Related Land Uses
The natural interdependence of land and water ha been ac-
corded increasing recognition in federal legislative and adi.-
istrative action. As we have seen, Congresahas enacted many
laws directed squarely at development, utilization, and conser-
vation of water resources. In addition, it has adopted numer-
QU statutes whi although often referred to as land-use
measures, are either expressly aimed at water and lapd as in-
separable resources, or are adaptable to serving both simul-
taneously. Our purpose here will be to review the more signifi-
cant of these laws as they deal with such express or implied
In varying degrees. these statutes share in the fundamental
qcncept that the manner in which land is used directly affects
our Nation's water resources. To cite a common example-soil
erosion results from,- among other causes, such improper use
of lands as the destruction of timber, grass, or other protective
.cover, 9rfrom the, failure to mainaiWn such cover. Jpsion in
turn leads to sedimentation of streams, with such harmful re-
sue as the curtailing of the useful life of reseroirs and im-
pairing of navigation.
Land-use, legislation has been bottomed on several constitu-
tional base.' Under the Proprietary Clause, the Federal Gov-
ernment has authority to make rules respecting its own lands.
It was this authority which was principally invoked in early
legislative recognition of the effect of use of land upon water
resources. In other instances, such legislation has rested upon
commerce authority, tying protection of watersheds to the nav-
igability of streams. An increasing number of land-use pro-
grams in recent years involve employment of the power to ex-
pend federal funds both to encourage private action to protect
See apr, pp. 8-29, 29-54, 57-58.
lands, and to enable federal acquisition of nonfederal lands for
proprietary and remedial management.
These laws are the cumulative result of an evolutionary de-
velopment for over a half century.2 At the outset, we shall
note an 1893 statute which stands apart from all the others in
that it applies mandatory restrictions as to specified uses of
certain nonfederal lands. Apart firm this enactment, federal
land-use legislation until the early' thirties was concerned
ahnost entirely with forest lands, and principally with forest
lands of the United States. Beginning in 1891, Congress took
positive action to'pr6teet forest lands in the public domain, an
action much later extended to other public-domain lands.
Other early legislation relevant here concerns national parks
and Indian lands. Also important aie the direct ties between
land and water established early in recl~iation legislation, pre-
During the period between 1933 and 1938, however, Congress
adopted a number of laws marking a sharp turn in federal in-
terest in use of land as related to water-resource objectives.
Many of these meisuies were initially directed toward relief of
unemployment and remedy of social conditions. But they also
sought proper land Use witf corresponding benefits t'water
resources.* In adiibi, most of ee statutes were designed
to apply to nonfederal lands as well as to lands of the tiited
States. Some launched programs for federal acquisition of
lands and their proprietary management, with varying arrange-
ments for return to private use. A number of them treat land
and water resources jointly and inseparably. Among the pro-
grams initiated during this period,, we shall consider the TVA
'See generally: UNITED STATES DEPARTMENT OP AOGRiLTURE YEAR BOOK,
pp. 403-404 (1940) ; Gaus-Wolcott, PuoIc ADMINISTRATION AND THE UNITED
STATES DEPARTMENT OF ABGRCULTURE, p. 25 et seq. (1940); Van Hise, Tuv
CONSERVATION OF NATURAL. REBORCES IN THE UNITED STATES, p. 214 (1910);
AMERICAN CONSEBVATION, The American Forestry Association, pp, 46-53,
130-131 (1941) ; Gustafson, Guise, Hamilton, and Ries, CONSERVATION IN THE
UNITED STATES, pp. 249-271 (1949).
SSee supra, pp. 151-258.
Gaus-Wolcott, Pum I ADMINISTRATION AND THE UNITED STATES DEPABT-
MENT OF AGRICULTUBE, pp. 142-144 (1940).
program; two national soil-conservation programs; a program
for retirement of submarginal lands; the flood-control activi-
ties of the Department of Agriculture; and the 1939 program
f6rI small water-conservation and utilization projects.: i-
nally, we shall summarize briefly the indirectly relevant but
important provisions made for credit facilities, 'and the
extensive and much earlier provisions made for research and
S. i California D6bris Commiion
SCreatedby Congress in 1803, this Commission has regulatory
jurisdiction over hydraulic mining to the extent that it affects
navigable waters in the territory drained by the Sacramento
and San Joaquin River systems.5' The legislative outline of
the duties and responsibilities of the Commission, discussed
earlier, shows an awareness of fhe direct tie between land-use
practices and their influence upon water resources.6 As a
prerequisite to certain mining operations, proprietors of min-
ing land within the Commission's jurisdiction must file with it
a petition setting forth facts required by the statute and the
rules of the Comm ion,7 q i:Moreover, the duties of the Com-
mission contemplate protective measures against eneo a h
ment of and damage from debris resulting not only from min-
ing operations, but also from "natural erosionor other causes."8
Intentional violations of Commission brderis directing the
methods of mining operations are subject to prescribed
The regulatory land-use aspects of this legislation distin-
guish it sharply from all other federal land-use legislation, as
we shall see.10
'Act of March 1, 188, 27 Stat. 507, 33 U. S. 0. 661-885.
SSee supra, pp. 119-120.
27 Stat. 508, 33 1. 1 669.
S4, 27 Stat. 507, 38 U. S Cl 6.
*S18, 27 Staf. 510, '3 S. 679.
U It may be noted, however, that Congress has prescribed certain penalties
for setting fireto timber or other inflammable material upon the public
domain, and also for building and failing to extinguish totally a fire in or
ear oret lands owned or under the jurisdiction of the United States. Act
of March 4, 1900, 1 52, 53, 35 Stat. 1088, 1008, 18 U. S. C. 106-107.
Forest Land Legislation
.Prior to 1891 congressional action respecting the public
lands was large liln .edto the objeP ie of placing such lands
in private owners ip. To mentionua few illustrations, ds-
posal was the ultimate goal of the Preemption Act of 1841,
the Homestead Actof1862, the Desert Land Act of 1877,
and the Timber and Stone Act of 1878.& Moreover, while
some contemporary legislation wag adopted affecting forested
public-domain lands, it was largely bdncerned with timber sup-
ply, and without regard for land observationn or the effect of
tree cover on watershed protection."
NATIONAL FoRmesS.-Against this background,significance
attaches to legislation providing for the creation of national
forests, now administered by the Secretary of Agriculture."
In 1891, Congress authorized the President to establish forest
reserves out of specified lands in the public domain." Legisla-
tion adopted in 1897 laid the basis for filling in: the details of
administration for the national forests thus created.1 The
UNnarm STATES DPAIMENT or AecmBnLTaE YZa BooK, p. 472 (1940);
AwKIOA ConUVATION, The American Forestry Association, pp. 31-48
"Act of Septeber 4, 1841, 5 Stat 453; Act of May 20,182,12 Stat. 392;
Act of March 3, 1877,: 1Stat. 877, asAmeiedd, 43 U. S: 03214-2; Act of
June 8, 1878, 20 Stat. 89, as amen4ed,, 4- 8. 0. 3U1118. See also le,
UNrnmD STATES FOREST POLICY, pp. 49-61 (1920).
See, e. ., Act of March 3, 1873,17 Stat. 805; Act of March 18,1874, 18
Stat. 21; Act of June 3, 1878, 20 tat. 89, as amended, 48 U. S. i~ -81.41i
Administratioa of ;f t reservations, originally vested in the Secretary
of the Interior, was transferred to the Secretary of Agiculture in 1905.
Act of February 1, 1905,' 1, 33 Stat 628, 16 U. S. 0. 472. Congress had
theretofore provided funds for a division of forestry in the ~Deartnt of
Agriculture. Act of June 30, 1886,24 Stat. 100, 108.
Public management of p'ablieiy owned oiested lands was not a new
idea, however. The State of New York, for example, had made provision
in 1885 for State management of forested lands, creating the: Adirondack
and Catskill Parks. McKnrNNZY's CoNsoutbATD LAWs o~r efw YORK, Bk.
10, 68 and note following.
"Act of March 3, 181, 24, 26 Stat. 109, 1103, as amended, 16 U. S. 0.
