Title: Review and Authorization of Plans and Projects
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003124/00001
 Material Information
Title: Review and Authorization of Plans and Projects
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - Review and Authorization of Plans and Projects
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 42
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003124
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

nation by the Army Engineers or thl Department of Agriul-

The practical impact of this standard in the ease of Recla-
mation projects merits further comment. It appears inevi-
table that, with the completion of the development of lands
susceptile of cheaper reclamation improvement, the pay-out
requirement will tend to limit feature irrigation projects to
those which have associated reimbursable features, especially
power. 'But irrigation projects with power features may
siot; be 'the most ,desirable in teams of relative benefits
and costs. On the otherhand, the Bureau of Reclamation in
practice considers projects not alone on their pay-out ability,
but als6 in terms of their relative benefits and costs."

Review and Authorization of Plans and Projects
Both under statute and under voluntary administrative
arrangement, pro proposals and plns 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.
CONSTRUaCTON AcncN .-Attention will be first directed to
certain provisions of the 1944 Flood Control Act and the 1946
statute concerning wildlife resources.' Thereafter, we shall
note the unusual review provisions prescribed for water-con-
servation and utiliPation 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
preparediby 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. 6. 1-O-6e.

works of improvement for navigation or flood control, not
theretofore or therein authorized, be transmitted to each "af-
fected" state, and to the Secretary of the Interior in certain
cases." Any state in which the works or any part thereof are
proposed to be located is an "affected" state; in states lying
wholly or in part west of the ninety-eighth meridian, any state
within the drainage basin involved is also an "affected" state;
while any state east of the ninety-eighth meridian, in addition
to that in which the project is located, is an "affected" state
only if in the judgment of the Chief of Engineers it will be sub-
stantially affected by the proposed project.48 Not all Army
Engineer reports must be submitted to the Secretary of the
Interior, only those where the plans or proposals are concerned
with the use or control of waters which rise in whole or in part
west of the ninety-seventh meridian.1'
A 90-day period is provided within which the Secretary of
the Interior and each "affected" state may submit written
views and recommendations to the Chief of Engineers."0
These must be transmitted to Congress by the Secretary of the
Army, with such comments and recommendations as he deems
appropriate, along with the proposed report.L'
In the case of plans, proposals, or reports for irrigation proj-
ects, the Sebretsry of the Interior is subject to the same pro-
visions as are prescribed for the Chief of Engineers and the

Actof December 22, 1944, 1(a, 58 Stat. 887, 888. The provisions of
g 1 were repeated in the 1945 River and Harbor Act. Act of March 2 1945,
59 Stat. 0. While these provisions may be of continuing effet, the' have
nevertheless since been made specifically applicable in each River and Har-
bor and Flood Control Act. See also 90 CoNo. Rao. 8487, and see a"ra ,
n. 186, p. 417.
*" l(a), 58 Stat. 887, 888.
"id. The ninety-seventh meridian passes through Minnesota imme-
diately east of Grand Forks, North Dakota, thence through North Dakota,
South Dakota, Nebraska, Kansas, Oklahoma, and Texas between Dallas
and Fort Worth. States wholly or partly west of the ninety-eight meridian
include the foregoing States excepting Minnesota, and all states west of
them. These are the 17 Western States under Reclamation Law. See
supra, p. 188.

Secretary of the Army.1" Thus, review of irrigation projects
by states is subject to the same definition as to which are "af-
fected," and the requirement of interdepartmental review is
limited to cases where the plans or proposals are concerned with
the use or control of waters which rise in whole or in part west
of the ninety-seventh meridian. In this connection, it should
be noted that another provision of the Act conditionally au-
thorizes the construction of irrigation works at Army dam
and reservoir projects." The scope of this provision is sub-
ject to some disagreement between the Army Engineers and
the Bureau of Reclamation.1
Fish and Wildlife.-When any federal agency or nonfederal
agency under federal permit impounds, diverts, or otherwise
controls waters, it must consult with the Fish and Wildlife
Service of the Department of the Interior and with the head
of the state agency concerned with wildlife resources, with a
view to preventing loss of and damage to wildlife resources."
In such cases, the reports and recommendations of the Secre-
tary of the Interior and the state agency must be made an
integral part of any report submitted by any federal agency
responsible for engineering surveys and construction of such
Water Conservation and Utilization Act.-In the develop-
ment and operation of projects authorized by this statute, cer-
tain responsibilities concerning settlement are vested in the Sec-
retary of Agriculture, pursuant to cooperative agreement with
the Secretary of the Interior.1'7 Moreover, in connection with
project consideration, the Secretary of the Interior must sub-
mit to the President his report and findings on prescribed mat-
ters, and in connection with such reports and findings he must
consult with the Secretary of Agriculture regarding participa-

"' 1(c), 58 tat. 889.
S8, 58 Stat. 891, 43 U. 8. C. 890.
SSee infra, p. 52.
SAct of August 14, 1946, 2, 60 Stat. 1080,16 U. S. C. 662. See also spra,
pp. 827-830.
"Act of October 14, 1940, 1 5(a), 54 Stat. 1119, 1122, as amended, see
19 U1. 8. C. 590-.


