Study of the Development, Management, and Use of Water Resources on the ...

Under the heading "Project Formulation" in the Bureau's "Instructions" (116.3) dated July 16, 1959, it is asserted that

Under the heading of "River Regulation" (231.5.1) dated
January 10, 1957, the Bureau advises that

The Reclamation Act recognizes the
interests and rights of the States in the utiliza-
tion and control of their water resources and requires
that the Bureau, in carrying out provisions
of the Act, proceed in conformity with State
water laws. Since the construction of a reser-
voir and the subsequent storage and release of
water for beneficial purposes normally entails
stream regulation, it is necessary to reach an
understanding with the States regarding reser-
voir operating limitations. Formalized agree-
ments with the States and also with other agencies
both public and private, are desirable wherever
the intricacy of established water rights, compacts,
and other agreements require clarification or
establishment of criteria within which river regu-
lation can be accomplished. Proposed agreements

which involve multipurpose operations, before
formal submission to persons or agencies out-
side the Bureau should be reviewed by the
Asst Commr and Chief Engineer for technical
adequacy. 26/

Further, to facilitate compliance with the § 8 requirements
a number of the western states have made special provisions for
the government appropriation of water which tend to facilitate
appropriation. 27/ Moreover, in the context of the Ivanhoe and
City of Fresno decisions it cannot be said that the Federal
Government could be prevented from the initiation of a project
by prohibitive state water acquisition regulations but unless
Reclamation's attitudes have changed drastically in the aftermath
of the Pelton Dam decision, the Bureau does in fact accommodate
itself to State regulations even in those cases in which delay or in-
convenience in implementing the project would be the price of
compliance. One commentator gives several examples of such
compliance. 28/ In one case the project was classified as detri-
mental to the public interest and the state permit was issued only
after the Federal Government, through negotiations, modified its
water right application. 29/ Another case involved Bureau plan
to divert the water of a river contrary to the terms of a state
statute and before implementing the project the Federal Govern-
ment agreed to provide a separate storage dam. 30/

From the internal materials provided for this study the
position of the Bureau would seem to be literal compliance with
the statute. At least one case, however, indicated that the Bureau
has asserted the position advocated by the other federal agencies
after, if not before the Pelton Dam decision, that is, that while it
need not comply with state law in the acquisition of water rights,
it will cooperate as a matter of courtesy and comity. 31/

27 See Trelease, Reclamation Water Rights, 32 Rocky Mt. L. Rev. 464, 466-69 (1960).

28/ Id.

31/ Matter of Applications 5625, Decision D-990 (Calif. State Water Rights Board, Feb. 9, 1961).

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(2) Project planning.

The two divisions of the Bureau which appear to be the most
concerned with matters closely relating to this study are the
Division of Irrigation and Land Use and the Division of Project
Investigations.

The Division of Irrigation and Land Use 32/ is described in the Bureau's Instructions as the principal office of the Bureau on matters relating to real property acquisition and management, water operations, and irrigation. The two branches within this Division concerned with questions relevant to this study are the Land Branch and the Irrigation Branch.

With respect to procurement of land for project purposes,
the Bureau is not restricted to the use of public lands but may also
acquire "any rights or property by purchase or by condemna -
tion." 33/ The Land Branch is responsible for the withdrawal of
lands for reclamation projects. Initially the Reclamation Act gave
the executive the authority to withdraw not only public lands re-
quired for the irrigation works (first form withdrawals), but also
those lands believed potentially irrigable from the works (second
form withdrawals). The dual withdrawal system proved inefficient
and today there is only one form of withdrawal:

Reclamation withdrawals shall embrace all lands required for the construction, operation and maintenance and protection of main irrigation works and minor structures. All public land apparently susceptible of irrigation from a project or probable of being required in connection with the development of the project shall be included in the withdrawal. 34/

32/ Instructions, § 012, Aug. 6, 1959.

33/ Reclamation Act of June 17, 1902, ch. 1093, § 7, 32 Stat.

389, 45 U.S. C. § 421 (1964).

34/ Bill Fults, 61 I. D. 437, 443 (1954).

Besides the withdrawal of public land for project purposes, the Land Branch has the responsibility for the acquisition and management of land and other real property acquisition of private lands required for the projects, management and disposition of these lands including land settlement programs, settler assistance, and administration of the excess land provision. That Branch reviews and recommends for Departmental action plans and agreements concerning fish and wildlife areas, fishery facilities, and special and policy agreements relating to recreational areas. It maintains liaison with the National Park Service, the Fish and Wildlife Service, the Office of the Secretary, and the Forest Service on matters relating to recreational and fish and wildlife resources, and collaborates with the Office of the Solicitor in reviewing or preparing proposed legislation relating to such resources. 35/

The Irrigation Branch is described as responsibile for
"irrigation projects in operation." This may explain why there is
no discussion of water right acquisition contained in the statement
of the organization and operation of the Branch. Responsibilities
of the Branch include land classification, transfer of projects to
water users'organizations, rehabilitation of projects, drainage,
and river regulation.

