Title: Restrictions on Use of Water
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003125/00001
 Material Information
Title: Restrictions on Use of Water
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 - Restrictions on Use of Water
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 43
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003125
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

T::h includes governmntcoroationsa." Their budgetpro-
grams must be submitted though the Bureau of the Budget to
the President, and thence to Congress.m Moreover, Tis ex-
pressly stipulated that, "if necessary, legislation shall be enacted
making available such funds or other financial resources as the
Congress may dete~rine.'1" It is not clear whether this lan
guages contemplates merely appropriation of additional finds,
or whether it affirmatively authorizes restrictive provisions in
an appropriation act with respect to corporate funds a restrie,
tion which would otherwise be subject to apoit of order as
substantive legislation 2 It should be noted, however, that
although the same section expreauly prohibits its being conm
strued as affectiig in any way the section of *the Tennesee
Valley Authority Act allowing ATk to retaitndo use its
revenues," a 1947 appropriation statute did contain a restrio
tion applicable to TVA. -,
The point is that annual submission of a budget program by
federal agencies permits full legislative review by Congress,
affording opportuityi for control Iover project election and
activities in federal water-resource programs.

SRestrictions on Use of -ater

UnIner e iting law, a number of restrictions on the si~p
water must be considered in the design, construction, and oer-
ation of water-resource projects and activities.

-P"It tihbereby declare to be the policy of tb Onigress to bring Govern-
ment corporations and their transactions ~p operations under Ih~aul
scrutiny y ,the Congrees san to provide current AnancIal control thereqt."
Act of eem=ber 6,1945, I 2, 59 Stat. 567, 31 i. 8. C. 81. This is the
Government Corporation Control Act.
'" t 10, 108, 5 Stat. 58,8t U. 8. 0.847, 88.
1104, 59 Stat. 8,81 U. S. 0.849.
DRule XXI, RuLo s or THE Hous or REsamIrvw, H. Doe. No. 76,
80th Cong, 2d ses., pp. 416-417 (1949); BaeM XYI, SMat MamALx, Ben.
Doe No. 1, 8alt Oo *l1st sees., p. 20 (194. There is, oe coumew no ques-
tion as to the validity f mSul( restrictions ut enacted. :
S110o4,5 Stat. 568, 1 U. 8. 0.849; Act of May 18, 1988, 26, 48 state. 6,
1 ameded16 8 C. 881Y.
Act of July 80, 1947, Titles I, II, 61 tat. 574, 57, 16 U. S. 0. 881h-2
(Supp. II).

BACKGROUwD.-As we earlier noted, the riparian doctrine
prevailing in the East permits only an owner of lands riparian
to a stream to make use of its waters, and only on his riparian
lands."M cWe also. pointed out that, under the arid conditions
generally prevailing in parts of the West, custom evolved
whereby acquisition of water by prior appropriation for bene-
ficial use was entitled to protection. The first in times prior in
right. Nor re appropriative water rights confined to riparian
owners. Evolving from custom and usage, the doctrine of ap-
propriation was early recognized in legislation and judicial
decision. Today, while some of the 17 Western States still
variously recognize the riparian doctrine, it has been specifically
repudiated by eight of them. On the other hand, the appro-
priation doctie is variously recognized ii all 17 States.
Similarly, we have previously observed that contests arose be-
tween appropriators under this possessory system and patentees
under the 1862 Homestead Act and the 1864 Pacific Railway
Act, the latter claiming to be successors of the United States
with the right tb oust prior appropriators of waters on: the lands
pitented.w S6on thereafter, Congress passed the Act of 1866,
a statute making good appropriations in being s against later
patenAs ` i ripariai parcels of the public domain.?" An 1870
supplement subjected patents, preemptions, and homistads to
aserued wate~ rights, or rights to ditches and reservoirs used in
idiietita with such water rights, as may have been acquird
under or recognized by the 1866 Act."
Significant also is the proviso in the Desert Land Act of 1877,
which makes the right to the use of water dependent upon
"bona fide prior appropriation" not to exceed the amount of
water "actually appropriated, and necessarily used for the pur-
pse of irrigation and reclamation." With respect to that
part of the public domain subject to the 1877 Act, the Supreme
SSee sup, a p. w--e5, 15-18.
See supra, pp. 35-36.
m See supra, pp. 85-37. For the text of the relevant portion of the Act of
1866, see supra, p. 86.
SFor the text of the relevant portion of the Act of 1870, see supra, p. 36.
For the full text of the relevant portion of the Act of 1877, see aspra,
pp. 87-8.