tion in the proposed project by the Department of Agricul-
ture, a report of the Secretary of Agriculture on any such par-
ticipation to be submitted by the Secretary of the Interior to
the President."
Intradepartmental 1eview.-In addition to the foregoing re-
quirements, other provisions exist for review of proposed proj-
ects within the department responsible. Thus, in the case of
both navigation and flood-control projects, it is required by
statute that all reports on examinations and surveys and all
projects or changes in projects be referred to the Board of Engi-
neers for Rivers and Harbors for its recommendation." This
Board submits to the Chief of Engineers its recommendations
on commencing or continuing of improvements on which re-
ports are required.1" In the case of flood-control works under
the jurisdiction of the Department of Agriculture, coordinating
and reviewing arrangements exist through field committees and
within the Department." The situation is the same with re-
spect to the Department of the Interior in the case of Reclama-
tion projects.l"
Review by the.Bureau of the Budget.-Before a proposed
plan is submitted to Congress, it must first be submitted to the
Bureau of the Budget within the Executive Office of the Pres-
ident, for its riew and advice as to the relationship of the
plan to the program of the President." Such review is re-
quired whether or not individualized congressional authoriza-
tion of the project is prerequisite to the expenditure of fuihds."
n certain cases, suechreview by the Bureau of the Budget does
not in fact precede consideration of a proposed plan by Con-
gress. For a committee of Congress may request that plans,
8, 54 Stat. 1120, as amended, see 16 U. S. C. 590z-1.
"Act of June 18, 1902 8, 2 Stat. 881, 872, as amended, 88 U. S. O. 541;
Act of March 1,, 1917, 8, 9 tat 948, 950, 88 S. 0. 701. See also spra,
pp. 99-100.
m See awpr, pp. 48-
1 See supr, pp. 488-489.
m Ex. O. No. 9884, October 4, 1948, 8 F. R. 18782, 81 U. S. 0. 21 note fol-
lowing. See also supra, pp. 428-424.

at any stage of development,- be transmitted for its
AUTHORIZATION OF PROJECTS.-In; two different ways and in
varying degrees, Congress asserts its control directly or indi-
rectly over selection and authorization of water-resource
A first prerequisite is that Congress authorize the proposed
activity by substantive legislation, including authorization for
the appropriation of funds, as distinguished from the appro-
priation itself."" Such an authorization may be of a blanket
character, rendering individualized legislative approval un-
necessary, as in the case of Reclamation projects."7 Or statutes
may provide individualized project authorization, as generally
in the case of navigation and flood-control projects of the Army
Engineers.' Modifications of these two extremes appear
underother statutes, as we shall see. In this aspect of legisla-
tive control, consideration of project proposals or reports rests
with different legislative comniitteeo depending upon which is
the prosecuting agency, even where the plans of the several
agencies relate to development with the same river basin."1
SFor example, the proposed plans and report of the Army Engineers and
Bureau of Reclamation for the Columbia Basin were requested by the Senate
Committee on Public Works, and hearings were 'held thereon in May 1949.
Such plans and reports were not reviewed and cleared by the Bureau of the
Budget until Pebruiary 1950, in connection with H. R. 5472, 81st Cong.,l st
sess. (1949), See Sen. Doc. No. 473, 81st Cong., 2d sess., pp. 4-6 italic (1950).
SRule XXI, Ruais or TH HousE OF REEBBUNTATIVES, H. Doe. No. 766,
80th Cong., 2d sess., pp. 415-428 (1949) ; Rule XVI, SENATE MANUAL,
Sen. Doc. No. 11, 81st Cong., 1st sess., p. 20 (1949).
SSee supra, pp 198-194. Of. Act of August 28, 1937, 50 Stat. 869, 16
U. S. C. 590r-590x.
SSee supra, pp. 100-105, 136-142.
"*For example, in the Senate, matters pertaining to agriculture, forestry,
rural electrification, And soil conservation are referred to the Committee on
Agriculture and Forestry matters pertaining to navigation, the Coast and
Geodetic Survey, the Weather Bureau, inland waterways, and fisheries and
wildlife are referred to the Committee on Interstate and Foreign Comerce;
matters pertaining to interstate compacts generally go to the Judiciary Com-
mittee; public health matters go to the Committee on Labor and Public
Welfare; matters relating to public lands, forest reserves created from the
public domain, irrigation and reclamation, interstate compacts relating to
apportionment of water for irrigation purposes, minerals, Geological Survey,