SAct of June 4, 1807, 30 Stat. 11, 348, as amended, 16 U. S. C. 473, 475-
history of the 1891 Act reveals references during debate in the
House tothe desirability of withdrawing forested public lands
from eatry in order, among other things, to restrain foods and
to protect water supply and sream flow." But express reoog-
nitimn of this purpose does not appear inthe statute. On the
other hand, the 1897 statute specifically prohibits establih-
ment of national forests except to improve and protest the
forests within the boundaries, "or for the purpose of seCuring
favorable conditions of water flows," or to furnish a continuous
In: viev of the announced purpose of "securing favorable
conditions of water flows," importance attaches to the author-
ity for the issuance of rules and regulations "for the use and
occupation" of national forests and the sale of products there-
from." For this authority has formed the basis 'for the pre-
scribed methods of managemea of national forests, including
thepe designed to effectuate the Act's purpose tos~cure "favor-
tble conditions of water flows."" *.
,Noteworthy also is the inclusion in te 1897 statute o a pro-
S All waters on such reservations may be used for do,
Smestic, mining, milling, or irrigation purposes, under the
laws of the State wherein such forest.reservations are
situated, or under the las of the United States and the
rules and regulations established thereunder.
The 1891 and 1897 laws made provision for national foe*sts
only in the Western States since they applied only as to the
21 OCme. Rao. 2587-2s88 (1800); 2 2 Coir. Ba. 8S13-8614, 8316 (It.
SAct of June 4,1897,80 Stat. 11, 85,16 U.S. a 475.
Actof Junime 7 4,4, 9, 4 Stat sis, 65,10 U. 8. C. 471 (b).
S60. f. IL 211.1-S-26.1
0s Stat. 11, 1 T. i& 481. A. 4 1g944, congress athoriaed apiro-
Ip attonW tO expenditures by the Forest Service for the "-intgatim~n Ad'
establishment of water kitAh, cludng the purchase thereof or of lanft
or interests in lands or righte-of-way it use and protection of watr tights
necessary or beneficial n connection with the admalantration and puble
use of the national forests." Act of September 21, 148, 218, 58 Stat 784,
787,16 U. S. 526.
WWmT law.-LThe Weeks Law of 1911 marked an impor-
tantiAtepin the evolution of land-use policy in that it laid the
foundation for a federal forest program on a trulytnational
basis." To this end, it provided broadly for federal acquisition
of lands in watersheds of navigable streams for the purpose of
managing them as a part of and in the same manner as:,nationxAi
forests. In so doing, this statute marked another step away
from the earlier legislative encouragement of dispositionn of
public lands into private ownership..
The National Forest Reservation Commission, established
by the Weeks Law, consists of the Secretaries of the Army,/the
Interior, and Agriculture, two members of the Senate, .andwo
members of the House of Representatives. Approval by this
Commission is prerequisite to: the prirhase of laiids recom-
mended by the Secretiar of Agrieulttie who is authorized and
directed to recomrnend'for purchase:
such forested, cut-over, or dendeed loans within the
watershed.of navigable streams as in his judgment may
Sbe necessary to lhe regulatio the flow of navigable
streams or for the production of timber .
Before the purchase of any lands, they must be examined by
the Secretary of Agriculture in cooperation with the Director
oi 4le Geological Survey and a report iade by them to the
Commission showing that federal control of such lands "will
promote or protect the navigation of streams." r a report
bl theeSr etary tf Agriculture showing that such control 4ill
promote the prodli ti6o of timber there. n.
This legislation prohibits the purchase of lands itil the
legislature of the state in which the lands lie shall havJ con-
"Act of March 1, 1911, 86 Stat. 901, aa~aended, 16U, U 48Q, ,O,
513-519, 521, 552, 563. It should be noted here that Senator Newlands
unsuccessfully sought to effect a still closer legislative tie between land and
water by amending the. bll which became the Weeks Law to incorporate his
proposal for a Waterways. Commission. ee infra, p. 404.
"4, ,6 Stat. 92, as amended, 16 U, -;,0 518.
8 4,6,88 Stat. 92, as amended, 16 U. 0. 51, 515.
4 6, 86 Stat. 962, as aiefed, 16 U. S. 0. 51.
seated to federal acquisition "for. the purpose of preserving the
navigability of navigable streams. "2 ,:
The blanket consent of Conugkess is granted to theastates to
enter into compacts not in conflict with any law ofEthe United
States, "for the purpose of conseving the forests and the water
supply of the States entering nto sueh" compact,2 Although
this is apparently the earliest complete blanket authorization
given by Congress in advance f9r joint state action, Jq record
has been found of compacts consummated expressly pursuant
to this provision." i, :
Amendments and supplements to the Weeks Law prvide
for te acquisition of lands for timber production, f ex-
cage of land for and or timber,' and for acquisition of lands
for flood-control or soil-erosion preventionm,
C- AR"IMcNAY AcTr.-- In. 1924, Congress authorized and
directed the Secretary of Agriculture, in cooperation with rept
resentatives of states or of suitable agencies, to recommend
such systems of forest-fre prevention and suppression as will
adequately protect timbered and cut-over lands "with a view
to the protection of forest and water resources" and the contin-
uous production of timber on lands suitable therefore." As
amended, the Act directs that, in the cooperation extended to
the states: "
i. ie consideration rhall be given :to the protection f
:atersheds of ,naviabl streams, but such cooperatio
7,8 Stat. g9,a, asamended, 16U. .510 1. .
i' 1, 3 Stat. 961, 18 U. 55.- .
*In We connection, see antrte and landle, The .Oiaeot C(aJae
of t eonatituion, A thry n'Interstate Adjusaments 34 YA.jz 1L J. 5,
748 (1925); Dodd, Interstate Oompacts\ 70 U. S. LAw ROv. 557, 561 (193Y).
Act ot June 7,1L924, J 6, 43 Stat 6583,54, 16 U. 8. 515
lAct of March 3, 1925, 48 Stat. 1215, 16 U. C. O. 16 See Act of March
SO, s192, 11, 42 stat. 466, and -2 aEsadded by-iheAct if Februaty 281; 5,
*Act of August 26, 195, 49 Stat. 866; Act of May 11, 1938, 52Stat. 847;
Act of June 15, 1988, 62 StaL.699; Aet of Je 25, 1988, 52 Stat. 1205, as
amended by Act of May 26, 1944, Bl ta. 227; Act of Marc l 6. 194, 54
Stat. 468 Act of June-11, 40, 54 Stat. 297; .Act of Jone 11, 1940, 54 Stat.
290; Act of June 17, 1940, 54 Stat. 40.
"Act of June 7,1924, 1,418 Stat. 658 6 U. 56.
J 2, 43 Stat. 653, as amended, 16 U, S. C. 565 (Supp. III).
M y, in thediscetion of the ~Seetkary ofAgrieulture, be
extended to any timbered or- fcrtstpredticig lands or
Watersheds from which water is secured for domestic ise
i or irrigation within the cooperative States. i: '
Provision is made for federal cooperation with the states in
the production and' distribution of biebt-tree seds and plants
"fo' the purpose of establishing ifihdbieaks, shelter belts, and
farin *Wod bts hpon denuded'ot- niiforested lands' within such
cooperating States."" The Secrebiry of Agtitltlure is. di-
rected, in cooperation with certain qtate ofciastsdr in 1bli dis-
cretion "with other suitable State ageAcies," to aid farmers in
establishing and managing "woodlots, shelter belts, windbreaks
and other Viluabl#fdrst growth," add in hl'rteting and itifii
ing products thereof."' With the kception of preliminary in-
vegatitons in the case-of the latter provision,- th fedewaltx-
penditure may not esteed the amount of the state expenditure.
i Thisearly progam.enabling federal assistance for conserva-
tion work on nonfederal lands has groin to large proportions.
For example, $9500,00 was appropriated for the fiscal year
1951, indicating the expectanay of a like amount to be tur-
nished by the statess" i : r
McSWBaNrB-McNABY Acn-iidi th l dry of legislative at-
tention to forest lands, a significant development was passage
by Congress i- 1988 'of the Mde weeey-McNary Akt." In
providing for investigations, etrimenhts, and tests by the
Secretary of Agriculture, this. Act expressly includes, among
other forestry purposes, the determination of the best methods
"of maintaining f(av ble conditoS of water flow and liepre-
yention of erosion." ;
SUSTAINUD-NYXm D MANAGiMxri,--i4. legislation limited to
ceain- federal timber lands bv dgp--tbe ep-elled "O and
C lands"--Congress in 1937 provided for their sustained-yield
"4,'48 stat. 654, as aimewe, 18 U.'S. C. 687 (Supp..: .1. :'' :
43 Stat. 654, 1 U-. 0. 586 (SuIpp.U I).
*$ 4, 5, 43 Stat. 64, as amended, 16O TU. 0567, 568 (Supp. III).