Court-has said that Congress intended to establish a rule that
for the future the land should be patented separately, and that
'all non-navigable waters thereon should be reserved for the
use of the public under the laws of the states and territories
named." 5 This statute: 25
simply recognizes and gives sanction, in so far as the
S United'States'and its future grantees are conceried, to
the state and local doctrine of appropriation, and seeks
to remove what otherwise might be an impediment to
its full and successful operation. -
The effect of the'recognition accorded by these statutes to
the doctrine of appropriation so far as they concern public
lands is subject ,t certain qualifications, as is apparent from
several decisions of The Supreme Court.2'6 Thus, unless au-
thorized by Congress.
a. State cannot by its legislation destroy the right of ,4q
United States, as the owner of landsri bdering on a
stream, to the, continued ow of its wa ers; sq .fai at
least as nmay be necessary for ,he beneficial uses of the
*, governmen;prepperty.
Nor did Congress by th* Acts of 1866, 1870, and 18777intend
"to release its controL.over the navigable streams of the coun-
try" or to grant th "right "to appropriate the waters on the
sources of navigple streams to such an extent as to destroy
their navigability." When it later, held, the Oe 4rlo do
River to be a navigable stream: of the United States, the
Supreme Courtin 1936 said:25
s The privilege of the states trough which it flows and
theif inhabitants to appropriate and use the water:is
subject to the paramount power of the United States to
control it for the purpose of improving navigation.
California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S.
142,162 (1935).
m 295 U. S. at 164.
See supra, pp. 38-42.
United States v. Rio Grande Irrigation Co., 174 U. S. 690, 708 (1899).
."'174 U. S. at:706.
Arizona v. California, 298 U. S. 558, 569 (1936).

Moreover, exercising its treaty-making powers, the United
States has undeniable authority to reserve the waters of a non-
navigable stream and exempt them from appropriation- uder
state laws.'"
Furthermore, after enactment of the statutes discussed above,
Congress passed still other Ivws involving use of public lands
which either purport to aeerise! control over tlhe aq istion of
rights to. use. oj~water, or proceed on an assumption of. he exist-
,-ncef the power to doso.' or example, in 1897, it.enacted
bis provisions regulating the useQf waters, within national
Al waters ioa such reservations may be used for
: : domestic, mining, milling, or irrigation purposes, under
-i i:. .thlg of the State wherein such forest, reservations
.: ;: ae situated, or under the laws qfthe.United States and
the rules and regulations established thereunder.
S~achAis tth division between federal and state power under
the Constitution, and such is thesituationi created by 'statutes,
asunmarized briefly above, that conflicting claims over rights
to use of waters frequency arisein the West. :We havelalready
referred to one, for example, that involving the unresolved
claim recently advanced by the United States that thewAits of
1866, 1870, and 187. did not divest it of title to oteo.ngrolroover
unappropriated waters in nonnavigable streams in the West.2
importance of rights to use of water in the economy of the West
is a matter of common kinwledge.f And- Congress has re-
scribed a number of measures recognizing that importance in
sta4tte prpyidinglgfor federal participation in the development,
utilization,, ad conservation of water ;resources. Such pro-
vwsions of course affect the design, construction, and operation
of water-regouroe projects and activities. But these measures
do not cover the full range of possible difficulties, asiwe shall
"WiWtei~ United Statei, 207 U. S. 564, 577 (1908).
See supra, n. 171, p. 42.
SAct of June 4, 1897, 1, 30 Stat. 11, 36, 16 U. S. C. 481.
See supra, pp. 41-42.