SA second type of legislative control over project selection is
that incident to the provision of funds. Here, agency activi-
tiesare reviewed by thteippropriationewmnittees of Congrpess
Generally, all wateruretource agencies require annual appro-
priations. .Even where Apecial funds, are available, for water-
resource development, an. affirmative appropriation act i u -su-
ally. prerequisite to their use, as we shall, later see.". On the
other hand we shall also discuss a few instances where special
funds are available without appropriation action, and other
arrangements similarly permitting expenditures without spe-
cific appropriation action.1r But even in these cases, detailed
reports on proposed programs must be submitted to Congrpess.
A like requirement exists in the case of government corpora-

mThrough these means, therefore, Congress is provided with
information upon which it may pass legislation afirmativeiy
preventing any project activity.
Before turning to an eaina n of the statutes providing
for vary. legislative review of. proposed water-re ouree prpj-
ects, we shubm first note tainin limitations which Copgres
bas i posed upon its own action.
.Limitatios on Legislative Consideration.-Prescribing. cer-
tain r-trdstiatio for itself, Congress in 1923prohibited,commit-
tee o ideain of any navigation project with a view to its
adoption, except with a view to a survey, if five, yeas have
and Indians go to the Committee on Interior and Ihsular Affis, formerly
called Committee on Publie bands; matters relating to navigation and flood
control, watet power, and pollutip of navigate waters go to the Committee
on Public Works. The'a sittlan'l substantialy t same th sm the house.
See Act of August 2, 194, I 102, 121, 0 Stat. 812, 814, 82. e e lotldle
XI, RULES o THE HOUSE OF BR~EPBERuriEb l D. iD0. No. 780, 0b (tong.,
24 sea, Mi. 3~8e8S (18 9) Btm1 xXV, Ma S M~b~a, Sen. Doe. No. 11,
sit COng., ii 6 Bea, P. 2-84 (194).
See infra, p. 578.
"'A&d ofi'.hie'1, 1821, 42 Stat. 20, as amended, S't '.' 01 f' i:e* p.Il.
O. No. 9384, dctober 4,1943, 8 F. 1. 18782, 81 8. 0. 21 note following. ;See
also Act of September 12, 10t It i01,02, 64 Stat. 882, -.
Act of December 6, 1945, 102, 59 S it 8 i,59' Is 'iamEnded, 81 C. :

elapenid mice anidaseion of a survey eporton the project."
Wit respect to na'igation andfloodtoontrol projects; Congress
in 1946 declared its policy that zo prqleet or lay'modiication
not authorized" shall be authorized by Congres tlessa de report
has been previmoM ly submitted i conformity with law.'7 The
uie of the phrase, fany modification ot authorized," appar-
ently reflects an hitention not "t-' ntei6ere with discretionary
hithritiy to modify project as a noonered O i therSeaeteary o
theoAramy, and the Chief of BEgineeat7 Naiprowisionai nar'
respofding with' thi foesoing rive ipeen enacted in the case
of projects of other types, but individualied .project authorin=e
tion is not contenplated.'by statutes governing certain other
caSe, such as.Reclaaation projects. i
Navigation and Flood-Control Projects.-As we have pre-
viously outlined in detail, it is generally required by statute
thateaminmatioisiad surwysferAew viltion and flood-ontrol
projects, as well as the projects.thiebielves, may not be under-
taken iule ss pecifialy asiithom iedxby CongGeea General
congressional: praeticihas,logiWbeenito authorize such activity
in ~a bu Sacts containing a substantial number of projects.'&
In addition to the limitations imposedbf y theheer iw3~n h
projects thus imultaeuy conaidecrd. the general rule re-
quiaing individuaikE authorizuwioA Ias; beba modified bya
tunbeir f at"utein the nature of ootinulng anthoriiatioas,
several permitting varying degrees of discretion in the use of
funds for specified types of work.'"

.,, '. ;ol September 22, 1922 1 9, 42 Slat 1038, 1043, 33 U. S. 0C. 56
"Act o tJly 24, i94l, I 0 Stat. 641, 39 U. S. C.701o.
?Se. Rep. No. 13O4 79tU Cong, 2d ses.p. 1 (1948).
S" Se rMPh ppI 91-,i 190, 1,4,1386.
9. i,,; ,Att %,1^;12^4 at.IM A4_O piecember22,i944,0
Stat. 887; Act of March 2,1945, 59 Stat. 9J May 17, 1950,64 Stat, 16 .
See also supra, pp. 101-104, 186-141.
The general rule requiring individualized authorization does not apply
in .th, case of oDeraplo and main~fnnc, .As to flood-contol pro, poets,
.exprewjpsgrowvto ptatpi t authors "all. appropriations" nppesaaryfor
their operation and maintenance. Actef August 18, 1941, 10, 55 Stat. 688,
651, 33 U.S.C. 701f-- 1ote;following.
While there is no corresponding statutory provision applying to navigation
projects, annual lump-sum appropriations are made "For the preservation

