Secretary of War, is hereby authorized to make preliminary examinations and minor surveys preliminary thereto and to remove snags and other temporary or readily removable obstructions from tributaries of waterways already under Federal improvement or in general use by navigation, or to make such minor improvements in any of the navigable waters of the United States as he may deem advisable in the interest of national defense, the cost thereof to be paid from funds appropriated for the maintenance and improvement of rivers and harbors: Provided, That the cost of such work in any single year shall not exceed $3,000 per tributary. Sec. 1, act of July 25, 1912 (37 Stat. 222); sec. 3, act of July 3, 1930 (46 Stat: 946); sec. 3, act of Oct. 17, 1940 (54 Stat. 1200); 33 U. S. C. 603. This section has been amended as above. 1836. River and harbor appropriations; availability for maintenance of harbor channels. This provision has been repeated in subsequent appropriation acts, including War Department Civil Appropriation Act, 1945 (58 Stat. 329). 1841. River and harbor appropriations; unexpected balances. The first paragraph of this section, based on section 6, act of September 22, 1922 (42 Stat. 1042); 33 U. S. C. 563, has been eliminated from the Code. 1844. Collections for river and harbor property lost, damaged, or stolen. "33 U. S. C. 571, 701k" should be added to the citation to this paragraph, based on section 4, act of June 20, 1938 (52 Stat. 805). 1845. River and harbor contracts; advertising requirements. Appropriations for civil functions under the Corps of Engineers available for river and harbor contracts during fiscal years 1944 and 1945 were exempted from the requirements of this section by War Department Civil Appropriation Acts, 1944 (57 Stat. 94) and 1945 (58 Stat. 328). Notes of Decisions Acceptance of bids.-A district engineer and contracting officer of United States had no right to disregard conditions of combination bid for levee work within district and accept combination bid as though it were unconditional even if conditions were violative of rules for and instructions to bidders. 5 U. S. C. A., sec. 218; 33 U. S. C. A., secs. 622, 623. Noce, U. S. District Engineer v. Edward E. Morgan Co., Inc. (C. C. A. 8, 1939), 106 F. (2d) 746. The act of district engineer and contracting officer of United States in ignoring conditions imposed by bidder for levee work and attempting to accept bid as though unconditional constituted "counter offer" which amounted to rejection of bid and could not have effect of putting bidder in default or of forming basis for any charge against bidder on account of failure to accept counter proposal. 5 U. S. C. A., sec. 218; 33 U. S. C. A., secs. 622, 623. Id. 1849a. River and harbor supplies; sale or transfer.-That when any land or other property which has been heretofore or may be hereafter purchased or acquired for the improvement of rivers and harbors is no longer needed, or is no longer serviceable, it may be sold in such manner as the Secretary of War may direct, and the proceeds credited to the appropriation for the work for which it was purchased or acquired; and the Secretary of War may direct the transfer of any property employed in river and harbor works, and in such event the property so transferred shall be valued and credited to the project upon which it was theretofore used and charged to the project to which it shall be transferred. * * * Sec. 5, act of June 13, 1902 (32 Stat. 373); 33 U. S. C. 558. This provision insofar as it authorizes the sale or transfer of river and harbor lands, was repealed by the "Camp Taylor Proviso." See 1029, ante. That the words "flood control” as used in section 1 of the Act of June 22, 1936, shall be construed to include channel and major drainage improvements, and that hereafter Federal investigations and improvements of rivers and other waterways for flood control and allied purposes shall be under the jurisdiction of and shall be prosecuted by the War Department under the direction of the Secretary of War and supervision of the Chief of Engineers, and Federal investigations of watersheds and measures for run-off and water-flow retardation and soil-erosion prevention on watersheds shall be under the jurisdiction of and shall be prosecuted by the Department of Agriculture under the direction of the Secretary of Agriculture, except as otherwise provided by Act of Congress. Sec. 2, act of Dec. 22, 1944 (58 Stat. 889); 33 U.S. C. 701a-1. The above provision, which modifies the original text of this section, is added as a new paragraph. By Executive Order No. 8089, April 13, 1939, certain lands in Oklahoma were reserved for the use of the War Department for flood-control purposes within the purview of the act of June 22, 1936, supra. Notes of Decisions revised plans and specifications under rially different from ones on which hearing was held, Government officer in charge of the matter would be attempting to act beyond his statutory authority, and therefore an action for injunction was one essentially against the officer in charge of the matter rather than against the Government which had not consented to be sued. 33 U. S. C. 701a. Barr et al. v. Rhodes, Captain, Corps of Engineers (D. C., W. D. Ky., 1940), 35 F. Supp. 223. Condemnation proceedings.