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BOULDER CANYON PROJECT ACT
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 amortization vithin the 50 years of the $25,000,000 allocated by the act to flood control. (36 Op. Attorney General, 121, Dec. 26, 1929.)
Interest on $25,000,000 allocated to flood control.--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. I am inclined to believe that 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 6242 per cent of the excess earnings during the 50-year period and out of 6242 per cent of the net earnings thereafter. (Id.)
School buildings, transportation of pupils, swimming pool.-In decision A-38343, dated September 29, 1931, the Comptroller General held as follows: "In none of the statutes creating the Colorado River Dam fund, appropriating therefor, and stating the purposes for which the fund would be available, is there any provision specifically, or by reasonable implication, making the fund available for construction of school buildings, transportation of pupils, or construction of a swimming pool. The general authority vested in the Secretary of the Interior by section 14 of the Boulder Canyon Project Act and section 10 of the Reclamation Act of June 17, 1902, is not sufficient to render the fund available for any item of expenditure the Secretary of the Interior may approve, regardless of its connection with the purposes for which the fund was created and appropriated. There must be a direct relationship between the purposes for which the expenditure is proposed and the purposes for which the fund was created and appropriated.” 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. But see item in appropriation act of April 22, 1932.
See note following section 3 of this act entitled “Purchase of title insurance in connection with right-of-way agreements".
Interchange of funds.-See note under this caption of Comptroller General's decision A-41637, dated June 14, 1932, in appropriation act of April 22, 1932.
Percentage deductions required by Economy Act.--In decision A-42691 dated February 13, 1933, the Comptroller General held that 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 fund.
In decision A-56169, of July 2, 1934, the Comptroller General held that economy deductions under secs. 110 and 203 of the act of June 30, 1932, and under sec. 4 (d) of the act of March 20, 1933, are a part of the construction cost of the Boulder Canyon project and that the impounding and deposit of same to the surplus fund of the Treasury do not constitute a return or repayment of these amounts within the purview of the Boulder Canyon Project Act of December 21, 1928. Interest on said amounts must continue until repayment has been made in accordance with the terms of said act.
BOULDER CANYON PROJECT ACT
Interest must be charged on funds advanced and returned unexpended.-In decision A-46044 dated February 28, 1933, addressed to the Secretary of the Treasury, the Comptroller General held that interest, at the rate of 4 percent, prescribed by sec. 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.
Sec. 3. [Appropriation not exceeding $165,000,000 authorized. ]—There is hereby authorized to be appropriated from time to time, out of any money in the Treasury not otherwise appropriated, such sums of money as may be necessary to carry out the purposes of this act, not exceeding in the aggregate $165,000,000. (45 Stat. 1058.)
Textual note.—The word "act" in the next to the last line of above section is codified as "chapter" in section 617b, chapter 12A, title 43, United States Code. No other change in this section.
Reduction of costs on authorized construction.-Section 320 of the "Economy Act" of June 30, 1932, relative to restriction on construction and rental of buildings is applicable to section 3 of the Boulder Canyon Project Act.
Purchase of title insurance in connection with right-of-way agreements.-In decisions A-39589 (dated, respectively, Dec. 30, 1931, and Jan. 29, 1932) the Comptroller General, in construing the Boulder Canyon Project Act in connection with section 7 of the act of June 17, 1902 (32 Stat. 388), held that Boulder Canyon project funds may be used to purchase land title abstracts or certificates with or without insurance payment to be made under the appropriation available for the purchase price, if such abstracts or certificates are necessary to enable the Secretary of the Interior, or such of his subordinates as he may designate, to determine the validity of the title to the land to be acquired.
The Boulder Dam appropriation is available for payment for placing and designing of panels, tablets, and inscriptions, award to be made on competitive designs by known artists. (Comptroller General's decision A-61595, May 24, 1935.)