Navigation and Flood-Control Projects.-In the 1944 Flood
Control ,Act, Cogress included this pronouncement of
In connection with the exercise of jurisdiction over
the rivers of the Nation thoiigh the construction of
works of improvement, fori navigation or flood control,
as herein authorized, it is hereby dedeared to be the
policy of the Congress to rte~giize the interests and
rights of the States in determinng the development of
the watersheds within their borders and likewise their
interests and rights in water utilization and control; as
herein authorized to preserve and protect tothe fullest
possible extent established and potential uses, for all
purposes, of the waters of the Nation's rivers; to facili-
tate the consideration of projects on a basis of compre-
hensive and coordinated development; and to limit the
authorization and construction of navigation works 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 of
such rivers by other users.
In conformity with that policy, Congress prescribed measures
for cooperation with "affected" states, the details of which we
have already set forth." The policy quoted above and the
procedures prescribed for cooperation relate to improvements
for navigation and for flood controL
In addition, Congress at the same time enacted the following
restriction on navigation use: ae
The use for navigation, in connection with the opera-
tion and maintenance of such works herein authorized
for construction, of waters arising in States lying wholly
or partly west of the ninety-eighth meridian shall be
only such use as does not conflict with any beneficial
consumptive use, present or future, in .States lying
wholly or partly west of the ninety-eighth meridian, of
a Act of December 22, 1944, 1 1, 58 Stat. 887.
See supra, pp. 96-97, 520-22.
SI 1(b), 58 Stat. 889.

Such waters for domestic, municipal, stock water, irriga-
tion; mining, or industrial purposes.
This restriction is thus e e app icble only to te works au-
thorized in the 1944 statute. But t ame retrietion was
repeated with respect to projects authorized by the15 River
and. marbgr Act, and has since been, m e appliable as to
those autloriajd in all subsequent Flood Contrql ad River
and Harbor Acts." As to the Arkansas River and its t#ibu-
taiies, C" re has specified that the word "navigation"hif the
abgve-qdotd provision shall include the use of Water for power
SNo provision is made, however, with respect to water other
than those "arising in States' lying wholly or partly west of the
ninety-eighth meridian.". Nor is, there a legislative directive
establishing a relationship between the operation' ah in-
tnance of pre-1944 projects'and uses of water under state law.
It'should alsd, he noted'tht no correspondinggeneral restric-
tioh Ias beeti eht&ed with respect to control of wate foi~r r-
poses of fidod control. However, with respiit t thei'beniBOh
Darn, Congress1 in 1938 stated thi4t:f
The governmentt of the United States acknowledges
the right o the State pof Oklahoma and Texas to con-
tinue to exercise,all existing proprietary or either rights
-of supervision of and jurisdiction oer the waters of all
tributaries ofi Red RIver within their borders above
Denison'Dam site and above said dai, if and when con-
structed, in the same manner and to the same extent as
is now or may hereafter be provided by the laws of said
States, respectively, and all of said laws aa they now
exist or as same may be hereafter amended or enacted
and all rights tbereunder, including the rights to im-
pound or authorize the retardation or nimnpounding
thereof for flood control above the said Denison Dam
and to divert the same for municipal p4uposes, domet
See, e. ,Act of March 2,1945, 1 (b), 59 Stat.10,11.
"Act of July24, 1946, 11, 60 Stat. 634.
SAct of June 28,1988, 4(b), 52 Stat. 1215,1219.

