tivity of soil were insufficient to guide the states." From the
start, settlers on many projects were in financial difficulties in
connection with heavy mortgages executed for financing con-
struction of irrigation works." A number of projects never-
theless continued for some time to operate under the Carey
With respect to the foregoing federal statutes, it has been
said that they failed to further in any substantial measure the
Government's long-established policy of encouraging the set-
tlement of arid public lands."
To this point, as we have seen, federal interest in irrigation
was limited to providing for certain water uses and to permit-
ting use of public lands on specified conditions. The statutes
involved nevertheless foreshadowed passage of the 1902 Rec-
lamation Act." And with its passage, Congress established
irrigation in the West as a national policy.1" But while Rec-
lamation projects are limited to the West, benefits are not lim-
ited to public lands."
Early cases sustained the 1902 Act as a proper exercise of
the Government's proprietary power.18 Moreover, in speak-
"'RCLAMATION HANDBOK, Department of the Interior, Bureau of Bee-
lamation, p. 22 (1942).
"By 1930, only 17 irrigation enterprises were so operated, covering
174,246 acres. Ibid.
SSee United States v. Bantson, 167 Fed. 881, 883 (C. A. 9,1909).
Act of June 17, 1902, 82 Stat. 888, 48 U. S. 0. 891 et seq. Speaking
of the earlier legislation, a Federal District Court in 1912 said, "By a series
of acts and resolutions passed by Congress beginning as early as
1888 the Government unmistakably declared a purpose to reclaim
its arid lands by conducting water to and across them, and provision was
shortly made to enable It to carry out that purpose." United States v. Vim
Horn, 197 Fed. 611, 615 (D. C. Colo., 1912).
m Burley v. United States, 179 Fed. 1 (C. A. 9, 1910). "The policy of
reclaiming the arid region of the West for a beneficial use open to all the
people of the United States is as much a national policy as the preservation
of rivers and harbors for the benefit of navigation." 179 Fed. at 11.
SSee upra, p. 45.
See spr'a, pp. 44-.
ing of the Reclamation Fund, the United States Court of Ap-
peals for the Ninth Circuit in 1909 found no difficulty in the
way of holding that the "use of funds contemplated by the
reclamation act is. for the common welfare." '" Recently
pointing out that the only limitation on the power to tax and
appropriate for the general welfare is that it must be "exercised
for the common benefit as distinguished from some mere local
purpose," the Supreme Court of the United States suggested
that Congress may promote the general welfare through "large-
scale projects for reclamation, irrigation, or other internal
After a preliminary sketch of the framework of the 1902
Act, we shall here, as in earlier chapters, review the applicable
provisions of law as they relate to the steps in the develop-
ment of a project. In other words, we shall group them for
review in the following sequence: preparing for projects, au-
thorization of projects, prosecution of projects, and operation
of projects. But one feature should be especially remembered.
Reimbursement from project beneficiaries is accomplished
through contractual arrangements. While the various provi-
sions of law have undergone many changes, such contracts
have of course been altered only with the consent of the signa-
tory parties. There are thus outstanding contracts unaffected
by many provisions of subsequently enacted legislation.
It should also be noted that many provisions of Reclamation
Law have been rendered ineffective, or have been superseded by
later legislation, and are irrelevant so far as future reclamation
projects are concerned. But not having been expressly re-
pealed, many such provisions nevertheless continue to appear
in the United States Code.
Federal irrigation and related activities are today performed
almost entirely by the Bureau of Reclamation under the super-
vision of the Secretary of the Interior."19 It may also be noted
United States v. Hanson, 167 Fed. 881, 885 (0. A. 9, 1909).
m United States v. Gerlach Live Stock Co., 339 U. S. 725, 738 (1950).
See also supra, pp. 57-58. And see Oklahoma v. Atkinson, 313 U. 5. 508, 525
Act of May 26, 1926, 44 Stat. 657; Reorganization Plan No. III of 1950,
S1,15, R. R174; Department of the Interior Order No. 2568, May 2, 150.
that, through June 30, 1949, federal funds made available
for carrying out these functions reached a total of about
THE RECLAMATION ACT Or 1902.-In his message to Con-
gress in December 1901, President Theodore Roosevelt said: "'
It is as right for the National Government to make
the streams and rivers of the arid region useful by
engineering works for water storage as to make useful the
rivers and harbors of the humid regions by engineering
works of another kind.
Our people as a whole will profit, for successful home-
making is but another name for upbuilding of the
The fundamental principles advanced in his message formed
the basis for the Reclamation Act of 1902.19 With its many
supplements and amendments, that Act constitutes Reclama-
The 1902 Act established the Reclamation Fund with moneys
derived from the sale of public lands in Arizona, California,
Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New
Mexico, North Dakota, Oklahoma, Oregon, South Dakota,
Utah, Washington, and Wyoming.19 This Fund is to be used
for irrigation works in those States, to which Texas was later
added." The Secretary of the Interior is directed to make
ANIMAL REPORT OF THE SBEEPTABY OF THE INTTIOB, p. 70 (1949).
LH. Dec. No.1, 57th Cong., 1st seas., pp. XXVIII-XXIX (1901).
SAct of June 17,1902, 8 Stat 888, 43 U. S. 0. 891 et seq. "When Theo-
dore Roosevelt became the President of the United States in 1901, the first
major task to which he addressed himself was the establishment of a
national program for the conservation of the land and water resources
of the West. The fundamental principles he advanced in his message to
the Congress form the basis for the reclamation law which was subse-
quently enacted with his approval on June 17, 1902." NATIONAL ImBIATTON
POLICY-ITS DzVELOPMENT AND SIGNIMCANCE, Sen. Doc. No. 86, 78th Cong.,
1st sess., p. VII (1989).
See supra, n. 18, p. 154.
1 $ 1, 32 Stat. 888, 43 U. S. C. 891.
"'There are no federal public lands in Texas. J. Res. of March 1, 1845,
S 2, 5 Stat. 797. To enable the United States to carry into effect the terms
examinations and surveys and to locate and construct irrigation
works, and was then o Ireport annually to Congress on enum-
The Act also provides for withdrawal of public lands from
entry for construction of irrigation works.&0 Entries on lands
so withdrawn are limited to a minimum of 40 and a maximum
of 160 acres.m Upon determination that a project was practi-
cable, the Secretary could let contracts if funds were available in
the Reclamation Fund." He must give public notice of lands
available for entry, the permissible size of entry fixed in accord-
ance with his determination of the acreage "reasonably required
for the support of a family," and of the charges per acre to be
made upon such entries and upon lands in private owner-
ship.im Charges were to be determined with a view to returning
to the Reclamation Fund the estimated cost of construction,
and had to be paid in not to exceed 10 annual installments.'
Additional homestead requirements for reclamation entries and
patents are also established by the Act."
Moreover, rights to use of water are limited to 160 acres as
to private lands, and the landowner was required to be an
of a proposed convention with Mexico, which was afterward signed on
May 21, 1906, 84 Stat. 2953, Congress extended the Reclamation Act to
the portion of Texas bordering upon the Rio Grande which could be irri-
gated from a dam to be, constructed near Engle, New, Mexico. Act of
February 25, 1905, 83 Stat. 814. This is ,the Elephant Butte Dam. See
Sperry v. kephant BEfte Irr. Dft., 83 N. Mex. 48 270 Pac. 889 (1928).
A month after the conclusion of the 1906 convention, the Reclamation
Act was extended to the entire State of Texas. Act of June 12, 1906, 84
Stat. 259, see-43 U. S.O. 891. Until this legislation, Texas embraced the only
portion of arid land inuthe United States not Within the Act. H.E Rep. No.
1790, 5th Cong., 1st sess. (1906)....
".2, 32 Stat. 888, as amended, 43 U. S. .411. Through the remainder
of this chapter, the word "Secretary," standing alone, will efer to the
Secretary of the Interior.
"* 3, 32 Stat. 388, see 43 U. S. C. 416.
2 4, 32 Stat. 389, 43 U. S. C. 419.
"f 4, 32 Stat. 889, see 43 U. S. C. 419. .The.Code omits the limit on
1" 5, 32 Stat. 889, see 48 U. S. 0. 439.
actual bona fide resident of such lau d,:r occupant thereof
residing in the neighborhood of such land." "
Use of the Reclamation Fund for operation and maintenance
of works is authorized. In this connection, the Act contains
a significant provisiWbithat, wlien paymhts required by the
Act have been made for the maje;sportion of the lands irri-
gated, "management and operation" of the works shall padt t
the owners of the lands irrigated to be maintained at their ex-
pense under such organization and rules as are acceptable to
the Secretary." However, "title to and the management and
operation of the resevo-irs and the works necessary for their
protection and operation" remain in the Government u, tilb
otherwise provided by Congress." "m
The Secretary may acquire necessary rights or property by
purchase or condemnation.," Nothing in the Act may becn-
strued aa interfering with state laws relating to the "control,
appropriation, use, or distribution of water used in irrigation,
or any vested right acquired thereunder."' In carrying out
the Act's provisions, the Secretary "shall proceed in conformity
with such laws.'" And nothing in the Act shall laffect-ay
"right of any State or of the Federal Government or of any
landowner, appropriator, or user of water in, to, or from any
interstate stream or the waters,thereof,"' In addition, it is
provided that the right to use of water acquired under the Act
i 6,82 Stat. 889,48 U. 0.4981.
"i6, 82 tat.889, 48 U. 8... 4,1.
-Id. ,: :. 1 -" .I
"I 7, 82 Stat. 88, 48 U. 0. 421.
m i 8,2 Stat. 890, 48 U. C. 888.
"Id. In Nebriaska v. Wyomin, 825 3U. 8. 589, 614 (1945), this provision
was characterized as "a direction by Congres to the Secretary of the
Interior" to proceed in conformity with state laws In the appropriation of
water for lirrjittiu p obe' in this connection, It should be noted that
some states ha'e proved 'a simple procedure foi application to federal
irrigation undertakings. For example, a spe&al New Mexico. statute applies
In the case of federal reclamation projects. Reservatlob of certain unappro-
priated waters of the State may be effected by a notification, from the
proper federal officer to Oh State engineer that the United States Intends
to make use of those watersa.'-; Me tATr.Al A 1941, i 77-81.
mid. .: ,; *" .. .
"shall be appurtenant to the land irrigated, and beneficial use
shall be the basis, the measure, and the limit of the right."' "
A provision requiring expenditure within each state of the
major portion of the funds arising from the sale of public lands
therein was repealed in 1910." Finally, the Secretary is
authorized to perform a4ny and all acts and to make rules and
regulations necessary to carrying out the statute's provisions.21
Over the years, most of the foregoing provisions have been
supplemented, amended, or superseded. This has, frequently
been accomplished without express reference to the provision
affected. Some of the provisions are today in force wholly or in
part only as to certain projects or divisions of projects. We
turn now from the provisions of this basic Act to a review of
the many statutes which have supplemented, amended, or
superseded its various provisions.17
PREPARING FOR PROJECTs.-Under-the 1902 Act, the Secre-
tary was directed to locate and construct "irrigation works
for the storage, diversion, and development of waters, includ-
ing artesian wells.":" Recognition of other purposes appeared
in succeeding statutes, correspondingly broadening the scope
of preparation required. Thus, in 1906 Congress provided for
furnishing water supplies to towns in the vicinity of projects.19
At the same time, it made provision for the disposal of surplus
power.20f Similarly, a 1920 statute conditionally authorizes
the Secretary to contract to supply water from any project
irrigation system "for other purpose than irrigation." 2m'
Of especial significance here is the Rtelamation Project Act
of 1939 authorizing establishment of multiple-purpose projects
8,82 Stat. 890,4& U. S. 0. 372.
9,82 Stat. 80;Act 4ifne 25, 1910, 6,8 Stat. 835, 838
*" S10, 82 Stat. 390, asasended, 43 U. S. 373.
'It may be noted 'iere that the Hopse Committee on the Judiciary is
currently formulating a recodification of Titles 16 and 48 of the United
States Code, with a view to including in the former a recodification of
the Reclamation Law, pursuant to the Act of June 22, 1949, 63 Stat. 222.
Act of June 17, 1902, 2, 32 Stat. 88, as amended, 48 U. S. C. 411.
Act of April 16,1906, 1 4, 34 Stat. 11, 43 U. S..C. 567.
2" 5,84 Stat. 117, as amended, 48 U. S. 0C.22.
Act of February 25, 1920, 41 Stat. 451, 43 U. 8. 21.
under Reclamation Law, as we shall later see in detail.2 This
statute expressly recognized combination of uses for irrigation,
power, municipal water supply or other miscellaneous purposes,
together with flood control and navigation."
Examinations and Surveys.-Under the 1902 Act, the Secre-
tary of the Interior is directed to make examinations and sur-
veys for "irrigation works for the storage, diversion, and de-
velopment of waters, including artesian wells." '
Subsequent legislation expressly or impliedly contemplates
similar investigatory activities. Thus, the Secretary is re-
quired under a 1924 statute to classify the irrigable lands of
each new project and division of a project." Similarly, 1926
legislation requires the suspension of payment of construction
charges on operating projects based upon determinations re-
specting the productivity of project lands.- A recent statute
also requires determinations of the repayment ability of water
users in connection with the return of "rehabilitation and bet-
SAct of August 4, 1939, 58 Stat. 1187, as amended, 43 U. S. C. 485-485k.
See also Hearings before the House Committee on Irrigation and Reclama-
tion on H. R. 6773 and H. R. 6984, 76th Cong., 1st sess., p. 26 (1939) ; H. Rep.
No. 995, 76th Cong., 1st sess., p. 5 (1989).
Recognition of multiple purposes had previously appeared in legislation
for special projects. See, e. g., Act of December 21, 1928, 1 1, 45 Stat. 1057,
43 U. S. C. 617 (Boulder Canyon Project) ; Act of August 30, 1935, 2, 40
Stat. 1Q28, 1039 (Parker Dam and Grand Coulee Dam); Act of August 26,
1987, 2, 50 Stat 844, 850 (Central Valley Project, California).
S0 9, 5 Stat. 1198, 43 U S. C.485h.
Aect of June 17, 1902, | 2 2 Stat. 88, as amended, 48 U. S. C. 411. A
portion of the original section requiring certain annual reports to Congress
relating to such examinations and surveys was repealed in 1946. Act of
August 7, 1946, 60 Stat. 868 867, see 43 U. S. C. 411.
It should also be noted that an 1888 appropriation statute made funds
available for the purpose of "investigating the extent to which the arid
region of the United States can be redeemed by irrigation, and the segrega-
tion of the irrigable lands in such arid region, and for the selection of sites
for reservoirs and other hydraulic works necessary for the storage and uti-
lization of water for irrigation and the prevention of floods and overflows,"
the work to be performed by the Geological Survey under the Secretary of
the Interior. Act of October 2, 1888, 25 Stat. 505, 526.
w Act of December 5, 1924, 4, subsection D, 43 Stat. 672, 702, 43 U. S. C.
"*Act of May 25, 1926, 43, 44 Stat. 636, 647, as amended, 43 U. S. C. 423b.
tereent" costs that is, maintenance costs which the water users
cannot finance currently,
The 1939 Reclamation ProjectAe broadened the scope of
examinations and surveys undertake, in connection with irri-
gation projects. It prohibits expenditures or submission of
estimates for construction of any new project, new division of
a project, or new supplemental works on a project until the
Secretary has submitted to the ,Pesident and to Congress his
report and findings on: 7
(1) the engineering feaiiity of the proposed con-
(2) the estimated cost of 4th proposed construction;
(3) the part of the estima costwhich can properly
be allocated to irrigation and probably berepaid by the
(4) the part of the estimated cost which can properly
be allocated to power and probably be returned to the
United States in net power rcdie s;
(5) the part of the estimated cost which can properly
be allocated to municipal water supply or other mis-
cellaneous purposes and probably be returned to the
Findings are also req ed as to any allocation to flood tro
or navigation," as provided for by the statute.'9
Recent appropriation legislation contains indications of the
scope of examinations and surveys expected. For example,
the. 1950 Interior Department Apprpriation Act provided
funds for: 2R
engineering and economic investigations of proposed
Federal reclamation projects and surveys, investigations,
and other activities relating to reconstruction, rehabili-
tation, extensions, or financial adjustments of existing
projects, and studies of water conservation and develop-
Act of October 7,1949, 68 Stat. 724.
eAct of August 4, 1939, 9(a), 53 Stat. 1187,1193, 43 U, S. 485h(a).
Id.; 1 9 (b), 53 Stat. 1187,1194,43 U. S. C. 485h (b).
