tional step in the conception and execution of a program of
multiple-purpose project development. In other words, our
purpose here is to summarize comparatively the principal por-
tions of the law applicable to preparing for projects, to the
review and authorization of plans and projects, to their design
and construction, their financing, and their operation and main-
tenance. In addition, we shall summarily refer to certain
significant aspects of other programs related to the develop-
ment of projects.
Moreover, we shall see that on one matter, one body of law
may be silent while another is explicit. For the development
of the law applicable to the various purposes and agencies is
by no means coextensive. Reference to administrative practice
in such cases will be informative.
Preparing for Projects
Three segregable aspects of preparation will be considered
here: the collection of data, program development, and project
COLLECTION or DATA.-Common sense dictates the need for
collection in usable form of physical and other data as a pre-
requisite to activities seeking to develop, utilize, or conserve
water resources. Such physical data include topographic
and geologic maps; soil and mineral surveys; hydrologic data
on precipitation, snow pack, snow melt, stream flow, and
ground-water conditions; and meteorological data on tempera-
tures and evaporation. Need for other data may extend to
such matters as population trends, industrial and agricultural
activities and opportunities, transportation, and power re-
quirements and markets.
Provision has been made in numerous statutes for the col-
lection of such data by several federal agencies. The more
significant of these were grouped and reviewed in the chapter
on Other Public Purposes.1 While there is thus no need to re-
peat all of those provisions, we should mention here certain
of their features.
& See eupra, pp. 842-348
In the first place, it should be noted that the Army Engineers
are given individual grants of authority and the Bureau of
Reclamation has general authority to a-ak examination s wa
surveys in connection with their water-resource responsibil-
ities.2 Similarly, the Federal Power Co~aissiat-has wde
investigatory authority in connection with its regulatory re-
sponsibilities and in securing information as a basis for recom-
mending legislation.8 Other federal agencies having no direct
responsibility for participation in federal water-resurce devel-
opment have long been authorized to collect d&ta useful to that
end, uch as the Weather Bureau, the Geological Survey, and
the Coast and Geodetic Survey. Moreover,,the Departments
of Agriculture and Commerce collect a variety of data useful
generally to persons engaged in agriculture or commerd Siic
data, of course, have a corresponding usefulness in connection
with federal water-resource activities. Even a casual examina-
tion of the relevant statutes reflects overlaps and duplications
in authority. Several examples will suffice to illustrate.
But in considering these examples it should not be assumed
that each statutory overlap carries with it4 duplication of
efrt, since provision has been made both by statute and
voluntary administrative arrangement to avoid such duplica-
tion.- For example, Congress has generally authorized the
heads of agencies to place orders with other agencies for "wo'r
orservices, of anykind that such requisitioned Federal agency
may be in a position to supply or equipped to render."* In
the case of flood-control examinations and surveys by the Arn)
Engineers, Congress has directed that, upon, request of the
Secretary of the Army, the several departments shall detail
personnel to assist "to the end that dupli6atimo of work may
be avoided and the various' services of the.iGovernment eo-
nemically coordinated therein."' A similar provision exists
Ba S!eWdurae Kph. 91-46, 14-185, 1-198.
*See egra, pp. 247-275.
See wpra, pp. 843-845.
SSee aupra, pp. 842-343, 84547.
Act of July 20, 1942,56 Stat. 061, as amended, 3i U. E C. 0.86.
'Act of March 1, 1947, 8, 39 Stat. 948, 90, 83 8UN.. YO1. ,.
inthe ease of investigations by the Federal Power Commission.8
Another preliminarylpoint should be noted. In some cases,
statutes direct an agency to perform a certain function relating
to development of water resources, and while certain data are
plainly prerequisite to proper discharge of that responsibility,
the statute does not expressly empower the agency to obtain
the data.' Nevertheless, the "grant of an express power carries
ith it the authority to exercise all other activities reasonably
necessary to carry it into effect." Whether or not collection
of certain data would thus by implication be "reasonably nec-
essary" in a particular case would depend upon an examination
of the nature of the express grant of authority in the context of
the entire statute. For "every; question of construction is
unique, and an argument that would prevail in one case may
be inadequate in another." 10
Stream-Flow and Related Data.--In.the matter of collecting
information respecting stream-4tow and related matters, nu-
~nerous authorizations exist. Since 1890, the Weather Bureau
has been responsible for "the gauging and reporting of rivers."1
It measures the water equivalent of: now on the ground and
"Act of June 10, 1920, .4(b), 41.Stat. 063, 1065, as amended, 16 U. S. C.
797(c). See also provisions relating to the Council of Economic Advisers,
wspra, p. 426.
'3 Sutheiland, STATUTroY CONsTuoerrdaw, 6604, p. 287 (3d ed. 1943).
: 'Where a statute confers powers or duties in general terms, all powers
and duties incidental and necessary to niake such legislation effective are
included by implication. le reason behind the rdie Is to be
1eund in th6; aet that legislation is enacted to establish broad or general
standards. Matters of minor detail are fruently omitted from legislative
enactments, and 'if these could not be suppied by implication the drafting of
legislation would be an interminableprocess and the true intent of the legis-
lirire likely to be defeated'." Id. f pp. 19-20. "'
'Lieglslatures estate addministrative agenciess with. the desire and expec-
tation that they will perform efficiently the tasks committed to them. That,
at least, is one of the contemplated soiala advantages ito be weighed in
resolving doubtful construction." Stone, The Common Law in the United
States, 50 HAmv. L. BRE., p. 18 (1936).
SUnited States.v. Jin Fuey Moy, 241 U, S.394, 402 (1916).
"Act of Octobe 1,; 1890, 8, 26 Stat. 658, as amended, 15 U. S. C. 313.
See also supra, pSi;4-S45.l
forecasts water supply and stream flow.12 The similar activi-
ties of the Geological Survey include the maintenance of 6,200
gauging stations and the conduct of nation-wide investigations
concerning the occurrence, quantity, and quality of water in
the United States.1 Moreover, the Secretary of Agriculture
is authorized to make snow surveys and conduct research con-
cerning long-range weather forecasting and the relationships
between weather and soil erosion.14 Not to be overlooked is
the 1938 provision for establishment, operation, and mainte-
nance by the Weather Bureau of a current information service
on precipitation, flood forecasts, and warnings, in connec-
tion with authorized flood-control activities by the Army
The need for stream-flow and related data appears to be
inherent in investigations concerning the effect on wildlife of
pollution and of water impoundment or diversion. Investiga-
tions by the Secretary of the Interior are authorized to include
the "determination of standards of water quality for the main-
tenance of wildlife," together with a study of methods of abat-
UNITED STATES GOVERNMENT ORGANIZATION MANUAL, 1960-51, pp. 264-
"ANNUAL REPORT OF THE SECRETARY OF THE INTERIOR, p. 198 (1949). As
we have noted, the act creating the Geological Survey did not mention stream
gauging.; Ii this connection, the Chairman of the Committee of the Whole
House in 1906 sustained a point of order against an appropriation for
"gauging streams, and determining the water supply." He ruled that
this term "does not fall within any of the provisions of the statute creating
the office of the Geological Survey." IV Hinds, PBEcaENTS OF THE HOUSE
OF REPESENTATIVES, 3714. See also 3715. This ruling was reaffirmed
the following year. Id. 3795.