"Act of September 8, 1950, 84 Stat. 596,-
"Act of May 22, 28S, 45 Stat. 69, as amended, 10 U. B. 0. 581-S81L
"1,45 stat eMos1 t. i~t c.. : i i
management by the.Seeretary of the Interior forspecified
purposes, including "protecting watched," and relatingg
stream flow." .
- A fe years later, similar butibroader principles appeared in
legislation national in scope, the 1944 Sustained-Yield Forest
Management Act.Y: In authorizing the Secretaries of Agricl-
turetand the Interior toprovideor cooperative sustained-yield
forest management of lands under their respective jurisdictions
together with privately owned Iforest land, Congres included
among specified forestry obje es, the securing of the benefits
of the forests:"
in maintenance of water, supply, regulation of stream
flow, prevention of soil erosion, amelioration of climate,
and preservation of wildlife.
Both of these statutes, it shmld be observed, make provision
for cooperative arrangements between the Federal Government
and private owners for treatment of federal and nonfederal
forestedl*andse Also, the 1944 4ct accords a preference.ia tim-
ber -0tting privilegea on federal lands to private ow rem who
agree jto ePary out prmeuibed weost-eonservation practices on
their wBlandt rF: ; rr': _11111 41o s' ii
COt6otftAav FOaRrT 1MAl!4AGa M T AcTr.-The Seiretaiy of
Agriculture is authorized to oow rate with state forest officials
to encourage the providing of technical services to private for-
est landowners and processors o primary forest products with
S"As applied to a pol4e, method, or plan of forest management, mans
continuous production with the aim of: achieving, in the earliest practicable
ftidai a pozfxmate balntue between' net growth and harvesteither by
annual or somewhat long periods., 'Foap TaIamuoLo, Society of
American Foresters, p. 88 (1914). -
- Aet .fAugust 28, 187, sO Stat8. The Oregon and California lands
and :OoCm Bay Lands In Oregon Iwee oreginaBy granted by the United
States to a railroad company and to the State of Oregon, respectively; to
promote the construction of a railroad and a military wagon road. Act
of July 5, 180, I 2, 14 Stat. 239; Ac; of March 8, 1889, 11, 15 Stat 830.
CongtM lato eaanelled these grants, and title was letested In the United
States. Act of June 9, 1918, Stat. 218, and Act of February 28, 1919,
8 1, 40 Stat. 1179. See 48 C. F. R. tIjV 115.7.
Act of March 29, 1944, 6 Btat. 82,18 U. BC. 588 6838
*11 8 Stat. 182, 16 U. 8 C. 5 B.
2 58 tat. s 182, iS UJ. Oa t88a.
respect to the'maetgembnt of fott lands and the hatreting,
marketing, aad:prMoei g of foregditiroducIts.' irhertain ir-
cumstances, he may make such services available to prinate
agencies and peiotis.t Such 'teolinkis e~ vit tie pro-
vided'in eah state in accordance with a plan agreed:upoh be-
tween' the Secretary and the taterfrest officials, such plan to
be carried out so a torencourage utilization of private agencies
and individuals furnishing suivc svrces. The amount paid to
hny state-may-lit!e teed in''abyrfical year the amoulit ex-
pended by 'the operating statebi., : Ur Ir: :" ~ :..
FoRSTr PEST COwTOL AcT.-In 1947, Congress declared it t
be the policy 'fite Federal Gbvernment, independently or
through coopedfinaW 'ith stat esand private tifnber owners, to
protect all forest lands from' i:iftsltnd diseases:. "The pur-
poses specified iidelme bonservati :of "forest cover bn~iBer-
sheds."" '..- :o trn : si.t: r
STheActdireetkthlld&etarryofiAgrioulture to earty out sch
measures as 'he ay dewem-aeui y( p*ovideI that oFesitioni
be eotduatecit the6 ewdnekb* ihe! genoy^'; oganiatair,, or
person hsving'jitfis~dctn v twe:lithw1d.' He ls'aio SuthorP
ized to make allocations to federal agencies hiavih gfu iadictio
ever federallandt&iwolvyed.Y : .tthasae-ofo sofed ealJends,
feBdeal funds be' expended ot af4er agreeneat upon such
contribution as the Secretary mayreqire.'
S, National Pcqk. Service ,
,The National Park Service of the Department of the Interior
manages these veal national paFlr and national monuments."
-Adcth tAUStiBi2S, 21905M, 1 1,6 84 Stat 48 TBhi Act repeals the Coopera-
tiri Farm Forestry Atctof M 7, Act of1MariJ~pB,'57 Sta 5 t. 188,16 U. S. O.
h-,!At olaJe 25,l,47irl,,a1 Stat. 17dflt U. a. 594-1 (nSpp. IThL)o'"
"I 2,61 Stat. 177,16 T. S. 594-2 (.Sai. IIl).
S8, 61 Stat. 177,M16 U Sj Qr 5694-S;sipA1II).
4, 61 Stat 177, 16. .94-4 ( Stipp.'ll).
"Act of August 25, 1916,89 Stat. 535, aswaeadP 19 U. 8. C. 1 ie seq.
In creating the Service, Congess characterized the "funda-
mental purpose" of the affected parks, monuments, and reserva-
tions as one: J
to conserve the- scenery and the natural and historic
objects and wild life therein and to provide for the
enjoyment of the same in such manner and by such
means as will leave then unimpaired for the enjoyment
of future generations.
Because of the interrelationship of water and land, it should
he noted that the Secretary of the Interior is expressly authQr-
ized to "grant privileges, leases, and permits for the use of land
for the accommodation of visitors in the various parks, monu-
ments, or other reservations" for periods not exceeding 20
years.", So also as to his authority to grant privileges to graze
In addition, when Congress in 1946 enumerated authoriza-
tionsr for appropriations for the National Park Service, it
Investigation and establishment of water rights in ac-
cordance with local custom, laws, and decisions of courts,
including the acquisition of water rights or of lands or
interests in lands or rights-of-way for use and protection
of water rights necessary or beneficial in the administra-
tion and public use of the national parks and monuments.
Of special interest our survey is the fact that the head-
aters 6f inany streams, where land-use measures play an
i, 39 Stat. 585, as amended, 16 U~. 0.1.
II 8,39 Stat. 535, as amended, 16 U. 8.
'Act of August 7, 1946, 60 Stat. 885, 16 U. a. C. 17j-2(g). From 1986
until 1950, similar language was Included in acts appropriating funds an-
nualy fot the Department of the Interior. See, e. g., Act of June 22,1936, 49
Sta 1757, 1796-1796; H. Rep. No. 1i27, 74th o.nie, 28-ses., vol 1, p. 14
(1986). The language does not, however, appear in the General Appropria-
tion Act, 1951. Act of September 6, 1960, 64 Stat. 595.:
Another authorization relates to the acquisition of rights-of-way and-con-
struction and maintenance of their water supply line partly outside the
boundaries of the Mesa Verde National Park. 60 Stat. 886, 16 U. S. C.
early and important role, are within areas under the jurisdic-
tion of the National Park Service." And in the exercise of his
authority to make rules and regulations for the use and man-
agement of such areas, the Secretary of the Interior has made
provision for, among other things, forest-fire prevention, ero-
sion control, and water-pollution control.0
Under the direction of the Secretary of the Interior, and
subject to such regulation as the President may prescribe,
the Commissioner of Indian Affairs manages Indian affairs
and matters arising out of Indian relations." Indian lands
are not public laids.. They are lands held for varying
periods of time by the United States in trust for the Indians, or
by the Indians under restricted deeds or patents, and are man-
aged or supervised by the United States."
In addition to irrigation undertakings on Indian landis al-
ready discussed, the supervisory activities of the Bureau of
Indian Affairs afford guidance and help to Indians respecting
use of lands, including forest and range management, sustained-
yield practices, and prevention of erosion."
Tennessee Valley Authority
The Tennessee Valley Authority Act of 1933 furnishes a
unique example of congressional recognition of the nterrela-
"See, a. ., OaGIN or TIN SCo aM FEATuBT or THv GLACIEB NATIONAL
PABK, Department of the Interior, National Park Service, pp. 20-21 and map
following p. 22 (1921).
SAct of August 25, 1916, 3, 39 Stat. 535, as amended, 16 U. S. 0. 8; 36
C. F. 1.0-27.7.
*R. S. 4463, from Act of July 9,18832, 1,4 Stat. 584, and Act oy July; 7,
1868, 1, 15 Stat. 22, 2 U. S.. 2;. I 405, from Act of June s3, 184,
| 17, 4 Stat. 735,738, 25 U S. 0. 9.