Act of October 12, 199, 8 Stat. 75, -.
ment plans, such investigations, surveys, and studies to
be carried on by said Bureau either independently, or in
cooperation with State agencies and other Federal agen-
cies, including the Corps of Engineers and the Federal
Power Commission which may be used to
execute detailed surveys, and to prepare construction
plans and specifications for specific projects or parts
of projects until appropriations are available for con-
struction thereof Provided further, That the
expenditure of any sums from this appropriation for
investigations of any nature requested by States, muni-
cipalities, or other interest shall be upon the basis of
State, municipality, or other interest advancing at least
50 per centum'of the estimated cost of such investi-
An appropriation of over $5,000,000 for a somewhat similarly
phrased purpose in the General Appropriations Act, 1951,
contains a further provision that, except as to certain investi-
gations in Alaska, "no part of this appropriation" shall be ex-
pended in the conduct of activities which are not authorized by
law." Still other investigations and surveys have been pro-
vided for by special provisions in appropriation and other
"mAct of September 6, 190, ch. VI, J 101, 04 Stat. 5, -.
m For example:
Investigation of the reclamation by drainage of lands outside existing
projects and of reclamation of cut-over timber lands in any state. Act
of July 1 1918, 40 Stat 634, 676 (Appropriation). For the resulting repot,
see H. Doe. No. 262, 68th ong., let sesa (1919).
Determination of portions of certain ceded lands to be opened to agricul-
tural development through lowering the water level of Klamath Lake in
Coitornia and Oregon. Act of; May 27, 1920, 1, 41 Stat. 627, repealed by
Act of June 17,1944, 2(a), 58 Stat,279,48 U. S. 0.02.
Investigations and surveys similar to those provided for by Reclamation
Law, with funds contributed by a state, municipality, corporation, associa-
tion, firm, industry, or individual. Act of March 4 121, 41 Stat. 187, 1404,
48 U; S. C. 895 (Appopriation).
Authorization of annual appropriation for "cooperative and miscellaneous
Investigations of the feasibility of reclamation projects." Act of February
21,1923, 42 Stat. 1281.
Plans and estimates for the Casper-Alcova Project, Wyoming, Desehntes
In connection with examinations and surveys, it should also
be noted that Congresi has from time to time made special
provision for consultants and advisers. For example, it has
authorized the Secretary to employ for "consultation purposes
on important reclamation work" 10 consulting engineers, ge-
ologists, appraisers, and economists.2 A report by a com-
mittee of special advisers on reclamntibn, commonly known as
the "Fact-Finders' Report," became the basis for the 1924
Fact-Finders' Act.3m i. 1937, Congress created a commission
to investigate the financial, economic, :nd other conditions of
Project, Oregon, and Southern Lassen Project, California, at least half the
coat to be advanced by the state In which the project Is located or by "parties
interested." J. Res. of June 7, 1924, 43 Stat 668.
A "comprehensive and detailed survey" on existing projects to determine
all pertinent facts as to why settlers are unable to pay construction costs,
and report results to Congress. Act of December 5, 1924, 4, subsection K,
48 Sta. 672 703, 43 U S. C. 466,
An examination and Investigation of swamp and overflow lands on certain
rivers in MississippL Act of July 3, 1926, 44 Stat. 901. Forf the relprt
on the Yazoo River, see H. Doc. No. 765, Part 2, 69th Cong., 2d seas. (1927).
In connection with a soil and moisture conservation program on lands
under the jurisdiction e of Intht terior Department, necessary special meas-
ures for the "improvement of irrigation and land drainage." Act of July
2,,1942, 56 Stat. 506, 508 (Appropriation). The functions of the Soil Con-
servation Service in the Department of Agriculture with resect to soil
and moisture conservation operations conducted on lands under the juris-
diction of the Department of the Interior were transferred to the latter De-
partment in 1940. Beorganitalon Plan Wio IV, 6, effective June 380/1940,
54 Stat. 1234, 125, 5 U. S. C. 133t note following.
Examination and survey respecting utilization of waters of the San Juan
River tributary to the Colorado River, and the feasibility of a diversion of
the surplus waters therefrom to the Rie Chama, a tributary of the Iio
Grande. Act of June 22, 1986,49 Stat. 1806 (Appropriation).
Studies and investigations for the formulation of a comprehensive plan
for the utilization of waters of the Colorado Biver System for irrigation,
electric power, and other purposes, including astdies of the quantityy and
quality" of water and al other relevant factors.- Act of July 19,1940, 2(d),
54 Stat. 774,775, as amended; 48 U.S C. 618a(d) (Supp. III).
SAct of February 28; 1929, 1, 45 Stat. 1406, as amended, 48 U. S.C. 411b.
'" This report and the President's message to Congress are printed in Sen.
Doc. No. 92, 68th Cong., 1st sess. (1924); the so-called Fact-Finders' Act
consists of 1, 4, subsections A-R, of the Second Deficiency Act of 1924,
Act of December 5, 1924, I 1, 4, subsections A-R, 48 Stat. 672, 684, 702-704,
43 U. S. C. 396, 871, 412, 488, 4, 42 463 (repealed), 473 (repealed), 474
(repealed), 500, 478, 494,1501, 526, 466, 4 (repealed), 438, 4 877, 417, 878.
the various federal and Indian reclamation projects with ref-
erence to the ability of each such project to make payments of
water-right charges without undue burden upon the water-user
organization liable for such charges.&" In 1928, the Secretary
was authorized to appoint a board of five "eminent engineers
and geologists, at least one of whom shall be an engineer officer
of the Army" to advise him respecting the safety, economic, and
engineering feasibility of the structure and incidental works
proposed under the Boulder Dam Bill."
Also related to investigations are various statutory provi-
sions for cooperation with different agencies. In making an
allocation to flood controlor navigation under the 1939 Act, the
Secretary is required to consult with the Chief of Engineers
and the Secretary of the.Army.m Moreover, he may perform
any ofthe necessary investigations or studies under a coopera-
tive agreement with the Secretary of the Army.2" In making
investigations of and reports on works for irrigation, the Secre-
tary of the Interior is required, during the course of the investi-
gations, to give affected states and the Secretary of the Army
information developed by the investigations, opportunity
for consultation regarding plans and proposals, and to the ex-
tent practicable, opportunity to cooperate in the investiga-
tions.29 Whenever a proposed Bureau of Reclamation project
would impound, divert, or otherwise control waters, it must con-
sult with the Fish and Wildlife Service of the Department of
the Interior and with the head of the state agency exercising
administration over wildlife resources, with a view to prevent-
ing loss of and damage to wildlife resources." The resulting re-
Act of August 21, 1987, t 1, 50 Stat. 737. For the report of the Repay-
ment Commission submitted under this Act, see H. Doe. No. 673, 75th Cong.,
3d sess. (1988).
SS. Res. 164, May 29, 1928, 45 Stat. 1011. For the resulting report
of December 3, 1928, see H. Doe No. 446, 70th Cong., 2d sess. (1928). The
Boulder Canyon Project Act was approved shortly thereafter. Act of
December 21, 1928,45 Stat. 1057, as amended, 43 U. S. C. 617-617t.
"Act of August 4, 1939, 9(b), 53 Stat. 1187, i194, 43 U. S. C. 485h(b).
"Act of December 22, 1944, l(c), l(a), 58 Stat. 887, 889, 888. See
also supra, n. 7, p. 152.
Act of August 14, 1946, 2, 60 Stat. 1080, 16 U. S. C. 662.
ports and recommendations must be made an integral part of
any report submitted by the Bureau.*
In addition to these general provisions for cooperation, spe-
cial provisions are made from time to time. For example, in
connection with the continuation of investigations on the gen-
eral plan for development of the Missouri River Basin, the
General Appropriations Act, 1951, authorizes the Bureau to
expend allotments "through or in cooperation with State and
other Federal agencies," advances to such agencies being also
authorized." We -have earlier mentioned the jurisdiction of
international commissions over certain international waters.2
Cooperation with such agenciesis at times an incident of opera-
tions of the Bureau."2
In the course of examinations and surveys, therefore, the
Bureau cooperates with international and interstate agencies,
state and other nonfederal agencies, and interdepartmental
and intradepartmental agencies.2"
A final feature concerning general investigations remains to
be noted. The cost and expense of all such investigations,
except when incurred on behalf of specific projects, shall be
charged to the Reclamation Fund and not as a part of the
reimbursable construction or operation and maintenance
Reports on Examinations and Surveys.-The 1902 Act
originally required the Secretary to report annually to Con-
"Id. See also infra pp. 829-830.
Act of September 6, 1950, ch. VII, 1 101, 64 Stat. 595, -.
See wpra, pp. 121-128, 148-149.
"In connection with the Mexican Water Treaty of 1944, there was for-
mulated a Memorandum Agreement between the Secretary of State and
the Secretary of the Interior for cooperation between the United States
Section, International Boundary and Water Commission, United States and
Mexico, and the Bureau of Reclamation, concerning the Rio Grande and the
Colorado and Tijuana Rivers, dated February 14, 1945, approved by the
President on June 18, 1945, H. Doe. No. 717, 80th Cong., 2d sess, App. 1407,
p. A889 (1948).
For a discussion of participation by the Department of the Interior in
interdepartmental coordination of federal water-resource activities, and of
its own program for intradepartmental coordination, see infra, pp. 438-439,
Act of December 5, 1924, 4, subsection 0, 48 Stat. 672,704, as amended,
48 U. 8, C. 877.
gress the results of examinations and surveys, giving estimates
of cost of all contemplated works, the quantity and location of
the lands which can be irrigated therefrom, and all facts rela-
tive to the practicability of each irrigation project, together
with the cost of works being constructed and those com-
pleted.2" In 1924, Congress required that, as a condition prec-
edent to construction or submission of estimates for new proj-
ects and new divisions of projects, the Secretary secure detailed
information "concerning the water supply, the engineering fea-
tures, the cost of construction, land prices, and the probable
cost of development," together with his written finding that the
project is feasible, that;it is adaptable for actual settlement
and farm homes, and that it will probably return the cost to
the United States." :
I- 19309,Congress directed that the feasibility reports and
findings of the Secretary, the expanded contents of which have
already been set forth in detail, be submitted to "the President
and to the Congress." Similarly, we have noted that reports
must include the written views and recommendations.of af-
fected states and of the Secretary of the Army." In respect of
wildlife resources, there must also be included the reports and
recommendations of the Secretary of the Interior and of the
head.of the state agency concerned with wildlife resources.21
AUTHORIZATION OF PROJECrs.-While the 1902 Act pre-
scribed no formula for project authorization, it did require the
Secretary to report annually to Congress on, among other
things, all facts relative to the practicabilityy of each irriga-
tion project." But the Reclamation Fund became exhausted
before the projects initiated were completed." As a result,
Congress in 1910 repealed the 1902 provision requiring that the
Act of June 17, 1902, 2, 82 Stat. 888.
"Act of December 5, 124, 4, subsection B, 48 tat. 672, 702, 48 U. S. .
"Act of August 4, 198, 1 9(a), 58 Stat. 1187, 1198, 48 U. S. C. 485h(a);
see 8spra, p. 188.
2 See supra, p. 191.
2 See supra. pp. 191-192.
m Act of June 17, 1902, 2, 82 Stat. 88, as amended, 48 U. S. 0. 411.
S. Rep. No. 1635, 61st Cong., 2nd sees., pp. 2-8 (1910).
major portion of the funds arising from the sale of such lands
in each state be expended therein, and prohibited the com-
mencement of new projects except where "recommended by
the Secretary of the Interior and approved by the direct order
of the President of the United States." "
In 1914, Congress prohibited expenditures from the Recla-
mation Fund after July 1, 1915 exceptt out of appropriations
made annually by Congress," a requirement also being in-
cluded for annual submission of estimates by the Secretary."
A further change in 1924 required that "no new project or new
division of a project shall be approved for construction or
estimates submitted therefore by the Seeretary" until he shall
secure specified information and make prescribed findings.",
Elaborate modification of project-authorization procedure
was effected by the Reclamation Project Act of 1939. A proj-
ect now becomes authorized upon submission of a report and
prescribed findings by the Secretary to the President and to
Congress, in accordance with the following provisions of Sec-
tion 9(a) of the Act: 2
No expenditures for the construction of any new proj-
ect, new division of a project, or new supplemental works
on a project shall be made, nor shall estimates be sub-
mitted therefore, by the Secretary until after he has made
an investigation thereof and has submitted to the Presi-
dent and to the Congress his report and findings on-
(1) the engineering feasibility of the proposed con-
(2) the estimated costof the proposed construction;
uAct of June 25, 1910, 4, 36 Stat. 835, 836, 43 U. S. C. 400, 413. See
also H. Rep. No. 1685, 61st Cong., 2d seas. (1910) ; H. Rep. No. 1729, 61st
Cong., 2d sess. (1910) ; 45 CONG. RzC. 8673, 8752, 8865, 8901, 9028, 9087, App.
886, 888, 396,.397.
Act of August 13, 1914, J 16, 38 Stat. 690, 48 U. S. C. 414.
Act of December 5, 1924, 4, subsection B, 43 Stat. 672, 702, 43 U. S. C.
412. For the information and findings required, see supra, p. 193.
"'i 9(a), 53 Stat. 1193, 43 U. S. C. 485h(a). When a point of order was
raised on tet floor of the House of Representatives with respect to an
item for an initial appropriation for a project, it was ruled that a project
is authorized when a report under 9(a) has been transmitted as therein
provided, and the point of order was overruled. 87 CoNG. Rzo. 4047 (1941).
(3) the part of the estimated cost which can properly
be allocated to irrigation and probably be repaid by the
(4) the part of the estimated cost which can properly
be allocated to power and probably be returned to the
United States in set power revenues;
(5) the part of the estimated cost which can properly
be allocated to municipal water supply or other miscel-
laneous purposes and probably be returned to the United
If the proposed construction is found by the Secretary
to have engineering feasibility and if the repayable
and returnable allocations to irrigation, power, and mu-
nicipal water supply or other miscellaneous purposes
found by the Secretary to be proper, together with any
allocation to flood control or navigation made under
subsection (b) of this section, equal the total estimated
cost of construction as determined by the Secretary,
then the new project, new division of a project, or sup-
plemental works on a project, covered by his findings,
shall be deemed authorized and may be undertaken by
the Secretary. If all such allocations do not equal said
total estimated cost, then said new project, new division,
or new supplemental works may be undertaken by the
Secretary only after provision therefore has been made
by Act of Congress enacted after the Secretary has sub-
mitted to the President and the Congress the report
and findings involved.
Moreover, Section 9(b) authorizes nonreimbursable allocations
to flood control and navigation of such part of the total esti-
mated cost As the "Secretary may find to be proper." In
m "In connection with any new project, new division of a project, or sap-
plemental works on a project there may be allocated to flood control or
navigation the part of said total estimated cost which the Secretary may
find to be proper. Items for any such allocations made in connection with
projects which may be undertaken pursuant to subsection (a) of this
section shall be included in the estimates of appropriations submitted by
the Secretary for said projects, and funds for such portions of the projects
shall not become available except as directly appropriated or allotted to the
1946, similar allocations were authorized for preservation and
propagation of fih And wildlife.HO
A further modification in authorization requirements appears
in the 1944 Floo0tControl Act. As already noted, it provides
for the submission of views and recommendations of the "af-
fected States" and of the Secretary of the Arniy.'" If such
views and recommendations set forth objections, the proposed
works shall not be deemed authorized "except upon approval
by an Act of Congress." M
Additional importance attaches here to the 1944 Flood Con-
trol Act in its provision for irrigation use of Army dam and
reservoir projects on specified conditions.' Upon recommen-
dation by the Secretary of the Interior, if the Secretary of the
Army determines that such a project may be utilized for irriga-
tion purposes, the Secretary of the Interior is authorized to
construct, operate, and-maintain tider Reclamation Law such
additional works in connection therewith as he deems necessary
for irrigation purposes. These may be undertaken only after
his report and finding pursuant to Reclamation Law and
after "subsequent specific authorization" by Congress. Within
the limits of the water-users' repayment ability, such report
may be predicated on the allocation to irrigation of an appro-
priate portion of the cost of structures and facilities used for
irrigation and other purposes. Specifically exempted from
Department of the Interior. In connection with the making of such an
allocation, the Secretary shall consult with the Chief of Engineers and the
Secretary of War, and may perform anyof the necessary investigations or
studies under a cooperative agreement with the Secretary of War. In the
event of such an allocation the Secretary of the Interior shall operate the
project for purposes of flood control or navigation, to the extent justified
by said allocation therefor." 1 9(b), 53 Stat. 1193, 43 U. S.. 485h(b).
Express provision was also made for such allocations in the case of
"any project, division of projectc, development unit of a project, or sup-
plemental works on a project" which at the time of the Act's enactment
was under construction or for which appropriations had been made and in
connection with which a repayment contract had not been executed. 7 (b),
53 Stat. 1192, 43 U. S. 485f (b).
SAct of August 14, 1946, 2, 60 Stat. 1080, see 16 U. S. C. 662.
See aupra, p. 191
SAct of December 22,14, Ig1(c), 58 Stat. 887, 88.
'i J & 58 stat. 891, 48 U. S.. 90.
these provisions were existing Army projects which provide con-
servation storage for irrigation purposes.
PROSECUrTIN o PBaoJrs.-After project authorization
but before initiation of construction, certain preparatory work
imst be accomplished, auch as the preparation of plans and
specifications. Congress appropriates funds expressly for this
In the 1902 Act, express provision was made for the letting
of "contracts for the construction" of irrigation projects "in
such portions or sections as it may be practicable to construct
and complete as parts of the whole project," providing funds
are available.T" The prevailing practice of the Bureau is to let
cotracts on competitive bids for construction of projects."