Nevertheless, in appropriation acts and in acts providing for reports,
Congress has long made provision for stream gauging as a function of the
Geological Survey. And in 1942, it authorized the Secretary of the Interior
to acquire lands for use by the Geological Survey in gauging streams. See
supra, pp. 343-344.
The Geological Survey performs many investigations for other federal
agencies. For example, $2,400,000 was transferred in the fiscal year 1949
from other agencies to the Geological Survey for these investigations. AN-
NUAL REPORT OF THE SEOBETARY OF THE INTERIOR, p. 191 (1949).
Reorganization Plan No. IV, 8, effective June 30, 1940, 54 Stat. 1234,
1236, 5 U. S. C. 133t note following.
"Act of June 28, 1938, 8, 52 Stat. 1215, 1226, 33 U. S. C. 706. See also
supra, p. 146.
ing and preventing pollution." Investigations by the Secretary
of the Interior are also authorized "for the purpose of deter-
mining the possible damage to wildlife resources and of the
means of preventing loss of and damage to wildlife resources"
resulting from the impoundment or diversion of water under
federal permit or by the Federal Government."
Correspondingly, the acquisition and use of stream-flow data
would appear to be an essential step in discharge by the Sur-
geon General of his responsibility, "after careful investigation,"
to prepare comprehensive programs for eliminating pollution
of interstate waters.? He is also directed among other things
to collect and disseminate information relating to water pollu-
tion and its prevention and abatement, to support and aid
technical research, and to make available the results of specified
work conducted by him and cooperating agencies."
Furthermore, a number of enactments expressly authorize
data collection by federal agencies as an incident of the dis-
charge of their primary functions. Thus, several agencies
within the Department of Agriculture have such authority.'0
Under the Soil Conservation and Domestic Allotment Act,
there is authority for surveys, investigations, and research re-
lating to the character of soil erosion; and a declared purpose
of the statute is the protection of rivers and harbors against the
results of soil erosion in aid of maintaining navigability and in
aid of flood control." Moreover, different agencies within the
SAct of August 14, 1946, 1 5, 60 Stat. 1080, 1081, 16 U. S. c. 665. See
also supra, p. 829.
t Act of August 14, 1946, 2, 60 Stat. 1080, 16 U. S. C. 662. Funds made
available to a construction agency for "surveying, engineering, or construc-
tion" may be transferred to the Fish and Wildlife Service to enable it to
conduct these investigations. Id.
"Act of June 80, 1948, 2(a), 62 Stat. 1155, 88 U. S. 0. 466a(a) (Supp.
III). See also wupra, pp. 888-842.
2(b), 62 Stat. 11 83 U. S. C. 466a(b) (Supp. III).
ee supra, pp. 84-847.
SAct of April 27, 1985, 1, 49 Stat. 168, 16 U. S. 0. 590a(1) ; Act of Feb-
ruary 29,1986, 1, 49 Stat. 1148,1150, as amended, 16 U. S. C. 590g(a), 5901.
See also supra, pp. 866-872. Authority is vested in the Secretary of the
Interior with respect to any lands under his jurisdiction. Reorganization
Plan No. IV, effective June 80,1940, S 6,54 Stat. 1284,1285, 5 U. S. C. 188t note
Department of Agriculture share its flood-control jurisdiction
over federal investigations of watersheds, and measures for
run-off and water-flow retardation and soil-erosion prevention
In addition, both the Army Engineers and the Bureau of
Reclamation have duties requiring collection and use of data
relating to stream flow. Thus; authorized surveys of navigable
streams by the Army Engineers must include "such stream-
flow measurements and other investigations of the watersheds
as may be necessary for preparation of plans of improvement
and a proper consideration of all uses of the stream affecting
navigation." Since 1871, the Secretary of the Army has been
directed to have "water gauges established, and daily observa-
tions made of the rise and fall" of the Mississippi River and
its tributaries." And of course a wide variety of stream-
flow data was necessary in the conduct of examinations and
surveys upon which "308 Reports" are based." Furthermore,
additional studies and investigations were authorized by Con-
gress for the express purpose of taking into account important
changes in "additional stream-flow records."" Al flood-con-
trol examinations and surveys by the Army Engineers must
include "a comprehensive study" of the watershed relating to,
among other things, the probable effect upon any navigable
water, the possible economical development and utilization of
power, and other properly related uses." Relevant also is the
1938 provision for establishment, operation, and maintenance
by the Weather Bureau of a current information service on
precipitation, flood forecasts and warnings, in connection with
authorized flood-control activities by the Army Engineerse
"Act of June 22, 1986, 2, 49 Stat. 1570, as amended, 88 U. S. C. 701b.
See also supra, pp. 316-317,874-877.
Act of June 25, 1910, 3, 36 Stat. 630, 669, 88 U. S. 0. 546.
S"R. 5252, from Bes. of February 21, 1871, No. 40, 16 Stat. 598, as
amended, 38 IU. S. 4.
SSee supra, pp. 92-93.
"Act of August 30, 1935, 6, 49 Stat. 1028, 1048.
SAct of March 1, 1917, 1 8, 39 Stat. 948, 950, 33 U. S C. 701.
"Act of June 28,19, 9 8, 52 Stat. 1215,1226, 88 U. S. 706. See also
supra, p. 146.
In the ease of the Bureau of Reclamation, a variety of
stream-flow and related data is again prerequisite to discharge
of the express statutory direction that examinations and sur-
veys be made for irrigation works for the storage, diversion,
and development of waters.2 Another statute requires the
securing of, information "concerning the water supply" of
projects." Even more detailed and varied are the data re-
specting stream-flow in the case of examinations and surveys
contemplated by the reports and findings specified in the 1939
Reclamation Project Act.81
Water-Borne Transportation Data.-Another example of
overlapping statutory provision for collection of data concerns
river and inland waterway traffic. Within the Department of
Commerce, the Bureau of Foreign and Domestic Commerce is
charged with gathering and collating data relating to inter-
state and foreign commerce and to the actual cost of trans-
porting freight and passengers on "canals, rivers, and other
navigable waters of the United States."" Also within the
Department of Commerce, the,Inland Waterways Corpora-
tion has the duty of compiling and distributing data "concern-
ing transportation on inland waterways." 8
On the other hand, the collection of statistics on water-borne
domestic commerce and their publication in Annual Reports
of the Chief of Engineers is governed by various laws enacted
since 1866.1" Furthermore, authorized examinations and sur-
veys by the Army Engineers must include full information
regarding the "present and prospective commercial importance"
of the project and the probable "benefit tQ commerce," as well
as data concerning "terminal and transfer facilities." Simi-
Act of June 17, 1902, 2, 82 Stat. 388, as amended, 48 U. S. C. 411.
SAct of December 5, 1924, 1 4, subsection B, 43 Stat. 672, 702, 43 U. S. C.