-Where amended if petition by the United States to condemn which contract was to be let were materiver lands in West Virginia for purpose of erecting a flood control, power and navigation dam and reservoir, known as the Bluestone Reservoir Project, set forth the declaration of policy contained in Flood Control Act of 1936, the declaration of policy did not constitute a limitation upon the specific authorization for construction of the project contained in another act, and therefore petition was not demurrable on ground that conditions set forth in the declaration of policy had not been complied with. U. S. v. West Virginia Power Co. et al. (C. C. A. 4, 1941), 122 F. (2d) 733; certiorari denied (1941), 314 U. S. If the Flood Control Act should be construed as giving Government officer in charge of construction of levee the right to let contracts on plans and specification's materially different from the one considered on the hearing held in court, the act would be invalid, and therefore an action for injunction was one essentially gainst the officer in charge of the matter rather than against the Government which had not consented to be sued. 33 U. S. C. 701a et seq. Id. of Where captain of the United States Engineers in contracting for construction levee was merely carrying out orders of Secretary of War under supervision of Chief of United States Engineers, the Secretary of War was an "indispensable party" to action to enjoin the captain from letting contract for construction of the levee. 33 U. S. C. Contracts.-Where levee was to be constructed under Federal Flood Control Act, 701ą et seq. Id. 1852. Flood control; adoption of project. In so far as oil and gas deposits are concerned, Executive Order No. 9087, March 5, 1942, as corrected in Federal Register of March 19, 1942, page 2143, transfers to the Department of the Interior jurisdiction over certain lands acquired for flood control purposes on the Sacramento River, California. Notes of Decisions Liability for damage.-Change citation to U. S. 618; affirmed (1939), 308 U. S. 516. read: Franklin v. U. S. (D. C., 1936), 16 F. Supp. 253; affirmed (C. C. A. 6, 1939), 101 F. (2d) 459; certiorari granted (1939), 307 646631-45-32 An owner of land within the area of the Boeuf Floodway brought suit against the United States under the Tucker Act, alleg Act 1928, 33 U. S. C., sec. 702a et seq.: ing that the Flood Control Act and operations contemplated by and carried on pursuant to it involved damage to the land and a taking of it for public use. A right to just compensation under the Fifth AmendA levee district, organized pursuant to ment and a right of recovery under the State statute, could not be held liable for Flood Control Act itself were asserted. The alleged rainfall and seepage water damage owner's use and possession of the land has to land caused by erection of a new or loop not been interfered with; there was no levee, which was built by Federal Govern"taking" of the land within the meaning of ment and turned over to district for mainthe Fifth Amendment. There had been no tenance, in absence of statute specifically flooding of the land; the lands in this case having been not damaged but actually bene- providing for payment of damages caused fited. It appeared that the floodway project to abutting owners by erection of new or in question had been abandoned; there was loop levee. 33 U. S. C, 702a et seq. Kyle v. no right of recovery. Tucker Act, 28 U. S. St. Francis Levee Dist. (Mo., 1941), 153 C., sec. 41; Mississippi River Flood Control | S. W. (2d) 391. That in order to effectuate the policy declared in sections one and two of the Act of June 22, 1936 (Public, Numbered 738, Seventy-fourth Congress), and to correlate the program for the improvement of rivers and other waterways by the Department of War with the program for the improvement of watersheds by the Department of Agriculture, works of improvement for measures of run-off and water-flow retardation and soil-erosion prevention on the watersheds of waterways, for which works of improvement for the benefit of navigation and the control of destructive floodwaters and other provisions have been adopted and authorized to be prosecuted under the direction of the Secretary of War and supervision of the Chief of Engineers, are hereby authorized to be prosecuted by the Department of Agriculture under the direction of the Secretary of Agriculture and in accordance with plans approved by