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RECLAMATION PROJECT ACT OF 1939-SEC. 14

section 14 of the Reclamation Project Act of 1939 for the cost of relocating church buildings that were constructed pursuant to a special use permit issued by the Forest Service, which is revocable at will, on lands covered by a reclamation withdrawal. Memorandum of Associate Solicitor Fritz to Field Solicitor, Billings, January 7, 1955, in re parcel number 10, Pactola Dam and Reservoir.

Section 14 authorizes negotiation for relocation of a facility by its owner, as well as relocation by the Bureau; and a contract may be entered into to pay the owner a fixed sum for this work, rather than a sum based on actual cost, where analysis shows this to be in the best interests of the government. Memorandum of Assistant Commissioner Markwell to Regional Director, Denver, November 28, 1951.

2.-Roads

The provision of section 208 of the Flood Control Act of 1962, relating to the nonreimbursability of Federal costs of relocating roads to current standards, must be construed in pari materia with section 9 and and section 14 of the Reclamation Project Act of 1939. This means that (1) the cost of relocating a road in kind is included as a part of total project cost to be allocated as provided in section 9 of the 1939 Act; (2) the additional cost of constructing the substitute road to current standards under section 208 is a non-reimbursable federal cost; and (3) the further cost of constructing the road to a still higher standard requested by the State must be paid by the State. Memorandum of Associate Solicitor Weinberg, December 6, 1962.

In highway relocations the obligation of the United States is to be measured by the costs of a necessary substitute highway which will provide equivalent service and equivalent standards to the highway being taken. That is, the obligation of the United States is measured by the cost of such highway as is required to be constructed as a result of the taking, and where the remaining highway system is adequate or where the taking eliminates the source of traffic, and hence the need for the road, only nominal compensation is required. California v. United States, 169 F. 2d. 914 (1948), Fort Worth v. U.S., 188 F. 2d. 217, 221-222 (1951). While the question of necessity for substitute highways is not necessarily controlled by whether or not an express legal duty is imposed upon the State or other public entity involved, U.S. v. Des Moines County, 148 F. 2d. 448 (1945), it is clear that the test is one of adequacy, not one merely of convenience or the fulfillment of a desire. Washington v. U.S., 214 F. 2d. 33,

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40 (1954). “. is not what the state... would like to get or even what might be more desirable, but rather what is reasonable and fair under all the circumstances." U.S. v. 0.886 of an acre, 65 F. Supp. 827, 828 (1946). See also U.S. v. Alderson, 53 F. Supp. 528 (1944). Memorandum of Assistant Commissioner Golze to Regional Director, Billings, November 7, 1958, in re relocation of State secondary road at Clark Canyon Reservoir.

The Secretary is authorized under section 10 of the Reclamation Project Act of 1939 to grant to a county, with the consent of the water users, a permanent easement in an access road constructed as a part of a project, and under section 14 of the 1939 Act, to make an advance payment to the county in recognition of the saving to the government of costs of maintenance and repair of the road. Dec. Comp. Gen. B-109485 (July 22, 1952), in re contract with Shasta County.

Although it is the general rule that personal services necessary in connection with governmental activities are for performance by regular employees of the government who are responsible to the government and subject to government supervision, it is permissible, under the broad authority of section 14, to reimburse a State for the services of a State highway engineer in connection with the relocation of a State highway, where the services of the State engineer facilitate the work of relocation and the Bureau is unable to locate a qualified engineer to perform this work. Dec. Comp. Gen. B-60222 (September 17, 1946). 3. Other properties

The terms "relocation" and "any other properties whatsoever", taken together, are broad enough to include transfer of a business or an operation or a function from a site needed for a project to other land. It is not necessary that the transfer involve a physical transfer or relocation of physical property affixed to the old site. Memorandum of Acting Chief Counsel Stinson, May 3, 1941, in re Provo River Project, Utah.