412. See also supra, p. 187.
SAct of August 4,1939, S19(a), 9(b), 53 Stat. 1187,119, 1194, 48 U. S. C.
Act of March 3, 1875, 1, 18 Stat. 343, 352, as amended, 15 U. S. C. 178.
Act of February 28, 1920, 500, 41 Stat. 456, 499, as amended, 49 U. S. C.
142. See also supra, pp. 83-86.
SSee supra, pp. 86-87.
Act of March 4, 1913, 1 3, 37 Stat. 801, 825, 33 U. S. C. 545.
larly, in its consideration of works and projects, the Board of
Engineers for Rivers and Harbors is required to have inview
the "amountand character of commerce" existing or reasonably
prospective which will be benefited by the improvement, and
the relation of the ultimate cost to the '"publiD commercial in-
Pooer-Resource and Power-Requirement Data.-Operating
on a nation-wide basis, the Federal Power Commission has
express authority to make investigations and collect data con-
cerning the utilization of water resources, the water-power in-
dustry and its relation to other industries and to interstate or
foreign commerce, the location, capacity, development costs,
and relation to markets of power sites, whether the power from
government dams can be advantageously used by the United
States for its public purposes, and the fair value of power
from government dams." Exercising this authority, the FPC
makes continuing surveys and technical studies of marketing
areas within economic distance of proposed hydroelectric plants
to determine their usable capacity, possible rate of develop-
ment, and type of load to which they are suitable." In addition,
it has broad investigative power to secure information in
connection with its regulatory duties and as a basisfor recom-
mending legislation." No other federal agency has corre-
sponding express and specific authority.
But a number of statutes impose duties upon other agen-
cies which require use of power-resource and power-require-
ment data. For example, reports by the Army Engineers
on preliminary examinations for navigation projects must in-
clude, among other things, data regarding the "development
and utilization of water power for industrial and commercial
"Act of June 18,1902, 3, 82 Stat. 881, 372, as amended, 33 U S. 0.541.
In connection with the overlapping statutory provisions mentioned in-the
text, we have previously noted steps taken under the 1942 Federal Reports
Act to eliminate duplication of effort here. See supa, n. 74,,p. 87.
Act of June 10, 1920, 4(a), 41 Stat. 1068, 1065, as amended, 16 U. S. 0.
797(a). See also supra, pp. 274-275, 292-298.
See aupra, n. 208, p. 298.
Act of August 26, 1985, S 811, 49 Stat. 888,859,16 U.. 825J. See also
supra, pp. 274-275.
putpeos." iinlariy,;their ~reprtabon flood-control exam-
inations and surveys must include siueh data as it may be prac-
ticdble o secoirewi regard to "the possible economical develop-
ment adutuliaatioi ~ of water power,"' ;In 1927, congress
authorized the Army Engineers to conduct surveys "in accord-
ance with House Document Numbered 308, Sixty-inth Con-
grWes, first session."^ This docuS ent recinmed studies
siciAent to deter~nm among other things, the "present and
prospective power market available."
In the case of p-pose irrigation projects, the Reclamation
Project Act of 1939 requires submion of a. report and find-
ings by the Secretary of the Interior on,. among other things,
"the part of the estimated cost wlich can properly be a1lo-
cated to power and probably be returned'to the United States
in net power revenues."." Similarly, the use of power-market
data is seemingly contemplated by that Act's authorization for
the Secretary to sell power or lease power privilegesat rates
fixed in accordance with the standard prescribed in the Act.
The Secretary of the Interior is also charged with respon-
sibility for marketing surplus power generated at reservoir
projects under Ariiy control in such a, manner as "to en-
courage the most widespread use thereof at the lowest possible
rates to consumers consistent with sound business principles.""
He has a similar responsibility under the Bonneville Project
and Fort Peck Project Acts.& While these authorizations in-
clude no express provision for studies of power needs and
resources, they have been administratively construed to em-
brace such studies."
Also, the Rural Electrification Administrator is authorized
to make studiess investigations, and reports concerning the
"Act of March 4, 1918, (b), 87 Stat. 801, 826, as amended, 83 S. C.
545 (b). See also n. 41, pp. 896-897.
*Act of March 1, 1917, s, 9 Sttat. 948, 90. 88 U. S. 0.701.
A ct of January 21, 1927, 1, 44 Stat. 1010, 1015.
"H. Doc. No.808, 69th Cong., 1st seas., p. 2 (1928).
"Act of August 4, 1999, 89(a), 53 Stat. 1187, 1193, 48 U. S. C. 485b(a).
"W 9(c), 58 Stat. 1194, 4 U. S. C. 485h(c). See, e. g., Power Market Sur-
vey-Eastern Colorado, Bureau of Redamation, Region 7 (January 1949).
"Act of December 22, 1944, 1 5, 58 Stat. 887, 890, 16 U. S. C. 825s.
SSee supra, pp. 80go-86.
See supra, n. 210, p. 294.
eodetioktand ptogrees of the electriea:htionof'rur ai e
Lke*fse the bred survey, plating amg ad owetarketing'ipr
dirfbs of the TYVA At cot fiefti te: t *W ins oef power-warket
data. In addition, the National Security ResooiiWeS i,
thfatgh &it Offtle of iie'g saUtdfiti h& conducted pd*er
Sttr3 aWar ptiof its MItoblimaftioA plaanring
The fo&etoi'dCecixnette6 have pfiteed drplieatiohnw6f
eforf "'Thte Pid~ri Powetto imH o 'makde#eontlngil4
voSy hnidu pewt kiniteket atudieJ." Othhr ageeies, h'ti iA
stpsibiitise f6r marketing federal power, al- Mak Atutfdies
orfivwe -bes and vsdeourin irn U avem 4ewi m& the yo:
1-''9 4hWWdWioe e ni&*-o&flte n Stps taMi W%61eit
d4iiaefMto id tiis fie4d. T 1925,; Congrelr &tCM t the' Sc
retary of the Army, through the Army ~t "btf tah
tide PwfMt CbMinidion joMtWy to *p6ttle t4 ifsbmttan
eathimtM odf''the-dobt of mAekldn laainkfttiohi aMt saut id'f
thdf nVigatiWeAMik a and their Atbutsiat '"w'hrS' t6
devetoiht aippeam faflite nd practfdate'f. ; ~ s l
pUrpbMs ." Bu wbe aM it aoflhci-ed prodetier of the b i~ys
in 1927-te bei the d 80'RgpfrWg j$ge aLXoe
t&e responelbsii w 'te-ihe Ardy iEngineejti ale.ne'!i *Ba Sd
iaimistA elaitaepea'he been taken to reduee AuplieiMWe W.
In the "308 Report" on the Columbia JlBasi arI fo ea*ite/,4
hAirnpEtgine^^urBd ey a' bpoerisatkse anltls -reprsesht-
WitghesfruaibMe sew of the Bonieville Fo"we Adnrrldtg
toatnon1:val d tIe 'Bitanaul 1*iRic1lamaftiojd, publishbed1' tak
arppeiaLn (al wddlitibu, tht -analysas iineiudtd ifortfiatib
dbtatiedft ^heanier'Forie Serviee and ithe Bwer 'of ^t
cultural Economics, both of the DepartltihV AgiduAt h*rb.
