THE OMNIBUS ADJUSTMENT ACT-SEC. 35 369 (a) Nine hundred and sixty-two acres, Fort Shaw division, permanently unproductive for lack of fertility in the soil, nonirrigable and nonarable; (b) One hundred and five acres, Fort Shaw division, permanently unproductive because inaccessible by erosion and floods; (c) One thousand two hundred and thirty-three acres, Fort Shaw division, permanently unproductive because flooded and eroded. (2) $11,734 because of error or mistake on account of adjustment losses. (3) $34,148, Operation and Maintenance deficit prior to the reclamation extension act of 1914. (44 Stat. 644) Sec. 34. [Construction charges suspended.]-All payments upon construction charges shall be suspended against the following lands: (a) Two thousand five hundred and eighteen acres, Fort Shaw division, temporarily unproductive, subscribed, water-logged; (b) One thousand two hundred and ninety-two acres, Fort Shaw division, temporarily unproductive, unentered, and unsubscribed. All as shown by classification heretofore made under the supervision of the Board of Survey and Adjustments and as shown in the table on page 49 of said Document 201, checked and modified as outlined in "General recommendations" numbered 2 and 4, page 60, of said document. (44 Stat. 645) UMATILLA PROJECT, OREGON Sec. 35. [Deductions from total cost.]-There shall be deducted from the total cost of said project the following sums: EAST DIVISION (1) $490,390, or such an amount as represents the actual construction charges as found by the Secretary of the Interior against the following lands: (a) Two thousand five hundred and seventy-five acres permanently unproductive for lack of fertility in the soil, not susceptible of improvement; (b) Two thousand two hundred and fifty-five acres permanently unproductive because of porous soil, gravelly subsoil. (2) $388,448 on account of error or mistake—excluded from district repayments on account of faulty construction. (3) $16,711 on account of error or mistake; loss on Hermiston district lands. (4) $91,083 on account of operation and maintenance deficit prior to reclamation extension act of 1914. WEST DIVISION (1) $5,703, or such an amount as represents the actual construction charges as found by the Secretary of the Interior against the following lands: (a) Fifty-nine acres permanently unproductive for lack of fertility in the soil, not susceptible of improvement. (2) $252 on account of error or mistake representing shortage of contracted returns from fifty-four acres under water-right applications. 370 THE OMNIBUS ADJUSTMENT ACT-SEC. 36 (3) The water-rights formerly appurtenant to all permanently unproductive lands on the Umatilla project shall be available to the remaining lands without added cost to the water users. (44 Stat. 645) Sec. 36. [Construction charges suspended.]-All payments upon construction charges shall be suspended against the following lands: EAST DIVISION (a) Six hundred and ten acres temporarily unproductive for lack of fertility in the soil because of water-logging; (b) Five hundred and thirty acres representing in amount $37,100 and described as probable loss on Hermiston district lands. WEST DIVISION (a) Three thousand four hundred and twenty-two acres temporarily unproductive because of inadequate water supply; (b) Five hundred and ninety-five acres temporarily unproductive because of water-logging. All as shown by classification heretofore made under the supervision of the Board of Survey and Adjustments, as shown in the tables on page 52 of said Document 201, as revised and as checked and modified as recommended in "General recommendations" numbered 2 and 4, on page 60 of said document. (44 Stat. 646) UNCOMPAHGRE PROJECT, COLORADO Sec. 37. [Deductions from total cost.]-There shall be deducted from the total cost of the said project the following sums: (1) $1,318,056, or such an amount as represents the actual construction charges as found by the Secretary of the Interior against the following lands: (a) Four hundred and thirty-nine acres permanently unproductive for lack of fertility in the soil; (b) Twenty-four thousand nine hundred and eighteen acres permanently unproductive because of an inadequate water supply. (2) $47,371 on account of error or mistake representing deductions recommended and covered in contract of May 7, 1918, between the United States and the Uncompahgre Valley Water Users' Association. The total thus to be deducted from the project cost shall be charged off as a permanent loss to the reclamation fund. (44 Stat. 646) Sec. 38. [Construction charges suspended.]