Ad appropriation statutes sometimes place a limit on ti
amount expendable for construction work by "force account or
on a hired-labor basis."
A number of provisions implement or regulate activities re-
lating to prosecution of projects. For example, the 102
statute authorizes the acquisition of necessary rights or prop-
erty by purchase or byicondemnation.2' This provision has
been held to permit acquisition of an incomplete irrigation
system to be used in connection with a federal project." But
it does not authorize the expense of procuring options to pur-
chase rights-of-way, water rights, or lands.2"
The 1939 Reclamation Project Act has more elaborate provi-
sions. It authorizes acquisition of lands or interests therein
for "relocation of highways, roadways, railroads, telegraph,
telephone, or electric transmission lines, or other properties
See, e. g-, the appropriatioa under "General Investigations" for "foramu-
lating plans and preparing deagns and specifcatlons for authorized federal
reClamation projects or part thereof prior to appropriations for constrc-
ttiOt" Act of September 6, 19080 II, 1101,44 Stat. 5 5,-.
-Aet of June 17, 1902, 1 4, 82 Stat. 888, 88,4 U.. 419.
See ARNW IE REPO*F O Tr H IrNTEm li B, p. 7 (1949).
See also 84 L. D. M67.
See, e. g., Act of September 6, 195, ch. VII, title 1, 64 Stat. 59, -.
Act of June 17, 1902, 7, 82 Stat. 888, 89, 48 U. S. C. 421.
SOpinion of Asst. Attorney General, January 6, 1906,84 D. 851.
"9 ComP. Gz. 59 (1980).
whatsoever," the relocatibn of which is necessitated by project
construction, operation, and maintenance."0 To this end, the
Secretary is authorized to enter into contracts with the owners
of such properties whereby they undertake to acquire the
property needed for relocation, or t0+perform the work involved
in such relocation.! : He is also empowered to make contracts
for "exchange or replacement of water, water rights, or electric
energy or for the adjustment of water rights." n
After appropriations for project construction or operation
have been made, the Secretary may enter into contracts for
"miscellaneous services, for materials and supplies, as well as
for construction." While such contracts may cover such
periods of time as he deems necessary, the liability of the United
States shall be contingent upon appropriations being made
THE RECLAMATION FUND.-Closely related to the question
of authorization of projects is the matter of their financing.
Here, federal interest in irrigation has taken a unique turn.
For instead of the usual direct appropriations for projects, Con-
gress in 1902 created a revolving fund to which we have earlier
referred as the 'Reclamation Fund." "" The Fund was orig-
inally established by reserving, setting aside, and appropriating
Act of August 4, 199, 1 14, 53 Stat. 1187,1197, 43 U. S. C. 889.
m 12,58 Stat. 1197, 43 U. S. C. 388.
SAct of June 17, i902, 0 1, 32 Stat. 888, as amended, 43 U. S. 0. 391.
See also The Reclamakmo Bra, Vol. 22, No. 11, p. 258 (November 1981);
Hearings before a Subdomonittee of the House Committee on Public Lands
on Irrigation and Reclamation, 80th Cong.;, t sess., pp. 5-8 (1947).
In reporting the proposed reclamation legislation, the House Committee
on Irrigation of Arid Lands said, "We have now reached a condition of
affairs, at least in some portions of the arid region, where it is necessary to
undertake enterprises of considerable magnitude and of such character as
to clearly place them beyond the reach of private enterprise under the
American system of land laws." H. Rep. No. 1468, 57th Cong., 1st sess., p. 3
(1902). This report also points out that the states could not perform the
work, since their only source of revenue was taxation with but a mall
portion of the lands involved being taxable. Id. pp. 8-4.
moneys received from the disposal of public lands in the 16
Western States and Territories named in the Act."2
It was held in 1909 that the 1902 provision was, in itself,
an appropriation of the proceeds from the disposal of the
lands."' However, Congress in 1914 prohibited expenditures
"except out of appropriations made annually by Congress." 1~
Within a few years after passage of the 1902 Act, annual in-
crements from disposal of the lands began to diminish.27 And
Congress in 1910 authorized substantial advances to the
Fund.28 Such advances were in addition to a number of stat-
utes designed to augment the fund by revenues other than from
sale of lands.2
$ 1, 32 Stat. 388, as amended, 43 U. S. C. 391; see supra, p. 183.
A number of subsequent acts authorized the disposal of certain other lands
connected with reclamation projects, receipts to be covered into the Reclama-
tion Fund, for example: proceeds from sales of town lots withdrawn in
connection with reclamation projects (Act of April 16, 1906, 2, 84 Stat. 116,
43 U. S. C. 562) ; proceeds from sales of town sites set apart within or in the
vicinity of a reclamation project (Act of June 27, 1906, 3, 34 Stat. 519, 43
U. S, C. 563); moneys derived from sale of lands acquired under certain
provisions of Reclamation Law and placed to the credit of the project (Act
of February 2,1911, 86 Stat. 895, 43 U. S. C. 374) ; moneys derived from sales
of public lands withdrawn and improved at expense of the Reclamation
Fund and placed to the credit of the project (Act of May'20, 1920, 41 Stat.
605, 43 U.S. 0. 875).
Moreover, a provision was made for covering into the Reclamation Fund
proceeds from the lease of lands reserved or withdrawn under Reclamation
Law or from the sale of products therefrom; and where such lands are
affected by a reservation or withdrawal under some other law, such pro-
ceeds are likewise to be covered into the Fund where such lands are needed
for the protection or operation of any reservoir or other works constructed
under Reclamation Law. Act of July 19, 1919, 1, 41 Stat. 163, 202, 43
U. S. 0. 895.
m United States v. Hanson, 167 Fed. 881,884-885 (C. A. 9, 1909).
SAct of August 13, 1914, 16, 88 Stat. 686, 690, 48 U. S. C. 414.
~ The Reclamation Bra, Vol 21, No. 2, p. 34 (February 1930).
See, e. g., Act of June 25, 1910, 1, 36 Stat. 835, 48 U. S. C. 397; Act of
March 3, 1931, 46 Stat. 1507, 43 U. S. C. 391a, 391b.
For example, Congress directed that the following revenues be paid into
the Reclamation Fund:
Proceeds of sales of material utilized for temporary work and structures
in connection with operations under Reclamation Law, and from sales of
condemned property purchased thereunder, and also moneys refunded in
connection with operations under Reclamation Law. Act of March 3,
1905, 33 Stat. 1032, 43 U. S. C. 393.
In 1933, construction of reclamation projects was made an
integral part of the federal program of public works, projects
being financed by allotments from emergency funds.'2 While
large sums were so expended, such projects in 1937 again be-
came dependent upon the Reclamation Fund or general appro-
priations." Considerable sums were still needed to complete
the work in progress.'8 The 1938 Senate Committee Report on
the Hayden-O'Mahoney amendment incorporated a letter from
the then Secretary which, in addition to detailing the foregoing
facts, pointed to the need for supplementing the Reclamation
Fund, saying: 8
It is a wise policy, therefore, for the Government at this
time to make provisions looking toward in-
creasing the reclamation fund and toward the time when
the fund will be adequate to finance a program of recla-
mation construction commensurate with the needs of
Moneys derived from leases of surplus power or power privilege and placed
to the credit of the project. Act of April 16, 1906, 1 5, 84 Stat. 116, 117, as
amended, 48 U. S. C. 522.
Moneys received under contracts for storage and carriage of water
for certain nonproject lands. Act of February 21, 1911, 3, 36 Stat. 925,
926, 43 U. S. C. 525.
Receipts and rentals from potassium deposits. Act of October 2, 1917,
S10, 40 Stat. 297,800, repealed by Act of February 7, 1927, 1 6, 44 Stat. 1057,
Moneys derived from contracts for supply of water for other purposes
than irrigation and placed to the credit of the project. Act of February 25,
1920,41 Stat. 451, 48 U. S. 0. 521.
With specified exceptions, 70% of past receipts and 52%% of future re-
ceipts from bonuses, royalties, and rentals from the mining on the public
domain of coal, phosphates, oil, oil shale, gas, and sodium. Act of February
25, 1920, 1 85, 41 Stat. 487, 450, as amended, 80 U. S. C. 191 (Supp. III).
Under the Federal Power Act, 50% of charges for use of public lands and
national forests by licensees, with specifed exceptions. Act of June 10,
1920, 17, 41 Stat. 1068, 1072, as amended, 16 U. S. C. 810; see infra, pp. 284-
Amounts collected from defaulting contractors or their sureties in con-
nection with contracts under Reclamation Law. Act of June 6, 1930, 46
Stat. 522, 48 U. S. C. 401.
"mSee Sen. Rep. No. 1544, 75th Cong., 3d sess., p. 2 (1938).
Mere mention of the provisions of that legislation reflects its
importance to the Reclamation Fund." One provision trans-
fers to it 52Y'2% of the moneys accrued from lands within the
naval petroleum reserves, except those in Alaska, from Febru-
ary 25, 1920, through June 30, 1938, less $15,000,000 then owing
on account of advances from general funds of the Treasury."2
A second and more important provision requires that there be
covered into the Reclamation Fund all moneys received in con-
nection with irrigation projects, including incidental power
features, financed with federal funds and constructed by the
Secretary through the Bureau; net power revenues are to be
paid into the General Treasury after repayment of the con-
struction costs allocated to power."8 These requirements do
not apply to projects of the Bureau of Indian Affairs, nor are
they to be construed to amend the Boulder Canyon Project
It should be noted that this legislation has the effect of
making available to the Fund amounts realized from the re-
payment of emergency moneys expended under the public
works program during the preceding years. But these projects
had not then reached a state of completion sufficient to com-
mence repayment, and in 1941 such large projects as the Grand
Coulee and Central Valley Projects were being completed with
reimbursable funds advanced from the general funds of the
Treasury." In the same year, Congress added to the projects
so financed a number of others, since construction progress was
being delayed by the limited amounts'available in the Recla-
It is informative to note that, at close of the fiscal year end-
Act of May 9, 1988, 1, 52 Stat. 291, 322323, 43 U. S. C. 891a-1, 892a.
S 1, 52 Stat. 822, 48 U. S. C. 891a-1. For the specific amounts, see
ANNUAL. REPOT OF THE SECBETABY OF THE INTEZIOB, p. 59 (1988).
i 1, 52 Stat. 822,48 U. S. C. 892a. See ANquAL BREPOn or THE SBacE aB
or THE INTaBIB, p. 59 (1988).
See RIECLAxMATION H NDox, Department of the Interior, Bureau of
Reclamation, p. 52 (1942). See also ANNuAt. RaPOBT or TH SECErTAr or
THE INTEuIOB, p. 207 (1989).
SAct of June 28, 1941, 55 Stat. 808, 886; RECLAMATrON HANDBOOK, De-
partment of the Interior, Bureau of Reclamation, p. 52 (1942).
ing June 30, 1949, the total amount in the Fund was
REPAYMENT AND RETURN OF REIMBURSABLE COSTS.-As
earlier noted, repayment of construction costs into the Recla-
mation Fund was a basic principle of the 1902 Act.293 "This
principle has been maintained, although from time to time
repayment periods have been lengthened to meet changing con-
ditions." 294 The evolution of these changes may best be por-
trayed by their review in three categories, those concerning the
nature of the repayment obligation assumed, those concerning
the identity of the obligor, and those concerning the repayment
period. In addition, we shall then refer to certain other aspects
of repayment provisions, and to some administrative interpre-
tations which have been applied.
Nature of Repayment Obligation.-Under the 1902 Act
each water user was required to assume a charge per acre de-
termined with a view of returning to the Reclamation Fund
the "estimated cost of construction," in not to exceed 10 annual
installments.2"I Under that Act, title did not pass to the home-
steader until final'payment, with the result that his credit was
restricted and he was unable to dispose of any part of his
land.'" A statute remedying this situation in 1912 included
a requirement that every patent and water-right certificate
expressly reserve to the United States a prior lien on the land.297
The foregoing repayment provision encompassed all of the
"estimated cost of construction," without distinction as to the
purpose served. The total obligation for project costs was thus
imposed upon the water users.
2' ANNUAL REPORT OF THE SECRETARY OF THE INTERIOR, table 15, p. 71 (1949).
m Act of June 17, 1902, 4, 32 Stat. 388, 389, 43 U. 8. C. 419, 461.
2" NATIONAL IRRIGATION POLICY-ITS DEVELOPMENT AND SIGNIFICANCE, Sen.
Doc. No. 36, 76th Cong., 1st sess., p. 30 (1939). See also Hearings before
the House Committee on Irrigation and Reclamation on H. R. 6773 and
H. R. 6984, 76th Cong., 1st sess., p. 20 (1939), the latter becoming the Recla-
mation Project Act of 1939.
m Act of June 17, 1902, 4, 32 Stat. 388, 389, 43 U. S. C. 419, see 43 U. S. 0.
m See Sen. Rep, No. 608, 62d Cong., 2d sess, pp. 1-2 (1912).
Act of August 9, 1912, 5 2, 37 Stat. 265, 266, 43 U. S. C. 542.
Correspondingly, revenues derived from project operations
were covered into the Reclamation Fund and credited to-the
project. For example, when Congress authorized the lease
of surplus power or power privilege at reclamation projects, it
required that the moneys derived be covered into the Reclama-
tion Fund and placed to the credit of the project.28 A like re-
quirement was specified in a statute authorizing contracts to
supply water "for other purposes than irrigation." 29 Similarly
covered into the Reclamation Fund for the credit of the project
are the proceeds from sales of lands acquired or withdrawn, but
no longer needed for project purposes.00
In 1924, Congress directed that, whenever the water users
take over project operation and maintenance, net profits from
"operation of project power plants, leasing of project grazing
and farm lands, and the, sale or use of town sites" be credited
to the project. Such profits may then be used by the water
users to be credited annually, first to the construction charge,
second to operation and maintenance charges, and third "as the
water users may direct." 02
By the 1938 Hayden-O'Mahoney amendment, as previously
noted, Congress directed that all moneys received in connection
with irrigation projects, "including the incidental power fea-
tures thereof," be covered into the Reclamation Fund, except
where provision had been made by law or contract for the use
of such revenues for the benefit of the water users.80' It was
SAct of April 16, 1906, 1 5, 84 Stat. 116, 117, as amended, 43 U. S. 0. 522.
Act of February 25, 1920, 41 Stat. 451, 43 U. C. 521.
*"Act of February 2, 1911, 5 3, 36 Stat. 895, 43 U. S. C. 374; Act of May
20, 1920, 8,41 Stat. 05, 606, 43 U. S. C. 875.
m Act of December 5, 1924, 4, subsection I, 43 Stat. 672, 708, 43 U. S. 0.
Id. See also Act of May 25, 1926, 45, 44 Stat. 636, 648.
Act of May 9, 1988, 1, 52 Stat. 322, 43 U. S. C. 392a. In the case of
the Boise and Shoshone Projects, Congress had in 1929 directed in effect
that net power revenues be applied to repayment of costs of project power
development, and thereafter covered Into the Reclamation Fund. Act of
March 4, 1929, 45 Stat. 1562, 159, i592 Similarly, Congress in 1987 made
provision for relieving the water users of the obligation of making payment
of the construction costs "chargeable to the development of power" of the
Elephant Butte Dam in the amount determined as equitable by the Secre-
tary. Act of August 9, 1987, 50 Stat. 564, 598.
provided, however, that after the net power revenues have
repaid construction costs "allocated to power" and are no longer
required to meet contractual obligations, the net power reve-
nues shall be covWed into the General Treasury.'
With respect to projects under the 1939 Reclamation Project
Act, costs are classed as "probably" repayable or "probably"
returnable to the United States in allocations under the Act's
project-authorization procedure.' Such costs are thus repay-
able or returnable in the case of allocations to irrigation, power,
municipal water supply and other miscellaneous purposes, and
nonreimbursable in the case of navigation and flood control.
Nonreimbursable allocations for the preservation and propa-
gation of fish and wildlife were expressly authorized in 1946."
It should also be noted that, in practice under the Act, costs
allocable to irrigation but beyond the.water-users' ability to
repay are assigned for return from revenues from power or from
furnishing water for municipal water supply or miscellaneous
purposes." Moreover the Act has been construed as per-
mitting the application of interest, collected as a component of
power rates, to the return to the United States of irrigation
costs to be borne by power.8 Under these provisions, there-
fore, the irrigation water-users' obligation is then limited to
whatever part of the construction costs be allocated to irriga-
tion and assigned for repayment by them.
The 1939 Act also provides an alternative method for return
to the United States, except as to distribution system cost, of
the construction cost connected with water supply and allo-
cated to irrigation."" Under this alternative, the Secretary may
enter into either short-term or long-term contracts to furnish
water for irrigation purposes, for periods not exceeding 40 years.
Such water-service contracts must provide such rates as will
produce revenues at least sufficient to cover "an appropriate
1, 52 Stat. 291, 822, 4 U. C. 392a.
*Act of August 4, 1e9, 9, 53 Stat. 1187, 1193, 48 U. S. 0. 485h.
Act of August 14,1948, 1 2,60 Stat. 1080,16 U. S. C. 662.