AtJm>j- 'A4' i gki'3 ,oi m!rid''t 2 d
_mi.;at MS1 B, 4 1303,I 4smpaded, 7U (pp
SSee, e. g., THIDu NATIONAL EzLECoIO POWEB SuBVEY, National Security
Resources Board (April 1950). In this case, NSRB relied almost eqelunively
on data assembled by the Federal Power Commislo-., 4, p. 0; see also
u p. 4 23 ", .-
PsSd. .lo- ?. ..f. .- T.
1See oprap. 581 ai, ,
-Act of Tannary L, i97,'$1 U.KtaOl 101,. o '
SH. Doe. No. 531,81st Cong., 2d sess., App. 51M 10).
In this case, the Federal Power Commission did not participate
in Ite study, p eplringits own market analysis which was
published as a separate appendix-,to the report of the Army
: Duplication.-Nowwithstanding the statement of the.prpqed-
ing examples of duplioation, it should be empha$waid tbh4 -o
study has been attempted to ascertain the extent of .atual du-
plication qi,effort: upder the overlapping sta4sitqy rovi9 n
wais~~hbve been set forth. ,And we have already noted the ex-
press general autho4y for uqe of the services of one agency by
another and;twoiataces in wh~cWtragenoy asmistance jre
qird by sltyrse4q4 F add.itio, .ns for st ilu further .ter-
agency "Prdinotipn on a voluntary bass exist, as we have
previously !he 4'8 .gq ew
beyondd these, ti is8 alwayp the .limitation qu,4up Eat
iherentin the annual congressina review ofagency atiyities
il unsad6nc a with*approopiations., The very presentation of
detailed agency hadgets to appropiation.commUtees, furnihpho
a baifor legislate decision OR tlisepcpe of proposed dat$4al-
lection. Whether or not there esuesa lImiting language cn. a
resulting appropriate statute, .heoproqqss of presentation and
exajpn n in itself serves as a limiting factor upon- duplica-
tion in the collection of data. .
_.It is generally accepted that there is g ,~ t and continuing
ed fiprdpta if rivPT atems Land their, waterheds are to.be
developed for .ptimum beneficl. usesY Irrespective of
whether existing law provides iadeuately the. neceery au-
thority, that authority cannot beemployed without the funds
needed for.ia eregoise. ,o! 2j)0 : ,
Nor should it be inferred from the foregoing review-that
data collected fbr one purpose necessarily adequate .or
another. This suggests the desirability, in certain ciroum-
Ild. App. 8.
See supra, pp. 495-496.
"See supra, pp. 480-49 .
"See, e. g., H. Doc. No. 706, 81st Cong., 2d sess, (1950); REPrm or THE
COMMIsIOw ONpOBAaInaTow OF TH Ex nWorTI BBANOH OF TEr GOVa.N-
MNT, App. L, p. 27 (January 1949).
stances, of providing for exercise of administrative discretion,
ntder appropriate legislative standards, in the process of col-
lection of data.
The review suggests, moreover, the need for a complete
reexamination of authorizations, together with a clear state-
ment of the broad purposes to be served by the data to be
PROGRAM DEVELOPMENT.-Beyond the collection of basic
data which may be useful in any. and all water-resource de-
velopment, the first step, and one by which subsequent water-
resource activity is formed and guided, is the development of
plans and programs. As used here, the term"program develop-
ment" refers to the development of broad plans for water-
resource projects-as distinct, on the one hand, from the gen-
eral collection of basic data and, on the Other, from the design
of specific projects. This functional distinction is made be-
cause the various statutes relevant here frequently speak in
terms of "investigations and surveys,' which may include the
collection of basic data, a subject previously discussed; the
development of plans and programs, discussed in this section;
and some of the elements of specific project design, a subject
to be discussed later.
bistribStion of the Responsibility.-Although water is the
common denominator of all water-resource activity, the re-
sponsibility for program development is not consolidated about
water, but is usually defined in terms of its particular uses or
aspects: navigation, flood control, irrigation, power, and the
like. At the same time, in recognition of the interrelationships
among different Uses, agencies assigned primary responsibility
for particular uses have also been authorized to plan for other
related uses. The result is a multiplicity of planning by several
agencies, each with planning responsibility for different pri-
(Army Engineers)-The Army Engineers have primary re-
sponsibility for the development of authorized navigation and
flood-control programs." In the case of flood control, this has
See supra, pp. 90-91.
been limited to flood-control investigations and improvements
of rivers and other waterways. Responsibility for formulating
watershed measures in aid of flood-control has been assigned
to the Secretary of Agriculture.', An earlier requirement that
all flood-control examinations and surveys by the Army ,Egi-
neers include ;"a comprehensive stud'?, of the watershed re-
mains in effect, however." The dams and reservoirs pro-
grammed by theArmy nginees mylso serve other purposes,
notably power, irriglon, water supply, aid recreation, and
provision is made for inclusion of such features in plans."
(Department of the Interior)-The Bureau of Reclama-
tion has primary responsibility for the development of irri-
gation programs." In connection with suchdevelopment, it is
also authorized to provide for power,navigation, and blood
control and to furnish water fl water supply or
miscellaneous purposes. With. i apartment of Agricul-
ture, it also has responsibility for developing programs under
the Water Conservatiopt and Utilizati'n, Act," We shall here-
after refer to this At from time ttime for illustrative pur-
poes, even though, as previously no;t no new projects have
been recently initiated thereunder."'
The Bureau of Indian Affairs has prima respObilty for
the administration of Indi an nds, includig the program ing
of authorized water-resource projects for irrigation, water sup-
ply, and power .", ,
The Fish and Wildlife Service has primary federal responsi-
bility for the protection of fish and wildlife," And in addi-
tion to such minor water-resource facilities as it programs solely
for wildlife purposes, it recommends measures which should
0* see pr*, pp. 874-875.
"Act of Marhe 1, 1917,;: 89 Stat 948, 910. Se:e aIo upro, p. 402.
'"ee uawro pp. 109-U2 147.
See aspr, p. 182.
See supra, pp. 194-197, 289-240.
SSee supra, pp.r9S -845, 79.
i Sea wars, p. 245.
See supra, pp. 246-254.
*Reorganization Plan No. III, 3, effective June 30, 1949, 54 Stat. 1281,
1232, 5 U. 8. C. 188t note following. And see 16 U. S. C., ch. 9.
be taken for the poteitio of fish and wildlife in the planning
-of afyida~ or reservoir, either federal Or nonfederal under fed-
eral permit." u .
The Bonneville, Southeastern, and Southwestern Power Ad-
muinistrations have primary responsibility for programming
the transmission and sale of power from the federal dams for
which ea is the power-marketing Agemny."
(Department of Agriculture)-The Department of Agricul-
ture has a primary responsibility for programming watershed
measures in aid of flood control.: It also has a primary respon-
sibility for the small water facilities supplying domestic, stock,
and irrigation water pursuant to the Water Facilities Act."
