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Supplementary Provision: Interest Rate. Section 6 of the Boulder Canyon Project Adjustment Act, approved July 19, 1940, provides that: "Whenever by the terms of the Project Act or this Act payment of interest is provided for, and whenever interest

Advances 1

2

Economy Act deductions 4
Flood control
School purposes 3

1. Advances

shall enter into any computation thereunder, such interest shall be computed at the rate of 3 per centum per annum, compounded annually". The Act appears herein in chronological order.

Interest, at the rate of 4 percent, prescribed by section 2(d), could not be remitted on funds advanced to the Colorado River Dam fund, placed to the credit of the Interior Department but later returned to the Treasury unexpended. Dec. Comp. Gen., A-46044 (February 28, 1933).

2. Flood control

The language of section 2(b) shows clearly that Congress did not regard the $25,000,000 thereby allocated to flood control as falling within the amortization plan embodied in section 4(b). The $25,000,000 allocated to flood control must be regarded as falling outside of the words "all amounts advanced to the fund under subdivision (b) of section 2 for such works" in section 4(b). It is my opinion that the Secretary of the Interior is not required, in fixing the sale rates for power to be generated at Boulder Dam, to make provision for the amortization within the 50 years of the $25,000,000 allocated by the act to flood control. 36 Op. Atty. Gen. 121 (1929).

It does not seem reasonable to suppose that Congress intended to make the payment of interest on the $25,000,000 allocated to flood control an absolute charge during the 50 years when it left the payment of the principal to the chance that there might be excess earnings during that period. Interest should be ultimately paid on the $25,000,000 from the same source as is provided for the payment of the principal, to wit: out of 622 per cent of the excess earnings during the 50-year period and out of 622 per cent of the net earn

ings thereafter. 36 Op. Atty. Gen. 121 (1929).

3. School purposes

On September 29, 1931, the Comptroller General held that there is no authority to use the Colorado River Dam fund for the construction of school buildings, transportation of pupils, or construction of swimming pools. Upon request for reconsideration the Comptroller General, under date of October 17, 1931, stated that in view of the further representations made to the effect that the construction of the Boulder Dam was being delayed by lack of school facilities and that "the erection of school buildings is necessary to carry out the purposes of the project act", no objection would be interposed to the use of the Colorado River Dam fund for the construction of temporary buildings in which schools may be conducted during the current school year, provided the contractor will bear the expense of maintaining and operating the schools unless and until otherwise specifically provided for by law. Dec. Comp. Gen., A-38343 (October 17, 1931).

4. Economy Act deductions

The amount of Economy Act deductions from the total compensation of employees who are paid out of the Colorado River Dam fund is required to be advanced from appropriated funds as a part of the cost of construction in the same manner as the remainder of the compensation of the employees and is subject to 4 percent interest charges provided by section 2(b) of the Act of December 21, 1928 (45 Stat. 1057), on all advances from the general fund to the special fund. The impounding of Economy Act deductions from the total compensation of employees who are paid out of the Colorado River Dam fund should be directly from such special fund to the impounded

Wyoming have ratified said compact and have consented to waive the provisions of the first paragraph of Article XI of said compact, which makes the same binding and obligatory only when approved by each of the seven States signatory thereto, and that each of the States last named has approved said compact without condition, except that of six-State approval as prescribed in section 13(a) of said act of December 21, 1928.

"(c) That the State of California has in all things met the requirements set out in the first paragraph of section 4 (a) of said act of December 21, 1928, necessary to render said act effective on six State approval of said compact.

"(d) All prescribed conditions having been fulfilled, the said Boulder Canyon project act approved December 21, 1928, is hereby declared to be effective this date.

"In testimony whereof I have hereunto set my hand and caused the seal of the

United States of America to be affixed.

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"Done at the city of Washington this 25th day of June, in the year of our Lord one thousand nine hundred and twenty-nine, and of the Independence of the United States of America the one hundred and fifty-third."

California Limitation Act. The California Limitation Act (Stats. Cal. 1929, ch. 16), was enacted by California in fulfillment of the requirement with respect to an act of its legislature set forth in the second half of subsection 4 (a). The California Act provides that in consideration of the passage of the Boulder Canyon Project Act that the aggregate annual consumptive use (diversions less returns to the river) by California of the water of the Colorado River shall not exceed 4,400,000 acre-feet of the waters apportioned to the lower basin States by the Colorado River Compact, plus not more than one-half of any surplus or excess waters unapportioned by the Compact.

In passing the Boulder Canyon Project Act, Congress intended to, as shown clearly by the legislative history, and did, create its own comprehensive scheme for the apportionment among California, Arizona, and Nevada of the Lower Basin's share of the mainstream waters of the Colorado River, leaving each State her own tributaries. It decided that a fair division of the first 7,500,000 acre-feet of such mainstream waters would give 4,400,000 acre-feet to California, 2,800,000 to Arizona, and 300,000 to Nevada, and that Arizona and California should each get one-half of any surplus. Congress gave the Secretary of the Interior adequate authority to accomplish this division by giving him power to make contracts for the delivery of water and by providing that no person could have water without a contract. The limitation of California to 4,400,000 acre-feet, together with the Secretary's contracts with Arizona for 2,800,000 acre-feet and with Nevada for 300,000 acrefeet, effect a valid apportionment in keeping with the Congressional plan. Arizona v. California, 373 U.S. 546, 564-90, 592 (1963); Decree, 376 U.S. 340 (1964).