O"As Sheep Co. v. United States, 252 U. S. 159, 186 (1920).
SAct of February 8, 1887, 5, 24 Stat. 388, 389, as amended, 25 U. S. C.
348; Sunderlans v. United States, 266 U. S. 226, 233-235 (1924). See also
Hitchcock v. United States, 205 U. S. 80 (1907).
SSee supra, pp. 246-254; 25 C. F. R. 61.1-61.30.
tionships of land and water resources." Although restricted
in its application to the drainage area of the Tennessee River,
ektin uasppetsa of this legislatin warrant our attention here
while others are discussed elsewhere.
Outstanding in this respect are those provisions concerned
with the production and distribution of fertilizer. Congress
assigned to TVA the operatiQn of the two existing nitrate
plants and related facilities at Muscle Shoals and at Sheffield,
Albaa4." These, together with other experimental labora-
toies and plants authorized by the Act, TVA is directed to
operate for fertilizer experiment and production in time of
peace, and for munitions manufacture in time of war."
,Detailed provision is made 'or arrangements with farmers
and farm organizations for Jarge-scale practical use of new
form of fertilizers; for cooperation with specified agencies and
individuals for use;of new forms of fertilizer or fertilizer prac-
tices during experimental periods; for "promoting the preven-
tio of soil erosion by the use o fertilizers:and otherwise"; and
for the distribution of certain fertilizer materials through
county demonstration agents, agricultural colleges, or other-
wise, for experimentation, education, and introduction of the
use of such materials." In effedtuation of these provisions, the
program evolved by TVA takes account of the relationship be-
tween -soil practkies and the development, utilization, and con-
servation of water resources.'
.,ToaWid Ither the "proper ise, conservation and develop-
ment of the natural resources," the President under the TVA
ct is authorized to make certain surveys and plans useful to
Congress and the several StateO: "
Act of May 18, 19, 48 Stat. 58, as amended, 16 V. Sa 831 ~t seq.
SSee sura, pp. 50-52, 147-148, 806-309; infro, pp. 484-48.
S7(a), 48 Stat. 68, 16 U. S. C. 881t(a); I5, 48 Stat. 61, as amended,
1i S. 8ild(d).
15,48 Stat 61, as amended, 16-U. S. C. 881d; 11, 48 Stat. 64,16 U0. ; 0.
"*See ANNAr. RaroRT or THi Tm ZNsBBs VALIzr AVTmORT, pp. 84-45
8 22, 48 Stat. 69,16 U. S. O. 831n.
in guiding and controlling the extent, sequence, and
nature of development that may be equitably and eco-
nomically advanced through the expenditure of public
funds, or through the guidance or control of public au-
thority,all for the general purpose of fostering an orderly
and proper physical, economic, and social develop-
In making such surveys and plans, he s authorized to cooper-
ate with states and other agencies trhdto make such "studies,
experiments, or demonstrations" as ~may be necessary and
suitable to that end." 7The President is also directed to recom-
mend legislation' to cri' y out the general purposes and for
bringing about, among other things; "the maximum amount of
flood control; *'* the proper use of marginal lands,"
and the "propet method of reforestation" of lands in the drain-
age basin "suitable for reforestation." The TVA program
nembrac s a number of activities concerned with forestry, in-
cluding technical'assistance to landowners, distribution of for-
est-tree seedlings, and woodland management demonstrations."
Taylor Grazing' Act
As *e have seeh, land-use legislation prior to the thirties
was concerned primarily with forest 'lands. With few excep-
tions, this legislation was concerned only with lands of the
United States.' faitl 1934, corresponding attention~ was hot
directed at federal grazing lands, except as intermingled with
forest lands." Congress then authorized the Secretary of the
Interior to establish grazing districts from public lands chiefly
valuable for grazing and for raising forage crops."
"/ I d. .
23, 48 Stat. 69, 16 U. S. C. 831v. See also Ex. O. No. 6181, June 8, 1938.
"See AB ~NA REPOaT OF: THE TENNESME VAiLEY AurTHOsr, pp. 42-45
"It should be noted, however, that in 1930 Congress had appropriated
funds to the President for a study of conservation and administration of
the public domain generally. Act of April 10, 1980, 46 Stat. 153.
"Act of June 28, 1934, 48 Stat. 1260,a amended, 48 U. S. C, 81_.et seq.
Some direct ties be4OWr wtg .and land appear in the
statute. For example, Congress expressly empowered the See-
retary "to continue the study of e iroisio in: flood controliand
t eiMte sudto work as may be necess amply t6 pr6teei
and rehabilitate th area" inv4rved.7 AIsO',at~lf prefi-
enoe right is accorded to, aimon others, "owners of wathr'or
water rights." 9: The Secretary tnay issue peimit s addf1iWte
operative arrangements fbil th construction -of fees atid
"wells, reservoirs, and other improvementr' necessary i the
care and management of the permitted livestock." Apart
from these pravidionm, .the titfut does not give th digee of
express recognition of the interdependence of land and water
to be fodid in some legisatioil or forest lands.- Oin the other
haid, through the medium o" graziig districts a.nd grazing
permits and leases, the Breau of 'Land Management of the
Department of the Ipterior is carrying ut a program aimed
at', among other things, erosion prevention, and watershed
Other aspects of the statute have indirect relevance liee.
Provision is made for classifying public, lalds andrid fopeninh
their to entriiii aceodrdance with such' classification." Als,
the Secretary inaf accept donation of lands to facilitate the
administration dt the public lands." Likewise,; he aycb-
operate with associations of stockmen, various state agencies,
and. others, and may acept contribution@ toward administra
tion, pr6teetion, and imiprovemeat of the district." Detailed
provisions are included respecting the collection of fees and
i 2, 48 Stat. 1270, 48 U. S. C. 315a; I. Rep. No. 908, 73d Cong., 2d sees.,
p. 28 (194); Sea. ep. No. 1182, 78d Cog., 2d sees., p. 28 (194); 78 CoN.
RB'. 68 (1984).
5 8, 48 Stat. 1270,4 1 S.C 8. 015. .
4, 48 Stat. 12i 4n U. C 315c.
SSee 48 C.F. R. 160.1-165.10.
1 7,48 Stat. 1272, as a 4euEd, 48 U. C. SIM.
I8 48 Stat 122, as amen ed, 4 U, 315g(b).
9, 4p Stat. 278, as? mendea 48 Ud. C. 8.5h (Supp. 1II).
1 8,10, 48 Stat. 1270,1271, as amended, 43 U. S. C.315b, 3151 (Supp. III).
M .. inning Lot"wsB
While Congress has legislated extensively to protect lads
jI federal ownership, one aspect of conservation has been
left untouched in the process. Under .the mining laws of
the United States, it is possible for a person meeting specified
requirements of law as to entry_ to obtain potential mineral
1and witb unwrestaicted privilege as 1t use of the surface, thus
permitting denudation of forest cover."
Soil Conservation and Domestic Allotment Act
Enacted in part in 1935, an in part in 1936, this leg aton
provides te bsis f two national soil-conservation poras
We shall examine e parts in that order after noting briefly the
In 1933, a Soil Erosion Service was established in the Depart-
ment of the Interior with responsibility for a program of ero
sion control and relief of unemployment, allotment o fud
hain been made for tht purpose y th Federal Emergency
Administrator of Public Works." This agency ws transferred
in 1935 to the JDepatI ent ofA griulture, ndall erosion-
control activities of at Department were consolidated.
SOIL CoEB vI e Raw Sargy PaooaR M.--Soon thereafter,
Congr essega e disec authorization .o an erosion-control pE-
gram when it passed the National Erosion CoUtrol Act in
2R. 2319, from Act of May 10, 1872, 1, 17 Stat. 91, as amended, 30
U. S. 0.22; I. 222, from Act of May 10,182, I 3, 17 SAt. 91, d 8t. 1. '.
26; B S. 2825, from Act of May 10, 1872, 6, 17 Stat. 91, 92, as amended,
s 80 S. 7'. .
"*Act or April 27, 19s, 49 Stat. 143, Iak~qded, US -S. AC.0s~:5 ie i
ee Act of Jnne 16, 198, 202, 48 8tat 196, 201, 40 U. S. 04 .
published Memorandum of August 25, 193, Administrator of Federal Emer-
gency Administration, addressed to Secretary of the Interior, allotting
$5,000,000 for soil-erosion work on public and private lands. See also
Ex. Nos. 6252, August 19, 1933, and 6929, December 26, 1984.