(Federal Power 'Coxiission)--The Federal Power Com-
mission facilitates private development of water-power re-
sources under terms and conditions designed to safeguard the
public interest and protect other water uses. In so doing, it
must assure that the project adoptedwill be best adapted to a
cinprehensive plan for development of the waterway for the
use or benefit of commerce, the improvement and utilization of
water-power development, and other beneficial publicuses, in-
cluding recreation." Although the scope of the Commission's
investigative authority isbroad, its surveys have been primarily
concerned with power."
"License conditions to safeguard the public interest are wide
in scope, but the act places speci~ a emphasis on protection of
(Land-Management Agencies)-In addition to the devel-
opment of'plans for water-resource activities, agencies such
SSe:e sura, pp. 329-880.
U Act of August 20 1987, 50 Stat. 781, as amended, 16 U. S. C. 882-832-1;
Department of the Interior Order No. 2115, October 16, 1945, 10 F. R. 14211,
as amended; Department of the Interior Order No. 2185, November 21, 1945,
10 F. R. 14527; Department of the Interior Order No. 2558, March 21, 190,
is 1. it. 190L
See swpra, pp. 874-877.
SSee supra, pp. 87-879.
See supra, pp. 275-278.
See supra, pp. 407-408.
SSee supra, pp. 276-277.
as the Spil Conservation Service, ForestService,.theiureau of
Land Management, and the National Park Service are respon-
sible for programs for the improvement and conservation of
certain federal lands." These programs are clearly relate to
and may have a significant impact upen the need, timing and
sequence of programs for water-iesoarce projects; they may
overlap or conflict with the latter; they should therefore be
considered with the latter programs. We shall discuss them
more fully later."
(Tennessee Valley Authority)-Unlike the other agencies
mentioned, the TVA was not assigned a primary respon-
sibility for one or two water-resource purposes, with authority
to include in its program development a consideration of the
other purposes which water might erve. Instead, it has re-
sponsibility for developing a general basin-wide program for
water-resource purposes, including navigation, flood control,
power, and watershed measures." It is also furnished a statu-
tory guide as to which water uses should be given precedence
in the event of conflict."
(Duplication and Conflict)--The result of generally assign-
ing program responsibility to different agencies for different
water-resource purposes, followed by extending the scope of
each agency's program responsibility in response to the need
for comprehensive development, has thus been to give respon-
sibility for plans for ,velopment of the same river basins to
several agencies. At times, the potentiality for duplicate
.ert has been followed by the:actlity .81 The 4rmy Engi-
neers and the Bureau of Reclamation e"ch prepared "compre-
hensive plans" for the development of the Missouri Basin.8
The plans not only overlapped, but in the area of overlap were
See aupra, pp. 351-882.
See infra, pp. 621-626.
"Act of August 81, 135; 2, 49 Stat. 1076,16 U. S. 0. 831c (). See also
s ,upY, pp. 484-486.
Act of May 18, 1933, 9a, as added by Act of August 31, 1935, 5, 49
Stat. 1075, 1076,16 U. S. C. 831h-1. See also supra, p. 485.
J See supra, n. 177, p. 427.
"See aupra, pp. 471-474.
also divergent." Similarly, the basin-wide plans of the Arny
Engineers and the Bureau of Iteclamation for the Cdlubia
River Basin overlapped, and in the area of overlap, they pts-
Sudh duplication and conflict, under the present statutes, are
not subject to solution solely through interagency coordina-
tion. For the planning agencies have different primary statu-
tory responsibilities to which they must accord precedence,
Thus, prograin development by the Bureau of Reclamation
must give iireedence to irrigation, while program development
by the Army Engineers must similarly give precedence to navi-
gation and Iood control.." This is particularly illustrated by
the different plans of the Army and the Bureau for the Folsom
Dam in the American River in California. The Army's origi-
nal plan contemplated a reservoir of capacity of 355,000 Wcre-
feet of storage, while the Bureau's plan contemplated a reser-
voir, ,f a capacity of 1,00,000 acre-feet of storage to servits
This difference in primary statutory responsibility is1 ren-
forced by subsidiary differences in the basic statutory frame-
workgoverning the activities of each agency. A notable exam-
pie of thisia the Kings River Project in California. ,oth4 t
Bureau. of: Ralomation and the Army Engineers prepaed
plans for the development as a multiple-purpose project for
both flood, patrol and irrigation. The Bureau would condi-
. ti aoptruction upon the conclusion of repayment contracts
: SPee aspr pp. 472--478. See also 80 Coae. Baa., 4119 (1944); Sen. Dec.
No. 491, 78&k Cdzg,,2d seep., p. 2 (1944),
m Engineers: H. Doc. No. 581, 81st Cong., 2d seas. (1950). Bureau
of ReBimatlon: H. Doe. No. 473, 81st Cong., 2d seas., pp. 8 Italle (950)'.
See rpe, pp. 418-420, 402, 4O8e-409
"Army Engineers: H. Doe. No. 649, 78th Cong., 2d sess., p. 5 (1944).
Bureau of Bedeamation: Sen. Doe. No. 118, 81st Cog.3 let sess., p. 127
After conferences with the Bureau and the State of California, thesd dif-
ferences were subsequently reconciled, and the Army Engineer now recom-
mend 1,;000~0 sacre-teet of storage eapaeity. Doe. No. 8W7, 81st Cong.,
1st sess., p. 40 (1949).
*Bureau of Reelamatiod: H. Doe. No. 681, 76th Cong., 3d seis. (1940).
Army Engineers: H. Doe. No. 630, 76th Cong., 3d sess. (1940),
iip acordance with Reclamation law.@ ,Op the,other 4,d
the Army Engineers would proceed with immediate construed
tiqn in order to obtain series fl d-control benefits, leaving
the construction and reimbursement of associated irrigation
q~liee' to lategtklement.* Incommentng upon t.A eea-
song for differences between the repts of the two ag~ne s for
tis l and related projects, a memorandum from the Chief ,of
S The fundamental differences between the reports of
the Corps of Engineers and the Bureau of Reclamation
System from the laws and administrative procedures under
S which the agencies function.. These differences, while
not set forth crampletely in the reports, have had a basic
influence during their preparation.
Coliflicts in program development may represent the desira-
ble expression of difftrint views as to possible alternatives-in
the absence of a saitlt*r structure requiring programming to
achieve basin-wide development for optimum beneficial uses of
a river system and its watershed. Bu~tunder existing la, ef-
forts to promote differing programs 1arly may lead to pre-
mature selection of projects-projects which might be substan-
tially altered or even omi'tted if programming were required to
proceed under a single Standard appjyin: uniformly 'to the
Measures to Co Oitiate.--In providing for program develop-
ment on a basis broader than that available within single
agencies, the Water Conservation and Utilization Act is of
interest." It provides that the Secretary of the Interior itay,
by cooperative agreement with the Secretary of Agriculture, or
with such other federal or state agencies as deemed desirable by
See H. Doe. No.:867, 8Ist Cong., st I ess., p. 0 (1949).
"Id. pp. 5-6.
