen., B-152983 (January 21, 1964).

The substantial reduction in the natural flow of the San Joaquin River as the result of the impoundment and diversion of the flow at Friant Dam upstream constitutes a seizure or taking, in whole or in part, of rights which may exist in the continued flow and use of the water; it does not constitute a trespass against such rights. This seizure was authorized by Congress when it authorized the project, and any relief to which claimants of the rights may be entitled by reason of such taking is by suit against the United States under the Tucker Act, 28 U.S.C. § 1346. Dugan v. Rank, 372 U.S. 609 (1963). [Ed. note: The Tucker Act is the Act of March 3, 1887, 24 Stat. 505. It authorized suits to be brought in the Court of Claims against the United States in certain cases, including claims founded upon the Constitution. This includes claims based upon the Fifth Amendment provision that private property shall not be taken for public use without just compensation. 28 U.S.C. 81346 relates to the jurisdiction of the Federal District Courts in such cases, and 28 U.S.C. § 1491 relates to the jurisdiction of the Court of Claims. These sections appear herein in the Appendix.]

Where there is an interference or partial taking by the United States of rights to the continued flow of water in the San Joaquin River and to its use as it flows along the landowner's property, the measure of damages is the difference in market value of the claimant's land before and after the interference or partial taking. Dugan v. Rank, 372 U.S. 609, 624-25 (1963).

A suit by certain individuals claiming water rights in the San Joaquin River asking an injunction against the United States to refrain from interfering with such rights

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by the operation of Friant Dam, is not a case involving a general adjudication of "all of the rights of various owners on a given stream" (S. Rept. No. 755, 82d Cong., 1st Sess. 9 (1951)) within the meaning of the McCarran amendment (§ 208, Act of July 10, 1952, 66 Stat. 560, 43 U.S.C. § 666) but rather is a private suit to determine water rights solely between the claimants and the United States and the local Bureau of Reclamation officials. Consequently, the consent of the United States to the suit has not been given under the McCarran amendment, and the suit must be dismissed as to the United States. Dugan v. Rank, 372 U.S. 609, 617-19 (1963).

Section 8 of the Reclamation Act does not mean that state law may operate to prevent the United States from exercising the power of eminent domain to acquire the water rights of others. Rather, the effect of section 8 in such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made. City of Fresno v. California, 372 U.S. 627, 630 (1963).

Conditions imposed by the California State Water Rights Board purporting to specify either requirements or a time period to which the United States must adhere are not binding on the United States, but will, however, be regarded as recommendations to be considered in the development of Federal water service contracts. Memorandum of Associate Solicitor Weinberg, November 27, 1962, in re water service contract with Fresno Irrigation District.

Even though navigation is mentioned as one of the purposes of the Central Valley Project, Congress realistically elected to treat Friant Dam not as a navigation project but as a reclamation project, with reimbursement to be provided for the taking of water rights recognized under State law, in accordance with section 8 of the Reclamation Act, and this election is confirmed by administrative practice. Accordingly, the judgment of the Court of Claims will be upheld granting compensation to the owners of so-called "uncontrolled grass lands" along the San Joaquin River which depend for water upon seasonal inundations resulting from overflows of the river. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950).

15. Excess lands-Generally

Repeated action by the Congress since the inception of the Central Valley Project constitutes ratification of the administrative construction that the excess land laws apply to the project and confirmation and

approval of the contracts executed by the Secretary thereunder. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 292-3 (1958). 16. Recordable contracts

Inasmuch as section 46 of the Omnibus Adjustment Act of 1926 provides only that recordable contracts for the sale of excess lands be "under terms and conditions satisfactory to the Secretary of the Interior," and prescribes no time period within which such sales must be consummated, a ten-year period, if found to be appropriate, is legally permissible. Memorandum of Regional Solicitor Graham, August 1, 1945, reprinted in Central Valley Project Documents, Part 2, H.R. Doc. No. 246, 85th Cong., 1st Sess. 642 (1957).

20. Power-Generally

The construction of a steam generating plant to firm up hydroelectric power is included as a part of the Central Valley project which was re-authorized by section 2 of the Act of August 26, 1937, 50 Stat. 850; and there is no constitutional obstacle to the construction of such a plant. Memorandum of Chief Counsel Fix to the Commissioner, May 12, 1949; reprinted in Hearings on H.R. 3838, the Interior Department Appropriation Bill, 1950, Before a Subcommittee of the Senate Committee on Appropriations, 81st Cong., 1st Sess. 2529–39 (1949). 21.-Rates

In view of the Secretary's authority under section 2 of the Act of August 26, 1937, 50 Stat. 850, to acquire property for the Central Valley project by any means he deems necessary, including donation, and the broad authority of section 9(c) of the Reclamation Project Act of 1939 to fix rates, the Secretary may grant rate discounts to power customers that reflect the amortization of construction costs of transmission facilities built by the customer and conveyed to the Government or that reflect the operation and maintenance costs of facilities built and retained by the customer. Dec. Comp. Gen. B-62789 (letter of Assistant Comptroller General Weitzel to Chairman John E. Moss, Special Subcommittee on Assigned Power and Land Problems, House Committee on Government Operations, June 28, 1960). 25. Fish and wildlife

The successive "re-authorizations" of the Central Valley project in 1949, 1950 and 1954, were intended, as a drafting technique, to add certain developments, features, or purposes to the then existing project but not, in effect, to post-date the authorizations for construction theretofore conferred. Consequently, the authority in section 2 of the