Unpublished Memorandum of Emergency Administrator of Public Works,
March 28, 1935, approved by the Prident March 25, 1 ; published
Memorandum of the Secretary of Agricultuite;' OK, ch s 2 S. .
93$.8 In reporting the bill which became the Act, the Senate
Committee on Agricdlture and Forestry asserted that:" :
Experiences of recent storms, both flood and wird,
demonstrate the necessity to prevent wastage f: soil,
the conservation of water, and the control tof flods.
The sting of rservoirs, the maintaining of the navia-
bility of rivers and harbors, the protection of public
:: ads, all justiay Federal responsibility for the carrying
o ,, ut oqf national erosionrcontrol program.
Th& 195 Act declares that:
it is hereby recognized that the wastage of soil and
moisture resources on farm, grazing, and forest lands
of the Nation, resulting from soil erosion, is a menaeo
the national welfare and that it is declared to be ihe
policy of Congress to provide permanently for the con-
trol and prevention of soil erosion and thereby to pre-
Sserve natural resources, control floods, prevent impair-
,ment of reservoirs, and maintain the navigability of
rivers and harbors, protect public health, public lands
i and relieve unemployment *'
The Act directed the Secretary of Agriculture to establish
the Soil Conservation Service to exercise the powar6 Which
Congress conferred upon him." These include the conducting
of serves, investigatiois, and research; the carrying out of
preventive measures; the furnishing of financial and other as-
sistance to individuals and governmental and other agencies;
Act of April 27, 1985, 1 tat. as amended, 16 U. 8. S -i.tW
Congress had already recgnised the national character of the soil-eroron
problem The 3 annum apprl ation act for the Department of Agri-
coutre appropriated $10,000 'for research and experimR tal work con-
eern ig sou erosion in the "important" agricultural area of the country.
et 6f February 16, 1924,5 Stat. 1189, iWOT.
ie p. No. 468, 74th Cong., let sesm., p. 2 (196s). See also E L ep.
No. b, 74th Cong., 1st sees.,-pp. -2 (1986).
*" 1,49 Stat. 108,16 U,, S.,0. S90a".
5"* 5, 49 Stat (164, 16 0. S 0e. See also Secretary of Agriculture
Memorandum No. f8, Aprl 27, 1965, estAblishing the Soil Conservation
and the acquisition of necessary lands or interests therein. 3
Moreover, these functions are expressly authorized for'both
lands of the United States and other lands upon obtaiining
f pider coisent!.* -
Another provision of the statute merits particular attention.
The Secretary is authorized to condition'the extending of bene-
fits on nongovernment lands upon (1) enactment and reason-
able safeguards for the enforcement of state and local laws
"imposing suitable permanent restrictions on the use of such
lands and otherwise providing for the prevention of soil ero-
sion;" (2) agreements as to use of.,lnds; and (3) qonrpbu-
tions in money, services, materials or otherwise." Administra-
tive provision has'been made for carrying oui this program
through assistance to soil-conservation districts created under
state laws." These laws are largely patterned after a standard
state soil-conservationr districts law 6 This model, evolving
from the cooperative efforts of federal and state representatives,
provides means whereby soil-conservation and similar districts
miay'e formed' by local farmers and ranchers, such districts to
be operated locally, and to serve as vehicles for channeling as-
sistance to individual land operators within the districts." All
states have adopted such laws." '
8 1,49 Stat. 163,16 U. S. 590a.
2, 49 Stat. 168, 16 U. S. C. 590b.
1 3,49 Stat. 163,16 lU.. a. C. 5900.
-"Unpublished' mneab-ahdum entitled "A Statement byithe, ZSereuary of
Agriculture Cncer~ipg, Departmental Cooperation with, So Copnervation
Districts," dated September 21, 1940. See MANUAL o THE Son, CoisrMvA-
*noN SrtvcE, as supplemented, vol. IV, j 49110 (1941). -
"A STANDARD STATE Son. CONSERVATION DISTBIoT LAW, Department of
Agriculture, Soil Conservation Service (1936).
"Alabama (Cona ~oBrALA. 1940, title 2, $5 658-"70) t Arizona (AM x,.COQe
Aww. 1989, 1947 OueiSure. $5O 7-1701t--75,.7144); AtkaBas (STAT. OF K.,
.PoBus DIGEsT 1987, ch. 151, 5 11883--1184, a4 amended) ; California (IX4 .
CODEs--PUBLTO RESOURCE CODE, Div. 9; 9000 et seq.); Colorado (Coxp.
STAT. ANN., 1947 Cux. SuPr., vol. 4, ch. 149B); Connecticut (1945 SuP. To
CONN. GEN. STAT., ch. 106, 478h-480h, p. 202) ; Delaware (LAws or DEL.,
1943, ch. 212, p. 605); Florida (FLA. STAT. ANN., 582.01-582.32); Georgia
(CODE oF GA. ANN., title 5,1947 Cum. SUPr., 5-1801-6--2216) ; Idaho (IDAHO
CODE ANN. 1932, 1940 SUPP., 22-2501-22-2514); Illinois (S rrH-HvUn
Lu.. AH. STAT., ch. 5, I 106-188); Indiana (BUeas Ia. STAT. Ar., N i 1-
The Soil Conservation Service provides technical direction
and related services to these locally administered soil-con-
In 1940, so much of the responsibility for administering the
foregoing 1935 legislation as related to lands under the juris-
diction. ef the Department of the Interior, was transferred to
1801--1-1818); Iowa (doS or IOWA 1946, vol. 1, I5 160.1-160.12): Kansas
(GaN. SBAT. KANb. 1985, 1945 Srpp., bh. 2, art. 19); Kentucky (Kr. Ba*r
STAT. 1948, 1 282.010-262.660); Louisiana (DAmT'e LA., Gn. STAT. P939,
57.7-47.25); Maine (REv. STATS. or MAINE 1944, voL 1, ch. 29, p. 678);
Maryland (ANN. CODE or MD., 1947 CU*i. SmP., art. 2A, (51 5,A); Mkssa-
ebusette (Ad-. LAws or MAss., 1947, '1M. SSwr., vol. 4, ch. 128B); Michi-
gan (MICH. STAT. ANN,i,1949 Cum. SurP., f 13.1781-13.1798) ; Minnesota
(M IN. STAT. ANN., 194, chb. 40); Mississippi (Miss. ConB, 1942 ANr.,
I 4940-4958); Missouri (Mo. REy. STaT. ANN., 1950 CUM. SrPP., i 14481.1-
14431.10) ; Montana '(iEi (otS or MONT., 1935 ANN., 1989 SUr., ch. 306-B,
H 3649.18-364.35) ; Netraska (tgr. ISTATS. or NEB., 1943, Art: 15, 2-
1501-2-1547); Nevada (NEY. COuP. LAws, 1931-1941 SUPP, $S 6870.01-
6870.18); New Hampshire (N. H. LAws, 1945, ch. 151, p. 197); New Jersey
(RU. STAT. N. J. 1937, title 4, ch. 24; N.iJ. S. A. Permn. 1. 4: 24-1--4 :4-38);
New Mexico (N. MI STAT. 1941 ANN., 1949 SupP., 5 48-504-48-518); New
York (MoKxiyz's CoNOL. LAws or N, Y. ANN., Bk. 52B, SonL CONSEBVATrON
DISatoEO LAw, 1-15); North Carolina (Gsu. STAT. oir N CA. 1943, S 139-
1-139-13)-; North Dakota (N. DA. RA CooD o0 1943 vol. 1, 51 4-2201-
4-22468) Ohio (PAiE's aO GaN. COD. ANN., S 375-183-75-21); Oklahoma
(OxE.A. STAT.'ANN. 1949 SUPP., title 2, 801-817)'; Oregon (Oa. COMP.
LAws ANN., vol. 7, 51 100-801-109-816) ; Pennsylvania (P1EioB's PA. STAT.
ANN. 1949 BtPr., title 3, S 849-884) ; Rhode Island (. I. PULctI6 ws 1943,
eh. 138, pj 167); South Carolina (Cea or LAws or S. CAj., 194, 41 5806-
101--800-116); South Dakota (S. DAX. COa o 1989, f5 4Aj.1-4.1516);
Tennessee (WLT.uAMS TmNN. Coo ANni. 1934, 1 552.31-552.44); Texas (VBi-
NON's TEx. OrvI STAT., title 4, ch. 9, art. 14tia-4) Utah (UTAH Co s ANN.