H. Doc. No. 172, 79th Cong., 1st sess., p. 6 (1945). See Act of August 4,
1939, i 9(c), 53 Stat. 1187, 1194, 48 U. S. C. 485h (c).
See infra, pp. 295-296.
I 9(e), 58 Stat. 1196, 48 U. 8 C. 485h(e).
share of the annual operation and maintenance cost and an
appropriate share of such fixed charges as the Secretary deems
proper, due consideration being given to that part of the cost of
construction of works connected with water supply and allo-
cated to irrigation." Payment must be made yearly in advance
of delivery of water.
A unique feature of the 1939 Act is its optional basis for
calculating annual repayment contract installments. It ap-
plies to projects on which there are construction charges pay-
able to the United States. Known as the "normal and
percentages plan," it permits variable payments based on the
percentage of normal crop returns by which annual returns
exceed or are less than normal returns."' Its operation has
been explained by the Commissioner of Reclamation as fol-
The normal and percentages plan operates in this way.
Each year a census of crop returns is taken. The nor-
mal returns for each year will be determined by look-
ing over the annual returns of that year and the 12
preceding years and throwing out the returns of the 3
low years. This will be done to prevent unusually
poor crop years from being reflected in the average that
makes up the normal. The average of the remaining 10
years is the normal returns. Against this normal re-
turns for the year there will be compared the.annual
returns of the current year. If the annual returns are
25 percent less than the normal returns, then a reduction
of twice that percentage, that is 50 percent, will be
made in the installment of that year. For every 1 per-
cent that the current year's crop returns are lower than
the normal for that year, there would be a 2 percent
reduction in the installment. A floor, below which
reductions could not go, is 15 percent of the installment.
Following the war years with their high crop values, Con-
gress in 1945 amended the formula for computing the annual
*" 4, 9(d) (5), 58 Stat. 118, 1196, as amended, 48 U. S. C. 485c, 485h(5)..
m Hearings before the House Committee on Irrigation and Reclamation on
H. R. 6778 and H. R. 6984, 78th Cong., 1st sess., p. 24 (199).
installment to provide a ceiling of between 150 and 200%,
as determined by the Secretary, of the amount of the
base installment for any year.812
Furthermore, the 1939 Act directs the Secretary to investi-
gate the repayment problems of existing projects where he
deems a contract under the Act would not provide an economi-
cally sound adjustment.81 In such cases, he may negotiate a
contract providing "fair and equitable treatment of the repay-
ment problems" in keeping with the purposes of the Act.'"
Such negotiated contracts become effective only after approval
by Congress." A number of such negotiated contracts have
been so approved."
Identity of Obligor.-Initially, the repayment obligation
rested with the individual water user.l17 It was soon evident
that this method of multiple, individual water-right contracts
on the various projects would prove difficult of administra-
tion.81 Water-users' associations were voluntarily formed
under state law for the purpose, among others, of collecting
project water charges from individual members and paying
them over to the Government.8" In 1914, Congress expressly
authorized the Secretary to designate water-users' associations
or irrigation districts to act as fiscal agents in the collection of
annual payments.820 In some cases, associations undertook
the additional role of guarantor of repayments.32
As we earlier noted, irrigation districts formed under state
laws were usually equipped with statutory power of assessing
*"Act of April 24, 1945, 1, 59 Stat. 75, 48 U. S. 0. 485c(d), see 485f(c),
485b note following.
Act of August 4, 1939, 7(a), 53 Stat. 1187, 1192, 43 U. S. 0. 485f(a).
7(c), 53 Stat. 1192, as amended, 48 U. S. C. 485f(c).
For example, see the several contracts approved by Act of May 6, 1949,
63 Stat. 62, -.
"Act of June 17, 1902, 4, 32 Stat. 388, 389,. 43 U. S. C. 419, 461.
"'SECOND ANNUAL REPORT OF THE RECLAMATION SERVICE, p. 31 (1903).
Id. pp. 31, 76; FIPnEENTH ANNUAL REPORT OF THE RECLAMATION SERVICE,
pp. 600-601 (1916).
Act of August 13, 1914, 7, 38 Stat. 686, 688, 48 U. S. C. 477; see
also supra, pp. 170-174.
m~'LADoWNSH SP RUBavv ON FEDERAL RECIAMAxAON PROJECTS, Depart-
ment of the Interior, p. 83 (1946).
lands to enforce collections." In 1922, Congress authorized
the Secretary to contract with such districts, dispensing with
the necessity for individual water-right contracts and releas-
ing the liens thereunder.. In 1926, such district repayment
contracts became mandatory before delivery of water from a
new project or a new division of a project.' The 1939 Recla-
mation Project Act similarly requires repayment contracts
with "an organization, satisfactory in form and powers to the
Secretary." 2 The contract must also be in a form satisfactory
to the Secretary and must provide for, among other things,
inclusion of that part of the construction costs allocated to
irrigation in "a general repayment obligation of the organiza-
tion." Under these provisions, therefore, repayment con-
tracts with individual water users disappeared entirely. Also,
the organization's obligation continues without regard to indi-
Repayment Period.--Repayment under the 1902 Act could
notexceed 10 annual installments.$2 In 1914, this was extended
to a maximum 20-year period.'2 Five percent of the construc-
tion charge constituted the initial payment, and the balance
was required to be paid in 15 annual installments commenc-
ing five years after the initial payment."2 The period was fur-
ther extended in 1926 in the case of any new project or new
division of a project, when Congress authorized the Secretary
to fix the number of years not to exceed 40, from the date of
notice announcing the actual availability of water."" Finally,
in the case of projects under the 1939 Act, a period of 40 years
is again authorized.88 Out here the Secretary may fix a "de-
velopment period" of not to exceed 10 years and the repayment
See supra, pp. 171-174.
SAct of May 15, 1922, 65 1, 2, 42 Stat. 541, 542, 48 U. S. 0. 511, 512.
Act of May 25, 1926, 1 46, 44 Stat. 636, 649, 43 U. S. 0. 423e.
"Act of August 4, 1938, 9(d), 58 Stat. 1187, 1195, 43 U. S. C. 485h(d).
Act of June 17, 1902, 4, 32 Stat. 888, 889.
Act of August 13, 1914, 1, 38 Stat. 686, 43 U. S. 0. 472.
SAct of May 25, 1926, 46, 44 Stat. 636, 649, 43 U. S. C. 423e.
"'Act of August 4, 1939, 59(d), 53 Stat. 1187, 1195, 43 U. S. C. 485h(d).
obligation may be spread in annual installments over not to
exceed 40 years exclusive of the development period." Still
longer repayment periods have since been authorized for
individual projects by special statute.."
Other Aspects of Repayment.--In the case of contracts under
the 1939 Act to furnish water for municipil water supply or
miscellaneous pur ses, costs allocated thereto may be recov-
ered through imposition of a capital repayment obligation pay-
able over a period of not exceeding 40 years, with interest not
exceeding 31/29 per annum "if the Secretary determines an
interest charge to be proper." "' Or such contracts may be
made for periods riot to exceed 40 years at rates calculated to
produce revenues at least sufficient to cover "an appropriate
share of the annual operation and maintenance cost and an
appropriate share of such fixed charges as the Secretary deems
proper," payments tobe made annually in advance of delivery
of water." The Act also prescribes a formula for the sale of
electric power or lease of power privileges. ,Contracts may
not exceed 40 years and shall be at such rates as in the Secre-
tary's judgment will produce power revenues at least sufficient
See Lewiston Orchards Project, not exceeding 50 years (Act of July 31,
1946, 60 Stat. 717); Paonfa Project, not exceeding 68 years (Act of June 25,
1947, 1 1, 61 Stat. 181); Mancos Project, extended to 60 years (Act of June
25, 1947, 61 Stat. 176).; Gila Project, not exceeding 60 years (Act of July 80,
1947, S.5, 61 Stat. 628, 629, 4 U. S. 0. 618 (Supp. III)); Deer Creek.and
Aqueduct Divisions, Provo River Project, 40 years to begin after indeter-
minate postponement (Act of March 29, 1948, 62 Stat. 92); Kennewlck
Division, Yakima Project, not exceeding 66 :years (Act of June 12, 1948,
1 8, 62 Stat. 882); Preston Bench Project, not exceeding 74 years (Act
of June 15, 1948, 62 Stat. 442; Eden Project, not exceeding 60 years
(Act of June 28, 1949,: ., 63 Stat. 277); Fort Sumner Project, within use-
ful life of the project (Act of July 29, 1949, 63 Stat. 483); Weber Basin
Project, not exceeding 66 years (Act of August 29, 1949, 2, 63 Stat. 677,
-) ; Buffalo Rapids Project, not exceeding 60 years (Act of October 10, 1949,
1 1, 63 Stat. 725); Vermejo Project, consistent with maximum repayment
ability (Act of September 27, 1950, 64 Stat. 1072); Northside Pumping
Division, Minidoka Project, not exceeding 50 years (Act of September 80,
1950, 64 Stat. 1088).
"Act of August 4, 1939, 9(C), 53 Stat. 1187, 1194, 43 U. S, 485h(c),
to cover "an appropriate share of the annual operation and
maintenance cost, interest on an appropriate share of the, on-
struction investment a not less than three per centum per
annum, and such other mixed: charges as the Secretary deems
proper." None of these provisions is applicable to existing
contract provisions for the use of power and miscellaneous
revenues "for the benefit of users of water" from the project."
Provisions recently made applicable in the case of the Mis-
souri River Basin Project also merit notice. Congress directed
that the reclamation and power developments to be undertaken
by the Secretary be governed by Reclamation Law, subject to
the "basin-wide findings and recommendations regarding the
benefits, the allocations of costs and the repayments by water
users" set forth in specified documents."
Another aspect affecting repayment is the timing of opening
to entry ofreclamation lands. Under thq 1902 Act, the Secre-
tary was directed to give public notice of the lands irrigable, the
limit of the area per entry, and the charges per acre."O In
1910, Congress prohibited entrymen from going upon the:land
until the Secretary should establish the unit of acreage, fix the
water charges and date when water could be applied, and make
public announcement of the same." A 1911 statute autho:r-
ized him to withdraw any public notice theretofore issued, and
permitted him to agree to modifications of water-right applica-
tions or contracts with 'water-users' associations.1 In 1914,
Congress directed that no increase in construction charges be
made after they had been fixed by special notice, except by
agreement with a majority of the water-right applicants and
Id. See also infra, pp. 295-286.
"Act of December 22,, $, 9(c), 58 Stat. 887, 891. This proisalon
peclflcaUy excepted irrigation of Indian trustand tribal lands and repay-
ment therefore, requiring that they be in accordance with the laws relating
to Indian lands. The doeuopets speefied are: Hf Doc. No. 475, Sen. Doc.
No. 191, Sen. Doe. No. 247, an 78th Cong., 2d sess. (1944).
SAct of June 179, 1902, 4,2 Stat. 388, 89, 43 U. S. C. 419.
"Act of June 25, 1910, J 5, 36 Stat. 885, 836, as amended, 48 U. S C, 486.
See also Roberts v. Spetner, 49 L. 806 (1911).
"1 Act of February 13, 1911, 1 1, 86 Stat. 902,43 U8 &. S. 468.
entrymen affected."' It was also provided in 1924 that con-
struction charges be made payable in annual installments based
on the productive power of the land, in accordance with a pre-
scribed formula, but this provision was repealed two years
In general, Reclamation Law requires that'water-user repay-
ment contracts be executed in advance of delivery of water. "
Under the Bureau's general practice, such contracts are con-
summated even in advance of project construction.'* And
this has been required by statute in the case of certain
Provision is made for payment of penalties or interest for
delinquencies in payment."7 But Congress has sometimes re-
laxed repayment requirements under contracts to meet chang-
ing economic conditions. For example, it authorized the Secre-
tary in 1924 to defer payments of charges until March 1, 1927.8"
Moreover, as more attractive repayment provisions were pre-
scribed for new projects, provision was usually included author-
izing amendment of existing contracts to bring them under the
new provisions.8" As might be expected, the need to meet
problems experienced on existing projects often led to amenda-
SAct of August 18, 1914, 4, 38 Stat. 686, 687, 43 U. S. C. 469. For a
somewhat similar provision whereby water-user agreements to repay an
increased cost over that earlier fixed were made a condition of undertaking
the work involved, see Act of March 3, 1915, 38 Stat. 822, 861.
Act of December 5, 1924, i 4, subsection F, 43 Stat. 672, 702, repealed by
Act of May 25, 1926, 47, 44 Stat. 686, 650.
See, e. g., Act of May 25, 1926, 46, 44 Stat. 686, 649, 43 U. S. C. 428e;
Act of August 4, 1989, I 9(d), 53 Stat. 1187, 1195, 43 U. S. C. 485h(d).
See Hearings before a Subcommittee of the House Committee on Appro-
priations, on the Interior Department Appropriation Bill for 1949, 80th
Cong., 2d sess., Part 3, p. 887 (1948).
"Act of December 21,1928, 4(b), 45 Stat. 1057, 1059,43 U. S. C. 617c (b) ;
Act of April 9,1938,52 Stat; 211; see 48 U. S. d.600a.
"See; e. g., Act of August 13, 1914, 1 8, 88 Stat. 686, 687, as amended,
43 U. S. 0. 478.
Act of May 9,1924,48 Stat. 116,43 U. S. 0. 884.
See, e. g., Act of August 13, 1914, 2, 14, 38 Stat. 686, 687, 690, as
amended, 48 U. S. C. 475; Act of December 5, 1924, 4, subsection F, 43 Stat.
672, 702, repealed by Act of May 25, 1926, 47, 44 Stat. 636, 650; Act of May
25, 1926, 50, 44 Stat. 636, 650, 43 U. S. C. 428g; Act of August 4, 1989, S 8,
58 Stat. 1187,1188,48 U. S. C. 485b.
tory or supplementary legislation.'" An example expressly in
point is the Reclamation Project Act of 1939.W
Administrative Interpretation of Repayment Provisions.-
In the course of recent Congressional hearings, administrative
interpretations of various aspects of repayment provisions of,
Reclamation Law were presented in a memorandum prepared
by the Bureau's Chief Counsel.1 We shall summarize here
portions of that memorandum to cast further light on adminis-
trative views upon this somewhat complicated aspect of Recla-
In projects governed by the Omnibus Adjustment Act of
1926, an irrigation district must assume, prior to delivery of
water, a repayment obligation in the amount of the 'cost of
constructing'" the project or division, which means the actual
cost.' Usually, however, the Bureau requires execution of
contracts in advance of or concurrently with the commencement
of construction."" This necessitates amendatory repayment
contracts as construction progresses where actual costs exceed
the obligation assumed in prior contracts.T"
In the case of contracts where the water users undertake to
repay on completion the actual cost, but not in excess of a
stated maximum, when the amount of expenditure equals or ex-
ceeds the amount of the obligation assumed, the United States
"See, e. .,, REPAYMENT OF THE CONSTRUCTION COSTS OF FEDERAL ANB
INDIAN RECLAMATION PROJECTs, H. Doe. No. 673, 75th Cong., 3d sess. (1938).
m3 "That for the purpose of providing for United States reclamation proj-
ects a feasible and comprehensive plan for an economical and equitable treat-
ment of repayment problems and for variable payments of construction
charges which can be met regularly and fully from year to year during
periods of decline in agricultural income and unsatisfactory conditions of
agriculture as well as during periods of prosperity and good prices for agri-
cultural products, and which will protect adequately the financial interest of
the United States in said projects, obligations to pay construction charges
may be revised or undertaken pursuant to the provisions of this Act." Act
of August 4,1939, 1,53 Stat. 1187,43 U. S. C. 485.
Hearings before a Subcommittee of the House Committee on Appropria-
tions on the Interior Department Appropriation Bill for 1949, 80th Cong.,
2d sess., Part 3, pp. 871-887 (1948).
m Id. p. 876.
Id. p. 877.
is not obligated to complete construction.", But the particular
contract may provide that in such a situation the project shall be
deemed completed, a.id the water use, would, then be entitled
to receive the benefits of the project so far as completed, and
are obligated to pay the amount of the expenditure."' If addi-
tional expenditures are made, the waters users may receive the
benefit of water delivery from the additional works only upon
assumption of the additional repayment obligation."
If the repaymebteontract conditions payment upon project
completion, the repayment obligation comes into being only
when the project is completed.8" While this remains true even
where expenditures exceed the amount of the assumed repay-
ment obligation, water cannot be delivered until assumption
of an obligation for the additional cost.0"
In projects governed by the 1939 Act, the entire expenditure
must be returned, exbdpting any amounts allocated to naviga-
tion and flood control.' Such return must thereforebebaccom-
plished regardless of the total estimated cost set forth in the
feasibility finding, and regardless of the amounts stated in such
finding to be properly allocable to reimbursable purposes ahd
probably returnable&2: WithE respect to a multiple-purpose
project, no problem arises if the actual cost does not exceed the
cost allocated to irrigation within the water,-users' repayment
ability plus the amount derivable from other sources including
power revenues assigned for return of irrigatioit cost beyond
suchlwater-users' repayment ability.'" .