"I4. p. XL
"In this connection, see .BPwoBT or TE COMMIsSION on OBGea an&TowN w
THE EXECUTZs BRBANH O~i THE GOVEBwNNT, App. L, pp. 129-180 (January
"Act of August 11, 1989, 53 Stat. 1418, as amended, 16 U. S. C. 590y-
ta-Presidel*wmrrange for ooopenrtion in th iestigatiqO,. Pur
y~ const6uttion, operation, and .airtencPeo of water-wnfr
nation and'utilleation p~ojrtec It aleo eeqi oa station
by t h Seo etary of the Interior with the wretary of Agriul-
4dte, and arepoCt to thetPresident m, the participation of the
Be pakcta of Agriculture." .
- s imilar in 4att isa the. rovidion of the 1944 Flood Cantrol
Act whic..a. to program development within the area in
thiph both Army EFigeen a~nd the'Breau of ReQlaCation
operate, quirea that each ive the other, "during thp pouon
of the invtigatios, information developed by the investiga
tions and also opportunity for consultation regarding plans and
aropo lsai sad to the extent deemed .practAoalMe by the ilves-
*igating department, "opportunity to cooperate in theaie"tir
gatioDa" In sunch ies, the reports submitted to Congres
wum t st-out the relationship between plaas reported on and
theOviewa of both the Secretary of the Army and the Secretary
of the Interior.
-' As to irrigation development at dame and reservoirs under
Army control, the 1944 Act also takes tha further coordinating
step of assigning to the Secretary of the Interior the respopsi-
bility for recommendations in that regard, as wellU the eon-
struction of the additional irrigation works." As to navigation
and flood-control features at Reclamation projects, the 1939
Relamation Project Act provides for consultation between the
.Secetarie spf he Army and the Interior on cost aloeatiop~, but
leaveet mgpwrai ming f such features otherwise in tehapds
of tbheSecqqtary of the Interior."
,COpgree has also required that federal agencies and li-
censees consult with the Fish and Wildlife Service before im-
6, as added by Act of October 14, 1940, 54 Stat 1119, 11~, 18 U. 0.
"$8(a), as added by Act of October 14, 1940, 54 Stat, 11109, 1120,1
U. S. O. 590s-l(a).
"Act of December 22 1944, 1(a), 1(c), 58 Stat. 887, 888, 89,
8,8 St-t. 891, 43. i 890. With respect to this section's exception
for pre-1944 anms, see ifrat pp. 88, 594.
| Act of August 4, 1983, 9(b),63 Stat. 1187,1194,4 U. S, 0. 485h(b).
poundinigor diverting any stream or other body of water,
and that the reports and recommendations of the Secretary
of the Interior on the possible damage to wildlife be included
in any report submitted to Congress by the federal construe-
tion agency." In providing for pollution abatement by the
Surgeon General under the 1948 Water Pollution Control Act,
Congress established a review board which includes representa-
tives of the Departments of Agriculture, the Army, :and the
Interior and the General Services Administrator to review poli
ties and programs of the Publio] Heklth Service under the Act
and to make recommendations thereon to the Surgeon
Ini addition to these statutory measures, some action to co-
ordinate program development has been taken within the Exec-
utive Branch through interagency committees and the like.
These have already been detailed."' And the process of proj-
ect review and authorization affords some possibility for recon-
ciling any conflicts in programs not theretofore resolved."
Limitations on Program Development.-Three types of limi-
tations on program development may be noted. Some are in-
herent in requirement as to authorization. Secondly, opera-
tions of some agencies are geographically restricted by law.
And finally there are the limitations imposed by appropriations.
(Afithorizations)-The Bureau of Reclamation has blanket
organic authority to make examinations and surveys of poten-
tial irrigation projects in the West. Examinations and sur-
veys for navigation and flood-control projects by the Army
Engineers may be undertaken, however, only after authoriza-
tion by an act of Congress.1" And after the "regular or formal
reports made as required by law onI ay examination, survey,
"Act of August 14, 1946, 2, 60 Stat. 1080, 16 U. O. 662.
*Act of June 80, 1948, 6, 62 Stat. 1155, 1158, as amended, 33 U. S. C.
466e (Supp. III).
m See supra, pp. 430-439.
m See infra, pp. 520-538.
Act of June 17, 1902, 2, 32 Stat. 888, as amended, 43 U. S. C. 411. See
also Act of August 4, 1939, 9(a), 53 Stat. 1187, 1193, 43 U. S. C. 485h(a).
"Act of March 4, 1918, j 3, 87 Stat. 801, 825, 88 U. S. 0. 545; Act of
August 11, 1989, 1 6,53 Stat. 1414,1415,88 U. S. C. 701b-4.
project, or work under way or proposed are submitted no
supplemental or additional report or estimate shall be made
unless authorized by law." The 1941 and subsequent Flood
Control Acts have provided that "the Secretary of War
may. cause a review of any examination or survey to be made
and a report thereon submitted to the Congress if required by
the national defense or by changed physical or economic
But. the difference between procedures for Army and Recla-
mation projects is somewhat narrowed by the authorization
for supplementing the "308 Reports," covering virtually all the
major streams, by such additional study or investigations the
Chief of Enginers "finds necessary to take into account im-
portant changes in economic factors as they occur, and addi-
tional stream-flow records, or other factual data."1
Authorization under Flood Control Acts for surveys and in-
vestigations of watersheds by the Department of Agriculture
follows much Athe same pattern as that for flood-control
examinations and surveys of the waterways by the Army
Other water-resource agencies are granted authority to con-
duct certain investigations, examinations, and surveys without
individualized legislative approval. Such is the authority to
conduct investigations and surveys granted by the 1935 soil-
conservation legislation.10" So also as toinvestigations and sur-
veys under the Federal Power Act."
(rea)-An agency's program function may also be limited
t. certain aeres. Examinations and surveys for irrigation
projects under Reclamation Law are authorized as to the 17
Western States.m Similarly, investigations for projects under
the Water Conservation and Utilization Act may be made in
"Act of September 22, 1922, j 12, 42 Stat. 108, 1048; Act of August 11,
19839, 6,53 Stat. 1414, 1415,88 U. S C. 701b-4.
'-See, e. g., 4ct of August 18, 1941, 4, 5 Stat. 68, 648.
Act of August 30,1935, 6,49 Stat. 1028,1048. See also pra, pp. 92-98.
See :supr, pp. 374-876.
SAct of Aprl! 27,1985, 5 1, 49 Stat. 16, 16 U. S. C. 590a.
"Act ofJune 10, 1920, I 4(a), 41 Stat. 1063,1065, as amended, 16 U. & C.
m Act of June 17, 1902, 2, 32 Stat. 388, as amended, 43 U. S. C. 411.
the Great Plains and arid and semiarid areas of theUnited
States. The authority of the Secretary of Agriculture to
formulate and keep current a program of facilities for water
storage or utilization is limited to-he arid and semiarid ares
of the United States." Surveys and plans by the Tennessee
Valley Authority are authorized with respect to the natural re-
sources of the "Tennessee River drainage basin and of such ad-
joining territory as may be related to or materially affected by
the development consequent" to theTVA Act."' Likewise, the
International Boundary and Water Commission is charged with
certain planning for the lower Rio Grande and lower Colorado
and Tijuana rivers."