10. Exchanges-Water and water rights

In the event Congress enacts a provision of law, as proposed in an amendment to H.R. 4671 pending before the 89th Congress, directing the Secretary of the Interior, first, to enter into contracts exchanging Colorado River mainstream water for Gila River System water presently used by Arizona users, and second, to offer to enter into contracts making available to New Mexico users the Gila River System water which he had so acquired, no amendment to the

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RECLAMATION PROJECT ACT OF 1939-SEC. 14

Supreme Court decree in Arizona v. California, 376 U.S. 340 (1964) would be required to implement the Congressional enactment. Solicitor Barry Opinion, 73 I.D. 252 (1966).

In view of the long history of attempts to resolve disputes with water users diverting water from the Sacramento River, some part of which is attributable to the operation of Shasta Reservoir of the Central Valley Project, and in view of the costs and uncertainties of litigation, it is appropriately within the judgment of the Secretary under the authority of section 14 of the Reclamation Project Act of 1939 to waive payment for past diversions as a part of agreements with the diverters requiring payments for future diversions. Dec. Comp. Gen., B-152983 (January 21, 1964).

In view of the provision in section 14 of the Reclamation Project Act of 1939 authorizing contracts for exchange or replacement of water or water rights, water delivered to the Feather Water District in the Sacramento River at the mouth of the Feather River as replacement for water diverted by the District from the Feather River can be considered as "stored water" of the Central Valley project delivered "for" the lands of the District within the meaning of section 2 of the Act of August 26, 1937, as amended. Memorandum of Associate Solicitor Fisher, July 27, 1959.

The authority of the Secretary under section 14 to enter contracts not only for the exchange or replacement of water but also for the "adjustment of water rights," may reasonably be construed to authorize a contract for a cash payment to a town for the loss of use of its water supply system occasioned by construction and operation of the Colorado-Big Thompson project, in lieu of a contract for replacement of the water system. Dec. Comp. Gen. B-84264 (May 10, 1949), in re contract with Town of Hot Sulphur Springs, Colorado. 11.-Power

The advantages at federal hydroelectric projects to be realized from implementing the "Treaty between Canada and the United States of America Relating to Cooperative Development of the Water Resources of the Columbia River Basin" through the execution of exchange agreements, support, as a matter of law, the Bonneville Power Administrator's determination of "economical operation" as required by section 14 of the Reclamation Project Act of 1939 (53 Stat. 1197, 43 U.S.C. § 389) and section 5(b) of the Bonneville Project Act (50 Stat. 734, 16 U.S.C. § 832d(b)). Solicitor Barry Opinion, 71 I.D. 315, 326-28 (1964).

Agreements providing for the delivery to the Bonneville Power Administrator of a quantity of power which cannot, with certainty, be determined but which constitutes a valuable power resource, in return for the delivery by the Administrator of stated amounts of power over the same period, constitute power-for-power exchange agreements which the Administrator is authorized to enter into under section 14 of the Reclamation Project Act of 1939 (53 Stat. 1197, 43 U.S.C. §389) and section 5(b) of the Bonneville Project Act (50 Stat. 734, 16 U.S.C. §832d(b)). Solicitor Barry Opinion, 71 I.D. 315 (1964), in re Canadian Entitlement Exchange agreements.

The Secretary of the Interior is authorized to construct transmission lines, such as the Creston-Fairport intertie between the Missouri River Basin project and the Southwestern Power Administration, which are necessary to effectuate an exchange of power for the purpose of orderly and economical construction or operation and maintenance of any reclamation project, as provided in section 14 of the Reclamation Project of 1939. Memorandum of Associate Solicitor Weinberg to Director, Division of Budget and Finance, July 23, 1962.

As a prerequisite to the execution of a proposed agreement with the Washington Public Power Supply System to furnish firm power in exchange for the total electric power generated at the Atomic Energy Commission's New Production Reactor at Hanford, Washington, the Bonneville Power Administration must make a determination that the agreement is in the interest of economical operation, as required by section 14 of the Reclamation Project Act of 1939 and section 5(b) of the Bonneville Project Act. Dec. Comp. Gen. B-149016, B-149083 (letter to Chairman Holifield, July 16, 1962).