As we group foprjoint consideration the following provisions
applicable to flood-control and navigation work of the Army
Engineers, it will be readily appapet that there is a lack of
uniformity even here.
S(Project Modifieation)-In the case of navigation projects,
whenever "etire reconstruction" of the work is essential toit
eficient and economical operation and maintenance, certain
"modifications in plan and location" may be made where new-
essary to provide adequate facilities for existing navigation.'
Different provisions apply to flood-control projects. For
example, where the total authorization for a project is not
sufficient for its completion,, the Chief of Engineers may make
expenditure on preparations forthe project, and so modify the
plans that the project will be smaller than originally planned
"with a view to, completing a useful improvement within an
authorization." '" likewise, authority exista for modifcation
of project plans in certain circumstances to provide additional
storage capacity for, domestic water supply or other conser- y
tion storage if the costof such increased capacity is contributed
by local agencies and they agree to utilize the same in a manner
consistent with federal usesand purposes.'" A unique altqpa-
tive arrangement is available in the case of flood-control proj-
ects, the Chief of Engineers being authorized to modify project
plans so as to evacuate areas rather than protest them by levees
or flood walls if the cost does not substantiallyy eneed" the
resulting saving in project construction cost" ,
It should be noted here that flood-control projects of the
Army Engineers are general authorized "substantially in c-
cordance with" the recommendations submitted to Congress as
and maintenance of existing rivel and arbor woirs, and for the prosecution
of such project heretofore authorized as may be most fde.rabie in the
Interestsef eommerce and navigation." 8See e, o., Act of Oetober 198,g ,
6AStat. 80 ,-.: As to repair work, see Act of July 5, 1884, I 4,28Stat 18,
147, as amended, 88 U. S. 0. 5.
m Act of July 8, ~i, # 4,28 Stat. 3, 147, as amended, 88 U... 6. 5.
"Act of 18Augst181941, 2 2, 5StWat; 88, 88 US. 8. 701m.
m Act of Jne22, 1988, 5,49 Stat 1570, 1572, as added by Act of July 19,
1987, 1, 50:Stt.. 51,;518,88 U. S. C. 701h.
Act of June 28, 1988, 3, 52 Stat. 1215, 1216, 83 U. S. 0. 7011.


a basis for the authorization."' Navigation projects, on the
other hand, are generally authorized "in accordance with"
plans previously submitted.'1 Atthority for variations is
sometimes included, however."86
(Utility Repair, Alteration, and Relocation)-Applying both
to flood-control and navigation projects, a 1946 statute author-
izes the "repair, -elocation, restoration, and protection" of a
highway, railway, or utility when it has been or is being dam-
aged or destroyed by reason of the operation of any dam or
reservoir project under Army control.U7
A 1940 statute makes provision for the altering or relocating
of railroad bridges unreasonably obstructing navigation.'"
Marking a shift in earlier policy, this legislation provides for
an apportionment between the United States and the owners of
the costs of such alteration or relocation." Applying only to
flood-prbtection projects, a 1946 statute permits the Chief of
Engineers to include at federal expense the necessary altera-
tions of railroad bridges and approaches in connection there-
with, if the authorized project includes such alterations.'
(Bridges on Dams)-Applying generally to federal dam
projects, authority exists to construct bridges on flood-control
and navigation dams upon conditions of structural feasibility
and clearance with specified agencies."
(Fishways)-The Secretary of the Army has authority to
provide "practical and sufficient fish-ways" whenever any
river and harbor improvement is found to obstruct fish pas-
SSee, e. g., Act of Dece~nber 22, 1944, 10, 58 Stat. 887, 891; Act of July
24,1946, T10, 60 Stat. 41, 648.
'"See, e. g., Act of March 2, 1945, 2, 59 Stat. 10, 11. But see Alabama-
Coosa Project, 59 Stat. 17.
See, e. g., Act oftMay 17, 190, 1,06, 64 Stat. 163, -. Certain improve-
ment of the Intracoastal Waterway in Florida may be constructed along
any of several named routes or along "any other route as may be deemed
feasible by the Chief of Engineers and approved by the Secretary of the
Act of July-24, 1946, 9, 60 Stat. 41, 643, 38 U. S. C. 701q.
"Act of June 21, 1940, 54 Stat. 497, 83 U. S. C. 511-523.
6, 54 Stat. 499, 83 U. S. C. 516. See also supra, pp. 114-115.
O"Act of July 24, 19463, 3, 60 Stat. 41, 642, 33 U. S. C. 701p. See also
supra, n. 75, p. 140.
Act of July 29, 1946, 1, 60 Stat. 709, 23 U. S. C. 64.

sage?' A 1946 statute of general application :also requires
certain mesresfor the protection of fishand wildlife, :
S(Power)-*-avrl separate statutes provide for power facili-
ties at navigation and. food-control projects.. For example, a
1912 statute authorizes the Seretary of the Army, upon recom-
mendationiof the Chief of Engineers, to provide in the perma-
nent pataofi an authorized dam "such foundations, sluioes, ot
other works, as may be considered desirable for the future, d-
velopinent 'ofiits water power.' ?? Moreover, with respect to
navigation' danm authorized since 1945, with one possible ex-
ebptibD, 0Cingpewg has directed, the installation of penstocks and
other fahilitiefk adaptable .~o future use for development ,of
pbwer, when approved'by the Secretary of the Army iitn
recomineqdktion'of the Chief of Engineers and theFederil
Power Commisaion.'" A like'pbovisimonhas been made appli--
table with Trespect to flood-control projects authorized since