1943, If 82A-O-1-82A-O-19) ; Vermont (LAws OF VT. 1939, No. 248, p; 28,
as amended); Virginia (VA. Coes or 1950, t 21-1-21-112); Washington
(REMINGTON'S RyV. STAT. OF WAaH. ANN., 1949 CUx. SurE., voL 11, i
1~26-1--10726-17); West Virginia (W. VA. C4~s OF 1943, 1947 SuPP., if
2198(1)-21-9(7)); Wi onasn (WIS9. STAT. 1945, ci. 92, 92.01-92.17);
Wyoming (WYo. ComP. StATs, 1945, 1 34-1401-34-1417).
Memorandum entitled "A Statenent by the Secretary of Agriculture
Concerning Departmental Cooperation with Soil Conservation Districts,"
dated September 21, 1940. See MANUAL OF THE SoIL CONSERVATION SmERVIC
as supplemented, vol. IV, 49110 (1941).
m Reorganization Plan No. IV, 5 6, effective June 80, 1940, 5 F. B. 2421,
54 Stat. 1234, 5 U. S. C. 133t note following.
With respectIto the purpose of Congress under this legisla-
tion, it may be noted that subsequent appropriation statutes
have contained relevant statements. For example, a recent
statute appropriating $53,900,000 to carry out activities under
the Act on nonfederal lands refers to the Act as one providing
for "a national program of erosion control and soil and water
AGRICULTURAL CONSERVATION POGRAM.-As we have seen,
the 1935 soil-conservation legislation forms the basis upon
which has been built a program of technical assistance to own-
ers of land located within soil-conservation districts or other
similar areas. The 1936 legislation, the latter part of the Soil
Conservation and Domestic Allotment Act, has been employed
to furnish direct but conditional cash payments to cooperat-
ing land owners-the Agricultural Conservation Program.1"
Within the Department of Agriculture, responsibility is now
vested in the Production and Marketing Administration.?'
With this addition to the 1935 statute, Congress added these
purposes, among others: w
(1) preservation and improvement of soil fertility;
(2) promotion of the economic use and conservation of
land; (3) diminution of exploitation and wasteful and
unscientific use of national soil resources (4) the pro-
tection of rivers and harbors against the results of soil
erosion in aid of maintaining the navigability of waters
andwater courses and in aid of flood control *
Still another purpose is the reestablishment of farmers' pur-
AmAct of September 6,1950, 64 Stat. 596, -.
"Act of February 29, 1988, 49 Stat. 1148, as amended, 18 U. S. O 5B90-
90q. This statute added If 7-17; to the Act of April 27, 198, 49 Statf 168,
16 U. S. C. 590a-590f. See also 7 C. F. 701.0 et seq., including specifica-
tion of required conservation practices.
SSecretary of Agriculture Memorandum No. 1118, August 18, 1945; see
also Act of February 29, 1968, 8 13, 49 Stat. 1148, 1B1,5 16 U. S. 0. 590m
and note following.
1" 7(a), 49 Stat. 1148, as amended, 16 U. S. C. 590g(a).
The 1936 legislation provides primarily for a program based
on grants-in-aid to those states enacting legislation to effeo-
tuate the foregoing provisional' Pending enactment of such
state legislation, a provision expressly limited as to time was
made for direct conditional cash payments to cooperating land-
owners, based on their agreement to carry out soil-conserving
practices." Only some pf the states having enacted enabling
legislation with respet to the grants-in-aid program, the
dirct-aid program is still in effect on the basis of periodic
authorizations by Congress which have extended its time
The amount of direct payments under this program is
measured by, among other things, use of land for "soil restora-
tion, soil conservation, or the prevention of erosion," and also
far' "changes in the qwu" of the land."' Such measures are ie-
quired by statute to be construed, in arid and semiarid
to cover water conservation and the beneficial use of
water on individual farms, including measures to pre-
vent run-off, the building of check dams and ponds, and
providing facilities for applying water to the land.
Two other aspects of the 1936 legislation merit attention.
First, the Secretary:s authorized to conduct surveys, investi-
gations, and research relating to conditions and factors affect-
ing and, the methods of accompishing, the policy and purposes
st oit above." The. second concerns funds. The Act carries
an authorization for an annual appropriation of $500,000,000.
In recent years, Congress has appropriated amounts up to
$300,660,000 annually." Also, the Act specifies a limitation
11'(c), 49 Stat. n1148 as ame 16 UC. S. c. f(c).
18,49 Stat. 1149, as amended, 16 U. S.. B590L
SSee, e. ., Act of July 25, 1940, 60 Stat. 668, and see 16 U. S O. 5
g" 8(b), 49 Stat 1149, as amended, 16 U. S. C. 590h(b).
w 1 9,49 Stat 1150, asamended, 16 U. S. (. 590L
15, 49 Stat 1151, ap amended, 18 U. S. C. 5900.
"See, e. g., Act of June 2% 1949, 68 Stat. 824, -; Act of September 6,
1950, 64 Stat. 595, -.
on direct individual payments of $10,000 per year.'" Provision
is made for division of such payments among landlords, ten-
ants, and sharecroppers. In recent years, the limitation on
individual payments has been fixed in appropriation statutes at
smaller amounts, that for the 1951 program being $2,500.11.
In considering the foregoing programs for soil conservation,
reference should also be made to price-support legislation.
Under the Agricultural Act of 1949, the Secretary of Agri-
culture is directed to provide price support for certain agricul-
tural commodities.a' But the Act contains no mandatory re-
quirement assuring proper use of land in the interest of soil
conservation in the event the piice-support program should
encourage the growing of certain crops under conditions incom-
patible with soil-conservation practices.
Retirement of Submarginal Lands
Under 1937 legislation, the Secretary of Agriculture is di-
rected to develop a program of "land conservation and land
utilization, including the retirement of lands which are sub-
marginal or not primarily suitable for cultivation." 1' The
express purpose of this legislation is: u9
to correct maladjustments in land use, aid thus assist
in controlling soil erosion, forestation, preserving nat-
ural resources, mitigating floods, preventing iinpair-
ment of dams and reservoirs, conserving surface and
subsurface moisture, protecting the watersheds of navi-
gable streams, and protecting the public lands, health,
safety and welfare.
1 8, 49 Stat. 1149, as amended, 16 U. S. C. 590h(e).
See, e. g., Act of September 6, 1950, 64 Stat. 595, -.
Act of October 31, 1949, 63 Stat. 1051, 7 U. S. C. 612c, 1301, 1801 note
following, 1322, 1328, 1343-1345, 1353-1356, 1421-1431, 1441, 1446-1449 and
12 U. S. C. 1134c, 1134j and 15 U. S. C. 713a-4 (Supp. III).
U Act of July 22, 1937, j 31, 50 Stat. 522, 525, as amended, 7 U. C. .1010,
To effectuate the program, tie Secretary is authorized to ac-
quire and apply protective measures to lands, and to make them
available for private use by sale exchange, lease, or otherwise."
Also, upon recommefditioo-bf the Seeretary,-the President is
authorized to transfer the ands to federal or state agencies for
This program corresponds in principle with the Weeks Law
in that both provide for federal acquisition and public manage-
ment of lands to achieve conservation results. It di-ifr~n
t~eWeeks Law, however, in that it does not requie tiaftf
lands acquired be located on the watersheds of 'navigable
Administration of the program has been assigned tothed oil
Conservation Service.' As of 19~, 11,300,000 acres of la6d
had been acquired.2 Such lands include both-forest and ralige
landi as well as croplands.T" Recently, however, Congress hag
made no appropriations for further purchase, but has continued
appropriations for management of the lands& The manage-
nient function is accomplished under the gen~rai statutory au-
thority conferred upnn the Secretary to maie necessary rules
aiid regulations and to regulate "the use and occupaiic' of the
property."1 In this connection, it should be noted that opera-
tions ire so designed as to influence not oiily the acquired lands
but also adjacent lands, by permitting operators to use ac-
quired lands under permits and leases in such a way as to effect
less intensified use of their own lands." Some acquired lands
have been transferred for management to the Forest Service,
.1 32,50 Stat. 525, as amended, 7 U. S. C. 1011.
"Memorandum of SBeretary of Agriculture, No. 785, October 6, 1988;
MAmuAs or o S 9COM BtVARUIo SaVIcr, vol. I, 511000 (1941).