A proposed agreement whereby the Washington Public Power Supply System would furnish to the Bonneville Power Administration the total electric power generated from steam to be purchased from the Atomic Energy Commission's New Production Reactor at Hanford, Washington, and would receive in exchange therefor firm power from BPA, is clearly a contract for the exchange of power and comes within the general authority granted by section 5(b) of the Bonneville Project Act and section 14 of the Reclamation Project Act of 1939, which governs the operation of the Columbia Basin project as provided by section 1 of the Columbia Basin Project Act. Dec. Comp. Gen. B-149016, B-149083 (letter to Chairman Holifield, Joint Committee on Atomic Energy, July 16, 1962).

RECLAMATION PROJECT ACT OF 1939-SEC. 17

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Sec. 15. [Authority of the Secretary.]-The Secretary is hereby authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this Act into full force and effect. (53 Stat. 1198; 43 U.S.C. § 485i)

1. Necessary and proper

Note of OPINION

In cases where, because of administrative laxity in enforcing the excess land limitations of reclamation law, or because projects were initiated prior to the enactment of section 46 of the 1926 Act, owners of excess lands have been receiving water therefor without having executed recordable contracts, the Secretary, in the exercise of his authority to perform all acts necessary and proper to carry the reclamation laws

into full force and effect (sec. 10 of the Reclamation Act of 1902; sec. 15 of the Reclamation Project Act of 1939), may permit the continued delivery of water to such excess lands on condition that the owner, by the execution of a recordable contract, agrees to dispose of such lands within a reasonable time on reasonable conditions. Associate Solicitor Cohen Opinion, M-34999 (October 22, 1947).

Sec. 16. [Effect on existing laws.]—The provisions of previous Acts of Congress not inconsistent with the provisions of this Act shall remain in full force and effect. (53 Stat. 1198; 43 U.S.C. § 485j)

Sec. 17. (a) [Extension of time for modification of existing repayment contracts. The authority granted in section 3 of this Act for modification of existing repayment contracts or other forms of obligations to pay construction charges shall continue through December 31, 1960.

(b) [Deferment of construction charges.]-The Secretary is hereby authorized, subject to the provisions of this subsection, to defer the time for the payment of such part of any installments of construction charges under any repayment contract or other form of obligation as he deems necessary to adjust such installments to amounts within the probable ability of the water users to pay. Any such deferment shall be effected only after findings by the Secretary that the installments under consideration probably cannot be paid on their due date without undue burden on the water users, considering the various factors which in the Secretary's judgment bear on the ability of the water users so to pay.

The Secretary may effect the deferments hereunder subject to such conditions and provisions relating to the operation and maintenance of the project involved as he deems to be in the interest of the United States. If, however, any deferments would affect installments to accrue more than twelve months after the action of deferment, they shall be effected only by a formal supplemental contract. Such a contract shall provide by its terms that, it being only an interim solution of the repayment problems dealt with therein, its terms are not, in themselves, to be construed as a criterion of the terms of any amendatory contract that may be negotiated and that any such amendatory contract must be approved by the Congress unless it does not lengthen the repayment period for the project in question beyond that permitted by the laws applicable to that project, involves no reduction in the total amount payable by the water users, and is not in other respects less advantageous to the Government than the existing contract arrangements. The Secretary shall report to the Congress all deferments granted under this subsection. (53 Stat. 1198; Act of April 24, 1945, 59 Stat. 76; Act of

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RECLAMATION PROJECT ACT OF 1939-SEC. 18

August 8, 1958, 72 Stat. 543; Act of September 21, 1959, 73 Stat. 584; 43 U.S.C. § 485b-1)

EXPLANATORY NOTES

1959 Amendment. The Act of September 21, 1959, amended section 17, subsection (b) to read as it appears above. The 1939 language of the subsection read: "The authority of the Secretary under the Act entitled 'An act to authorize further relief to water users on United States and on Indian reclamation projects,' approved May 31, 1939 (Public, Numbered 97, Seventy-sixth Congress, first session), is hereby extended in connection with the construction charges due and payable, under any existing obligation to pay construction charges, for each of the years 1939 to 1943, inclusive, to the extent such charges are not covered by modification of said obligation under section 3 or 4 of this Act." The 1959 Act appears herein in chronological order.