The branches of the Division of Project Investigations, 36/
which perform functions which reflect some of the concerns of this
study are the Land Resources Branch 37/ and the Water Utilization
Branch. 38/ The Land Resources Branch is described as develop-
ing technical standards and procedures governing the land classification
35/ Following are some specific statutory provisions providing for
the preservation of existing land and water usage values in the develop-
ment of specific reclamation projects. Act of Aug. 1, 1956, ch. 809,
§§ 3, 4, 70 Stat. 776, 43 U.S. C. § 614(b) (Washoe Project) which pro-
vides for facilities necessary for access and for public health and safety
and provides for the conservation of scenery and of natural, historic,
and archeological objects and further provides for the restoration of the
Pyramid Lake Fishery. Act of June 13, 1962, § 8, 76 Stat. 97, 43 U.S.C.
§ 615pp(f) (San Juan-Chama Reclamation Project) which provides that the
project shall be operated "so that for the preservation of fish and aquatic
life the flow the Navajo River and the flow of the Blanco River" shall not
be depleted beyond a certain point.

36/ Instructions, § 012.50, Feb. 19, 1968.

37/ Instructions, § 012.50.5, Feb. 19, 1968. 38/ Instructions S 012.50.7, Feb. 19, 1968.

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and land use phases of project investigations, including the study

of capability of soil for sustained irrigation, agriculture, quality of water, farm water requirements, farm drainage, irrigabie area and land certification.

(1) develops standards and procedures for use and outlines
and reviews studies pertaining to reservoir and river operation
for irrigation, power, flood control, municipal and industrial
water supplies, recreation, fish and wildlife protection and en-
hancement, pollution abatement and navigation;

(2) outlines and reviews studies on water requirements, and
the availability of water for irrigation, domestic and industrial sup-
plies, power and other purposes;

(3) provides services and specialists to regions, divisions
and branches in the Bureau to assist in solution of problems pertain-
ing to reservoir, river, and hydropower operations and the avail-
ability of water for irrigation;

(4) develops and reviews special and routine research studies
in hydrology, particularly pertaining to consumptive use of water,
subsurface drainage and supplies, quality of water
tion and seepage losses for reservoirs and canals;

reservoir evapora

(5) outlines and reviews systems of river and reservoir
control pertaining to actual administration of the waters when regional,
state, and international compacts, agreements, or litigation are in-
volved;

(6) develops, improves, and reviews procedures, methods,
and techniques in evaluating and predicting seasonal water yields
and rates of runoff;

(7) coordinates plans for the collection of data on preciptita-
tion and stream flow;

(8) with regard to Branch functions, it maintains liaison and
cooperates with other agencies, particularly Army, Weather Bureau,
Agriculture, Interior and state and local agencies;

(9) reviews hydraulic design data; and

(10) provides guidance and coordination in the development of the Bureau's water quality program. It advises and assists regional and operating offices on existing or potential water quality problems in connection with planning activities or operating projects. It also reviews operational criteria for existing projects and recommends appropriate action to minimize water pollution. 39/

39/ For an example of a statutory requirement of water quality study, see Act of Aug. 16, 1962, § 6, 76 Stat. 393, 43 U.S.C § 616e (1964) (Fryingpan-Arkansas Project).

In investigating the feasibility of a particular project, the Bureau has always been required to consider multiple usage of lands and waters. With respect to the project feasibility study, the Instructions 40/ state that:

As the use of water resources is closely tied to the use land resources, all practicable uses of both land and water shall be given consideration in selecting the project's purposes. Engineering and economic principles should be applied to select the most efficient combination of alternatives, competitive, and complementary uses, and to take advantage of the inherent economy and greater utilization of resources made possible by multiple-purpose development. The proper balance of purposes should be selected by a combined appraisal of the extent of resources available, comparative needs for various uses, applicable laws and policies, and public support.

The Instructions of the Bureau stress throughout the importance of cooperation in planning and implementing a project between the Bureau and other federal, state and local agencies and interests. 41/

40/ Instructions, § 116.3.6, July 16, 1959. See also, §§ 116.1.4, 2.3B, 2.3C.