Uses, and for irrigation, ipwet, generation, and other
beneficial uses, shall be and remain unaffected by or as
a result hereof. All, such rights are hereby, saved and
reserved for and to the said States and the people arid
the municipalities thereof,aid the impounding of any
such waters for any and all beneficial uses by said States
or under their authority may b- as freely done after the
passage hereof as the same may now be done.
Te 194 Act1 lao. c ntais anauhorization for ie Setre-
tary pf the my, t omI e contracts for dinstic and idustrial
uses for surplus water available at any reservoir under, Ar y
control.70 And Coress direct that no such contracts
"sha Iadverely .affect *then eipting. lawful. uses" of seh
Irrigation Projects.-Unlike nayitn nd flood-control
projects governed by the foregoqn.~ oysions, projects under
Reclamation Lwwiypvolve prmipin 'consumjptive" p.us of
water-the putting 0f water on u i; to enable its product
.use., The 1902 I1eclamation Ac < optains a provision chxr-
acterized by the United States Supreme iCoWt p "a direction
by Congress to the Secretary of the Interior" to proceed in
conformity'w"ith~ti te aws in ihe appropriation of water for
i gatiodi'pji oses.y This requirement, Section 8, provides:1'1
.That nothing in this AI tsbal) be ,ost ed as affect-
ig or, intended to affect q~.t in any way interfere with
the aws of any'State or Terrl pry relatlangto thecontrol,
SAet of Deeeinb&e 2,;1 4 S, s8, SttStMT,; I90, 83 .'S.. 70.
mNebraskca v. WQmigW, 325 U. S. 589, 61 (.194I).
'Act'of Tiine 17, 1;2,' 8, k32 Stat. 388, 3,(), 43 3, 372. See
disoMoptap, pp4-9g4-48. ''
With Section 8 cohpar~ e this provision -appearing In a recent statute
authorizing the Folsom'Dam, "Nothing contained in this Act shall be con-
Strued by;implicatiln or otherwise a ,eealocation ,of water and in the
studies fr the purposes of developing plans for disposal of water as herein
iauthrisdd the Secretary of the Interior hall make recommendations for
the use of w ater in accord with State water laws, including but not limited
to such laws giving 'prikit to the counties 164 areas of origin for present
and future needs." Act of October 14, 1949, 2, 63 'Stat. 852.

Appropriation, *se, or'distribution of water used in irri-
Sgation, ot any vested right acquired thereunder and the
Secretary of the Interior, it carrying out the provisions
of this Act, shall proceed in.eonformity with such laws,
Sand nothing herein shal in any way affect any right of
any;tte orof4 the Federal Government or of any land-
owner, appropriator, or user of water in, to, or from any
interstate stream or the waters thereof: Proe, That
the right to the use of water acquired under the provi-
sions of this Act shall be apputtenant to Che land irri-
gated, and beneficial use shall be the basis, te measure,
and the limit of the right.
i pWatwer-.". rptiQn and "i .Project.--Among. ihe
findings inoQi prerequisite to construction. o projects,t der
the .WAter Conservation and Utilization Act, Congrs directed
that the Secretary of theInterior shall have found: 71 ; i
-(i) that water rights adequate tor the purposes of the
project have been acquired with titles and at pricessatie-
:,; ty; ,, f ; t him,,r that such water rights have been
Si initiated nd in his judgment can be perfetedaC WinV
.,formity. with State law and any applicable interstate
ageements and in a manner satiafaetory to him; and
; i .(i):-that-ir- u water rights can b.e. tilised for the pur-
pesi o oil the project in conformity wit. State law and.
ny pplicable interstate agreements a d in a. manner
.stisfactiry to him. .
N: 'NONE AL POWER PaJjECTs.-In addition to te foregoing
provisions relating to the use of water in connection with Led-
era projects, Congress included in-the Federal Power Act a
provision pertinent here. It directed that nothing contained
U that Act; ,
:;'* shal be construed siaffecting of intending'to: affect or
,. i.. aywy to interfere with the laws ofite respective
m Actof October i4, 1940, $3(b), 54 Stat. 1119, 112, as amended, 1
Us a& 9A-w1()
Act of June 10, 1920, 1 27, 41 Stat. 1068, 1077, as amed4ed, 16 U 8. 0.
821. See also supra, n. 87, p. 276.