FEDzAL REURI. LANmB, Bureau of Agricultural Economics, Department
of Agriculture, p. 43 (June 1947).
R" RProar CoF CHOL OF on.O-osmvATiON SVoICE pp. 37-38 (1945).
See, e. g., Act of September 6,1950,,64 Stat. 595.
Act of July 22, 197, 32, 50 Stat. 522, 525, as amended, 7 U. S. 1011.
See also 7 C. F. R. 600.1 et seq.
SSee 7 C. F. R. 600.3-600.5. See also SoIL CONSERVATION SERVICE MANUAL,
voL IV, 1 44001 (1941), as supplemented.
the rn ana of Land Managemet, the Fish and Wildlife Serv-
ice, and jto state agencies."
FloQd-Cod ntrol legislation
We lave previously discussed flood-control legislation, prin-
iSally in its relation to navigable waters and their tributaries,
and in its relation to authorization of drag' operations.1
Our attention here will be focused upon p ecgnii by Con-
ress tht damage from floods may be mijigts through ppli-
cation pofmeasure afor run-off sad water- retardation and
soil-erosion prevention on watersheds.
SElsewhere we quoted at length fo the congressional dec-
laration of a national flood-control policy in 1936.1._Suffice it
here to repeat that C ess thee asserted that flood control
"tivity in cooperation with states, that flood-contorminve-
ga m r pieont f w ite ays, "inoiAIinwater-
shedb hireorT, re in the interest of the general welfare. In
addition l the jurisdiction assigned to the Army engineers,
the 1936 Flood Control Actf eted hat Fderal invia-
t' of watersheds and measures r runf and water-flow
retardation an soil erosion prevention on watersheds" sh e
under the jusction oi l pMmren ot Agriculture.
The 1936 Act, however, authorized Oy mvlv'. --.Lnu .and
surveys in specific localities, not works of improvement."
Act ofJ ~i2, MI X 50o Stat.22, 52; 7 U. SC. 1011(c)'; see, e. .,
Secretary of Agriculture Administrative Order, February 4,1944,1 9.. 1588
(Forest Service) ; El. 0. No. 16,046, March 24, 1949,14 F.. 175 (Bureau of
Land Management) ; Public Land Order 205, January 27, 1944, 9 F. 1586
(Plah and Wildfae evice) ; RBePOwu or *ra CInr or Hm Son. CONSemVATION
SBwIo, United States Department of Agriculture, Soil Conservation Service,
Table 5, p. 18 (1941) (state agencies) ).
See supra, pp. 816-817.
SAct of June 22, 196, 1, 49 Stat. 1570, 8 U. S. 701; see spray, p. 181.
Id. See also 80 COON. Rtc. 7574, 7577, 7579 (1986).
2, 49 Stat. 1570 88U S C. 701b.
-"r^"4B ts u-
his authorization was extended in 1987 to cover the water-
sheds of all waterways previo authorized to. be suivyd
by the Army Engineers? Aftera regulara or formal report
made on any exa, naton o rvy, provision is made for
"supplemental,, additional, or review, report or estimate" if
authorized by law or by resolution of the Committ, o4 Public
Works either of the Hoqse or of the Senate."5
Works of improvement were first authorized in 198' whqn
Congress empowered the Iepartment of Agriculture t prose-
cute, under the director of its Secretary andjn accordance wit$
plans approved by him:*
works of impr emienfor measures of run-off and water-
Sflow retardation aid soil-erosin. prevntiot, on the
watersheds of waterways, for wlh wkI. pf improve-
ment for the benefit of navigation and the ,oqroln of
:destructive floodwters and pth6i provisionishare been
S:adopted and authorized to be prosecuted under the direct.
tion of theecr o War *. *
.'-. Jj dt
Tby declared purpose of this action was to effectuate the 1986
flood-control policy nd: 1 i
to correlate tie program for the improvement of t4is
and other w4terwth by 'the Deptnent 'of War witA
the program -fo& the &t' bflmnent of wateheds by the
Department 6f A'eiculttre.
Although this statute gaieraly author 4 proseutiop of
works "in accordance with plans approved by" the Secretary of
Agriulture-unlike the general requirements gbverhing flood-
control work of t$b ArmyI' Egineere--the- Department of
Agriculture aevertheles prepared and submitted to Cogrpa
Act of August 28,1987,, 8,50 Stat 878, 877.
"Act of January 19, 1948, 5 2, 62 Stat. 4, 88 U. S. C. 701T-7 (Supp.' ll).
"Act of June 28, 1988, 7, 52 Stat 1215, 1226, 38 U. C. 701Oi It
should be noted here that only a few days earlier Congress directed the
Secretary of the Army to make available to the Secretary of Agriculture
$4,000,000 for the prosecution or watershed-tteatnmett works under plans
approved by him. Act of June 11, 1988, 52 Stat 667, 671.
for approval programs for .. watersheds.1T These were spe-
cifically authorized in the 1944 Flood ontro Act." Congress
stated that this action was taken: -: i
ih i iiteret of national security and with a view
toward a adequate reservoir of useful and worthy
public w ks for the postwar construction pro-
With.respect to he work thus authorized, the Act directs
that state consenftbe btained for'projosed land acquisitions.140
Moreover, it also requires that there be paid to the county in
which the lands are acquired: "1
a sum equal to 1 per centum of the purchase price paid
for the lands acquired in thit county or, if not acquired
by puihiliac 1'pr centum or their valuation at the time
o their acquisition.
In flood-control work, the Secretary of Agriculture has cer-
tain authority much like that available to him under the 1935
Erosion Control Act .1 Thus, he is authorized to condition
the prosecution of flood-control'works on the enactment, and
reasonable safeguards for the eifofoieient; of state and lotal
laws imposing suitable, permanent restrictions on the use of
lands involved, "and.otherwise pr oqdingfor run-off and water-
Sfow retardation and soil-erosion prevention." S
SAlso, he may require agreements or covenants as to perma-
nent use of such lands and contributions in, money or other-
wise.1' It does hot appear that this authority has been in-
voked to require implementing flood-control legislation, as
See H. Rep: No. 1309, 78th Cong., 2;a s.~,,pp. 51-52 (1944); SeA. pep.
-N. 1030,178th Cong., 8d sess., pp. 2629 (19f4); nani see documents 4deg-
nated in Act of December 22, 1944, '13, 58 Stat. '87, 905. For provisions
egoeaning aathorization of fiod-contIrb1t wk by t e Arny Engineers, see
supra, pp. 134, 136-142.
13, 58 Stat. 905.
See supra, p. 368.
Act of August 28, 1937, 1 4, 50 Stat. 876, 877, see 33 U. S. C. 701c.
such. Instead, the Secretary in 1938 announced that prefer-
ence would "be given to areas located within soil conservation
districts already established and functioning" and that after
July 1, 1939, such work would be undertaken "only in States
which have adopted suitable legislation" along the lines of the
model soil conservation districts law."
Within the Department of Agriculture, flood-control re-
sponsibilities are divided between two agencies, the Forest
Service and the Soil Conservation Service.1 Activities thus
far authorized include not only land-treatment work and some
supplemental structural measures, but also the acquisition of
forest lands which are managed much as are those acquired
under the Weeks Law.7"
Water Facilities Act
In 1937, Congress declared its policy "to assist in providing
facilities for water storage and utilization in the arid and semi-
arid areas of the United States.14 In so doing, it recognized
that the: 14
wastage and inadequate utilization of water resources
on farm, grazing, and forest lands in the arid and semi-
arid areas of the United States resulting from inade-
quate facilities for water storage and utilization con-
tribute to the destruction of natural resources, injuries to
public health and public lands, droughts, periodic floods,
"Unpublished memorandum of the Secretary of Agriculture, entitled
"Statement Concerning State Legislation for State and Local Cooperation
with the Flood Control Program of the Department of Agriculture," Octo
ber 29, 1938.
SSecretary of Agriculture Memorandum No. 1166, June 27, 1946. See
also ADMINISTRATIVE REGULATIONS OF THE DEPARTMENT OF AGRICULTUBE, title
1, ch. 7, 1 1, ch. 395 (1947), directing the Soil Conservation Service and the
Forest Service to consult with Bureau of Agricultural Economics and Pro-
duction and Marketing Administration concerning proposed flood-control
"I See, e. g., H. Doc. No. 892, 77th Cong., 2d sess., pp. 48-49 (1942) and
Act of December 22,1944, 13, 58 Stat. 887,905.