41/ See generally, e.g., Instructions §§ 012, Aug. 6, 1959; 012.5.1, July 11, 1961; 012.50.7(8), Feb. 19, 1968; 116.1.4, July 16, 1959; 116.2.3D, July 16, 1959. See specifically the following examples of statutory provisions for cooperation:

Local participation.

Planning. Act of Sept. 2, 1965, § 4, 79 Stat. 618, 43 U.S.C. 616ddd (Auburn-Folsom South unit of the Central Valley Project) which provides that the Secretary "shall give due consideration" to State water plan reports and utilize the device of public hearings or other medium suited to "maximum expression of the views" of local interests to consult with local interests potentially affected by the construction and operation of the project. To the same effect see Act of Aug. 27, 1967 § 5, 81 Stat. 174, 43 U.S. C. 616fff-5 (the San Felipe division of the Central Valley Project).

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note continued

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With respect to local participation in project planning, section 116.1.4, July 16, 1959, provides that:

. [a]s investigations proceed the local people should be kept informed of major problems and suggested solutions. Also local and state governments. Utilize assistance of these groups to insure that data [on project planning] are realistic and accurate. Public understanding and support are necessary because approval of project plans is contingent upon local willingness to participate in financing the project.

Specifically, the Instructions indicate that the Bureau will utilize the services of other agencies to obtain basic data in the following areas of water usage: 42 / (1) The Corps of Engineers will furnish historical information on flood damage and navigation facilities, (2) the Fish and Wildlife Service will furnish data on current production and use of commercial fish, fur, sport fish and game, (3) the National Park Service will provide studies of areas of recreation value, the amount and type of recreational activities, and adequacy of existing facilities, (4) the Public Health Service will evaluate trends in water pollution and insect borne diseases related to water areas.

note 41, continued:

Operation, recreation facilities. The following are examples
of statutory authorizations permitting the Government to enter into
agreements with federal, local or state public bodies to assist the
Reclamation agency in the operation, maintenance and development
of recreational facilities. Act of Sept. 18, 1964, §§ 1, 3, 78 Stat. 955,
43 U.S.C. § 616ss,uu (Whitestone Coulee unit); Act of Aug. 31, 1964,
§ 1, 78 Stat. 744, 43 U.S. C. § 660d (Hungry Horse Dam); Act of Aug.
6, 1956, ch. 981, § 2, 70 Stat. 1059, 43 U.S. C. § 6151 (Little Wood
River Project); Act of Apr. 11, 1956, ch. 203, § 8, 70 Stat. 110, 43 U.S.C.
§ 620g (Colorado River Storage Project).

Federal cooperation. For example the Act of Sept. 2, 1964, § 4,
78 Stat. 852, 43 U.S. C. § 616kk(b) (Bostwick Park and Fruitland Mesa
Projects) provides that except for lands and waters within the water flow
line of the reservoir or otherwise needed or used for the operation of
the project, lands acquired for the project which fall within national
forest boundaries will be subject to the jurisdiction of the Secretary of
Agriculture.

42/ Instructions, § 116.2.3D, July 16, 1959.

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))

Further, liaison is established with NPS, Fish and Wildlife
Service, the Secretary of the Interior and the Forest Service on
matters relating to recreational and fish and wildlife resources. 43/
The Bureau collaborates with the Secretary, the FPC and the Corps
of Engineers on power development. 44/ With respect to water re-
sources, the Water Utilization Branch of the Bureau particularly
cooperates with the Corps of Engineers, the Weather Bureau, Agri-
culture, Interior and state and local agencies. 45/

Illustrative of the relation of an impact study to project plan-
ning, development and administration decisions is the inter-action
of federal and state agencies with respect to the question of proper
recreation development of the proposed English Ridge Project, Eel
River, California. The United States Forest Service and the Re-
sources Agency of California, Division of Beaches and Parks, con-
curred in the recommendation of the Bureau of Outdoor Recreation
that the Bureau of Land Management was best suited to administer
the recreational features of the project under the authority of section
one of the Federal Water Project Reclamation Act. 46/

(b) Cooperation provided for by statute.

(i) Flood control.

Section 8 of the Flood Control Act of 1944, 47/ sought to achieve inter-agency cooperation for multiple purpose use of federally constructed works. Section 8 provided that

...

whenever the Secretary of War determines upon recommendation by the Secretary of the Interior that any dam and reservoir project operated under the direction of the Secretary of War may be utilized for irrigation purposes, the Secretary of the Interior is authorized to construct, operate, and maintain, under the provisions of the Federal reclamation laws such additional works in connection therewith as he may deem necessary for irrigation purposes. Such irrigation works may be undertaken only after a report and finding thereon have been made by the Secretary of the Interior as provided in said Federal reclamation laws and after subsequent specific authorization of the Congress by an authorization Act Dams and reservoirs operated under the direction of the Secretary of War may be utilized hereafter for irrigation purposes

43/012, Aug. 16, 1959.