i ki; asrelt4ing to the control, appropriation, use, or dis-
Si :tributia n ; water used in !irigatin o or municipal or
: t her uses, or any vested right acquired therein.
SNATI;OiAi PAnxS.--Another restriction on use of water for
water-resource irejeets arises fro lelaition concerning the
national parks. The express purpose of ucdh parks is: "
to cosere tihe scenery and the natural and historic
objecs and tl wid life therein and t9 provide for the
enjoyment of the same ir such manner and by such
meaps as l leave tem unimpaired for the enjoyment
of future generations.
In 1921, Congress reinforced this purpose by prohibiting the
iiksaii of licenses for nonfederal development under the Fed-
eral Power Act i' the case of "existing national parks and na-
tional monuienti" 1 iiin ilarly, a iigress has in certain cases
prohibited interstate compacts from affectingg such areas:." On
the other hand, legislative permissionhas been granted in some
casesfor perj andfaeela4natijg p
INTERSIATE COM pwrs.-We have previously referred to the
increasing Ise 6f interstate compete asA means for accomplish-
ing an appdrtionment oof the wamtie of intistadt tr6ams.O
Interstate water compacts involve -matters of mutual concern
and interest to the United States and the affected states. It is
accordingly important that the provisions of such compacts
"Act of August I,' 1 09 Stat. 535, amended, 16 1. f. 0. 1.
Act of March 8, 1921, 41 Stat. 1853. Fe at rtib~ltdligt later acts
app g seciically to usfegaqently crate parksy or lands acquired thbre-
f&r, iee hbtait h PoW ArCT, Federal Power Godmission, App., p. 54, L. 3
m 2Smie, P, xAct jt uA.94c8, 42 Sta.i WdB Act of June 2, 194068 Stat.
"For example, the Secietary of the Interior is authorized to permit use.
of rights-of-way through specified national parks for designated power, irri-
ato, and other fatiges. Act of Febranry 15, 1901, 41 Stat. 790, as
amended, 4 t.. 959.
In the case of the ky Mountain Nationa Park, exjress iuthority is
provided for utilizing "for flowage or other purposes any area Within said
pdrk which may bi esry for he development andI mnditeanee of a
Government reclamation project." Act of January 26, 1915, 1, 88 Stat.
798,16 ft~. A. 191.
1 See supro, pp. 65-66.

"reflect as -dearly as paasible a reeogitdon et the reipeativi
respnibilitieS asd perogatites of the Unied States and the
affeed e stA&eBl .
The posbilhies in the use of interstate compacts in relation
to federal watg resowe ,development may be illustrated 'by
reference to the Bilder Canyon Project Aet." Tinder it~.the
United States, itse' $emittees, licensees, and contradtees, and
all users and Bppropriatbrs of water from the project are matie
subject to and controlled 'by t iCaiira&d Riermpact in
constructing, mmnajing, and oprat ig the redetoir,' cantls
andotbier fk trffoltksritedby tUAbtL iI
Two other pr6vidioi oa'this stttite merit note here. Noth-
Ih in the Act mayjre ednstn ed A i itefeWimg with -sich rights
as the states had on the date of paa ofthe Act:a
I itherto* e e w within ntbirbrders r to adtr ch
polices qnd enact such laws asptey. may dee a.aeas
ary with respect, to the appropriation, control, and ues
of waters within their borders, except pa modified byLthe
Colorado River compact or. other interstate agreement,
At the same time, Congress directed that the dar and ereservi
shall be used: :
First, for river regulation;-improvement of navi'ation,
and flood control; seeind, for irrigation and domestic
uses and satisfaction of present perfted righft'in pur-
suance of Article VIII of said Colorado *er ehipact;
and third, for power. ;
TnATINS.-Controlling limitations 'idy be imposed by
treaty upop these of water. Tht: bytreaties with western
tribes of Indians, the United States has reserved for eeftain
Indians right l: uso of w*ter. Upol esatblshmen. of certain
U See ampr, n. 2A p W.
'i2s atrebOnWr 2nst8, s, a sta. OrNr, a- maS's 9. a d 6I7-
M8 17t nW*iUMary artmat ft reNMtag ta the 6Mtial rido Rvet ih
(a), 45Stt. o10M 4 U. S. CsT(a). a ee also' Act n'JWiYt'
19401 14, 4 tas7t. 4,r79,48 3. S. s m. : '
"'la 45 Stat. IO1, 48 3tM.-' fe't. ee also Act f Jnly 19, i4,
S14,84 Stat. 774t, 77,4; U.. s. 61e8m.
S"e, 4Mltat. 061,48 U. &. -d eft