Act of August 28,1937, 1, 50 Stat. 869, 16 U. S. C. 590r-590x.
crop failures, decline in standards of living, and exces-
sive dependence upon public relief, and therefore menace
the national welfare.
To effectuate this policy, Congress authorized the Secretary
of Agriculture to formulate and, keep current a program of
projects for the construction and maintenance of "ponds, res-
ervoirs, wells, check-dams, pumping installations, and other
facilities for water storage or utilization, together with appur-
tenances to such facilities." The facilities must be so lo-
cated as to promote proper utilization of lands and as not to
encourage cultivation of submarginal lands." In addition,
the facilities may be sold or leased "with or without a money
consideration." 18 Likewise, the Secretary may enter into
agreements with individuals or agencies, or furnish them finan-
cial or other assistance.= In addition to his authority to
acquire lands, the Secretary may also acquire "rights to the use
of water." "
The statute expressly authorized application of the program
to lands owned or controlled by the United States, as well as
to other lands upon obtaining necessary rights or interests.'1
In the case of the latter lands, the Secretary may condition
assistance upon enactment of state and local laws providing
for "soil conserving land uses and practices, and the storage,
conservation and equitable utilization of waters." He may
also require agreements regarding the maintenance and per-
manent use of "water, facilities, or lands benefited by such
facilities," or upon contributions in money or otherwise.1'"
Administration of this program is assigned to the Farmers
Home Administration." The statute contains an unlimited
1" 2,50 Stat 869, 16 8. 590s.
8, 50 Stat. 869,16 U. S. C. 590t.
1 4, 50 Stat. 870,16 U. S. C. 590u.
"Secretary of Agriculture Memorandum No. 1171, October 14, 1946,
11 R. 12520.
authorization for appropriations, but it should be noted that
Congress in 1940 fixed a maximum federal expenditure on any
one project of $50,000, which limit was increased to $100,000
Water ConServation and Utilization Act
"For the purpose of stabilizing water supply and thereby re-
habilitating farmers on the land and providing opportunities
for permanent settlement of farmfamilies," the Secretary of
the Interior is authorized, after specified collaboration with the
Secretary of Agriculture, to investigate and construct, operate,
and maintain certain "water conservation" and utilization
projects in the Great Plains and arid and semiarid areas of the
Reference has previously been made to this legislation in
our discussion of irrigation." As there indicated, no new
projects have recently been initiated under this unique legis-
lation. Its significance here lies in congressional recognition
of the direct relationship between land and water. Not only
is that true the provisions referred to above, but also it is
evident from other provisions of the Act, including those
whereby the Secretary of Agriculture, through cooperative
agreements with the Secretary of the Interior, may acquire
lands, prepare them for farm use, and aid and supervise their
Indirectly but important related to federal interest in con-
servation practices on nonfederal lands are several enactments
providing favorable credit facilities for financing farm owner-
ship and land improvement through private initiative.:
7, 50 Stat 870, 16 U. S. C. 50x; Act of October 14, 1940, i 7, 5 Stat.
1119, 1124, as amended by the Act of June 10, 1949, 63 Stat. 171, 16 U. S. C.
690z-5 (Spp. III).
'"Act of August 11, 1989, 1, 58 Stat. 1418, as added by Act of October
14,1940,54 Stat. 1119, as amended, 16 U. S. 0 590y et seq.
m See nspra, pp. 243-245.
1m 5, as added by Act of October 14,1940, 54 Stat 1119, 1122, as amended,
16 U. S. C. 590z-3.
For example, under the 1937 Bankhead-Jones Farm Tenant
Act, as amended, the Secretary of Agriculture is authorized to
make loans and to insure mortgages to enable acquisition, re-
pair, or improvement of "family-size farms," or to refinance
indebtedness against undersized or underimproved units when
loans are being made by the Secretary to enlarge or improve
such units." Similarly, he has authority under 1949 legislation
to make such loans to homestead entrymen and purchasers
of lands in reclamation projects.16" Provision is made for de-
ferring the first installment for repayment of loans to the
owner of a "newly irrigated farm and reclamation project" for
a period of not to exceed two years. These programs are
administered by the Farmers Home Administration.'"
Likewise important are other credit facilities available
through functions of the Farm Credit Administration and the
Reconstruction Finance Corporation.1"
Research and Education
Congress has made provisions for several programs of agri-
cultural experimentation, research, and education of interest
As early as 1887, the direct tie between land and water was
recognized in a statute authorizing agricultural experiment
stations to aid in acquiring and diffusing information on agri-
culture and to promote scientific investigation and experiment
concerning agricultural science."1 It is the duty of such agri-
cultural experiment stations to conduct original researches or
verify experiments on, among other things, "the analysis of
soils and water." O
Similarly, in 1935 legislation providing for the development
of agricultural research by the Department of Agriculture, Con-
"1 Act of July 22, 1987, 50 Stat. 522, as amended, 7 U. S. 0. 1000-1005d.
Act of October 19, 1949, 68 Stat. 888, 7 U. S. C. 1006a-1006b (Supp. III).
s Secretary of Agriculture Order, October 14, 1946, 11 F. R. 12520.
Act of July 17, 1916, 89 Stat.,860, 12 U. S. C. 641 et seq.; Act of June 30,
1947, 4, 61 Stat. 202, 20, 15 U. C. 604 (Supp. III).
'"Act of March 2, 1887, 24 Stat. 440, 7 U. S. C.,362 et seq..
A 2,24 Stat. 440,7 U. S. 0. 368.
gress enumerated many.authorized areas of research including,
among others, "research relating to the conservation, develop-
ment, and use of land, forest, and water resources for agricul-
tural purposes." I Noteworthy in this connection is the fact
that a study recently, undertaken pursuant to this statute corn-
prehends water salinity.'" Legislative provision has also been
made for cooperative agricultural extension work between state
agricultural colleges and the Department of Agriculture.1-
The interdepende ce of land and water has been recognized
in a number of statutes concerning use of lands. These are
aimed at water and land as inseparable resources, or are adapt-
able toserving both.i
Sharply distinguished byr its regulatory aspects from sue-
ceeding land-use legislation is the 1893 provision for the pre-
scribed jurisdiction 6f the California D6bris Commission over
Apart from this enactment, federal land-use legislation until
the early thirties ws concerned with forest lands, and prin-
cipally with forest Iaids of the United States. Here, Congress
has recognized the direct ties between land and water. Initi-
ated before the turn of the century, the legislative foundation
was broadenedin 19i 1 to provide for a federal forest program
on a national basis. Other forestry statutes al recognize the
interrelations of land and water resources, some of the more
recent being concerned with nonfederal forest lands as well.
Still further recognition appears in legislation concerning
national parks, Indian lands, the Tennessee Valley, and federal
Federal interest in land-ue practices was expansively broad-
ened by 1935 and 1936 legislation, upon which are based two
SAct of June 29,1935, 5 1, 49 Stoat. 436, as amended, 7 U. S. C. 427.
SMemorandum from the Research Administrator to the Secretary of
Agriculture, "Recommendled Initial Allotment for the Bankhead-Jones Re-
search Fund, Fiscal Year 1950," Project S. R. F.-3-9, App. p. 2, endorsed by
the Undersecretary of Agriculture, July 8, 1949.
m Act of May 8,1914,38 Stat. 372, as amended, 7 U. S. C. 341 et seq.
national soil-conservation programs. One provides for tech-
nical assistance to operators of land located within soil-con-
servation districts established under state laws. T'he other
enab direct but conditional cash payments to cooperating
lad operators., In providing for re ent of submarginal
lands, a later state also recognizes't effect of land practices
on water resources.
In 1936, Congress gyve te department of Agriculure juris-
diction over federal ixvestigaions of watersheds and measures
for run-off and water-flow retardation and soil-erosion preven-
tion on watersheds. This activity is in addition to the flood-
control activity oftbe Army Engineers.
The Water Facilities Act and the Water Conservation and
Utilization Act are additional examples of legislative provision
for specified interrelationships of land and water, .Congress
has also provided for research and educational activities by
various federal agencies important in this field. Other statutes
provide means for financing land-use workby private initiative.
In this field, most of the activities are under the supervision
of the Department of Agriculture. Promotion. of conserva-
tion measures is sought by financial and other assistance, with-
out employing direejoegulation. Only in recent years has the
Federal Governmuent Assumed broad responsibilities for en-
couraging proper use of nonfederal land. Emphasis is placed
.upon federal-state-local cooperation, -and much of the work
is carried on through local agencies.