44/ 012.7, June 18, 1965.

45/012.50.7(8), Feb. 19, 1968.

46/ BLM Information Memo No. 69-9, Jan. 16, 1969, from Assistant
Director, Lands and Minerals, BLM, Proposed English Ridge Dam
and Reservoir, Bureau of Reclamation Project, Eel River, California.
47/ Act of Dec. 22, 1944, ch. 665, 58 Stat. 887, 43 U.S. C. §390 (1964).

only in conformity with the provisions of this
section, but the foregoing requirement shall
not prejudice lawful uses now existing :
Provided, That this section shall not apply

to any dam or reservoir heretofore constructed
in whole or in part by the Army engineers, which
provides conservation storage of water for irri-
gation purposes.

This Act did not clarify whether reclamation standards would
be applicable to both the projects constructed by the Reclamation
Bureau and the facilities supplying irrigation water which were
included in the original Army construction. However, admini-
strative construction supports the position that reclamation laws
apply in both instances, 48/ qualified by the incidental holding
that "the irrigation use is subject to regulation for flood control,"
thus establishing a priority for flood control purposes. 49/

(ii) Fish and Wildlife
Coordination Act.

The Fish and Wildlife Coordination Act 50/ provides for wild-
life conservation on projects in which waters are controlled by the
federal agencies. It contemplates close interaction with state and
local officials leading to inclusion of the views of the local inter-
ests in the report submitted to Congress for approval of the wild-
life phase of the project. Professor Sax suggests that the pro-
visions of the Water Project Recreation Act may make the cost-sharing
provision of the 1965 Act the "only way fish and wildlife enhance-
ment facilities can now be provided, other than by special act of Con-
gress.

51/

The Water Resource Planning Act of 1965, 52/ purports to
provide for the maximum development of national natural resources
through coordinated comprehensive planning of water and related
resources. It provides for the development of comprehensive river
basin plans through the medium of river basin commissions com-
posed where appropriate, of representatives of the Federal Govern-
ment, state, interstate and international commissions. Their joint

and coordinated plans are reviewed by the Water Resources Council
(also created by the Act) composed of federal agencies concerned
with water and natural resources. Although section 1962-1(a) of
the Act provides that it shall not be construed

to expand or diminish either Federal or
State jurisdiction, responsibility, or rights in
the field of water resources planning, develop-
ment, or control; not to displace, supersede,
limit or modify any interstate compact or the
jurisdiction or responsibility of any legally
established joint or common agency of two or
more States; nor to limit the authority of Congress
to authorize and fund projects

Section 1962-1(b) further provides that it should not be construed "to
change or otherwise affect the authority or responsibility of any
Federal official in the discharge of the duties of his office." This
provision is qualified by the phrase "except as required to carry
out the provisions of this Chapter with respect to the preparation
and review of comprehensive regional or river basin plans and the
formulating and evaluating of Federal water and related land re-
source projects
It therefore appears that insofar as the
Bureau is concerned with the development of water resources, the
activities of the river basin commission and the council in formu-
lating comprehensive plans for the development of specific river
basins significantly affect the operation of the Bureau.

48/ 65 I.D. 525 (1958) (includes opinion of the Att'y Gen.).

49/ Id.

50/ Act of Mar. 10, 1934, ch. 55, 48 Stat. 401, as amended, 16 U.S.C. §§ 661 666c (1964).

51/ 2, R. E. Chark, Waters and Water Rights 152 (1967).

The following Acts are representative examples of those providing
for development of recreation, fish and wildlife facilities connected with
reclamation projects in accordance with the provisions of the Fish and
Wildlife Coordination Act. Act. of Aug. 2, 1968, § 2, 82 Stat. 624, 43
U.S.C. § 616uuu (Missouri River Basin Project); Act of Sept. 21, 1968,
§ 5, 82 Stat. 853, 43 U.S. C. § 616eeee (Montain Park Project); Act of
Sept. 7, 1966, §3, 80 Stat. 704, 43 U.S. C. §616vv-3 (Manson Unit, Chief
Joseph Dam Project).

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52 Act of July 22, 1965, Pub. L. No. 89-80, 79 Stat. 244,
42 U.S.C. § 1962 (1964).

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