('School Fdeilities)--The earlier provisions for school faili-
ties atsieifcid rwaterresouree development projects appear to
hdveibeean peneded, in effect, by two acts of general aplika-
tion passed in 1950.? These statutes atithoriaddfederal assist-
ancefaorsehool onstruetionsnd assistance to school districts in
federally saected areas.,l 'Althoighneither repeat the previous
authorizations, each transfers to the Commissioner of -dica-
tio appropriations mide ib other agencies for thesailn-s r
poses covered by it, and prohibits'further appropriation for
such purposes under other acts fo4 a limited number of years.'"
(Other Exceptions)-The statutes involved here ,relike

s"ctg lAWgst.^ltkalsM $1^.s0 wf 25s. *tat.10,c2, 8U! 44(& >s
: A ct A agqet 14, 194,, 60 Stat. 1080, wee 16 I. o& 6wl-46W.e 8ee.also
supra, pp. 329-330. :
'O 'ct- o( July 25 1 1i 87 BLSt 20a 288, 88. 8. 00e1 A 19A17
statute reguir tataO. prolfrmao.of existltCuaw relating Y navrgtteant m-
provements "apply, so far as appieatriei; b .flood4ontrol lfaprven d Ms
Aet qf Marb.L, 191 8 3a Stat.,I& 95O0, 88,ta.u Tl. 0r. "
"'See supra, n. 199, p. 291.
'"See supr,W14L .-- ; ;. t -
Act of September 23, 1950, 64 Stat. 967; Act of September 30, 1950, 64
Stat. 1100. For the earlier provisions, see supra, pp. 109, 140.
1" 209, 64 Stat. -; 8 8, 64 Stat. -.

those preceding in that they are exceptions to the general rule
under which navigation and flood-control projects and activities
are individually authorized. Unlike the foregoing, however,
the following statutes are so framed as to remove the necessity
for obtaining funds for each individual operation. In some
instances, provision is made for expenditure from available
funds. In other cases~ "emergency" funds are authorized to be
An outstanding example involves "small flood-control proj-
ects." The Secretary of the Army is authorized to allot up
to $3,000,000 in any one fiscal year from appropriated funds
for the construction of undefined ."small flood-control proj-
ects" not specifically authorized, by Congress and not within
the areas intended to be protected by authorized project"
Such projects must also come within the 1936 congressional
declaration of policy, and must be complete in themselves and
not commit the United States to additional improvement to
insure their successful operation?"00 Not more than $150,000
from appropriations for any one fiscal year may be allotted at
a single locality and the local cooperation provisions of the
amended 1936 Act shall apply.201
Another example involving wide discretion in use of funds
concerns undefned "rescue work" or the repair or maintenance
of flood-control work threatened or destroyed by flood.202 This
authorization includes the strengthening, raising, extending,
or other modification for adequate functioning of the work for
flood control.208 In 1950, Congress made provision for an
emergency fund of $15,000,000 for such activities, authorizing

"Act of June 80,'1948, f 05, 82 Stat. 111, 1182, 83 U. S. C. 701s (Supp.
III). The 1948 aattute's satedication of a $2,000,000 amount was increased
to $3,000,000 by the Act of May 17, 1950, 1 212, 84 Stat. 163;,-.
aMI&. For the text df the 1936 polled dclaiattiosee ewpro, p. 181.
Id. The 1948 statute's limitatior~aof $1000 was increased to $150,-
000by the 1950 Act. Li ee Spre, pp. If 187
"Act of July 24,'1948; 12, 60 Stat. 41, 652, as amended, 83 U. S. 0.
701n (Supp. III).
Act of June 80, 1948, 1 206, 62 Stat. 1171, 1182, see 83 U. c. 701n
(Supp. I).

an appropriation for initial establishment of the fund and its
replenishment on an annual basis.2" .
Somewhat similar authority exists for the construction of
emergency bank-protection work to prevent flood damage to
highways, bridge approaches, and public' worm. When the
Chief of igtneer deems much work advisable, the Secretary
of the Army is authorized to allot up to 4l1,00QO0 per year
from flood-control appropriations, but not more than $60O00
at any single locality."
In the interests of either navigation or flood control, snag
and debris removal and channel straightening may be prosee
euted, under specified conditions and within specified limits,
without individualized authorization or appropriation.'2! ,, i
Moreover, each appropriation act for riverand harbor works
since 198~ has made pnvision for expenditure of eBms neces-
sary "for tem maintenance of harbor channels provided b a
State, nmniiepdity, or 6ther public agency, outside of harbor
lines and m -ing essential needs of general commerce and aavi-
gation." WI Similoly, theSeeretary of the Army is authorized
to make. direct aliotament from available appropristioas fot
drift removal in certain harbors and their tributaries. .':
Passing note should be made of another exception to ohe
general t rle quiring individualized authorization for the .un-
dertaking ofunavigation work by the Army Engineers ah
prMjeetb y-.ojeet basis. This is the surveyid and harting
of the "Nartbhe and Northwestern lakes," an operation con-
tinuing since 1841 under legislation appropriating funds for
that purpe.. .
SFlood-Control Work by the Department of Agricdture.-By
Act 9ef May nMo,199,4 fLL 64 stat;161i SeSprs, n. 2^ pp 187-188.
Act of July 24,1946, I 14,60 tat. 641, 658, 83 U. S. O. 701r.
"Act aof rb2, 194, 9 i4M, r.ea t.io, ;U. S 608a; Act of August
28,1937, i 2, 50 Stat. 876, 877, as amended, 33 U. S. CO.l. Saee aleompro,
n.14kpdS ,
See, e. g., Act of May 15, 1936 d Stat. 1278, 1306.
Act of July 818, 190, ,-46 Stat, 918, 47,. 88 U. S. 0. 607a; Act of June
80, 1948, 5 1( 82 Stat. 1171,1173,83 U. 8. C..572 (Supp. III); Act of May
17, 1950, 5 102, 64 Stat. 163, -.
See upra, p. 104.