Where Congress has exercised its constitutional power over waters, providing its own methods for allocating water to which States are entitled, courts have no power to substitute their own notions of an equitable

apportionment for that chosen by Congress. Arizona v. California, 373 U.S. 546, 565 (1963).

The power of the Secretary of the Interior to apportion and distribute Colorado River water among and within the Lower Basin States through the execution of contracts for its use is subject to a number of standards and limits in the Boulder Canyon Project Act. These include (1) the limitation in § 4(a) of 4,400,000 acre-feet on California's consumptive uses out of the first 7,500,000 acre-feet of mainstream water, leaving 3,100,000 acre-feet which the Secretary properly has apportioned by contract in the quantities of 300,000 acre-feet to Nevada and 2,800,000 to Arizona; (2) the provision in § 6 setting out in order the purposes for which the Secretary must use the dam and reservoir; (3) the § 4(b) requirement for revenue provisions in the contracts adequate to ensure the recovery of the expenses of construction, operation and maintenance of the dam and other works within 50 years after their construction; (4) the directive in § 5 that water contracts for irrigation and domestic use shall be only for "permanent service"; (5) the recognition given in § 8(a) to the Colorado River Compact, which means that the Secretary and his permittees, licensees and contractees can do nothing to upset or encroach on the Compact's allocation of water between the Upper and Lower Basins; (6) the application by § 14 of general reclamation law except as the Act otherwise provides; and (7) the protection given in

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§6 to "present perfected rights." Arizona v. California, 373 U.S. 546, 583-85 (1963).

In case of a shortage of mainstream water in the Lower Basin, the Secretary is not bound to require a pro rata sharing of shortages among the Lower Basin States. He must follow the standards set out in the Act; but unless and until Congress enlarges or reduces the Secretary's power, he is free to choose among the recognized methods of apportionment or to devise reasonable methods of his own, since Congress has given him full power to control, manage and operate the Government's Colorado River works and to make contracts for the sale and delivery of water on such terms as are not prohibited by the Act. Arizona v. California, 373 U.S. 546, 592-94 (1963).

Section 4(a) of the Boulder Canyon Project Act, providing that the State of California shall have, each year, for beneficial consumptive use not to exceed 4,400000 acre-feet of water from the lower basin of the Colorado River, considered in connection with Article III (a) of the Colorado River Compact, must be interpreted as forbidding the Secretary of the Interior to enter into a contract with the State of Arizona for the storage of water in the contemplated reservoir, which might, as for example in years when there is less than 7,500,000 acre-feet available, interfere with the apportionment to California of its specified annual amount. Solicitor Margold Opinion, 54 I.D. 593 (1934).

2. Desert land entries

In exercise of the discretionary authority vested in the Secretary under section 7 of the Taylor Grazing Act, as amended, public land in the Imperial Valley, California, may be classified as not proper for disposition under the Desert Land Act, 19 Stat. 377, as amended, on the grounds that it would be contrary to the public interest at this time to increase the pressure on the inadequate water supply available for use in California from the Colorado River. Hugh S. Ritter, Thomas M. Bunn, 72 I.D. 111 (1965). See also Stephen H. Clarkson, 72 1.D. 138 (1965).

By a notice of December 2, 1965, the Secretary of the Interior repealed the suspension of a large number of desert land

entries in Imperial and Riverside Counties, California, that had been pending for a number of years in anticipation of obtaining irrigation water from the Colorado River. The suspensions had been granted under the decision in Maggie L. Havens, A-5580 (October 1, 1923). The Secretary stated in the notice that it would be contrary to the public interest to increase the pressure on the inadequate water supply available for use in California from the Colorado River by permitting additional federally owned lands to be developed under the desert land laws unless clear eligibility exists or unless clear grounds for relief are shown.

In certain circumstances desert land entries in Imperial and Riverside Counties affected by the notice of December 2, 1965, repealing the suspension under Maggie L. Havens, A-5580 (October 11, 1923), which have been reclaimed or are in the process of being reclaimed, will be considered in accordance with the principles of equity and justice as authorized by 43 U.S.C. § 1161, even though development was not completed within the statutory life remaining in the entry after March 4, 1952. Clifton O. Myll, A-29920 (Supp. II), 72 I.D. 536 (1965), vacating 71 I.D. 458 (1964), as supplemented by 71 I.D. 486 (1964). 3. State Acts

The Act of the California Legislature of March 4, 1929 (Stats. 1929, ch. 16) embodies the express agreement required of the State of California by the Act of December 21, 1928, with respect to the use of the waters apportioned to the lower basin States, effective when six States comply with the requirements and conditions of paragraph 2, section 4 (a) of the Act of December 21, 1928. Solicitor's Opinion, M-25151 (April 24, 1929).

The ratification of the Colorado River Compact by the State of Utah conforms to the requirements of the applicable provisions of the Boulder Canyon Project Act. Chapter 31 of the 1929 Laws of Utah, approved March 6, 1929, clearly shows that the legislature intended the ratification by that State to be "without condition save that of six-State approval." 36 Op. Atty. Gen. 72 (1929).