Sec. 4. (a) (When act effective-Ratification of Colorado River compact—Proclamation by President-Agreement by California required Agreement authorized by Arizona, California, and Nevada-Apportionment of waters—Consumptive use of Gila River by Arizona—Water for domestic and agricultural use. (b) Contracts required for revenues to insure payment of expenses of operation and maintenance, etc., and repayment of construction within 50 years, before any money is appropriatedWork on main canal contingent on provision to insure payment of expenses—Payments to Arizona and Nevada.]—This act shall not take effect and no authority shall be exercised hereunder and no work shall be begun and no moneys expended on or in connection with the works or structures provided for in this act, and no water rights shall be claimed or initiated hereunder, and no steps shall be taken by the United States or by others to initiate or perfect any claims to the use of water pertinent to such works or structures unless and until (1) the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming shall have ratified the Colorado River compact, mentioned in section 13 hereof, and the President by public proclamation shall have so declared, or (2) if said States fail to ratify the said compact within six months from the date of the passage of this act then, until six of said States, including the State of California, shall ratify said compact and shall consent to waive the provisions of the first paragraph of Article XI of said compact, which makes the same binding and obligatory only when approved
BOULDER CANYON PROJECT ACT
by each of the seven States signatory thereto, and shall have approved said compact without conditions, save that of such six-State approval, and the President by public proclamation shall have so declared, and, further, until the State of California, by act of its legislature, shall agree irrevocably and unconditionally with the United States and for the benefit of the States of Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming, as an express covenant and in consideration of the passage of this act, that the aggregate annual consumptive use (diversions less returns to the river) of water of and from the Colorado River for use in the State of California, including all uses under contracts made under the provisions of this act and all water necessary for the supply of any rights which may now exist, shall not exceed four million four hundred thousand acrefeet of the waters apportioned to the lower basin States by paragraph (a) of Article III of the Colorado River compact, plus not more than one-half of any excess or surplus waters unapportioned by said compact, such uses always to be subject to the terms of said compact.
The States of Arizona, California, and Nevada are authorized to enter into an agreement which shall provide (1) that of the 7,500,000 acre-feet annually apportioned to the lower basin by paragraph (a) of Article III of the Colorado River compact, there shall be apportioned to the State of Nevada 300,000 acre-feet and to the State of Arizona 2,800,000 acre-feet for exclusive beneficial consumptive use in perpetuity, and (2) that the State of Arizona may annually use one-half of the excess or surplus waters unapportioned by the Colorado River compact, and (3) that the State of Arizona shall have the exclusive beneficial consumptive use of the Gila River and its tributaries within the boundaries of said State, and (4) that the waters of the Gila River and its tributaries, except return flow after the same enters the Colorado River, shall never be subject to any diminution whatever by any allowance of water which may be made by treaty or otherwise to the United States of Mexico but if, as provided in paragraph (c) of Article III of the Colorado River compact, it shall become necessary to supply water to the United States of Mexico from waters over and above the quantities which are surplus as defined by said compact, then the State of California shall and will mutually agree with the State of Arizona to supply, out of the main stream of the Colorado River, one-half of any deficiency which must be supplied to Mexico by the lower basin, and (5) that the State of California shall and will further mutually agree with the States of Arizona and Nevada that none of said three States shall withhold water and none shall require the delivery of water, which can not reasonably be applied to domestic and agricultural uses, and (6) that all of the provisions of said tri-State agreement shall be subject in all particulars to the provisions of the Colorado River compact, and (7) said agreement to take effect upon the ratification of the Colorado River compact by Arizona, California, and Nevada.
In decision of August 30, 1934, the Department held that sec. 4 (a) of the Boulder Canyon Project Act (45 Stat. 1057) providing that the State of California
BOULDER CANYON PROJECT ACT
shall have, each year, for beneficial consumptive use not to exceed 4,400,000 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 for the storage of water in the contemplated reservoir, which might prevent the receipt by California of its stated annual water allotment. (Decision of Solicitor, August 30, 1934.)
(b) Before any money is appropriated for the construction of said dam or power plant, or any construction work done or contracted for, the Secretary of the Interior shall make provision for revenues by contract, in accordance with the provisions of this act, adequate in his judgment to insure payment of all expenses of operation and maintenance of said works incurred by the United States and the repayment, within fifty years from the date of the completion of said works, of all amounts advanced to the fund under subdivision (b) of section 2 for such works, together with interest thereon made reimbursable under this act.
Before any money is appropriated for the construction of said main canal and appurtenant structures to connect the Laguna Dam with the Imperial and Coachella Valleys in California, or any construction work is done upon said canal or contracted for, the Secretary of the Interior shall make provision for revenues, by contract or otherwise, adequate in his judgment to insure payment of all expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law.