—All payments upon construction charges shall be suspended against the following lands: (a) Seventeen thousand acres temporarily unproductive because waterlogged; (b) Five thousand six hundred and twenty-nine acres temporarily unproductive because of rolling and uneven topography; (c) Five thousand acres temporarily unproductive because of alkalinity; THE OMNIBUS ADJUSTMENT ACT-SEC. 41 371 (d) The water rights formerly appurtenant to the permanently unproductive lands shall be available to the remaining land on said project without added cost to the water users, because of the Gunnison Tunnel not yet being completed and there being an inadequate water supply. All as shown by classification heretofore made under the supervision of the Board of Survey and Adjustments and shown in the table on page 55 of said Document 201, checked and modified as outlined in "General recommendations" numbered 2 and 4, page 60 of said document. (44 Stat. 646) YAKIMA PROJECT, WASHINGTON Sec. 39. [Deductions from total cost.]—There shall be deducted from the total cost of said project the following sum: $3,068, or such an amount as represents the actual construction charges as found by the Secretary of the Interior against the following lands: Fifty-nine acres, Sunnyside division, permanently unproductive because of shallow soil overyling rock. (44 Stat. 646) Sec. 40. [Construction charges suspended.]—All payments upon construction charges shall be suspended against the following lands: (a) One thousand eight hundred and forty-nine acres, Sunnyside division, temporarily unproductive, being either water-logged, alkalied, rough, steep, shallow soil overlying hardpan, or difficult to subdue. (b) Three thousand and thirty-two acres, Tieton division, temporarily unproductive because of shallow, poor soil with rough topography. All as shown by classification heretofore made under the supervision of the Board of Survey and Adjustments and shown on page 57 of said Document 201, checked and modified as outlined in "General recommendations" numbered 2 and 4, page 60 of said document. (44 Stat. 647) ADMINISTRATIVE PROVISIONS Sec. 41. [Permanently unproductive land excluded from project-Disposition of water rights.]—All lands found by the classification to be permanently unproductive shall be excluded from the project, and no water shall be delivered to them after the date of such exclusion unless and until they are restored to the project. Except as herein otherwise provided, the water right formerly appurtenant to such permanently unproductive lands shall be disposed of by the United States under the reclamation law: Provided, That the water users on the projects shall have a preference right to the use of the water: And provided further, That any surplus water temporarily available may be furnished upon a rental basis for use on lands excluded from the project under this section, on terms and conditions to be approved by the Secretary of the Interior. (44 Stat. 647; 43 U.S.C. § 423) 1. Notice NOTE OF OPINION Where the United States is under contract to furnish water for land now found, in accordance with the act, to be permanently unproductive, not only the owner of the land but also any interested mortgagees 372 THE OMNIBUS ADJUSTMENT ACT-SEC. 42 or other lienors are entitled to a notice and an opportunity to consent or object to the severance of the water right. Interpretation, 51 L.D. 525, 526 (1926). Sec. 42. [Disposition of construction charges already paid on permanently unproductive lands-Cash refunded if all lands excluded.]—The construction charges heretofore paid on permanently unproductive lands excluded from the project shall be applied as a credit on charges due or to become due on any remaining irrigable land covered by the same water-right contract or land taken in exchange as provided in section 44 of this act. If the charges so paid exceed the amount of all water-right charges due and unpaid, plus the construction charges not yet due, the balance shall be paid in cash to the holder of the waterright contract covering the land so excluded or to the irrigation district affected; which in turn shall be charged with the responsibility of making suitable adjustments with the landowners involved. Should all the irrigable lands of a water-right applicant be excluded from the project as permanently unproductive, and no exchange be made as provided in section 44 hereof, the total construction charges heretofore paid, less any accrued charges on account of operation and maintenance, shall be refunded in cash, the water-right contract shall be canceled, and all liens on account of water-right charges shall be released. (44 Stat. 647; 43 U.S.C. § 423a) Construction charges 2 NOTES OF OPINIONS Where a perpetual vested water right has been granted by the United States, the Government is obligated to furnish water to lands owned by applicants, or, if the lands are found to be permanently unproductive and the water right is to be abrogated pursuant to the act of May 25, 1926, the applicants are entitled to adequate compensation therefor in an amount equivalent to a paidup water right, even though no money was actually paid to the Government for the water rights. The compensation payable to the applicants may be on the same basis as the refund of construction charges. Comp. Gen. Dec. A-20551 (December 12, 1927), In re P. L. Duncan and John Nelson, Umatilla project. At the initiation of a project, a tract of land had a partial water right and the Government adjusted the water right by considering that the value of the water right then held was $35 and by agreeing to furnish a complete water right for $25 per irrigable acre to be paid by the landowner. Upon the enactment of the adjustment act, the tract of land was found to be permanently unproductive. The owner applied, under section 42, for credits on other land on account of the construction charge on this tract. The Comptroller General held that credit may be allowed for refund of the recognized value of the old water right Except where the vested right feature is involved, it is necessary in a refund of construction charges paid on permanently unproductive land under section 42, act of May 25, 1926, to show that the owner of the property or his predecessors in title have actually paid to the Government as construction charges the amount proposed to be refunded. Vouchers for refund of construction charges should be stated in sufficient detail to enable the General Accounting Office to verify the fact that the amount proposed to be refunded has been collected. Such vouchers are not such as should be paid by a disbursing officer; they should be forwarded to the General Accounting Office for settlement as claims. Comp. Gen. Dec. A-21979 (March 17, 1928), In re Herman Seseman, Shoshone project. THE OMNIBUS ADJUSTMENT ACT-SEC. 43 373 Sec. 43. [Suspension of construction charges against areas temporarily unproductive Payments made credited to construction charge-CreditsDelivery of water-Permanently unproductive lands.]-The payment of all construction charges against said areas temporarily unproductive shall remain suspended until the Secretary of the Interior shall declare them to be possessed of sufficient productive power properly to be placed in a paying class, whereupon payment of construction charges against such areas shall be resumed or shall begin, as the case may be. Any payments made on such areas shall be credited to the unpaid balance of the construction charge on the productive area of each unit. Such credit shall be applied on and after the passage and approval of this act, which shall not be construed to require revision of accounts heretofore adjusted under the provisions of this section as originally enacted. While said lands so classified as temporarily unproductive and the construction charges against them are suspended, water for irrigation purposes may be furnished upon payment of the usual operation and maintenance charges, or such other charges as may be fixed by the Secretary of the Interior the advance payment of which may be required, in the discretion of the said Secretary. Should said lands temporarily classed as unproductive, or any of them, in the future be found by the Secretary of the Interior to be permanently unproductive, the charges against them shall be charged off as a permanent loss to the reclamation fund and they shall thereupon be treated in the same manner as other permanently unproductive lands as provided in this act except that no refund shall be made of the construction charges paid on such unproductive areas and applied as a credit on productive areas as herein authorized. (44 Stat. 647; Act of April 23, 1930, 46 Stat. 249; 43 U.S.C. § 423b) EXPLANATORY NOTE 1930 Amendment. The Act of April 23, 1930, 46 Stat. 249, amended section 43 by (1) adding to its present second and third sentences, and (2) by adding to its last sentence the words "except that no refund shall be made of the construction charges paid on such unproductive areas and applied as a credit on productive areas as herein authorized." The 1930 Act appears herein in chronological order. NOTES OF OPINIONS The Secretary of the Interior has the authority at the present time, pursuant to section 43 of the Act of May 25, 1926 (44 Stat. 636), as amended by the Act of April 23, 1930 (46 Stat. 249), to reclassify lands classed as temporarily unproductive under such act, as amended, either as lands in a paying class or as lands permanently unproductive, and to effect the necessary adjustments of the repayment obligations to reflect such changes in classification. Memorandum of Acting Chief Counsel Fix, August 21, 1944. 2. Effect of determination The contract of August 19, 1948, with the Northport Irrigation District, made pursuant to the Act of May 25, 1948, fixed the construction charge obligation of the district at $952,045.57, thus superseding earlier contracts which reduced the obligation by the amount of the construction charge applicable to temporarily unproductive or suspended lands, Consequently, the Secretary is without authority to declare 2,555 acres of land (construction charges against these lands were suspended by section 26 of the Omnibus Adjustment Act) permanently unproductive and to write off as a loss to the reclamation fund the amount of the construction charge allocated to such lands, as provided in section 43 of the |