a 1937 statute, the Secretary of Agriculture is; generally au-
thorized to make preliminary examinations and surveys "for
run-off and water-flow retardation and soil-erosion prevention
on the watersheds' of all waterways previously authorized to
be surveyed by the Army Engineers.21 Works of improvement
for such measures are "authorized to.be prosecuted by the De-
partment of Agricilture under the direction of the Secretary of
Agriculture and in accordance with plans approved by him." "
In practice, the Department of Agriculture nevertheless pre-
pares and submits to Congress programs for works of improve-
ment.22 And Congress has specifically authorized such works
in the same manneirasdit individually authorizes the flood-con-
trol projects of the Army Engineers. ,
In addition, andi without: individualized congressional
authorization, the Secretary of Agriculture is empowered to
undertake "epmegency measures for run-off retardation and
soil-erosion 'prevention" to safeguard lives. andzproperty, from
floods and the products of erosion "on any watershed" which
has been suddenly. impaired by fire Or other natural force.91
Not to exceed $300,000 may beexpended during any one fiscal
year for such emergency measures.e2
- Irrigation Project.-..Reclamation projects meeting the re-
payment standard do not require individualized legislative
authorization: 'And there are correspondingly fewer statutory
exceptions to this general rule that in the case of Army En-
gineer projects which generally require such specific aithoriza-
tion, as we have seen.
Under the Reclamation Project Act of 1939, any new project,
new division of4 project, or riew supplemental works on a
"e Act of AuguSt 28, 1987, i 3 50 Star. 876, 877. See also supra, pp.
m Act of June 28, 1938, I7, 52 Stat..1215, 1225, 33 t. 0. 01b-1. See
also supra, n. 186, p. 875.: ;
See, e. g., H. Rep. No. 1309, 78th Cong., 2d sess., pp. 51-52 (1944) ; Sen.
Rep. No. 1030, 78th Cong., 2d sess., pp:x2,2- (1944).
Sm See, e. g., Act of Deceiner 22, 1944, 18, 58 Stat. 887, 905.
m Act of December 22, 1944, 15, 68 Stat. 907, amending 7 of the Act
of June 28, 1938, 52 Stat. 1215, 1225.
Act of May 17, 1950, 216, 64 Stat. 163, -.

project shall be deemed authorized and may be undertaken
after the Secretary of the Interior has submitted his report and
feasibility findings "to the President and torthe Congress."-a
As earlier noted, such findings concern engineering feasibility,
estimated construction costs, and the parts of those costs prop-
erly allocable to irrigation, power; and municipal water supply
or other miscellaneous purposes, together with any nonreim-
bursable allocations to navigation, flood control, and preserva-
:tion and propagation of fish and wildlife.1 But if the Act's
pay-out requirement is not met, individualized legislative
approval i. required."6 So also if an "affected" state or the
Secretary of the Army objects to the plans or proposals.1
However a proposal for the construction of irrigation works
in conneQtion with Army dam and reservoir projects may be
undertaken only after a report and finding, as described above,
and after "subsequent specific authorization" by Congress.220
Here,. it is provided that, "within the limits of the water
users' repayment ability" the report may be predicated upon
"the allocation, to irrigation of an appropriate portion of the
cost of the structures and facilities used for irrigation and other
purposes." 2m This authorization procedure is made expressly
inapplicable to any dam or reservoir constructed by the Army
Engineers prior to December22; 1944, which provides conseva-
tion storage of water for irrigation purposes.2
The Secretary of'the Interior is generally authorized in con-
neetion with the construction or operation and maintenance
of any project to acquire lands or interests therein for the "re-
location of highways, roadways, railroads, telegraph, telephone,
or electric transmission lines, or any other properties whatso-
ever," the relocation of which is necessitated by project con-

"Act of August 4, 1939, 9(a), 53 Stat. 1187, 1193, 43 U.S. C. 485h(a).
See also supra, n. 257, p. 194.
2' See supra, pp. 194-196.
See 8upra, p. 195.
"Act of December 22, 1944, 1(c), 58 Stat. 887, 889.
SAct of December 22, 1944, 8, 58 Stat. 887, 891, 43 U. S. C. 390.
m Id. Of. Act of June 5, 1944, 3, 58 Stat. 270, 43 U. S. 0, 593b (Hun-
gry Horse Project).