him. The Secretary of Agriculture is hereby authorized in his discretion to undertake such emergency measures for run-off retardation and soil-erosion prevention as may be needed to safeguard lives and property from floods and the products of erosion on any watershed whenever fire or any other natural element or force has caused a sudden impairment of that watershed: Provided, That not to exceed $100,000 out of any funds heretofore or hereafter appropriated for the prosecution by the Secretary of Agriculture of works of improvement or measures for run-off and waterflow retardation and soil-erosion prevention on watersheds may be expended during any one fiscal year for such emergency measures. For prosecuting said work and measures there is hereby authorized to be appropriated the sum of $10,000,000 to be expended at the rate of $2,000,000 per annum during the five-year period ending June 30, 1944: Provided, That such works and measures which are herein authorized to be prosecuted by the Department of Agriculture may be carried out on the watersheds of the Rio Grande and Pecos Rivers subject to the proviso in section 2 of the said Act of June 22, 1936. Sec. 7, act of June 28, 1938 (52 Stat. 1225); sec. 15, act of Dec. 22, 1944 (58 Stat. 907); 33 U. S. C. 701b-1. * Provided, That the surveys authorized to be performed under the direction of the Secretary of War as well as all duties performed by the Chief of Engineers under the direction of the Secretary of War shall be functions of the Engineer Corps, United States Army, and its head, to be administered under the direction of the Secretary of War and the supervison of the Chief of Engineers except as otherwise specifically provided by Congress: Provided, That the power and authority conferred by the Flood Control Act of June 28, 1938, and previously conferred, upon the Federal Power Commission shall remain in full force and effect: * Stat. 1415); 33 U. S. C. 701b-4. Sec. 6, act of Aug. 11, 1939 (53 The fourth paragraph of the original text of this section has been amended as indicated in the first paragraph supra. The second provision supra, is added as a new paragraph of this section. By section 14, Flood Control Act of December 22, 1944 (58 Stat. 907), the balance of the appropriation previously authorized by the fourth paragraph of the original text of this section, was reauthorized for expenditure by the Department of Agriculture for improvement of watersheds. A provision similar to the first paragraph of the original text of this section is contained in section 1, act of August 18, 1941 (55 Stat. 638); 33 U. S. C. 701b. By Executive Order No. 9137, April 16, 1942, certain public lands in Arkansas were withdrawn for use of the War Department for flood control purposes under authority of this section. 1854. Flood control; prosecution of work. * * (h) Any officer of the Corps of Engineers who has served or shall serve four years as President of the Mississippi River Commission and who has been or shall subsequently be retired, shall, from the date of such retirement, receive the rank, pay, and allowances of a retired major general. Sec. 3, act of Aug. 18, 1941 (55 Stat. 644); 10 U. S. C. 1026b. The above provision is added as a new paragraph of this section. That section 3 of the Act of June 22, 1936 (Public, Numbered 738, Seventyfourth Congress), as heretofore amended and as herein further modified, shall apply to all flood-control projects, except as otherwise specifically provided by law. That in case of any dam and reservoir project, or channel improvement or channel rectification project for flood control, herein authorized or heretofore authorized by the Act of June 22, 1936 (Public, Numbered 738, Seventyfourth Congress), as amended, and by the Act of May 15, 1928 (Public, Numbered 391, Seventieth Congress), as amended by the Act of June 15, 1936 (Public, Numbered 678, Seventy-fourth Congress), as amended, title to all lands, easements, and rights-of-way for such project shall be acquired by the United States or by States, political subdivisions thereof, or other responsible local agencies and conveyed to the United States, and provisions (a), (b), and (c) of section 3 of said Act of June 22, 1936, shall not apply thereto. Notwithstanding any restrictions, limitations, or requirements of prior consent provided by any other Act, the Secretary of War is hereby authorized and directed to acquire in the name of the United States title to all lands, easements, and rights-of-way necessary for any dam and reservoir project or channel improvement or channel rectification project for flood control, with funds heretofore or hereafter appropriated or made available for such projects, and States, political subdivisions thereof, or other responsible local agencies, shall be granted and reimbursed, from such funds, sums equivalent to actual expenditures deemed reasonable by the Secretary of War and the Chief of Engineers and made by them in acquiring lands, easements, and rights-of-way for any dam and reservoir project, or any channel improvement or channel rectification project for flood control heretofore or herein authorized: Provided, That no reimbursement shall be made for any indirect or speculative damages: Provided further, That lands, easements, and rightsof-way shall include lands on which dams, reservoirs, channel improvements, and channel rectifications are located; lands or flowage rights in reservoirs and highways, railway, and utility relocation: Provided further, That in all cases of the acquisition hereunder by the United States from the Los Angeles County Flood Control District or the Muskingum Watershed Conservancy District of lands, easements, or rights-of-way, wherein the written opinion of the Attorney General in favor of the validity of the title to such lands, easements, or rights-of-way is or may be required or authorized by law, the Attorney General may, in his discretion, base such opinion upon a certificate of title of the district from which said lands, easements, or rights-of-way are to be acquired accompanied by an agreement, duly executed by the district in conformity with the constitutions and laws of the State where the district in question is situated to indemnify the United States against all claims, liabilities, loss, expenses, and attorneys' fees of whatsoever kind or nature, resulting from or arising out of any defect or defects whatsoever in the title to any such lands, easements, or rights-of-way so conveyed to the United States, including all just compensation, costs, and expenses which may be incurred in any condemnation proceeding deemed necessary and instituted by the United States in order to perfect title to any such lands, easements, or rights-of-way. Sec. 2, act of June 28, 1938 (52 Stat. 1215); sec. 5, act of Aug. 11, 1939 (53 Stat. 1415); 33 U. S. C. 701c-1. * That section 3 of the Act approved June 22, 1936 (Public, Numbered 738, Seventy-fourth Congress), as amended by section 2 of the Act approved June 28, 1938 (Public, Numbered 761, Seventy-fifth Congress), shall apply to all works authorized in this Act, except that for any channel improvement or channel rectification project provisions (a), (b), and (c) of section 3 of said Act of June 22, 1936, shall apply thereto, and except as otherwise provided by law: * * Provided further, That the authorization for any floodcontrol project heretofore or herein adopted requiring local cooperation shall expire five years from the date on which local interests are notified in writing by the War Department of the requirements of local cooperation, unless said interests shall within said time furnish assurances satisfactory to the Secretary of War that the required cooperation will be furnished: And provided further, That in any case where the total authorization for a project heretofore or hereafter authorized by Congress is not sufficient to complete plans that may have been made the Chief of Engineers is authorized in his discretion to plan and make expenditures on preparations for the project, such as the purchase of lands, easements, and rights-of-way; readjustments of roads, railroads, and other utilities; removal of towns, cemeteries, and dwellings from reservoir sites; and the construction of foundations. The Chief of Engineers is also authorized in his discretion to modify the plan for any dam or other work heretofore or hereafter authorized so that such dam or work will be smaller than originally planned with a view to completing a useful improvement within an authorization: Provided, That the smaller structure shall be located on the chosen site so that it will be feasible at some future time to enlarge the work in order to permit the full utilization of the site for all purposes of conservation such as flood control, navigation, reclamation, the development of hydroelectric power, and the abatement of pollution. Sec. 2, act of Aug. 18, 1941 (55 Stat. 638); 33 U. S. C. 701m. The second paragraph of the original text of this section was amended as indicated by the first paragraph above. The second paragraph above is added as a new provision of this section. Under this section certain lands in the State of Arkansas were withdrawn, by Executive Order No. 8732, April 8, 1941, for use in connection with the construction of a dam and reservoir under the supervision of the War Department, and certain lands in the State of Oklahoma were withdrawn, by Executive Order No. 8733, April 10, 1941, for use in connection with the construction of a dam and reservoir project under supervision of the War Department. A provision similar to the second paragraph supra, was contained in section 3, act of December 22, 1944 (58 Stat. 889), which stated the policy regarding requirements of local |