If during the period of amortization the Secretary of the Interior shall receive revenues in excess of the amount necessary to meet the periodical payments to the United States as provided in the contract, or contracts, executed under this act, then, immediately after the settlement of such periodical payments, he shall pay to the State of Arizona 1834 per centum of such excess revenues and to the State of Nevada 1834 per centum of such excess revenues. (45 Stat. 1058, 1059.)
Textual note.-Section 4, (a) and (b), is codified as section 617c, (a) and (b), in chapter 12A, title 43, United States Code, with the following changes : In the first paragraph of (a) "act," when it refers to the Boulder Canyon project act, appears as "chapter" and "section 13" appears as "section 617c." In the first paragraph of (h) the word “act.' occurring twice, is changed each time to "chapter," and "section 2” is changed to "section 617a." The word "act" in the fourth paragraph of (b) is changed to "chapter."
NOTES Ratification.--With respect to the adherence of Utah to the Colorado River compact. 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." 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. (36 Opin. Atty. Gen. 72, dated June 22, 1929.)
By decision M-25151, dated April 24, 1929, approved by the Secretary of the Interior, the Solicitor for the Interior Department found that the act of the California Legislature of March 4, 1929 (Assembly Bill No. 1070), 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.
BOULDER CANYON PROJECT ACT
The text of the President's proclamation, signed at Washington June 25, 1929 (46 Stat. 3000), is as follows: By the President of the United States of America:
Pursuant to the provisions of section 4 (a) of the Boulder Canyon project act approved December 21, 1928 (45 Stat. 1057), it is hereby declared by public proclamation :
(a) That the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming have not ratified the Colorado River compact mentioned in section 13 (a) of said act of December 21, 1928, within six months from the date of the passage and approval of said act.
(0) That the States of California, Colorado, Nevada, New Mexico, Utah, and 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 band and caused the seal of the United States of America to be affixed.
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. (SEAL.)
HERBERT HOOVER, By the President:
HENRY L. STIMSON, Secretary of State. Contracts held to be valid.The opinion of the Attorney General addressed to the President under date of June 9, 1930, holds that the Contract for Lease of Power Privilege with the city of Los Angeles, its department of water and power and the southern California Edison Co., Ltd., is a valid agreement binding upon the city and its department to the extent to which funds are available under the provisions of the department's charter, and is in full compliance with section 4 (b) of the Boulder Canyon project act, since the revenues which it will provide out of such funds are, in the judgment of the Secretary of the Interior, adequate to meet the requirements of that section. It further holds that all the requirements of the said section which are made conditions precedent to the appropriation of money, the making of contracts, and the commencement of work for the construction of a dam and power plant have been fully met and performed by the Secretary of the Interior in securing contracts with the city and company. (36 Op. Atty. Gen. 270.)
This opinion was upheld by the Comptroller General in decision A-32702. October 10, 1930. Notwithstanding the objections on the part of the State of Arizona, Congress made an initial appropriation of $10,660,000 in the act of July 3, 1930 (46 Stat. 877). Taking into consideration the fact that no restriction or limitation was contained in this appropriation, and further that compliance with the conditions precedent in the Boulder Canyon project act was reserved by section 4 (b) of said act for the consideration of the Congress, it must be presumed, in view of the appropriation made, that Congress has in fact determined, and has been satisfied, that the law with respect to entering into contracts has been complied with, not only in so far as concerns the making of the appropriation, but also with respect to the other two stens, i. e., the beginning of construction work and the contracting for such work.
Advances for construction of All-American canal not to bear interest.The omission of any mention of interest in the second paragraph of section 4 (b), in contradistinction to the express mention thereof in the first paragraph, is significant, and strongly indicative of an intention of Congress that interest upon the construction cost of the All-American Canal should not be charged against lands benefited. The main canal was singled out and treated as a purely reclamation project, the expenditures for which were to be reimbursable in the same manner as those for other projects administered under the reclamation law. (36 Op. Atty. Gen. 121, Dec. 26, 1929.)
Advances from the general Treasury to the Colorado River Dam fund, used solely in the construction, operation, and maintenance of the All-American Canal and its diversion dam, and disbursements from the Colorado River Dam fund for such purposes, are not intended by the act to be interest bearing, but