SWhile limited as to area, each of these authorizations leaves
to the agency a certain right to initiate investigations and sur-
veys, and to that extent the development of programs.
(Appropriations)-By the express terms of the Tennessee
Valley Authority Act, surveys and plans may be made "within
the limits of appropriations made therefore by Congress." "
The provision is clearly worded, but its practical effect is doubt-
ful. As an organic limitation on the authority to expend
money it cannot be self-executing, but necessarily depend on
language of appropriation acts containing a limited amount for
such activities. A review of appropriation acts of 1943-1948
reveals no such limitations.
River and harbor appropriations acts are usually worded So
that all funds appropriated thereby are available for examiha-
tions and surveys;- the same result is accomplished by gen-
eral legislation for flood-control'appropriations."7 Annual ap-
propriations for the Bureau of Reclamation, however, have
contained specifle amounts for general investigations~
= Act of October 14, 1940, $ 1, 54 Stat. 1119, 16 U. S. 0. 590y.
eAct of August 2S, 1937, Wl 1, 5 Stat 89, 16 U. S. C. 590r, 590a
"'Act of May 18 1933, 22, 48 Stat 58,9; 6,16 D. 8S.O. 81lu. While th
power to initiate surveysand inlanning was placed in the President by statute,
it was transferred to TVA. E. O. No. 6161, June 8, 1933.
See Act of May 13, 1924, 1, 43 Stat. 118, as amended, 22 U. S. 0. 277.
Act of May 18, 1933, 22, 48 Stat. 58, 69, 16 U. S. C. 831n.
See, e. g., Act of June 30, 1948, 62 Stat. 1148; Act of August 11, 1939, 2,
53 Stat. 1414,33 U. 8. 0. 701b-8.
See, e. V., Act of September 6, 1950, h. VII, title 64 Stat. 595.
PROJaC EVAlUATION.--Directly or indirectly, Congress it-
self determines the actual undertaking of federal water-re-
source projects, as we shall shortly see in the discussion of proj-
ect authorization. On the other hand, it has prescribed a num-
ber of standards, most of them in general terms, bearing upon
the administrative evaluation or selection of projects. There
is no uniform criterion. The major purpose to be served by the
project usually determines the standards to be applied.
Nonfederal Power Projects.-In the licensing of nonfederal
power projects, the project adopted must be such as in the
judgment of the Federal Power Commission: "
will be best adapted to a comprehensive plan for im-
proving or developing a waterway or waterways for the
use or benefit of interstate or foreign commerce, for the
improvement and utilization of water-power develop-
ment, and for other beneficial public uses, including re-
creational purposes *.
Navigation Projects.-Congress has directed that if a pre-
liminary examination shows a proposed improvement not ad-
visable, no further action may be taken unless directed by
Congress; if favorable, the Secretary of the Army has discre-
tion to cause a survey to be made and the cost and advisability
reported to Congress.0
Among other things, reports on examinations and surveys
must contain full information regarding the present and pro-
spective commercial importance of the project and the prob-
able benefit to commerce, together with data respecting public
terminal and transfer facilities, the development and utiliza-
tion of water power for industrial and commercial purposes,
and other related subjects, provided that "consideration shall
be given only to their bearing upon the improvement of navi-
gation," to the possibility and desirability of their coordination
with navigation improvements to lessen the cost of such im-
provements, and to their relation to the "development and
m Act of June 10,1920, 10(a), 41 Stat. 1008, 1068, as amended, 16 U. S. C.
Act of March 4,1918, I 8, 87 Stat. 801, 825, 88 U. S. 0. 545.
regulation of commerce." I In addition, reports must con-
tain a statement of "special or local benefit which will accrue
to localities affected by such improvement and a statement of
general or national benefits, with recommendations as to what
local cooperation should be required, if any, on account of such
special or local benefit." w
Moreover, in reviewing such reports, the Board of Engineers
for Rivers and Harbors is required to have in view the amount
and character of commerce existing or reasonably prospective
which will be benefited by the improvement; the "relation of
the ultimate cost of such work, both as to cost of construction
and maintenance, to the public commercial interests in-
volved;" and the public necessity for the work, and the pro-
priety of its construction, continuance, or maintenance at the
expense of the United States.12
Superimposed on the foregoing requirements is the policy
adopted by Congress in 1944 in connection with the exercise of
its jurisdiction over the rivers of the Nation through the con-
struction of navigation and flood-control improvements.12'
That policy recognizes the interests and rights of the states in
determining the development of watersheds within their bor-
ders and in water utilization and control, as therein authorized,
to preserve and protect to the fullest possible extent established
and potential uses, for all purposes, of the waters of the Nation's
rivers." Moreover, that policy is to facilitate the consideration
of projects "on a basis of comprehensive and coordinated de-
velopment," and to limit: "6
m Id. See also supra, n. 41, pp. 396-397.
Act of June 5, 1920, 2, 41 Stat. 1009, 1010, 88 U. S. C. 547.
m Act of June 13, 192, 3, 32 Stat, 881, 872, as amended, 88 U. S. C. 541.
"Commerce" is defined to include the use of waterways by "seasonal passen-
ger craft, yachts, house boats, fishing boats, motor boats, and other similar
water craft, whether or not operated for hire." Act of February 10, 1932,
47 Stat. 42, see 33 U. S. C. 541.
1" Act of December 22, 1944, 1, 58 Stat. 887, 888. This is the 1944 Flood
Control Act. The same statement was repeated in the 1945 River and Har-
bor Act. Act of March 2, 1945, S 1, 59 Stat. 10. It has since been made ap-
plicable in each River and Harbor and Flood Control Act. For the full text
of the provision, see supra, p. 96.
Sthe authorization ahd construction of navigation world
to those in which a substantial benefit to navigation will
be realized therefrom and which can be operated consist
ently with appropriate and economic use of the waters o~
such rivers by othpeusers. *
Flood-Control Projects.-In its 1936 declaration of flood-
control policy, Congress specified that: 2
the Federal Government should improve or particp~ pa
'in thfieimprovement of navigable waters or their tribu-
taries, including the watersheds thereof, for floodcod-
trol purposes if the benefits to whomsoever they may
accrue a e aein exces of the estimated costs, and fL the
lives ,d socal security of people are otherwise
This policy, of course, applies not only to Army Engineer flood-
eontrol projects, but,also to flood-control activities,of the
Department, of Agricultwe.1 In 1917, Congress' required
that the pqpvipipns.of exiting 1lw relating to examinations and
surveys for navigation sall. "apply, sfar, as #pplicable,",j
the case of fiodrcontrol improvqments.L In addition, it
then.specifd that all flood-control examinations and surveys
must include a comprehensive study of the watershed, each
report to include data regarding the extent and character 9f
the area to be affected, the probable effect upon any navigable
water, the pos' lepec omical developmet.ad "itilization of
wati pow~b,qp4, other properly related uses. ,
- iPport~jy .ar4 oof Engineers for Rivers and Harbors
must state its opinion as to what federal interest, if-any, is
involved; whatalhare,of. the expense, if any, should be& borne
Ity the 'United States; and the advisability of adopting the
Irrigation Projects.-A standard totally different from the
SArd 6f TJune 22, 1936, 1, 40 Stat. 1570, 83 tS O.1101. 'or oi-e 1'1ii
tekt of the proviSlon, see supra, p. 131.' "" "
SFor the provisions relevant to flood-control activities of the department
of Agriculture, see aspra, pp. 374-877.