struction, operation, and maintenance 1 To this end, he may
enter into contracts with the owners of such properties where-
by they undertake to acquire the property needed for reloca-
tion, or to perform the work involved in such relocation." He
is also empowered to make contracts for the "exchange or re-
placement of water, water rights, or electric energy or for the
adjustment of water rights." "
Furthermore, authorizations provided in certain previously
described general statutes apply in the case of Reclamation
projects. These include provisions for bridges oi dams, meas-
ures for the protection of fish and wildlife, and for construction
of school facilities at federally affected areas.2
Water-Conservation and Utilization Projects.-Another and
different method of authorization is prescribed in the case of
water-conservation and utilization projects authorized for de-
velopment by the Secretary of the Interior in cooperation with
the Department of Agriculture." Such a project is deemed
authorized after submission of prescribed findings by the Secre-
tary of the Interior to the President, and after the President
approves such findings and himself iakes further prescribed
Projects Under the Water Facilities Act.-In carrying out the
policy of Congress to assist in providing facilities for water
storage and utilization in arid and semiarid areas, the Secretary
of Agriculture is generally authorized to formulate and keep
current a program of projects for the construction and mainte-
nance of "ponds, reservoirs, wells, check-dams, pumping instal-
lations, and other facilities for water storage or utilization," and
to construct, and sell, or lease such facilities.22 Individualized
legislative authorization is not prerequisite.

Act of August 4, 1989, 5 14, 53 Stat. 1187, 1197, 4 U. S. C. 389.
See supra, pp. 94-95, 329-830, 529.
Act of August 11, 1939, 58 Stat, 1418, as amended and restated by Act
of October 14,1940, 54 Stat. 1119, as amended, 16 U. S. 0. 590y-590z-11. See
also supra, pp. 243-245.
3, 54 Stat. 1120, as amended, 16 U. S. C. 590z-1.
n Act of August 28,1937, 1,2,50 Stat. 869,16 U. S. C. 590r. 590s.

Tennessee Valley Authority.-Among the general powers
granted to TVA in the case of the Tennessee River and its
tributaries, it is pertinent to note here its authority to con-
struct such dame and reservoirs as will provide a described nine-
foot channel and will best serve to promote navigation and
control destructive floods.,m It has similar power to acquire
or construct navigation projects and incidental works, inlud-
ing certain power facilities. Again, individualized legisla-
tive authorization is not required. The foregoing provision
was accompanied by a direction for TVA to report to Congress
by April 1, 19 ,its recommendations for unified development
of the Tennessee River System.2
Another variation here should be noted. In case any bridge
or other highway or railroad structure is endangered by any.
TVA dam, reservoir, or other improvement, its owner must
be compensated for "the reasonable actual cost of sreh pro-
tection, alteration, reconstruction, relocation, or replacement"
as may be necessary or proper to preserve its safety or utility
or to meet the requirements .of navigation o flood control?
.Inteat isngtol Boundary and Water Cowmission, Utited
States and Mexico.-With respect to the Rio Grande below
Fort Quitmn, Texas, the President has general authority to
construct ay and-all works or projects recommended to him as
a result of specified investigations authorized in the case of
the boundary between the United States and Mexico and which
he deems "necessary and proper." 2" Individualized legislative.
authorization is not required.
It should also be noted that several such projects are con-
templated by a 1944 treaty providing for their construction by
the Iaternatia ptl Boundary and Water Commission.25 The
Act of May 18,193; I 4(j), 48 Stat. 58,61, as amended by Act of August
81,i 85 ,2, 4* Stat. 1079, 16 U. S.04. 881e(j).
a1m Sea alo wa.pra, pp. 80 9.00.
Act of August 31, 1985, 2, 49 Stat. 1075.
Act of November 21,1941, 55 Stat. 778,16 U. S. C. 881c-1 Of. supra,
pp. 114-115.
SAct of August 19, 1985, 2, 49 Stat. 680, see 22 U. 8. C. 277a.
Treaty of February 8,1944, Art. 5,59 Stat. 121, 1928, Treaty Series 994.
See also supra, pp. 122-128, 148-149, 480-481.

President, had previously been authorized to construct "any
project or works which may be provided for in a treaty entered
into with Mexico/"' In consenting4to ratification of the 1944
treaty, the Senate prescribed that no officer or employee of the
United States may commit the United States to the construc-
tion of any works other than those specifically provided for in
the treaty without 4he prior approval of Congress.2"
Pattern of Auljhorization.-The foregoing-provisions range
from individualized legislative authorization of projects
to a blanket grant of authority to an agency head. The varia-
tions seem generally related to the scope of possible project se-
lection under the program involved.
Thus, as a result of- nation-wide jurisdiction over navigation
and flood-control projects, the scope of possible activity is
broadest in the ease of the Army Engineers. For they plan and
construct such projects on a nation-wide basis. In turn, stat-
utes make individualized legislative approval prerequisite as a
general rule.
On the other hand, projects of the Bureau of Reclamation
are by nature limited to arid and 'semiarid areas and under
Reclamation Law to the West.. Under a prescribed statutory
standard, projects may be authorized after submission of
administrative findings to the President and to Congress. -But
selection is limited by the fact that, if an "affected" state or the
Secretary of the Army objects, the project may be authorized
only by act of Congress.:
Another difference may be noted No pay-out formula is
prescribed for Army:Enigineer projects. But Congress has'in
certain types of casesrequired "'oeAl contributions" toward
flood-control projects; Like contributions have been re-
quired as to some individual navigation projects.288 In the
case of Reclamation projects, on the other hand, the statutory
pay-out standard tends to limit further the range of project
Act of August 19, 1985, 2, 49 Stat. 660, see 22 U. S. C. 277a.
Sen. Res. of April 18, 1945, 59 Stat. 1263.
"See eupra, n. i75S,'p S -