It may not reasonably be presumed that war-time cost in-:
creases were contemplated by Congress when it enacted the
1939 Act.' Nevertheless, a problem arises as to wat must
be done when actual expenditures, plus the amount estimated
1*4 p. 879.
m Id. p. 885.
m Id. p. 886.
to complete the project, exceed the aggregate of the amount
allocable to irrigation within the water-users' repayment ability
and the amount derivable from other sources including power
revenues assigned for return of irrigation cost beyond the
water-users' repayment ability."" If the view be taken that
theremust be a full return of all reimbursable costs, then the
only course open is for the Bureau to present the problem
to Coigr.es for solution.5" For the situation is not covered by
existing law.88 Or it might be argued that the Act's repayment
provisions require reimbursement of only the amounts allo-
cated in the feasibility findings." But this would mark such
a wide departure from the statutory requirements as to reim-
bursement prior to the 1939 Act that such a view is not ac-
Where the entire project cost is allocated to irrigation, e
legal requirement respecting the amount of the water-users'
obligations under the 1939 Act does not differ substantially
from that under earlier statutes."0 As to multiple-purpose
projects, the 1939 Act requires a contract assuring repayment
by water piers before deliver of water on the land, or in
lieu thereof a water-service contract.m However, if a majority
of the land to be irrigated is owned by the United States, no
repayment contract is required until close of the development
period. But it has been the policy of the Bureau to require a
repayment contract in, advance of or concurrently with the be-
ginning of construction.'. In this situation, where irrigation-
water users and users for power and other purposes repay costs,
a water-service contract may be made and it need not assure
full return at the outset, but only that the rates for water
rental be adequate to accomplish the return within the maxi-
mum period permitted by law." The situation as to manner
"Id. p. 888.
~ I4. pp. 886-88.
"Id. p. 888.
&1. pp. 886-887.
m1l& pp. 886-887.
and timing of repayment assurances is the same where the en-
tire project cost is allocated to irrigation."* It was also con-
cluded that if the United States permits construction costs re-
payable by water users to exceed the amount of assumed obli-
gations under existing contract, the situation as to water-users'
benefits and obligations is the same under the 1939 Act as
under the 1926 Act.8"
In some instances, Congress has enacted provisions applying
to specific projects which expressly limit the water-users' repay-
ment obligation to a fixed dollar maximum.8"
OPERATION OF PlOJECTs.-Congress has enacted many laws
governing various aspects of operation of irrigation projects.
As we shall group them for review, they relate to settlement
and development of projects, acreage limitations and anti-
speculation, operation and maintenance charges, disposal of
power, flood control'and navigation, rehabilitation and better-
ment, and nonfederal operation of projects by water-users'
Settlement and Development of Projects.-In order to pro-
vide for the creation of homes and of opportunities for suc-
cessful living, as the ultimate objective of reclamation work, the
Bureau supervises the development and settlement of project
lands."' As earlier noted, both public and privately owned
lands may be included in reclamation projects."' Privately
owned land is subject to the applicable provisions of Reclama-
tion Law when covered by a water-right application or a sub-
scription for stock in a water-users' association or is in-
Id. p. 887.
Id. p. 881. See also Act of July 12, 1948, 57 Stat. 451, 477.
m RECLAMATION HADBOOK, Department of the Interior, Bureau of Reela-
mation, p. 44 (1942). "The responsibility of the Bureau does not cease with
the assumption of operation and maintenance operations by local organiza-
tions. Through cooperation with county agricultural agencies and through
the recently established division of soil and moisture conservation opera-
tions, it seeks to aid project farmers in agricultural development and in
improving irrigation practices." Ibid.
See supra, p. 45.
"' REcLAMATION HANDBOOK, Department of the Interior, Bureau of Recla.
nation, p. 46 (1942).
eluded in an irrigation district which has contracted with the
The 1902 Act authorized the withdrawal from entry of public
lands useful for projects."" It required. entrymen, prior to
patent, to reclaim for agricultural purposes at least one-half of
the irrigable area of the entry.32" In 1910, Congress prohibited
entry before public announcement of the unit of acreage es-
tablished, the water charges fixed, and the date when water
could be applied.8"s
A basis for the screening of entrymen was established by
Congress in 1924.1" The Secretary was thereby authorized to
require of each public-land entry applicant, including prefer-
ence-right veterans, such qualifications as to "industry, experi-
ence, character, and capital" as he deems necessary to give
assurance of success by the settler."
The general preference entry rights of World War I veterans
have expired."" Veterans of World War II must be given at
least a ninety days' preference right of entry."'8 Implementing
regulations provide that when reclamation farm units are open
for entry, a drawing shall be held initially open only to vet-
SIbid. The inclusion of public lands in irrigation districts was condi-
tionally authorized. Act of August 11, 1916, 2, 39 Stat. 506, 507, as
amended, 48 U. 0. .22.
m Act of June 17,1902, 3,32 Stat. 388, 43 U. S. C. 416.
5, 82 Stat. 389, 4 U. S. C. 439.
Act of June 25, 1910, 5, 86 Stat. 835, 886, as amended, 48 U. S. 0. 486.
SAct of December 5, 1924, 5 4, subsection 0, 43 Stat. 672, 702, 43 U. S. C.
SThe implementing regulations require that applicants be possessed of
honesty, temperate habits, thrift, industry, seriousness of purpose, a record
of good moral conduct, and a bona fide intent to engage in farming. They
must also have good health, and at least two years of farm experience. An
examining board can require any amount of clear capital or its equivalent fn
livestock, farming equipment or other assets which it thinks useful in the
development and operation of a new irrigated farm, which amount is an-
nounced with each notice opening public lands to entry. 43 0. F. R. 401.8.
*Act of June 12, 1980, 46 Stat. 580, as amended, 43 U. S. C. 186. An
exception is provided in the case of the Boulder Canyon Project Act. Act of
March 6, 1946, 60 Stat. 86, see 43 U. S. C. 617h. See also 43 C. F. R. 401.8-
SAct of September 27, 1944, 4, 58 Stat. 747, 748, 43 U. S. C. 282.
erans.'s After two drawings, any unit not disposed of goes
to the first qualified applicant."8
Still other statutory provisions aid settlement. Such is the
1906 authorization for the establishment of town sites within
irrigation projects and for furnishing water to such towns."0
Another example is the 1914 authorization for the Secretary to
reserve lands for country parks, public playgrounds, and com-
munity centers on reclamation projects.8*
Cooperation with other agencies in aid of settlement has also
been authorized. The Secretary may enter into agreements
with states for the cooperative promotion of the settlement of
projects and in securing and selecting settlers."1
In 1944 and subsequently, Congress has provided funds
fbr giving information and advice to settlers and water-users'
organizations in the selection of lands, equipment, and live-
stock; the classification of lands; the preparation of land for
irrigation; the selection of crops;- methods of irrigation and
agricultural practices; and general farm management.1" In
this connection, the Bureau cooperates with state agricultural
colleges and with agencies of the Department of Agriculture."'
Certain unique provisions of the Columbia Basin Project
Act merit notice here." While we shall later mention in more
detail its antispeculation and acreage-limitation provisions,39
43 C. F. R. 401.18, 401.20.
43 C. F. R. 401.20(c).
SAct of April 16, 1906, 1, 4, 4 Stat. 116, 43 U. S. 0. 561,567.
Act of October 5,1914, 88 Stat. 727,43 U. S. C. 569.
Aet of May 25, 1926 46, 44 Stat. 68, 649, 48 U. S. 0. 423e.
*Act of June 28, 1944, 58 Stat. 468, 488. Similar provision has been
made in subsequent appropriation acts. See, e. g., Act of September 6, 1950,
64 Stat. 595, -.
m See, e. g., Memorandum of Understanding between Bureau of Recla-
mation and the State College of Washington, dated January 12, 1950;
Memorandum of Understanding between The Wyoming Agricultural Experi-
ment Station and Bureau of Plant Industry, Soils, and Agricultural Engi-
neering; Agricultural Research Administration; Soil Conservation Service;
Bureau of Agricultural Economics, Department of Agriculture, and the
Bureau of Reclamation, Department of the Interior, dated April 8, 1950.
"Act of March 10, 1943, 57 Stat. 14, see 16 U. S. C. 835-835.
See infra, pp. 232-234.
an indication of the scope of the intent to aid settlement ap-
pears in the following provision:
SFor the purposes of assisting in the permanent set-
tlement of farm families, protecting project land, facili-
tating project development, and preventing speculation
in project lands, the Secretary is authorized to admin-
ister public lands of the United States in the project
area and lands acquired under this section; to sell, ex-
change, or lease such lands; to establish town sites on
such lands; to.dedicate portions of such lands for pub-
lic purposes in keeping with sound project development;
to acquire in the name of the United States, at prices
satisfactory to him, such lands or interest in lands,
within or adjacent to the project area, as he deems ap-
Spopriate for the protection, development, or improve-
mentpf the prQject; to accept donations of real and
personal property for the purposes of this Act; and to
disseminate information by appropriate means and
methods. Any moneys realized on account of dona-
tions for purposes of this Act shall be covered into the
Treasury as trust funds.
The plan of development contemplates inclusion within the
project of public lands and the acquisition and sale of pri-
vately owned lands, all to conform to appropriate farm units."
In the investigations initiated by the Bureau in 1939 to plan for
settlement and development of the project area, more than 40
agencies participated, including federal, state, and local gov-
ernments, educational institutions, private industries and local
civic organizations,". That investigation anticipated that the
area will support from 350,000 to 400,000 people on farmsajnd
related urban settiements. 0
Acreage Limitations. nd Antispeculation Provisions.-The
1901 presidential message to Congress, which enunciated prin-
"*I 4(a), 57 Stat. 18, see 1eU. S. C. 885c(a).
Si 2-4, 57 Stat. 14-18, see 16 U. S. C. 835a-835c(b).
RECL&AATHO HANMDBOK, Department of the Interior, Bureau of Rec-
lamation, p. 47 (1942).
ciples later incorporated in the 9102 Reclamation Act, stated
that the people as a whole would profit from a reclamation pro-
gram, "for successful home-making is but another name for
upbuilding of the Nation." 01 Similarly, during debate on the
legislative proposal, it was said that: 02
The bill is drawn exclusively for the protection of the
settler and actual home builder, and every possible safe-
guard is made against speculative ownership and the
concentration of the lands or water privileges into large
The Act itself, as e shall shortly see, contained provisions
implementing the establishment of farm homes. Indeed, the
first head of the Reclamation Service characterized the making
of homes as the "primary objective" of the 1902 Act, saying:
The object of the Reclamation Act is not so much to
irrigate the land as it is, to make homes. President
Theodore Roosevelt in his message to this Congress to-
day, and.in every previous message to this Congress and
to the Congress of the United States, has emphasized
again and again that the primary objective of the law
was to make homes. It is not to irrigatethe lands which
now belong to large corporations or to small ones; it is
not to make these men wealthy; but it is to bring about
a condition whereby that. land shall be put into the hands
of the small owner, whereby the man with a family can
get enough land to support that family, to become a good
citizen, and to have all the comforts and necessities
which rightly belong to an American citizen.
To this end, Section 3 of the 1902 Act, defining conditions
upon which entry could be made upon public lands in a project,
stipulates that: *0
H. Doc. No. 1, 57th Cong., 1st sess., p. XXIX (1901).
0 35 CONG. REC. 6758 (1902).
F. H. Newell's message to the National Irrigation Congress in 1905,
LANDOWNERSHIP SURVEY ON FEDERAL RECLAMATION PROJECTS, Department of
the Interior, p. 91 (1946).
w Act of June 17, 1902, 8, 32 Stat. 388, as amended, 43 U. S. C. 434.
public lands which it is proposed to irrigate by means of
any contemplated works shall be subject to entry only
under the provisions of the homestead laws in tracts of
not less than forty nor more than one hundred and sixty
But benefits under the Act were not confined to public landis
and a corollary provision with respect to private lands is pre-:
scribed by Section 5 which requires that: 05
No right to the use of water for land in private owner-
ship shall be sold for a tract exceeding one hundred and
sixty acres to any one landowner, and no such sale shall
be made to any landowner unless he be an actual bona
fide resident on such land, or occupant thereof residing
in the neighborhood of said land, and no such riglt shall
permanently attach until all payments therefore are
It will be noted that the provisions of Sections 3 and 5 both
establish a maximum limitation of 160 acres, and Section 3 a
minimum of 40 acres. The legislation was accordingly con-
strued as permitting the Secretary to establish units of different
sizes even on the same project.."
As already noted, a practice soon developed whereby water-
users' associations composed of project landowners aided the
Government in applying certain provisions of Reclamation
5 5, 82 Stat. 389, 43 U. S. 0. 431. During debate in the House on the
proposal, it was pointed out that under r nearly every project undertaken
by the Government there will undoubtedly be some lands in private owner-
ship; and it would be manifestly unjust and inequitable not to provide water
for these lands, providing their owners are willing to comply with the con-
ditions of the act; and in order that no such lands may be held in large
quantities or by nonresident owners it is provided that no water right for
more than 160 acres shall be sold to any land owner, who must also be
a resident or occupant of his land. This provision was drawn with -a view
of breaking up any large land holdings which might exist in the vicinity of
the Government works and to insure occupancy by the owner of the land
reclaimed." 385 CoNGi 6. 878 (1902).
S"The only limitation upon the power of the Secretary is that the lands
must be entered, under the provisions of the homestead law, in tracts of
not less than 40 nor more than 160 acres." Instructions of the Secretary of
the Interior, 32 L. D. 237, 239 (1903).
Law." In such situations, each individual landowner subscrib-
ing for stock in an association was permitted to subscribe for
shares covering all his land, irrespective of the amount of acre-
age, upon condition that the land owned by him in excess of
160 acres would subsequently be transferred to an individual
eligible to apply for a water right.'08 To enforce that condition,
owners of excess lands were required to execute a trust deed or
contract authorizing the association or a third person to sell
such land to persons qualified to apply for a water right under
the Act." Upon failure of the owner to dispose of the excess
land as required, and upon failure of the trustee to enforce the
trust deed, the Secretary was authorized to designate a third
person to dispose of the land.'u
A simpler and more direct means for enforcement of provi-
sions limiting acreage was afforded by the water-right appli-
cation whereby the landowner would apply to the United States
for water from the project."1 The application included an affi-
davit requiring disclosure of other lands subject to a water-
right application." Also, the applicant was required to fur-
nish information as to the nature of his interest in the land,
the application being denied if his interest would not ripen into
a fee simple title before the due date of the last construction
charge payment."1 In the event 6f a transfer to an individual
not qualified to apply for a water right, the United States could
cancel the application and declare payments theretofore made
forefeited.41 Finally, the application also provided that ulti-
mate evidence of title to a water right would not issue, even
LANDOWNERSHIP SURVEY ON FEDERAL RECLAMATION PROJECTS, Depart-
ment of the Interior, p. 33 (1946). See also supra, pp. 169, 206-207.
""Instructions of the Secretary of the Interior, 33 L. D. 202, 204-205
am LANDOWNERSHIP SURVEY ON FEDERAL RECLAMATION PROJECTS, Depart-
ment of the Interior, p. 34 (1946); Regulations Relating to the Reclama-
tion of Arid Lands by the United States, 38 L. D. 620, 637, 639 (1910).
4 LANDOWNEBSHIP SURVEY ON FEDERAL RECLAMATION PROJECTs, Depart-
ment of the Interior, p. 34 (1946).
S"Id. pp. 34-35.
upon final construction charge payment, if the then owner of
the property held land in excess of 160 acres subject to Recla-
It should be noted that, while Section 5 precludes the sale
of water rights for land in private ownership in excess of 160
acres, it does not expressly preclude the accumulation of land
in single ownership beyond 160 acres after water-right appli-
cation has been made by a properly qualified person. Hence,
so far as the provisions of the water-right application provided
for continuing enforcement of excess-land restrictions until
payment of construction charges, the requirement was based
upon administrative interpretation. '~ But in 1912, Congress
expressly prohibited the issuance of a patent or water-right
until all sums due the United States on account of such
land or water right at the time of issuance of patent or
certificate have been paid.
Thereafter, a water-right application was not accepted unless
it described all of the land for which an application could be
made, with the result that the owners were required to dispose
of holdings in excess of 160 acres as a condition precedent to the
securing of water.'"
The water-right application also served as a means to insure
compliance with the requirement of Section 5 that the owner of
private lands "be an actual bona fide resident of such land, or
occupant thereof residing in the neighborhood." However,
residence within 50 miles of the project was administratively
deemed to be "in the neighborhood." 1' Furthermore, it was
similarly determined in 1916 that residence and occupancy were
necessary only at the time of application for a water right.'"
And this residence requirement was omitted entirely from the
1926 Act in which Congress required that repayment contracts
Id. p. 35.
Act of August 9, 1912, 1 1, 37 Stat. 265, as amended, 43 U. S. C. 541.
Departmental Regulation No. 54, 40 L. D. 664 (1912).