* ACt of Mareh 1,1917, 8, 339 Stat948, 950, 3 U. S. C. 1.:
'od. -I .
foregoing criteria is specified for ikrigatieb projects under the
1939 Reclainatin Pibc Act repaymnent standard.' That
Act requires finding as[ to'the engineering feasibility; esti-
iated costs; ,and the parts thereof properly aliocable to irri-
gation, power, and municipal wter sfipply and 'ther miscel-
laneous purpoees.'P Allocations are separate for the part, of
the estimated cost which ca properly be allocated! to, irri-
g~tion and "probly.be repaid,,byt water uses"; and of
the parts allocable to power anpd xiuncip& waer supply
andd other miscellaneous purposes, wkicMhan "probably be re-
turned to& the United States."
Provision is madb by the 1939 Act for ionreimbursable al-
oations to ilodcn!trol and navigati
for a like allocation to the preservation arid propagation of fish
^If the project be fund by the'Seretary to have engineer-
ii VfRi ility 'nd d iff ?d e "repayabtil and returnable lldea
ions," together with' iy einAeii b Ibet alloeatitnhs, e~
the t6tal est~lated'pfdject cost, tdlipreject is deemed authbbi -
ized and may be undetaken afte isutbim sion of the report aAd
findings to the iPtident'tlt d the b(gkress.8 biberwise, or
if adverse cdmmer~ have'been riBftldfrwm an affected sAtt
6 the Secretirt o:tB 'Army, tiie i-eet may be undertaken
binlyif auth6fitedby'Mati 6f Congress.
i Benefits M t'o$t.--With 'co~side'abTe variations, the forest
going standards contemiiate som6 examinatibtM f relative ben-
jeitW'd costs of the projects and activities proposed'. Mare-
d Actf Aw1st.t4, As,'9 9(a), 5r stat.'l1, 1n1i Ua3u8ia. it:4Sabva.
?P; the aful,text f tii ptovisen and If pL asslo oEearilUr Itatutes, si9
Vspr~ pp. 198-195.
With this standard, compare the provision for authorization 6f water
eo9seeitttion and'I tJlwe n proeets, presirtbingti *\.7l Jilient
standard allowing for tesse of relie a9d other fuds for the wos)hjlech
cannot be repaid. Act of October 14, 1940, I 3 54 Stat. 1119, 1120, as
amended, 16 U. S. C. 590z-1.
"5t(a),B 5 Stat. 119, 43 U. S. C. 485h(a).
9(b), 58 Stat. 1187,.194, 43 U. Sp.p. 85h(b) ; At of August 14, 1946,
S2, 60 Stat. 1080,as amended, 16 U. S. C. 662.
1 9(a), 53 Stat. 1187, 1198, 43 U. S. C. 485h(a).
SId.; Act of December 22,1944, 1(c), 58 Stat. 887,889.
over, all of the federal agencies concerned do evaluate such
relative benefits and costs in considering projects."' But what
benefits and what costs are to be included and how they are
to be measured are decisions which can and do vary substan-
tially from agency to agency.- *?
. For example, tasto the interest rate employed for the conver-
sion of nonuniform benefits to an equivalent average annual
benefit, the Army Engineers employ the average rate of interest
payable on money borrowed for long-term private investment
in the localityconcerned, generally 4toi5%~? But the Depart-
ment of Agriculture generally employs a 2% rate.140 And the
Bureau of Reclamation a rate of 2y1/a .
Similarly, as to the price level used in calculating benefits,
the Army Engineers and the Department of Agriculture use
the price level prevailing at the time of analysis.'2 On the
other hand, the Bureau of Reclamation employs its estimate
of what average prices will be during the proposed project's
life-as of May 1950, prices corresponding with the 193941944
Differences such as the foregoing are susceptible of resolu-
tion by statutory prescription of a uniform standard or through
administrative agreement. But the latter means cannot be
employed to reconcile Keisting statutory differences in stand-
ards for project selection. Outstanding in this respect is the
fact that only in the case of Reclamation projects does there
exist a statutory pay-out standard.'" No corresponding re-
quirement obtains in the case of projects proposed for authori-
m PROPOSED PBACTICEs FPO ECONOMIC ANALYSIS or RIvm BASIN PROJECTS,
prepared by the Subcommittee on Benefts and Costs, Federal Inter-Agency
River Basin Committee, pp. 74-85 (May 1950).
'Id. p. 75.
"d. p. 74.
I However, apart from this standard, Congress has in individual cases
authorized irrigation projects by special statutes. See, e. g., BBEvAu ow
RECLAMATION PROJECT PEAsIBTIEns AND AurHORBIATIONS, Department of
the Interior, pp. 123-124, 141-142, 225, 290, 414, 537 (1949).
nation by the Army Engineers or the Department of Agricul-
The practical impact of this standard in the case of Recla-
mation projects merits further comment. It appears inevi-
table that, with the completion of the development of lands
susceptible of cheaper reclamation improvement, the pay-out
requirement will tend to limit future irrigation projects to
those which have associated reimbursable features, especially
power. But irrigation projects with power features may
not be the most desirable in terms of relative benefits
and costs. On the other hand, the Bureau of Reclamation in
practice considers projects not alone on their pay-out ability,
but also in terms of their relative benefits and costs.1"
Review and Authorization of Plans and Projects
Both under statute and under voluntary administrative
arrangement, project proposals and plans are subject to dif-
fering requirements of review and authorization. In the case
of certain projects, provision is made for pre-authorization re-
view by states and federal agencies other than the construction
agency. After examining these, we shall review the wide var-
iations which occur in connection with project authorization.
REVIEW BY STATS AND FEDERa AGENCIEs OTHER THAN TE
CONsTRuCTIoN Aatmcr.-Attention will be first directed to
certain provisions of the 1944 Flood Control Act and the 1946
statute concerning wildlife resources.14 Thereafter, we shall
note the unusual review provisions prescribed for water-con-
servation and utilization projects. In addition to these statu-
tory requirements, other procedures for pre-authorization
review within the executive branch will be outlined.
The 1944 Flood Control Act.-This statute requires that
plans, proposals, or reports of the Chief of Engineers for any
"PROPOSED PRACTICES FOB ECONOMIC ANALYSIS or RIVER BASIN PBOJECTS,
prepared by the Subcommittee on Benefits and Costs, Federal Inter-Agency
River Basin Committee, p. 74 (May 1950).
'"Act of December 22, 1944, 58 Stat. 887; Act of August 14, 1946, 60 Stat.
1080, see 16 U. S. 0. 661-066c.