. Three factors seem to narrow the impact of the f6regding
differences. First as re equel oftike general rule for requiring
individualized legislative approval of navigation and iloeo.
control pridjests, 'Cngrees has enacted a number 6f statutes in
the nature of continuing authorizations for specified types of
work in the interests ofUnatvigatiori.and -teld control. Sec-
o adly, Congrimesin 1944 established a procedure for auttriza-
tibn of the qudertaking of irrigation works. at Army dani and
reseair ptojoets; Finally, in a number of individual1cases,
ConogesMihasirelaxed the pay-out standard for-Relamaakion
projects by Ilefgthening the repayment period'* and in several
cases it has iridividially authorized Reclamation pptbjotst, s
Certaiif features of the babesafor project selection underthe
other statutes should be noted. In each, legislative eontrole i
lets direct, noanerequiring individualized pr*jedt approval by
Congress. As to project selection in the caseeof 1the WA and
International Boubdary and Watet Commidikmn, :aigf ce
may attach to two facts [In both instances, the geographic
hrea involved is relatively eimall, and available information in
both cases made it:,peaibe. to foresee the ,probable effect of
blanket authorizations.241 Similarly limited is the range of
project selectiant'iider tWater oa iei and Utiliza-
tion Act and under the Water Facilities Act.. Bofh. re
irstiCtid'to a'Md and semiarid regions, ad bbth impose acil-
ings on project expenditures. .
tion to.whatever legislative review of individual project pro-
posals may be provided under the procedures already outlined;
each Adefit agnCy iriust'sbmit to Congress its annual budget
program and summary of project aciyities for review. by the
appropriation committees of Congres92 -. ::'
'See supra, ki.b SSb W ,11 2 -
2f #ee;, ei; H.foe: No.4 28, 71st Cong., 2d., smes. (1S0)9 T .D No. 35
71st Cong., 2d sess. (1930). 'Seeelso H. Rdp. NO. 422, 74th ilifg., 1st sets.;
pp. -4 1S).. -
In the case of the Rio Grande, surveys had ben tontiinuhg t#6init thee
AeCtMrMaay 3,1984,43 Stat. lfi-s amended, 22 1. 8. 6 277 .
m See supra, p. 525.

This includes governmmentcorporations." Their budgetpro-
grams must be submitted thboughtthei ureau of the Budget to
the President, and thence to Congress.2" Moreover, it is ex-
preslystipulated that, "if necessary legislation shallbe enacted
making available such funds or other financial resources as the
Congress may determine." It is not clear whether this lan-
guage contemplates merely appropriation of additional funds,
or whether it affirmatively authorizes restrictive provisions in
an appropriation act with respect to corporate funds, arestric-
tion which would otherwise be subject to a point of order as
substantive legislation," It should be noted, however, that
although the same section expressly prohibits its being con-
strued as affecting in any way their section of the Tennessee
Valley-Authority Act allowing T.VA to retAin and use its
revenuessa: 19479t ppi priation statuste did cotain a restric-
tion applicable to TVA. .
The ~ point is that annual submission of a budget program by
federal agencies permits full legislative review by Congress,
affording opportunity for control over project selection and
activities in federal water-resource programs.

Restrictions on Use' of Water

U;Xder eis"4 a, a number pf siotio on the; Eof
water must be considered in the design, construction, and oper
ation of water-resource projects and activities.

m "It Is hereby declare to be the policy of the Congrees to bring otern-
iaent corporatoos and their transaction qp d operations under ianmal
scrutiny by,the Congree ,and to provide current fnancal control thereof."
Act of December 6, 945, 2, 59 Stat. 57, 31 U.. S0.. 841. This Is the
Government Corporation Control Act.
"I I 102, 108, 59 Stat. 58,-8 U. 8. .847. 848.
S 104, 59 Stat 98, 81 U. S. 0.849.
BRule XXI, RULEs or an Hous or RJPE HoNTMA ST H. Doe. No. 766,
80th Cong., 2d sess., pp. 41-417 (1949) ruBle XVI, SWuIA MArouAL, Sen.
Doe. No. 11, 81st Con. 1st sess., p. 20 (194T). There it, of course, no ques-
tion as to the validity of sch restrictions ifenacted.
104, 59 Stat. 98, 81 U.. 0.849; Act of May 18, 1988, I 26, 48 tat. 58,
71, as amended, 16 U. S. C. 881y.
Act of July 80, 1947, Titles I, II, 81 Stat. 574, 576, 16 U. S. C. 881h-2
(Supp. III).

University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs