413 BOARD TO EXAMINE BOULDER DAM SITE Joint resolution to appoint a board of engineers to examine and report upon the dam to be constructed under H.R. 5773, the Boulder Dam bill. (Pub. Res. 65, S.J. Res. 164, May 29, 1928, ch. 918, 45 Stat. 1011) [Examination and report to be made prior to December 1, 1928-Compensation of board-Construction plans to be approved by board-President's sanction and approval essential-Expenses.]-The Secretary of the Interior is hereby authorized and directed to appoint a board of five eminent engineers and geologists, at least one of whom shall be an engineer officer of the Army on the active or retired list, to examine the proposed site of the dam to be constructed under the provisions of H.R. 5773, Seventieth Congress, first session, and review the plans and estimates made therefor, and to advise him prior to December 1, 1928, as to matters affecting the safety, the economic and engineering feasibility, and adequacy of the proposed structure and incidental works, the compensation of said board to be fixed by him for each, respectively, but not to exceed $50 per day and necessary traveling expenses, including a per diem of not to exceed $6, in lieu of subsistence, for each member of the board so employed for the time employed and actually engaged upon such work: And provided further, That the work of construction shall not be commenced until plans therefor are approved by said special board of engineers. No authority hereby conferred on the Secretary of the Interior shall be exercised without the President's sanction and approval. The expenses herein authorized shall be paid out of the reclamation fund established by the act of June 17, 1902. (45 Stat. 1011) EXPLANATORY NOTES Not Codified. This Act is not codified in the U.S. Code. Reference in the Text. H.R. 5773, Seventieth Congress, first session, referred to in the text, was enacted into law December 21, 1928. The Act is the Boulder Canyon Project Act, which appears herein in chronological order. Board's Report. The report submitted by the Board appointed pursuant to this resolution, dated December 3, 1928, was published as House Document No. 446, Seventieth Congress, second session. Legislative History. S.J. Res. 164, Public Resolution 65 in the 70th Congress. .414 BOULDER CANYON PROJECT ACT An act to provide for the construction of works for the protection and development of the Colorado River Basin, for the approval of the Colorado River compact, and for other purposes. (Act of December 21, 1928, ch. 42, 45 Stat. 1057) [Sec. 1. Dam at Black or Boulder Canyon for flood control, improving navigation, and for storage and delivery of water-Main canal to supply water for Imperial and Coachella Valleys-Power plant-All works in conformity with Colorado River compact.]—For the purpose of controlling the floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored waters thereof for reclamation of public lands and other beneficial uses exclusively within the United States, and for the generation of electrical energy as a means of making the project herein authorized a self-supporting and financially solvent undertaking, the Secretary of the Interior, subject to the terms of the Colorado River compact hereinafter mentioned, is hereby authorized to construct, operate, and maintain a dam and incidental works in the main stream of the Colorado River at Black Canyon or Boulder Canyon adequate to create a storage reservoir of a capacity of not less than twenty million acre-feet of water and a main canal and appurtenant structures located entirely within the United States connecting the Laguna Dam, or other suitable diversion dam, which the Secretary of the Interior is hereby authorized to construct if deemed necessary or advisable by him upon engineering or economic considerations, with the Imperial and Coachella Valleys in California, the expenditures for said main canal and appurtenant structures to be reimbursable, as provided in the reclamation law, and shall not be paid out of revenues derived from the sale or disposal of water power or electric energy at the dam authorized to be constructed at said Black Canyon or Boulder Canyon, or for water for potable purposes outside of the Imperial and Coachella Valleys: Provided, however, That no charge shall be made for water or for the use, storage, or delivery of water for irrigation or water for potable purposes in the Imperial or Coachella Valleys; also to construct and equip, operate, and maintain at or near said dam, or cause to be constructed, a complete plant and incidental structures suitable for the fullest economic development of electrical energy from the water discharged from said reservoir; and to acquire by proceedings in eminent domain, or otherwise, all lands, rights of way, and other property necessary for said purposes. (45 Stat. 1057; 43 U.S.C. § 617) EXPLANATORY NOTES Hoover Dam. The dam on the Colorado River in Black Canyon had been designated Hoover Dam by instructions of the Secretary of the Interior dated September 17, 1930. The dam was redesignated Boulder Dam by order of the Secretary dated May 8, 1933. The name Hoover Dam was restored by the Act of April 30, 1947, 61 Stat. 56. The Act appears herein in chronological order. Supplementary Provision: Boulder Canyon Project Adjustment Act. The Boulder Canyon Project Act was amended and supplemented by the Boulder Canyon Project Adjustment Act of July 19, 1940, 54 Stat. 774. This Act and notes hereunder should BOULDER CANYON PROJECT ACT-SEC. 1 be considered in the light of the Adjustment Act, which appears herein in chronological order. Reference Source. An extensive compilation and review of the Boulder Canyon Project Act, the Colorado River Compact, the Mexican Water Treaty, contracts, liti Colorado River Compact 14 Constitutionality 1 415 gation, and other documents relating to the Colorado River is found in Hoover Dam Documents (Wilbur and Ely), H. Doc. No. 717, 80th Cong., 2d Sess. (1948). It brings up to date an earlier work entitled The Hoover Dam Contracts (Ely), U.S. Department of the Interior (1933). NOTES OF OPINIONS Costs, allocation and reimbursement of 15 Excess lands 17 The Boulder Canyon Project Act was passed in exercise of Congressional power to control navigable water for purposes of flood control, navigation, power generation, and other objects, and is equally sustained by power of Congress to promote the general welfare through projects for reclamation, irrigation, and other internal improvements. Arizona v. California, 373 U.S. 546, 587 (1963). The Court judicially knows, from the evidence of history, that a large part of the Colorado River south of Black Canyon was formerly navigable and that the main obstacles to navigation have been accumulations of silt and irregularity in flow. Arizona v. California, 283 U.S. 423, 453 (1931). Inasmuch as the grant of authority under the Boulder Canyon Project Act to build the dam and reservoir is valid as the constitutional power of Congress to improve navigation, it is not necessary to decide whether the authority might constitutionally be conferred for other purposes. Arizona v. California, 283 U.S. 423, 457 (1931). 2. Purpose Generally The whole point of the Boulder Canyon Project Act was to replace erratic, undependable, often destructive natural flow of the Colorado River with regular, dependable release of waters conserved and stored by the project, and thereunder, Congress made it clear that no one should use mainstream waters save in strict compliance with the scheme set up by the Act. Arizona v. California, 373 U.S. 546, 579 (1963). 3. River regulation The release of water through the California Sluiceway at Imperial Dam in order to transport sediment load downstream is appropriate to accomplish river regulation. The United States has, under the contract with Imperial Irrigation District and within the limitations provided, a prior right to release water for this purpose as compared with the diversion of water for generation of power at Pilot Knob. Also, Mexico cannot, under the Mexican Water Treaty, insist as a matter of right_that_all or substantially all of the water allotted to it under the Treaty be delivered via the AllAmerican Canal; nor can Mexico require that the United States assume responsibility either for the quality of the water delivered to it or for disposal of sediment load. Memorandum of Associate Solicitor Fisher, October 17, 1956. 4. Municipal water supplies The Secretary of the Interior has authority under sections 1 and 5 of the Boulder Canyon Project Act to provide increased capacity in the All-American Canal to carry water to the City of San Diego for the beneficial consumptive use of the city. Solicitor Margold Opinion, 54 I.D. 414 (1934). 10. Limitations The provision in section 1 of the Boulder Canyon Project Act empowering the Secretary of the Interior to construct a main canal connecting the Laguna Dam "or other suitable diversion dam" with the Imperial and Coachella Valleys does not authorize the building of or in any respect apply to the Parker Dam proposed to be constructed 70 miles upstream from Laguna Dam and canal without specific Congressional authorization as required by section 9 of the Act of March 3, 1899. United States v. Arizona, 295 U.S. 174 (1935). (Editor's Note: The Parker Dam was subsequently authorized by the Act of August 30, 1935. Extracts from both Acts, including the relevant sections, appear herein in chronological order.) Neither the Boulder Canyon Project Act nor the Reclamation laws generally authorize the Secretary of the Interior to establish a Federal reservation, in connection with the construction of the dam and powerplant, over which the United States would have exclusive jurisdiction pursuant to a Nevada statute generally ceding jurisdiction 416 BOULDER CANYON PROJECT ACT-SEC. 1 over lands acquired by the United States for public buildings. Six Companies, Inc. v. DeVinney, County Assessor, 2 F. Supp. 693 (D. Nev. 1933). The distribution system for Coachella Valley is not an "appurtenant structure" to the main canal within the meaning of section 1 of the Boulder Canyon Project Act. Solicitor White Opinion, M-34900 (March 27, 1947) in re flood protection work in Coachella Valley. 11. State laws Where the government has, as here, exercised its right to regulate and develop the river and has undertaken a comprehensive project for improvements of the river and for the orderly and beneficial distribution of water, there is no room for inconsistent state law. Arizona v. California, 373 U.S. 546, 587 (1963). The privilege of the States through which the Colorado River flows and their 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. Arizona v. California et al., 298 U.S. 558, 569 (1936), rehearing denied, 299 U.S. 618 (1936). The Secretary of the Interior is under no obligation to submit the plans and specifications for the dam and reservoir to the State Engineer as required by Arizona law because the United States may perform its functions without conforming to the police regulations of a State. Arizona v. California, 283 U.S. 423, 451 (1931). 12. Judicial review All of the powers granted to the Secretary of the Interior by this Act are subject to judicial review. Arizona v. California, 373 U.S. 546, 584 (1963). 13. United States as party The action of the Secretary of the Interior in reducing by ten per cent the amount of Colorado River water which irrigation and drainage district might order during the balance of 1964 was the action of the sovereign, and, the sovereign not having consented thereto, could not be enjoined, or otherwise made the subject of any court proceedings. Yuma Mesa Irr. and Drainage Dist. v. Udall, 253 F. Supp. 909 (D.D.Č. 1965). The United States is an indispensable party to an action by Arizona against California and the five other States of the Colorado River Basin praying for an equitable division of the unappropriated water of the river. Arizona v. California, et al., 298 U.S. 558 (1936), rehearing denied, 299 U.S. 618 (1936). 14. Colorado River Compact The declarations in sections 1, 8(a), 13 (b), and 13(c) of the Boulder Canyon Project Act that the Secretary of the Interior and the United States shall be subject to and controlled by the Colorado River Compact were made only to show that the Act and its provisions were in no way to upset, alter, or affect the Compact's congressionally approved division of water between the Upper and the Lower Basins. They were not intended to make the compact and its provisions control or affect the Act's allocation among and distribution of water within the States of the Lower Basin. Arizona v. California, 373 U.S. 546, 567 (1963). In construing the Boulder Canyon Project Act, the Court would look to the Colorado River Compact for the limited purposes of interpreting compact terms specifically incorporated in the Act-such as the reference to satisfaction of "present perfected rights" in section 6, and the definition of "domestic" in section 12-and of resolving disputes between the Upper and Lower Basins. Arizona v. California, 373 U.S. 546, 566 (1963). 15. Costs, allocation and reimbursement of For discussion of numerous legal problems involved in allocation and reimbursement of costs of All-American Canal and related works see Memoranda of Chief Counsel Fisher of April 1, 1953, and October 23, 1952. Investigation costs incurred by the United States under contracts of 1918, 1920, 1929 and 1933 in connection with the All-American Canal are reimbursable by the Imperial Irrigation District. Nothing in the Kinkaid Act of May 18, 1920, or its legislative history implies that the expenses under the 1920 contract paid by the United States were to be a gift to the District, and the fact that the District contributed two-thirds the cost of the study does not imply that the onethird paid by the United States was to be nonreimbursable. Nor does the fact that study funds advanced by the District under the 1929 and 1933 contracts were later refunded imply that U.S. costs to the amount of the refunds were to be nonreimbursable. Memorandum of Chief Counsel Fisher, November 18, 1953. 16. Leases and permits Both the National Park Service and the Bureau of Reclamation, in administering their respective areas withdrawn under the first form in connection with the Boulder Canyon project, may grant leases for land and permits to engage in business activities to private individuals without advertising for proposals or securing competitive bids. BOULDER CANYON PROJECT ACT-SEC. 2 Solicitor Margold Opinion, M-28694 (October 13, 1936). 17. Excess lands The Coachella Valley County Water District lands are subject to the excess land provisions of the Federal reclamation law. Solicitor Harper Opinion, M-33902 (May 31, 1945). 417 assumed to have vested Colorado River water rights, are subject to the excess land laws. Solicitor Barry Opinion, 71 I.D. 496 (1964), reversing Letter of Secretary Wilbur, February 24, 1923. Administrative practice in failing to apply excess land laws to private lands in Imperial Irrigation District, no matter of how long standing, is not controlling where it is clearly erroneous. Solicitor Barry Opinion, 71 I.D. 496, 513–17 (1964). Privately-owned lands in the Imperial Valley Irrigation District, even those Sec. 2. [(a) Colorado River Dam fund established. (b) Secretary of Treasury to advance amounts necessary up to $165,000,000. $25,000,000 to be allocated to flood control, to be repaid. (c) No expenditures for operation and maintenance except from appropriations. (d) Secretary of Treasury to charge fund for payment of interest. (e) Secretary of Interior to certify to Treasury amount of money in fund in excess of that necessary for construction, etc.]—(a) There is hereby established a special fund, to be known as the "Colorado River Dam fund" (hereinafter referred to as the "fund"), and to be available, as hereafter provided, only for carrying out the provisions of this act. All revenues received in carrying out the provisions of this act shall be paid into and expenditures shall be made out of the fund, under the direction of the Secretary of the Interior. (b) The Secretary of the Treasury is authorized to advance to the fund from time to time and within the appropriations therefor, such amounts as the Secretary of the Interior deems necessary for carrying out the provisions of this act, except that the aggregate amount of such advances shall not exceed the sum of $165,000,000. Of this amount the sum of $25,000,000 shall be allocated to flood control and shall be repaid to the United States out of 622 per centum of revenues, if any, in excess of the amount necessary to meet periodical payments during the period of amortization, as provided in section 4 of this act. If said sum of $25,000,000 is not repaid in full during the period of amortization, then 622 per centum of all net revenues shall be applied to payment of the remainder. Interest at the rate of 4 per centum per annum accruing during the year upon the amounts so advanced and remaining unpaid shall be paid annually out of the fund, except as herein otherwise provided. (c) Moneys in the fund advanced under subdivision (b) shall be available only for expenditures for construction and the payment of interest, during construction, upon the amounts so advanced. No expenditures out of the fund shall be made for operation and maintenance except from appropriations therefor. (d) The Secretary of the Treasury shall charge the fund as of June 30 in each year with such amount as may be necessary for the payment of interest on advances made under subdivision (b) at the rate of 4 per centum per annum accrued during the year upon the amounts so advanced and remaining unpaid, except that if the fund is insufficient to meet the payment of interest the Secretary of the Treasury may, in his discretion, defer any part of such payment, and the amount so deferred shall bear interest at the rate of 4 per centum per annum until paid. (e) The Secretary of the Interior shall certify to the Secretary of the Treasury, at the close of each fiscal year, the amount of money in the fund in excess of the |