1958 Amendment. Section 3 of the Act of August 8, 1958, amended section 17, as amended, by substituting the expression "Section 3" for the expression "Sections 3 and 4", where the latter occurred in the section-section 4 having been repealed by the same 1958 Act. The repealed section 4 authorized the "normal and percentages plan" of repayment which was superseded in the 1958 Act by a variable repayment plan. The 1958 Act appears herein in chronological order.

1945 Amendment. Section 3 of the Act of April 24, 1945, 59 Stat. 75, amended section 17 by extending the time in which payment contracts may be modified and by broadening the authority of the Secretary

to grant deferments. The 1945 Act appears herein in chronological order.

Supplementary Provision: Application of Subsection “(b)” Provisions. Section 3 of the Act of September 21, 1959, the act which amended subsection 17(b), provides that the amended subsection "shall apply to any project within the administrative jurisdiction of the Bureau of Reclamation to which, if it had been constructed as a project under the Federal reclamation laws these provisions would be applicable." The 1959 Act appears herein in chronological order.

Supplementary Provisions: Extension of Time for Modification of Repayment Contracts-Repeal of Section 4. The Act of March 6, 1952, 66 Stat. 16, provided that the authority vested in the Secretary of the Interior by sections 3, 4 and 7 of this Act be extended through December 31, 1954. The Act of August 31, 1954, 68 Stat. 1044, amended the 1952 Act by inserting "1957" in place of "1954." The 1954 Act was in turn amended by the Act of August 21, 1957, 71 Stat. 390, which replaced "1957" with "1960." The authority vested in the Secretary by sections 3, 4 and 7 of this Act was thus extended through December 31, 1960. The Act of August 8, 1958, 72 Stat. 542, repealed section 4 of this Act and amended the 1952 Act referred to in this note by deleting the reference in it to section 4. Each of these Acts appears herein in chronological order.

Sec. 18. [Act not to amend Boulder Canyon Project Act.]—Nothing in this Act shall be construed to amend the Boulder Canyon Project Act (45 Stat. 1057), as amended. (53 Stat. 1198; 43 U.S.C. § 485j, note)

Sec. 19. [Short title.]—This Act may be cited as the "Reclamation Project Act of 1939." (53 Stat. 1198; 43 U.S.C. § 485k)

EXPLANATORY NOTE

Legislative History. H.R. 6984, Public Law 260 in the 76th Congress. H.R. Rept. No. 995. S. Rept. No. 758. H.R. Rept. No.

1027 (on H. Res. 242). H.R. Rept. No. 1252 (conference report).

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HIGHWAY AND RAILROAD BRIDGE ACROSS COLUMBIA RIVER

An act granting the consent of Congress to the Secretary of the Interior, the State of Washington, and the Great Northern Railway Company to construct, maintain, and operate either a combined highway and railroad bridge or two separate bridges across the Columbia River, at or near Kettle Falls, Washington. (Act of August 7, 1939, ch. 504, 53 Stat. 1235)

[Sec. 1. Bridge authorized across Columbia River at Kettle Falls.]-The consent of Congress is hereby granted to the Secretary of the Interior, the State of Washington, the Great Northern Railway Company, a corporation organized and existing under the laws of the State of Minnesota, and their successors and assigns, jointly or separately, to construct, maintain, and operate either a combined highway and railroad bridge or two separate bridges, one to be a highway bridge and one a railroad bridge, across the Columbia River at a point or points suitable to the interests of navigation, at or near Kettle Falls, and between Ferry County and Stevens County, Washington, in accordance with the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906, and subject to the conditions and limitations contained in this Act. (53 Stat. 1235)

Sec. 2. [Reservation clause.]-The right to alter, amend, or repeal this Act is hereby expressly reserved. (53 Stat. 1235)

EXPLANATORY NOTES

Not Codified. This Act is not codified in the U.S. Code.

Reference in the Text. The Act entitled "An Act to regulate the construction of bridges over navigable waters," approved

March 23, 1906, referred to in section 1, is found at 34 Stat. 84, 33 U.S.C. § 491-98.

Legislative History. H.R. 6271, Public Law 302 in the 76th Congress. H.R. Rept. No. 1356.

267-067-72—vol. I- 45

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