Indian reservations fropa territorial leads,,tkelSupreme OCurt.
hbp held that rights tqoupof,-wateW, fr4.trigttiqi. e rseaT -
tion lands have been impliedly reserved.' McQpyer,.prFyi-
sios'of treaties,with respect to boundary: waters have estab-
ished fixed standards for the operation of projects constructed
or regulated by international bodies established p urswua to
reaty., ,-th respeo to boundary waters between the United
States and Canadm the Itemnatiqoal Joint. Commission has
p .thrity .o approve the .uie,. obstruction, or diversion 4f
boundary waters." By treaty, tis r.equjred to observe'thQ
following order of precedence. i tlheperpise of ita4thoriVl1y
(1) Uses for, ipmetic and sanitasry purposes;,
,a 1wUss for IatAition iIncluding,the service of aps for
tie purposes of nq gatiqn;; ,
(3) Uses for power and for irrigation purposes.
I 'n eaUie bf the'bohndary pokticri of the Rio'Grande and
Colorado River, thte AterrrationalBokMdary and WtWtr Com-
miasion, thiteld Statea and Mexitd4is required by treaty to
be guided by the following order bi ~Fe' ntde hiimaking pro-
vision for joint leii ift-tkation~IAWhWies, subject to aAy sani-
try, .works or.mea ures agreed, [upon by )the, tw o Goverf-
ments: i

2. Agriculture, and tock raising.
3.. Electric power. ,, ,. -.
Other in u trial uses I ; f
5. Navigation. .r :"
6.Fisblng nd hu0ntu4g r,-f TA
r:.' ers V.:e ViteSm Mttef, 207 U. S. 564 56W-Si (10S). See alho-.Ai ;,
pol.f,, 249, ; .r -, T : i ",
T reats JFpl p 4P 109, Art. TL 6,StKat-. 2448, W ....,; ,?'. l:
W Art' VlI, 36'ta'f. 2451.
".Treaty of February8,1944,Art. 8,59 Stat. ~ 2 ..a, i,: ,
-TIB t~IsicoiW~t!9 lerl bpd1wB pot4AAthtAt gdvIselg g.ari coqsentug to
r.i.c lpr o .alAreag~ t4e Sqeate tippIated. that "a'Qt~a qpatainetti
the treaty or protocol shall be construed .ag-anthorioig tbe -saretary7ei
4tIt4, tw fPtptgtafs, the. Ounmipsjpner of the UnAued ateSeqteobn
of the International Boundary an!r4t~.gaWin eigqn ~nisit$ 5gBfL
Slo pif_ yoeefipgdne3retl^oit a t*ptis ter, i n$oM Uothe
distribntion of water to users within the -territorial limits of any of the
individual States." Sen. Res. of April ~ ,4 1. 59 Stat. 1268, 4265.,

7. Any other beneficial uses which may be determined by
the Commission.

Design and Prosecution of Projects
It has long been required that, except as otherwise provide
by law, sums appropriated for the various branches of expendi-
ture in the public service "shall be applied solely o the ob-
ject for which they are respectively made, and for no oth-
ers." 20 The importance of the "objects" for which funds are
appropriated in the case of water-resource projects and activi-
ties is therefore obvious. Such: "objects" may be, specified in
the appropriation act itself, or may be ascertained from the
authorization for that appropriation. In either event, the
"objects" become limitations on the consequent design, con-
struction and operation of fie project. And limitations may
of course be prescribed in other legislation, such as the statutes
authorizing construction of the project.
Significance therefore attaches to the authorized purposes
of : parojt.. While its design, construction, and operation
may note limited to the precise plans existing at the time
of authorization, they would seem clearly to be limited, as a
general rule,'to the purposes inherent in those plans. Excep-
tions would occur in cases where blanket authority exists for
inclusion of an additional purpose, as in the ease of eremetional
facilities at Army reservoir projects.a91 A similar situation ex-'
itatgenerally with repeatt to inclusion of provisions for the;
preservation.of fish and wildlife.2"
smiteo. iell,, the design' of projects i a functidonodf the
construitio n #iige ;y. The design of'projeets, Bfhowever, may
be influenced by a division of responsibilities affecting the'
For example, responsibility for marketing of federal power
SR. S. I 8et~8, from Aft of Mari S, i80i, 1, 2 Stat. 85, as amended, 31
U. C. 028;.
SAct ofDetember 22, 1944, 4, 58 Stat. 887, 889, as amended, 16 U. S. C.
See supra, p. 329.

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