Departmental Regulation No. 44, 38 L. D. 637 (1910).
m Bureau of Reclamation Circular Letter No. 557, April 25,1916.
be made with irrigation districts instead of the individual
contracts under the 1902 Act.421
Problems also arose in connection with the enforcement of
the excess land provisions with respect to public lands which
had been entered.'" A 1910 statute permitted entrymen on
project public lands who had completed the residence require-
ments of the homestead laws to assign or sell their entries."2
But since it made the assignment subject to the provisions of
Reclamation Law, the excess-land restrictions were applicable
to the assigned entries. Accordingly, it was administratively
required that the assignee supply an affidavit stating that the
total area of land owned by him, including the assigned farm
unit, did not exceed 160 acres.42 This permitted acquisition
of a water right for a farm unit of entered public lands and
additional privately owned lands up to a maximum of 160
acres. The aforementioned 1912 legislation, however, forbade
the acquisition of a water right for land in addition to a farm
unit of entered public lands under Reclamation Law before
payment of all charges on account of such land or water right.4'
Acreage-limitation provisions evoked a number of adminis-
trative rulings with respect to holdings by individual land-
owners within a family. For example, when forced to
relinquish a portion of his entry to conform it with an acreage
limitation as established by the Secretary, a husband was
permitted to assign a portion of the entry to his wife.'" But
the wife was required to show that the assignment was paid
for out of her separate money, in which her husband had no
interest or claim, and that the conveyance actually had been
made."4 When applicants for water owned land jointly, or
as tenants in common, each was charged with only his frac-
Act of May 25, 1926, 46, 44 Stat. 636, 649, 43 U. S. C. 423e.
22 LANDOWNERSHIP SURVEY ON FEDERAL RECLAMATION PROJECTs, Department
of the Interior, p. 36 (1946).
4 Act of June 23, 1910, 1, 36 Stat. 592, as amended, 43 U. S. C. 441.
4 Departmental Regulation No. 35, 40 L. D. 660 (1912).
6 Act of August 9, 1912, 1, 37 Stat. 265, as amended, 43 U. S. C. 541.
Instructions of the Secretary of the Interior, 39 L. D. 504 (1911);
Sadie A. Hawley, 43 L. D. 364 (1914).
4 Departmental Regulation No. 41,45 L. D. 894 (1916).
tional interest in the land.4 And if husband and wife owned
property to the extent of 320 acres, they might receive water
for that area if the property is owned by them as joint tenants,
or tenants in common, or as community property." Signifi-
cant also is an early ruling that an owner of more than 160
acres of privately owned land could transfer the excess to his
wife or minor children, entitling all of them to receive project
Additional questions arose with respect to corporate hold-
ings. An early ruling permitted a corporation otherwise com-
petent, to acquire a water right under the statute, a decision
which has been construed as requiring that the land of the cor-
poration for which application is made, together with that of
the stockholders subject to Reclamation Law, may not exceed
160 acres."1 A short while later the Secretary ruled that a cor-
poration was not qualified to make a water-right application,
I am satisfied that Congress did not intend that these
reclaimed lands, upon which the Government is expend-
ing the money of all the people, should be the subject
of corporate control. These lands are to be the homes
of families: This seems to be established conclusively
by the fact that we are authorized to fix the farm unit
on the basis of the amount of land that will support a
However, corporations having acquired a water right prior to
July 11, 1913, were allowed to continue without interference."'
Charitable corporations were later exempted from this ruling.'s
Bureau of Reclamation Circular Letter No. 565, June 13, 1916.
Department of the Interior Solicitor's Opinion No. M-34172, August 21,
Instructions of the Secretary of the Interior, 32 L. D. 647 (1904).
Williton Land (o., 37 L. D. 428 (1909); LANDOWNEBSHIP SURVEY ON
FaDEBAL RECLAMATION P OJEors, Department of the Interior, p. 87 (1946).
SInstructions of the Secretary of the Interior, 42 L. D. 250 (1913);
Pleasant Valley Farm Co,, 42 L. D. 253 (1913).
Unpublished Departmental Decision, Department of the Interior, Decem-
ber 5, 1916.
Likewise, corporations were later permitted to purchase land
with appurtenant water rights where an application had already
been made by a properly qualified person.** But when Con-
gress in 1926 made contracts with irrigation districts the
medium for repayment, the enabling legislation in effect de-
fined excess land as "irrigable land held in private ownership
by any one owner" in excess of 160 irrigable acres.'" This
provision has been construed to permit corporate holdings
within that limit."'
Difficulties in obtaining credit were encountered prior to
1912 by private landowners and entrymen." A purchaser of
private land for which a water-right application had been
made was required to execute a supplemental water-right ap-
plication, and his application would not be accepted unless he
qualified as a nonexcess landowner." Any loan secured by
land, the productivity of which depended upon project water,
was accordingly hazardous since, on foreclosure, the lender
might become an excess landowner and therefore ineligible to
receive water."0 The situation was even more difficult for
an entryman. In addition to the foregoing difficulty, the land
itself could not be offered as security since the 1902 Act per-
mitted patent to issue only after payment of the construction,
charges against the land,"
Partial remedies for these conditions were provided by
a 1912 statute."2 Among other things, it permitted re-
tention for two years of excess land acquired in good faith by
descent, by will, or by foreclosure of any lien.' This provided
Unpublished Departmental Decision, Re Samtaquin Lme & Quarry Co.,
Department of the Interior, December 6, 1916.
Act of May 25, 1926, 46, 44 Stat. 636, 649, 43 U. S. 423e.
LANDOWmESHIPn SUBVEY oN PFEDZAL RECLAMATION PlkoZTS, Depart-
ment of the Interior, p. 88 (1946).
"*Departmental Regulation No. 50, May 1, 1910, 88 L. D. 688.
Departmental Regulation No. 35, 40 L. D. 660 (1912).
Act of June 17, 1902, 5, 82 Stat. 8 3,8389.
Act of August 9, 1912, 37 Stat. 265, as amended, 43 U. 8. C. 541-46.
S" 3, 37 Stat. 266, 43 U. S. C. 544. Irrigation districts and water-users'
associations have been held not to come within the limitation imposed by
that part of Section 8 requiring disposition of excess land within two years
after acquisition. They may receive project water for the excess land
a partial alleviation of the credit problem. As to the entry-
man, the statute entitled him to a patent before payment of
construction charges upon prescribed proof of residence, rec-
lamation, and cultivation."
The foregoing 1912 legislation also tended to reenforce the
acreage-limitation provisions of the 1902 Act. For it prohib-
ited delivery of project water to land in excess of 160 acres, or
in excess of a farm unit as established by the Secretary, until
payment in full of all installments of construction costs on such
excess lands. "
The 1912 statute also provided for inclusion in patents and
water-right certificates of a detailed provision for forfeiture of
acquired if it is disposed of within a reasonable period of time. Blenn L.
Kimmei and 0osh w Irr. Dit., 53 I. D. 658 (1982); James P. BDJowil, 55
I. D. 241 (195)..
8 ,37 Stat. 26, 48 U. Si 0. 541.
18, 37Stat2,280,483. S. C. 644.
Under this section, the Associate Solicitor of the Department of the Inte-
ior h-as determined that payment In fall of the charges under a water-right
application, except operation and maintenance charges, removes the lands
for which the water right risacqutred from the e xess-land restrictions.
And it was likewise determined that payment in full of construction
eosts due under a joint-liability contract with an irrigation district
relieves the land receiving water under such contract from the excess-land
restrictions. Department of the Interior Solicitor's Opinion No. M-85004,
October 22, 1947.
Under this opinion, the Bureau's Chief Counsel has advised that, where
it is possible to identify the portionof the joint-liability construction charge
allocable against an individual ownership, the owner may free his land
from the acreage limitation by full. payment of his share of the construc-
tion charge, even though the general repayment obligation of the organiza-
tion has not been discharged and even though the land Involved is subject
to a contingent liability for amounts representing possible defaults in
payment of construction charges on other lands. Memorandum from the
Chief Counsel, Bureau of Reclamation, to the Commissioner of Reclaina-
tion, September 3, 1948.
It has been judicially determined that lands susceptible of irrigation
within a district and benefited by the project to the enhancement of their
value are properly included within the district and assessable aceord-
ingly, independently of ownership conditions or of the inability under federal
law of the owner to receive water for more than 160 acres. Bwhosone Irri-
gation District v. Lincol Land Co., 51 F. 2d 128 (D. G. Wyo. 1930). See
also statement by the Bureau's Chief Counsel, Hearings before a Subcom-
mittee of the Senate Committee on Public Lands on S. 912, 80th Cong., 1st
sess., pp. 1270-1281 (1947).
such excess land holdings."6 A question has recently arisen as
to whether title to land now privately owned is subject to for-
feiture under this provision, in a case where it is within an
irrigation district which has executed a contract with the Gov-
ernment. A recent expression of administrative views points
out that the statute applies only to original patents and water-
right applications, and then only if the forfeiture provision is
included in the patent or water-right application."' No record
has been found where the forfeiture provision has been
In addition to the foregoing problems respecting acreage
limitations, speculation in lands posed problems in the admin-
istration of Reclamation Law. Speculators would buy arid
lands with no intention of ever cultivating them, and then sell
them to the actual farmers at prices enhanced greatly by the
construction of an irrigation project."' It became evident
that specific legislation would beneeded to cope with this situa-
Act of August 9, 1912, 8, 37 Stat. 266, 266, 48 U. S. C. 543, 544.
In part, Section 8 provides that, except as otherwise provided in the
statute, no person shall acquire, own, or. hold irrigable land covered by
reclamation entry or water-right application before final payment of all
construction and betterment charges on account of land in excess of one farm
unit as fixed by the Secretary as the limit of area per entry of public land or
per single ownership of private land for which a water right may be pur-
chased respectively, nor in any case in excess of 160 acres. It also prohibits
furnishing of water for:such excess, with a specified exception permitting the
holding for two years of excess lands acquired in good faith. Finally, the
section provides that "every excess holding prohibited as aforesaid shall be
forfeited to the United States by proceedings instituted by the Attorney Gen-
eral for that purpose in any court of competent jurisdiction; and this proviso
shall be recited in every .patent and water-right certificate issued by the
United States under the provisions of this act" 3, 37 Stat. 266, 48 U. S. C.
Memorandum from Regional Counsel, Region No. 2, Bureau of Reclama-
mation, dated March31, 1949, concurred in by the Bureau's Chief Counsel.
"In this connection, see LANDOWNSBBHIP SURVEY ON FEDERAL RECLAMA-
TION PROEars, Department of the Interior, p. 41 (1946).
'"Hearings before a Subcommittee of the Senate Committee on Public
Lands on S. 912, 80th Cong., 1st sess., pp. 202-203 (1947). Information
assembled from various projects prior to 1914 reflects increases of from
75% to 5,390% in the value of unimproved land upon announcement of
intention to construct a project. Id. p. 204.
tion and to expedite the breaking up of excess lands on new
Congress dealt affirmatively with this problem by two provi-
sions in a 1914 statute. One imposed a penalty of a 5% increase
in construction charges for each year's delay in making a water-
right application for privately owned land." The second pro-
vision required: 42
That before any contract is let or work begun for the
construction of any reclamation project hereafter
adopted the Secretary of the Interior shall require the
owners of private lands thereunder to agree to dispose
of all lands in excess of the area which he shall deem
sufficient for the support of a family upon the land in
question, upon such terms and at not to exceed such
price as the Secretary of the Interior may designate;
and if any landowner shall refuse to agree to the re-
quirements fixed, by the Secretary of the Interior, his
land shall not be included within the project if adopted
In the administration of this latter provision, owners were
required to convey their excess land to a trustee who, in turn,
was to convey to a third person at a price not in excess of that
fixed by the Secretary.'"5 Administrative provision was also
made for a forced sale within a fixed period after issuance of
public notice."' But an evident weakness in this device lay
in the failure of the trust deed to provide for control of sales
by purchasers from middlemen, who were free to sell without
Id. pp. 202-208.
4 Act of August 13, 1914, 9, 88 Stat. 686, 689, 43 U. S. C. 464.
12, 38 Stat. 689, 48 U. S. C. 418. "If this provision shall be adopted
speculation in lands inder reclamation projects will be reduced to a mini-
mum and the burdens of the real farmer who undertakes to reclaim and
cultivate the lands, and for whose benefit the reclamation law was enacted
primarily, can be kept normal" H. Rep. No. 506, 63d Cong., 2d sess., p.
LANDOWNEBSHIP SURVEY ON FEDERAL RECLAMATION PROJECTS, Depart-
ment of the Interior, p. 42 (1946).
As time ,passed, direct contractual relationships between
the Government and individuals were replaced by contracts
between the Government and water-users' organizations, as
already noted."4; Significant in this respect was the 1922 Act
authorizing the Secretary to enter into contracts with irriga-
tion districts for repayment of construction charges." This
eliminated the necessity for contracts with individual water
users. Moreover, such districts usually possessed power to
make assessments against lands, as we previously pointed
out." The sponsor of the 1922 proposal stated, during debate
on the floor of the House, that: "
The speculative feature is eliminated, land owners
speculatively inclined being taxed for the cost and op-
eration of the works, are unable profitably to "hold on."
Permissible under the 1922 legislation, a repayment contract
with an irrigation district organized under state law became
mandatory in 1928.' With the disappearance of direct con-
tractual relationships between the United States and land-
owners under these shifts in financing procedure, primary
responsibility for determination of/the eligibility of landowners
under Reclamation Law was transferred to the irrigation dis-
trict. Correspondingly, certain provisions were made for as-
suring fulfillment of that responsibility by legislative and
contractual standards. Thus, Section 46 of the 1926 Act,
which is the latest excess-land and antispeculation legislation
of general applicability, provides that:
No water shall be delivered upon the completion of
any new project or new division of a project until a
contract or contracts in form approved by the Secre-
tary of the Interior shall have been made with an irri-
gation district or irrigation districts organized under
State law *. Such contract or contracts *
4 See upra, pp. 206-207.
SAct of May 15,1922, 1 1,42 Stat. 541,43 U. S. C. 511.
See supra, pp. 171-174.
"62 CONG. REC. 3588 (1922).
Act of May 25,1926, 46,44 Stat. 66, 649, 43 U. C. 423e.
shall further provide that all irrigable land held in
private ownership by any one owner in excess of one
hundred and sixty irrigable acres shall be appraised in
a manner to be prescribed by the Secretary of 'the In-
terior and the sale prices thereof fixed by the Secretary
on the basis of its actual bona fide value at the date
of appraisal without reference to the proposed construe-
tion of the irrigation works; and that no such excess
lands so held shall receive water from any project or
division if the owners thereof shall refuse to execute
valid recordable contracts for the sale of such lands
under terms and conditions satisfactory to the Secre-
tary of the Interior and at prices not to exceed those
fixed by the Secretary of the Interior; and that until
one-half the construction charges against said lands shall
have been fully paid no sale of any such lands shall
carry the right to receive water unless and until the pur-
chase price involved in such sale is approved by the Sec-
retary of the Interior and that upon proof of fraudulent
representation as to the true consideration involved in
such sales the Secretary of the Interior is authorized to
cancel the water right attaching to the land involved
in such fraudulent sales *
Under this provision, the district and not the United States
delivers water to the individual users. The district agrees
that it will withhold project water from land "in excess of 160
irrigable acres" held in private ownership, unless the owner
agrees in a "recordable contract" to sell such land under terms
and conditions satisfactory to the Secretary and at prices not
to exceed those fixed by him.="
"On May 15, 1944, in a telegram to the Tulare Daily Times, Tulare,
California, the then Secretary stated that Section 46 denied him the power,
in the absence of consent of the water users, to establish the limit of land
in private ownership on any new project at less than 160 acres. But see
Act of August 9, 1912, 8, 37 Stat. 265, 266, 43 U. S. C. 544; Act of August
18, 1914, J 12, 38 Stat. 686, 689, 43 U. S. 0. 418; see supra, n. 446, p. 226, and
The provision in Section 46 for a. "recordable contract" to insure eligi-
bility for water service is somewhat similar to the earlier administrative
requirement that excess landowners sign trust deeds for the sale of excess
In this connection, a question recently arose as to whether
Section 46 prohibits the furnishing of a commingled supply
of project and nonproject water to excess land covered by a
recordable contract where a river in which the district has
its water rights affords the most convenient means of trans-
porting supplemental project water to the district. It was
administratively determined that, if a quantity of commingled
water at least equal to the amount of project water put into
the river were used solely on nonexcess land, the acreage limita-
tion would not be violated by application of the remainder
of the commingled water on excess land.4
It should also be noted that Section 46 does not prohibit
the district from furnishing project water to as much as 160
acres of land owned by each landowner, even if he owns addi-
tional irrigable land and refuses to sell it. It thus differs
from the 1914 requirement, already discussed, which prohibited
even the letting of a construction contract until landowners
executed agreements to dispose of their excess lands, and if
such a landowner refused, his land could not be included within
Section 46 also seeks to combat speculation. It provides
that, until one-half of the construction charges against lands
have been paid, no sale of such land shall carry the right to
receive water unless the land be sold at a price approved by
the Secretary." In practice, approval will not be given if
lands before they could subscribe for stock in a water-users' association
and thus acquire a water right. See supra, p. 220. It is also somewhat
akin to the provision in the 1914 statute, referred to above, that the Secre-
tary shall require the owners of lands "to agree to dispose of all lands in
excess of the area which he shall deem sufficient for the support of a family
upon the land in question, upon such terms, and at not to exceed such
price" as he may designate. 12, 38 Stat. 686, 689, 43 U. S. C. 418.
Department of the Interior Solicitor's Opinion No. M-36011, September
Act of August 13, 1914, 12, 38 Stat. 686, 689, 43 U. S. C. 418.
As a matter of administration, however, water is denied on some projects
under the 1926 Act, as to excess or nonexcess land, unless a recordable
contract for the sale of the excess land is signed. LANDOWNERSHIP SURVEY
oN FDERAL RECLAMATION PROJECTS, Department of the Interior, p. 47 (1946).
Department of the Interior Solicitor's Opinion No. M-21709, March 3,
1927. LANDOWNERSHIP SURVEY ON FEDERAL RECLAMATION PROBCTs, Depart-
ment of the Interior, pp. 47-48 (1946).
the price exceeds actual bona fide value excluding incre-
mental value arising from the construction of the project.'4
"Incremental value" has been defined in practice as the amount
realized from the sale of land in excess of the original appraisal,
plus the appraised value of improvements, plus construction
charges paid, plus twice the amount of any previous payments
to the district
Reference to the administrative implementation of Section
46 in the case of the Central Valley Project, California, will
be informative. Here, the form of contract with irrigation
districts requires that excess land be appraised by a board of
three appraisers, one selected by the Secretary, one by the
district, and a third by the other two.' If the board cannot
agree, appraisal must be made by a designated California
Appellate Court Justice.' Reappraisal to reflect changes in
land values or improvements may be requested by the United
States or the landowner."47
The recordable contract form approved for the Central Val-
ley Project gives the owner 10 years to sell excess land. at a
price not exceeding the appraised value.'4 If the excess land
has not been sold at that time, the Secretary has a power of
attorney to sell at not less than appraised value.47
Under the Central Valley Project contract form, irrespective
of whether an owner of excess land signs a recordable contract,
he must designate 160 acres upon which he desires to receive
"See, e. g., Contract of May 20, 1949, between the United States and
the Orange Cove Irrigation District, Symbol No. 175r-1672, Art's 24(a),
25(a), 25(b) (i) ; Contract of September 12, 1950 between the United States
and the Terra Bella Irrigation District, Symbol No. 175r-2446, Art's 18(a),
19(a), 19(b) (i).
SLrANDOwNEBa&iP SUBVEy ON FEDERAL RECLAMATION PBOJCrTS, Depart-
ment of the Interior, p. 48 (1946).
See, e. g., Contract of May 20, 1949 between the United States and the
Orange Cove Irrigation District, Symbol No. 175r-1672, Art. 25.
'"Id. Art. 25(c), 25(d).
Memorandum from Commissioner of Reclamation to Secretary of the
Interior, April 13, 1948, with attached form of contract, see Art. 14.
project water, any balance of irrigable land being excess,'"
Such excess land is denied project water if no recordable con-
tract is signed, and in the hands of a purcaser is ineligible
to receive project water unless the Secretary shall have ap-
proved the sale price.'" If an owner of excess land fails to
designate the portion he desires to be nonexcess within 30 days
after a request to do so, such designation may be made by the
district, or by the Secretary if the district fails to act within a
reasonable time.'" .With the Secretary's permission, an owner
may redesignate his nonexcess land, whereupon an equivalent
acreage becomes excess.'"
Control over speculation has been imposed by special statute
for some projects.'" In certain instances, such control has
been extended by administrative action to other projects under
the Secretary's authority to make rules and regulations."7 A
method thus frequently employed is to require individual
owners to pay the district or the United States 50% of any
"incremental value" realized in sales.of nonexcess land, to be
applied to the construction-cost obligation applicable to the
Because of its recency and uniqueness, legislation govern-
ing the Columbia Basin Project merits note here. Re-
placing the 1937 Columbia Basin Antispeculation Act, Congress
in 1943 enacted the Columbia Basin Project Act, which con-
See, e. g., Contract qf May 20, 1949, between the United States and the
Orange Cove Irrigation District, Symbol No. 175r-1672, Art. 26.
"See, e. g,, Act of March 3, 1925, 43 Stat. 1141, 1166-1170; Act of April
9, 1988, 52 Stat. 211; Act of March 10, 1948, 57 Stat. 14.
Act of June 17, 1902, 10, 32 Stat. 388, 390, as amended, 43 U. S. C.
373. See Terra v. Pineyw and Owyhee Irrigation Dstrict, Circuit Court
of Malheur County, Oregon, opinion dated January 27, 1937, unreported but
printed in The Reclamaton Era, Vol. 27, Nos. 6-7, pp. 128-130 and 150-151,
respectively (June and July 1937).
LANDOWNEnRHIP SURVEY ON FEDERAL RECLAMATION POJEuCTS, Depart-
ment of the Interior, p. 48 (1946). Of. Act of May 27, 1937, 1, 50 Stat.
208, 209, providing for such a payment of 50% of "incremental value" where
payment is made within one month of the sale, the percentage to be in-
creased by 1% for each month's delay in payment.
trains elaborate provisions dealing with excess lands and anti-
speculation.' When this latter legislation was proposed, the
then Commissioner of Reclamation gave the following sum-
mary of the principal reasons for a complete substitution for
the 1937 Act:
The principal reasons for suggesting a complete sub-
stitution were these: (1) The existing provisions of law
dealing with the land-speculation problems are not re-
garded as fully effective; (2) the burden of penalties
for sales in excess of the appraised value under dhe
existing law would have fallen, in the first instance,
almost wholly on the purchaser, and as often as not he
would have been without further practical remedy
against his vendor, with the result that he whom th
law Was, designed to protect would have to bear the
burden of the penalty; (3) the provisions of the exist-
ing law on the size of land holdings are regarded as
too inflexible and not in keeping with what have since,
as the result of series of studies on the projec-t, l ie
conclude to be the desirable maximum size of unit for
the support of a family at a suitable level of living.
These provisions are the heart of the present law. Since
drastic changes in each seems desirable and since addi-
tional important provisions in aid of development and
settlement of the project are considered desirable also,
it was concluded best to recommend a complete restate-
ment of all of the present statute.
The 1943 Act contains provisions of especial significance
here. For example, the Secretary may establish "farm units
of sufficient acreage for the support of an average-sized family
at a suitable living level, having in mind the character of the
soil, topography, location with respect to the irrigation sys-
tem," and other relevant factors." With specified exceptions,
Act of May 27, 1937, 50 Stat. 208; Act of March 10, 1943, 57 Stat. 14,
16 U. S. C. 835 et seq.
Hearings before the House Committee on Irrigation and Reclamation
on H. R. 6522, 77th Cong., 2d sess., p. 41 (1942).
SAct of March 10, 1943, 1 2(b) (1), 57 Stat. 14, 15, 16 U. 0.835a(b) (1).
units are to be not less than 10 nor more than 160 acres."8 A
landowner may receive water for only one unit." The term
"landowner" denotes any "person, corporation, joint-stock as-
sociation, or family," the latter including a husband and wife
together with their children under 18 years of age."
As a condition to receiving project water, the landowner
must execute a recordable contract agreeing to dispose of excess
land at appraised prices and giving the United States an option
to buy such excess land."' In addition, such contract must
provide that for a five-year period neither excess nor nonexcess
lands will be sold at more than appraised prices."8 Provision
is also made for suit by a purchaser to recover amounts paid in
excess of the appraised value."' And criminal penalties are
provided for fraudulent misrepresentation as to the true con-
sideration involved in a sale of land covered by a recordable
contract.' Noteworthy also is the fact that the statute pro-
hibits delivery of water from the Project until the State of
Washington consents to all its provisions so far as they come
within the scope of state jurisdiction or apply to state lands.'90
Such legislation was enacted by the State in 1943.491
In addition to the foregoing excess-land and antispeculation
provisions of general and special reclamation legislation, simi-
lar provisions in two other statutes should be noted. The 1911
Warren Act authorizes the Secretary to provide storage and
carriage of water in project works when capacity exists beyond
project needs.' Water involved "shall not be used otherwise
than as prescribed by law as to lands held in private owner-
4 2(b) (iii), 57 Stat. 15, 16 U. S. C. 835a(b) (iii).
2(b) (v), 57 Stat. 16, 16 U. S. C. 835a(b) (v).
2(c) (1), 57 Stat. 16, 10 U. S. C. 858a(e) (1). Such recordable contract
must be executed within six months from the date of execution of a contract
between the United States and the district within which the land is located.
This time was extended in certain cases to December 1, 1951, by the Act of
September 26, 1950, 64 Stat. 1036, -.
8 2(c) (ii), 57 Stat. 16, 16 U. S. C. 835a(c) (11).
3(b), 57 Stat. 18, 16 U. S. C. 835b(b).
1 3(a), 57 Stat. 18, 16 U. S. C. 835b(a).
4 8 7, 57 Stat. 20, 16 U. S. C. 835c-3.
4" RMRINaTON's REV. STATS. OF WASH. ANN., 1947 SUPP. S 7525---7525-12.
Act of February 21, 1911, 36 Stat. 925, 43 U. S. C. 523-525.
ship within the Government reclamation projects."'49 More-
over, in authorizing the Secretary to cooperate with irrigation
districts and others for the construction of such reservoirs,
canals, or ditches as may be advantageously used by the Gov-
ernment and water users for irrigation purposes, this 1911 stat-
ute provides that water shall not be furnished thereby "to
any one landowner in excess of an amount sufficient to irrigate
one hundred and sixty acres." '
Relevant provisions also appear in the amended Wheeler-
Case Act which authorizes the construction of small water-
conservation and utilization projects.45 Repayment contracts
must provide that the Secretary shall establish farm units of a
size sufficient "for the support of a family on the lands to be
irrigated." 1" Such contract must require that water may not
be delivered to or for more than one farm unit owned by a
single landowner."7 And no water shall be delivered to or for
any land sold within a specified period at a price exceeding the
appraised value as determined by the Secretary.4"
Through the years, Congress has exempted three projects
from the excess-land limitations."' Recent attempts to ex-
S 1, 36 Stat. 925, 43 U. S. C. 523.
"* 2, 36 Stat. 926, 43 U. S. C. 524. Although the limitation here is in
terms of water, it has been construed as a limitation on the quantity of
land which may be irrigated by project water and not a limitation on water
alone. Department of the Interior Solicitor's Opinion No. M-21709, March
Act of August 11, 1989, 53 Stat. 1418, as amended, 16 U. S. C. 590y-
590s-11 (Supp. III).
4(c) (5), 54 Stat. 1122, 16 U. S. C. 590z-2(c) (5).
SColorado-Big Thompson Project: In 1938, Congress provided that "the
excess land provisions of the Federal reclamation laws shall not be appli-
cable to lands which now have an irrigation water supply from sources
other than a Federal reclamation project and which will receive a sup-
plemental supply from the Colorado-Big Thompson Project." Act of June
16, 1938, 52 Stat. 764, 43 U. S. C. 886. In recommending this exemption,
the Acting Secretary of the Interior said: "The Colorado-Big Thompson
project will furnish a supplemental water supply to approximately 615,000
acres of land on the eastern slope of Colorado. This land has been settled
for more than 50 years and is already being irrigated and is at present
divided into more than 6,400 separate farm units, the average individual
landownership being .96 acres. Although there are, of course, some farms
empt additional projects have not been successful. Thus, in
1944, the House adopted an amendment toa. River and Har-
bor Bill which would exempt the Central Valley Project from
the excess-land provisions." But this provision was elimi-
nated by the Senate Committee on Commerce.'1 In 1947,
a Subcommittee of the Senate Committee on Public Lands
held extensive hearings on a bill providing that the land-
limitation provisions should not apply to the San Luis Valley
Project, Colorado, the Valley Gravity Canal Project, Texas,
and the Central Valley Project, California.'c But the bill was
never reported out.
Still more recently, Congress passed a bill to.raise the 160-
acre limitation to 480 acres in the case of the San Luis Project,
Colorado." But President Truman pocket vetoed the bill
saying, in a memorandum of disapproval:""
in the area of acreages exceeding 160 acres, they are relatively few in
number. Many of these larger farms are held by loan companies and Fed-
eral credit agencies which in time probably will liquidate their holdings
in small parcels, as more intensive cultivation in the area develops with
the increased water supply furnished by the Colorado-Big Thompson proj-
ect. The same tendency toward subdivision will probably occur with
respect to those larger farms held by individuals." H. Rep. No. 2620, 75th
Cong., 3d. sess. (1988).
Truckee River Storage Project and Humboldt Project: The excess-land pro-
visions were here made Inapplicable to certain lands irrigated from these
projects. Act of November 29, 1940, 54 Stat. 1219. During debate on this
proposal on the floor of the Senate, it was said that, "The two projects which
are involved in this bill are situated in a place in Nevada where 160 acres are
not enough. A person must have more land than 160 acres in order to
farm successfully and carry on livestock feeding operations." 86 CooN. RBc.
18681 (1940). Similarly, when the measure was before the House, it
was said that, "In areas of high altitude and early frosts where hay for
livestock is the chief crop, It has been found very difficult to limit one per-
son's holding to 160 acres as an economic unit" 86 CoNe. REc. 13646
See H. Rep. No. 63, 79th Cong., 1st sess., p. 1 (1945).-
SHearings before a Subcommittee of the Senate Committee on Public
Lands on S. 192, 80th Cong., 1st sess. (1947).
SS. 1385, 81st Cong., 1st sess. (1949).
'95 CONG. REC., unbound ed., p. A7128 (November 4, 1949). The Presi-
dent also said that, "In the meantime, I hope that the Congress will con-
sider legislation amending the excess-land provisions of the reclamation
laws so as to authorize appropriate adjustments in maximum acreages,
One great objective of the Federal reclamation pro-
gram is to foster the establishment and maintenance of
farm homes throughout those portions of our country
where agricultural operations cannot rely solely upon
nature for a water supply. The excess-land provisions
of the law provide the legal mechanism for assuring
that the benefits of the irrigation systems will inure
to family-size farming enterprises. This is true whether
the purpose of the particular project is to open up new
land for settlement by providing an original water
supply, or to stabilize an existing irrigation econ-
omy as in the case of the San Luis Valley project. In
the absence of requirements designed to channel the
water to those who are striving to build or conserve
farm homes for their families, the heavy investments of
interest-free funds being made for the reclamation pro-
gram would lose much of their justification.
Operation and Maintenance Charges.-The Reclamation
Fund was established by the 1902 Act for, among other express
purposes, the "maintenance of irrigation works." '' Corre-
spondingly, that Act directed the Secretary to use the Fund
for "the operation and maintenance" of reservoirs and irriga-
tion works constructed under its provisions.5" The Supreme
Court of the United States.has construed the 1902 Act as au-
thorizing assessment of maintenance costs against lands bene-
fited during the period of government operation and the return
to the Fund of such amounts."
In 1914, Congress required that an operation and mainte-
nance charge be assessed against all irrigable lands for each
acre-foot of water delivered.68 It also provided a discount of
5% for prompt payment and prohibited delivery of water to
lands in arrears for more than one year, fixing a penalty for
where necessary, under carefully worked-out standards, which could be
applied not only to the San Luis Valley project, but also to other projects
in which some adjustment may be warranted." bid.
Act of June 17, 1902, 1, 32 Stat. 388, as amended, 43 U. S. C. 391.
16,32 Stat. 389,43 U. S. C. 491.
"Bwigart v. Baker, 229 U. S. 187, 193 (1913).
m Act of August 13, 1914, J 5, 38 Stat. 686, 687, 43 U. S. 0. 492, 499.
delinquency." Provision was also made for furnishing water
at a "reasonable charge" prior to public notice fixing con-
struction charges whenever water became available and it
proved impracticable to apportion operation and maintenance
By the 1924 Fact-Finders' Act, it was provided that all con-
tracts for new projects and new divisions of projects shall re-
quire payment in advance of all operation and maintenance
charges.11 A 1926 statute authorizes the Secretary to extend
the time for payment of operation and maintenance charges
for a period not exceeding five years, with interest at 6%.512
At the same time, Congress prohibited delivery of water from
any new project or new division of a project until execution
of a contract providing, among other things, for payment of
the cost of operating and maintaining the works while they are
in control of the United States.61
The Reclamation Project Act of 1939 added a number of
additional provisions respecting operation and maintenance.
For example, it authorizes the Secretary to fix the time for pay-
ment under contracts authorized by that Act in relation to the
time when water users receive crop returns.51" In connection
with contracts relating to construction charges, the Secretary
is also empowered to require provisions: 5
to secure the adoption of proper accounting, to protect
the condition of project works and to provide for the
proper use thereof, and to protect project lands against
deterioration due to improper use of water. Any such
contract shall require advance payment of adequate op-
eration and maintenance charges.
6,38 Stat. 688, as amended, 48 U. S. 0.479,493-498.
n' 11, 38 Stat. 689, 43 U. a. C. 465.
1 Act of December 5, 1924, 4, subsection N, 43 Stat. 672, 704, 48 U. S. C.
m Act of May 25, 1926, S 45, 44 Stat. 636, 648, 43 U. S. C. 423d. See also
Act of May 10, 1926, 44 Stat. 453, 479.
46, 44 Stat. 649, 43 U. S. C. 423e.
1 Act of August 4, 1939, 5, 53 Stat. 1187, 1191, 43 U. S. C. 485d. The
Act also provides for a yearly crop census. 4(c), 53 Sta. 1189, 43 U. S. C.
S" 6, 53 Stat. 1191, 43 U. S. C. 485e.
Moreover, he may provide penalties for delinquencies, and con-
tracts must require that no water be delivered in case of
Where a water-service contract is made for water service
under the 1939 Act, the rate fixed must include a component
for operation and maintenance."" The same is true of rates
fixed under contracts for furnishing water for municipal water
supply or miscellaneous purposes, and of rates for the sale of
power or lease of power privileges.'1 During the development
period under the 1939 Act, water is furnished upon payment
of an advance charge at a rate per acre-foot.' After the close
of such period, any excess of such payments over actual cost
of operation and maintenance shall be credited to the con-
In connection with nonreimbursable construction-cost allo-
cations to navigation, flood control, or preservation and propa-
gation of fish and wildlife, it should be noted that no provision
is made for nonreimbursability of operation and maintenance
costs for such purposes.
Disposal of Power.-Reference has already been made to
authorizations for the sale of power and lease of power priv-
ileges." Like reference was made to power rates in connection
with the recovery of construction costs under the provisions of
the Reclamation Project Act of 1939.65 Still other matters
relating to the disposal of power in connection with the opera-
tion of projects should be mentioned.
For example, the 1906 statute authorizing the lease of sur-
plus power or power privilege prescribes a maximum period of
10 years.' While the Act specifies that proceeds shall be cov-
9(e), 53 Stat. 1196, 43 U. S. 0. 485h(e).
S 9(c), 53 Stat. 1194, 43 U. S. C. 485h(c).
9(d) (1), 53 Stat. 1195, 43 U. S. C. 485h (d) (1).
m See supra, n. 281, p. 200, pp. 208-209.
m See supra, pp. 204, 208-200, and see infra, pp. 295-296.
Act of April 16, 1906, 5, 84 Stat. 116, 117, as amended, 43 U. S. C. 522.
A maximum period of 50 years was later authorized for the Rio Grande
Project. Act of February 24, 1911, 36 Stat. 980, see 43 U. S. C. 522.
ered into the Reclamation Fund, no requirement is specified
as to rates."' Preference is provided to "municipal pur-
poses." 25 No lease may impair the "efficiency of the irriga-
tion project." 28
Under the 1939 Act, power sales and leases must provide
preference "to municipalities and other public corporations or
agencies; and also to cooperatives and other nonprofit organi-
zations" financed by REA loans.52 No power contract may
be made if the Secretary deems it will "impair the efficiency of
the project for irrigation purposes." It may be noted, in-
cidentally, that this latter provision obtains with respect to
contracts under the 1939 Act for the furnishing of water for
municipal water supply or miscellaneous purposes.529
There is no blanket provision under Reclamation Law for
the construction or acquisition of transmission lines. In re-
peated instances in appropriation legislation, however, Con-
gress has expressly recognized that transmission facilities con-
stitute parts of reclamation projects authorized by Congress.5"
Flood Control and Navigation.-As earlier noted, the 1939
Act authorizes allocations for flood control or navigation."1
In the event of such an allocation, the Act requires that the
Secretary of the Interior operate the project for the purpose
of flood control or navigation, to the extent justified by such
allocation."5 However, since 1944 the Secretary of the Army
has had the duty of prescribing regulations for the use of stor-
age allocated to flood control or navigation at all reservoir
projects constructed wholly or in part with federal funds pro-
vided on the basis of such purposes, and the operation of proj-
ects must accord with those regulations."5
Act of August 4, 1939, 9(c), 53 Stat. 1187, 1194, 43 U. S. C. 485h(c).
SSee, e. g., Act of June 29, 1948, 62 Stat. 1112, 1126, 1128; Act of October
12, 1949, 63 Stat. 765.
See supra, p. 195.
5" 9(b), 53 Stat. 1194, 43 U. S. C. 485h(b).
m Act of December 22, 1944, 7, 58 Stat. 887, 890, 33 U. S. C. 709.
Rehabilitation and Betterment.-As previously noted, early
provisions preclude an increase in construction charges once
they are announced and in the absence of an agreement by
a majority of the water users.0 A problem thus arose where-
ever extraordinary maintenance or large replacement expendi-
tures became necessary because of flood or other damage to
works, or because of deferred maintenance. Only a partial
answer could be found in the Secretary's authority to agree
to an increase in the construction obligation which might be
undertaken by the water users, such increase to be paid in
annual installments beginning after the due date of the last
Moreover, many projects have for some time been operated
and maintained by water users at their own expense. In
such cases, there were no operation and maintenance charges
as between the water users and the Government."3
During the "depression" and war years, much deferred main-
tenance had accumulated, and there was a resulting need for
major rehabilitation and betterment work on many of the older
reclamation projects, involving costs which water users could
not currently finance."8
In 1949, Congress provided a basis for solution of this prob-
lem in a statute defining "Rehabilitation and Betterment" to
mean maintenance, including replacements, which cannot be
financed currently, but not to include costs of construction.68
Expenditures of funds for rehabilitation and betterment. are
permitted but only after the water-users' organization shall
have obligated itself for repayment in installments fixed in
accordance with its ability to pay, as determined by the Secre-
= Act of August 13, 1914, 4, 38 Stat. 686, 687, 43 U .S. C. 469.
RCLAMATION HA&NnooK, Department of the Interior, Bureau of Recla-
mation, p. 44 (1942).
H. Rep. No. 589, pp. 1-2 and Sen. Rep. No. 501, p. 1, both 81st Cong.,
1st sess. (1949).
"sAct of October 7, 1949, 1, 63 Stat. 724, 43 U. S. C. 504 (Supp. III), as
amended by Act of March 3, 1950,64 Stat. 11.
tary."6 No such determination may become effective until
60 days after it has been submitted to the Senate Committee
on Interior and Insular Affairs and the House Committee on
Public Lands." It may, however, become effective sooner
upon written approval by both Committees."'
Nonfederal Operation of Projects by Water-Users' Organiza-
tions.-A significant feature of the 1902 Act is its provision for
transfer of the "management and operation" of irrigation works
to the owners of the land to be maintained at their expense
when payments required by the Act have been made for the
major portion of the project lands.& But title to and man-
agement and operation of the reservoirs and the works nec-
essary for their protection and operation remain in the
In 1914, the Secretary was authorized to transfer to a legally
organized water-users' association or irrigation district the
"care, operation, and maintenance of all or any part of the
project works, subject to such rules and regulations as he may
prescribe." ~ A 1924 Act requires that, whenever two-thirds
of the irrigable area of any project shall be covered by water-
right contracts, a water-users' association or irrigation dis-
trict shall be required to take over project care, operation, and
maintenance, as a condition precedent to receiving certain bene-
fits under the Act."' But provision was made two years later
for dispensing with this requirement as to certain projects."4
Rm~ATE STATUTES.-A number of statutes are related to but
not a part of Reclamation Law. Several of these we have
already mentioned. Others merit more than passing note.
oId. An appropriation had previously provided funds for "Behabilita-
tion and Betterment" work. Act of June 29, 1948, 62 Stat. 1112, 1128.
SAct of March 3, 1950, 64 Stat. 11. Provision is also made for approval
when Congress is not in session.
Act of June 17, 1902, 6, 32 Stat. 388, 389, 43 U. S. C. 498.
Act of August 18, 1914, 1 5, 38 Stat. 686, 687, 43 U. S. C. 499.
Act of December 5, 1924, 1 4, subsection G, 43 Stat. 672, 702, 43 U. S. C.
Act of May 25, 1926, 45, 44 Stat. 686, 648,43 U. S. C. 423d.
Water-Conservation and Utilization Projects.-Under the
heading "Bureau of Reclamation," the Interior Department
Appropriation Act for i940 contained a special provision for
the construction of "water conservation and utilization proj-
ects" in the Great Plains and arid and semiarid areas of the
United States." An amount of $5,000,000 of reimbursable
funds was made allocable by the President to federal agencies
to be designated by him; labor and supplies from the Works
Progress Administration were similarly made available, exr
penditures from WPA funds to be reimbursable as the Presi-
dent might determine."
This authorization arose from a need to provide assistance
in rehabilitating people and land in the "dust bowl" and other
arid and semiarid regions, and to stem the exodus of thousands
of farm families, under conditions where the cost of irrigation
works was too great to be financed by the water users, or to be
fully repaid if undertaken by the United States."~ Such a
combination of expenditures from relief and general funds
was designed not only to.provide unemployment relief, but
also to offer opportunities for subsistence in the future."1
But complications soon arose." It was held that allocations
for investigations and surveys could not be authorized.8. The
Act was regarded as not furnishing a continuing legislative
authorization.5 Moreover, it was deemed to require the
Bureau of Reclamation to handle all of the project costs out
Act of May 10, 1939, 53 Stat. 685, 719.
SHearings before a Subcommittee of the House Committee on Appro-
priations, Interior Department Appropriation Bill for 1941, 76th Cong., 3d
sess., pp. 528-24 (1940).
"'I. p. 523.
mI&, p. 525.
'Decision of the Comptroller General, B-9240, May 2, 1940. Of. Hearings
before a Subcommittee of the Senate Committee on Appropriations on H. B.
8745, 76th Cong., 3d sess., pp. 75-76 (1940).
'"Hearings before a Subcommittee of the House Appropriations Com-
mittee on Interior Department Appropriation Bill for 1942, 77th Cong.,
1st sess., p. 780 (1941).
of the single $5,000,000 appropriation without creating an obli-
gation for future years."
The program thus initiated was more fully authorized later
in 1939 by the Water Conservation and Utilization Act.6"
A, 1940 statute making funds available expressed a policy that,
in the opening of newly irrigated lands to entry, preference
should be given to families who had been forced to abandon
other farms through no fault of their own."'
In the fall of 1940, the enabling legislation was substantially
amended and broadened.~ The objects were to substitute
statutory procedure for what previously had depended upon
interdepartmental courtesy, and to define interdepartmental
lines of responsibility." To facilitate project investigation
and construction, 'the amended legislation prescribed meas-
ures of feasibility and procedures similar to those under Rec-
lamation Law."0 While continuing authority for project
construction and operation and maintenance in the Secretary
of the Interior, the amendments provided for participation by
the Secretary of Agriculture through cooperative agreements
with the Secretary of the Interior.rl Provision was also made
for participation by the Works Projects Administration, Civil-
ian Conservation Corps, the Bureau of Indian Affairs, and
other federal agencies, as well as state and local agencies."
mId.; Hearings before a Subcommittee of the Senate Committee on
Appropriations on H. R. 8745, 76th Cong., 3d sess., p. 45 (1940).
Act of August 11, 1989, 5 Stat. 1418, as amended, 16 U. S. C. 590y-
590z-11 (Supp. III). In approving the bill, the President noted that
amendments would be needed to make the basic legislation fully:effective.
H. Rep. No. 2944, 76th Cong., 3d sess., p. 3 (1940).
&" Act of June 18, 1940, 54 Stat. 406, 439.
Act of October 14, 1940, 54 Stat. 1119, see 16 U. S. C. 590y-590z-11.
*H. Rep. No. 2944, 76th Cong., 3d. sess., p. 2 (1940). See also 86 CoNG.
REC. 12568-12569 (1940).
"OH. Rep. No. 2944, 76th Cong., 3d sess., p. 3 (1940). 3-4, 54 Stat.
1120-1122, as amended, 16 U. S. C. 590z-1, 590z-2.
3, 5-6, 54 Stat. 1120-1121, 1122-1124, as amended, 16 U. S. 0. 590z-1,
590z-3, 590z-4. In connection with the duties of the Secretary of Agricul-
ture, see infra, p. 379.
2 2, 54 Stat. 1120, 16 U. S. C. 590z. The Works Progress Administra-
tion became Works Projects Administration on July 1, 1989. Reorganiza-
tion. Plan No. 1, effective July 1, 1939, 306, 53 Stat. 1423, 1428, 5 U. S. C.
133t note following.
It should be noted that this legislation has not been con-
sidered to constitute an ameilndment of or a supplement to
Reclamation Law.' 3
Although operations of the WPA and CCC were terminated
in 1943,"' there was an increasing need for irrigation projects
for expansion of agricultural production to meet the wartime
food shortage.P A further amendment of the Act permitted
its application to the so-called "Great Plains Projects" for the
purpose of orderly administration and accounting."8 This
amendment also permitted the expenditure of appropriated
funds on projects on a nonreimbursable basis, in lieu of WPA
and CCC assistance theretofore available, upon a finding by
the Secretary of the Interior, after consultation with the Sec-
retary of Agriculture and approval by the President, that the
expenditure was justifiable as an aid in the production of
needed agricultural products.56' By its terms, this provision
became ineffective six months after the officially declared cessa-
tion of hostilities.6 After the lapse of that provision in 1947,
no new projects have been undertaken under the Water Conser-
vation and Utilization Act.
Water Facilities Act.-We shall refer later to the details of
this 1937 statute which is related to irrigation in that it is
designed "to assist" in providing facilities for water storage
and utilization in arid and semiarid areas."
See unpublished Opinion of the Solicitor, Department of the Interior,
No. M-34062, dated August 9, 1945; see also LANDOWNEBB HIP SUBVEt ON
FEDERAL RECLAMATION PROJECTS, Department of the Interior, p. 51 (1946).
s to CCC, see Act of July 2, 1942, 56 Stat. 562, 569, and Act of July
12, 1943, 57 Stat. 494, 498. As to WPA, see 45 C. F. R., ch. III, p. 10492
(1943 Cum. Supp.).
Sen. Rep. No. 365, 78th Cong., 1st sess., p. 1 (1943).
Act of July 16, 1943, 57 Stat. 566, 16 U. S. C. 590y, 590z-I, 590z-2, 590z-3;
Sen. Rep. No. 365, 78th Cong., 1st sess., p. 4. (1943).
Terminology adopted by the Bureau of Reclamation designates as "Great
Plains Projects" those constructed under the Interior Department Appro-
priation Act for 1940, and as "Water Conservation and Utilization Projects"
those constructed under the Act of August 11, 1989, as amended. Bureau
of Reclamation Circular Letter No. 2892, dated January 6, 1942.
5, 57 Stat. 567, 16 U. S. C. 590z-2.
''Id.; Proclamation No. 2714, December 31, 1946, 61 Stat. 1048.
'Act of August 28, 1937, 50 Stat. 869, as amended, 16 U. S. C. 590r-590x.
See also infra. n. 377-M79.
Bankhead-Jones Act Amendment.--Under this 1949 legis-
lation, provision was made for extending loan assistance to
homestead entrymen and purchasers of lands on reclamation
projects."0 Its purpose was to enable settlers to obtain addi-
tional capital needed for farm development and purchase.57
As we earlier noted, the Southwest bears testimony to the
practice of irrigation by Indians even in ancient times.s"
Acting through the Bureau of Indian Affairs of the Depart-
ment of the Interior, the Federal Government has long been
engaged in numerous activities connected with irrigation of
Indian lands."' Confined to areas within Indian reservations
and primarily for the benefit of Indians, this activity is separate
from the irrigation responsibilities of the Bureau of Reclama-
tion, already discussed."" The Government's "first venture
in irrigation construction" was provided for in 1867 by an
appropriation of funds for the construction of a canal for irri-
gating the Colorado River Reservation in Arizonra. With
This program was designed to provide wells for stock, farmstead and farm-
garden use, and for irrigation of crops, stock ponds and stock tanks, diver-
sions and water spreaders, and small dams and reservoirs. Most of the
projects are on individual farms and ranches and cost less than $1,000
each, although facilities for small groups are also provided. Hearings
before the House Committee on Irrigation and Reclamation on H. R. 10122,
76th Cong., 3d sess., p. 45 (1940).
"Act of October 19, 1949, 63 Stat. 883, 7 U. S. C. 1006a-1006b (Supp.
III). See also tifra, p. 380.
m H. Rep. No. 478, 81st Cong., 1st sess., p. 4 (1949).
m See supra, pp. 175-176.
SCohen, HANDBOOK OF FEDERAL INDLA LAW4, p. 248 (1945); Hearings
before a Subcommittee of the Senate Committee on Appropriations on H.
. 3123, 80th Cong., 1st sess., p. 637 (1948),
'"Hearings before a Subcommittee of the Senate Committee on Appro-
priations on H. R. 3123, 80th Cong., 1st sess., p. 637 (1948). But see Hear-
ings before a Subcommittee of the House Committee on Appropriations on
Interior Department Appropriation Bill, 1936, 74th Cong., 1st sess., pp.
'"Cohen, HANDBOOK OF FEDERAL INDIAN LAW, p. 248 (1945); Act of March
2, 1867, 14 Stat. 492, 514-515; ANNUAL RzPOBT OF THE SECBErABY or THE
INTE1onB, p. 377 (1940).