at five percent of the average gross annual acre income for the ten calendar years preceding the year of payment, or for all years of record if less than ten years' records were available. There was no limit to the number of years that the formula could operate to return the project cost and some projects found feasible under this act had a construction repayment period estimated as exceeding 100 years. The applicable provisions of this act are: Provided, That no part of the sums herein appropriated shall be used for the commencement of construction work on any reclamation project which has not been recommended by the Commissioner of Reclamation and the Secretary of the Interior and approved by the President as to its agricultural and engineering feasibility and the reasonableness of its estimated construction cost. SUBSEC. B. That no new project or new division of a project shall be approved for construction or estimates submitted therefor by the Secretary until information in detail shall be secured by him concerning the water supply, the engineering features, the cost of construction, land prices, and the probable cost of development, and he shall have made a finding in writing that it is feasible, that it is adaptable for actual settlement and farm homes, and that it will probably return the cost thereof to the United States. SUBSEC. F. That hereafter all project construction charges shall be made payable in annual installments based on the productive power of the land as provided in this subsection. The installment of the construction charge per irrigable acre payable each year shall be 5 per centum of the average gross annual acre income for the ten calendar years first preceding, or for all years of record if fewer than ten years are available, of the area in cultivation in the division or subdivision thereof of the project in which the land is located, as found by the Secretary annually. The decision of the Secretary as to the amount of any such installment shall be conclusive. These annual payments shall continue until the total construction charge against each unit is paid. The Secretary is authorized upon request to amend any existing contract for a project water right so that it will provide for payment of the construction charge thereunder in accordance with the provisions of this subsection or for the deferment of such construction charges for a period of three years from the approval of this section, or both. In the act of December 5, 1924, Congress authorized adjustments to be made in the construction charges of various authorized reclamation projects. In the Omnibus Adjustment Act of May 25, 1926 (44 Stat. 636), the Congress approved the recommendation of the Department of the Interior for various adjustments in project costs. The Adjustment Act contained other provisions affecting feasibility of future projects. It repealed the crop repayment formula authorized by the Fact Finders Act and substituted instead a proviso that all future contracts must provide for repayment of the cost of construction within such term of years as the Secretary of the Interior might find necessary, but in no event more than forty years. The 1926 Act did not annul or cancel the contracts executed under the 1924 Act but prohibited the execution of any further contracts of this type. The applicable feasibility provisions of the 1926 Act are: SEC. 46. ***. No water shall be delivered upon the completion of any new project or new division of a project until a contract or contracts in form approved by the Secretary of the Interior shall have been made with an irrigation district or irrigation districts organized under State law providing for payment by the district or districts of the cost of constructing, operating, and maintaining the works during the time they are in control of the United States, such cost of constructing to be repaid within such terms of years as the Secretary may find to be necessary, in any event not more than forty years from the date of public notice hereinafter referred to, and the execution of said contract or contracts shall have been confirmed by a decree of a court of competent jurisdiction. * * A number of repayment contracts were executed under the provisions of the 1926 Act, most of them, however, being on projects authorized or found feasible under earlier acts. No further action was taken by Congress to modify the feasibility requirements of reclamation law until late in the 1930 decade when it again became evident that the rigid forty-year limitation in the 1926 Act was limiting the initiation of construction of new projects and also did not meet the repayment requirements of projects undertaken under authority of "relief" or PWA projects. The act of August 4, 1939 (53 Stat. 1187), is the next milestone on the reclamation road of feasibility. An attempt is made in this act to meet the difficulties encountered by farmers in paying their construction charges during a depression period under the fixed schedules established by the 1926 act. The 1939 Act in section. 4 provides for a variation in construction charges again in accordance with crop values, under a formula similar to that of the 1924 Act, but limiting the period of repayment to forty years. Section 7 of the act further authorizes the Secretary to negotiate for repayment contracts in excess of forty years but such repayment contracts are limited to existing projects or projects under construction, and in addition must be ratified by Congress. The 1939 Act modified the rules of feasibility. For the first time it brought into reclamation law the concept that benefits from reclamation projects were more than local in scope, and benefits that were national in character should not be a burden on the beneficiaries of reclamation projects. In other words, certain values assigned to national benefits could be deducted from the cost of a project and only the balance need be recovered through payments from water users and from power revenues. Section 9 (b) of the 1939 Act provides that allocations of cost to flood control and navigation would be nonreimbursible. An innovation of the 1939 Act for repayment of the cost of irrigation works is found in Section 9 (e) which permits of an indefinite period for return of irrigation costs by water users although contracts may not be executed for more than forty years at any one time. Section 9 (e) contracts are applicable only to works connected with water supply and do not apply to distribution systems. The Secretary can re-execute such contracts at the end of a forty-year period as often as he may wish. All contracts for irrigation distribution systems executed in accordance with the 1939 act are, however, limited to forty years under provisions of Section 9 (d) of the act. In like manner, contracts for the sale of power and municipal water are limited to forty years with the privilege of the Secretary to renew these contracts from time to time. An important modification of the 1939 Act was the return to the Secretary from the President of the power to approve a finding of feasibility and thereby authorize construction of a project. The finding of feasibility is required, however, to be submitted by the Secretary to the President and the Congress and it does not become fully effective until such transmittal has been accomplished. As a matter of custom, the finding of feasibility is first submitted to the President and a copy of his acknowledgment which contains an expression of his views, or of the review of the Bureau of the Budget, is attached to the transmittal of the finding to the Congress. The portions of the act of August 4, 1939, relating to project feasibility are quoted below: SEC. 7 (a). The Secretary is hereby authorized and directed to investigate the repayment problems of any existing project contract unit in connection with which, in his judgment, a contract under section 3 or 4 of this Act would not be practicable nor provide an economically sound adjustment, and to negotiate a contract which, in his judgment, both would provide fair and equitable treatment of the repayment problems involved and would be in keeping with the general purpose of this Act. SEC. 7 (b). For any project, division of a project, development unit of a project, or supplemental works on a project, now under construction or for which appropriations have been made, and in connection with which a repayment contract has not been executed, allocations of costs may be made in accordance with the provisions of section 9 of this Act and a repayment contract may be negotiated, in the discretion of the Secretary, (1) pursuant to the authority of subsection (a) of this section or (2) in accordance, as near as may be, with the provisions in subsection 9 (d) or 9 (e) of this Act. *** SEC. 7 (c). The Secretary from time to time shall report to the Congress on any proposed contracts negotiated pursuant to the authority of subsection (a) or (b) (1) of this section, and he may execute any such contract on behalf of the United States only after approval thereof has been given by Act of Congress. SEC. 9 (a). No expenditures for the construction of any new project, new division of a project, or new supplemental works on a project shall be made, nor shall estimates be submitted therefor, by the Secretary until after he has made an investigation thereof and has submitted to the President and to the Congress his report and findings on (1) The engineering feasibility of the proposed construction; (3) The part of the estimated cost which can properly be allocated to irrigation and probably be repaid by the water users; (4) The part of the estimated cost which can properly be allocated to power and probably be returned to the United States in net power revenues; (5) The part of the estimated cost which can properly be allocated to municipal water supply or other miscellaneous purposes and probably be returned to the United States. If the proposed construction is found by the Secretary to have engineering feasibility and if the repayable and returnable allocations to irrigation, power, and municipal water supply or other miscellaneous purposes found by the Secretary to be proper, together with any allocation to flood control or navigation made under subsection (b) of this section, equal the total estimated cost of construction as determined by the Secretary, then the new project, new division of a project, or supplemental works on a project, covered by his findings, shall be deemed authorized and may be undertaken by the Secretary. If all such allocations do not equal said total estimated cost, then said new project, new division, or new supplemental works may be undertaken by the Secretary only after provision therefor has been made by Act of Congress enacted after the Secretary has submitted to the President and the Congress the report and findings involved. SEC. 9 (b). In connection with any new project, new division of a project, or supplemental works on a project there may be allocated to flood control or navigation the part of said total estimated cost which the Secretary may find to be proper. Items for any such allocations made in connection with projects which may be undertaken pursuant to subsection (a) of this section shall be included in the estimates of appropriations submitted by the Secretary for said projects, and funds for such portions of the projects shall not become available except as directly appropriated or allotted to the Department of the Interior. In connection with the making of such an allocation, the Secretary shall consult with the Chief of Engineers and the Secretary of War, and may perform any of the necessary investigations or studies under a cooperative agreement with the Secretary of War. In the event of such an allocation the Secretary of the Interior shall operate the project for purposes of flood control or navigation, to the extent justified by said allocation therefor. SEC. 9 (c). The Secretary is authorized to enter into contracts to furnish water for municipal water supply or miscellaneous purposes: Provided, That any such contract either (1) shall require repayment to the United States, over a period of not to exceed forty years from the year in which water is first delivered for the use of the contracting party, with interest not exceeding the rate of 32 per centum per annum if the Secretary determines an interest charge to be proper, of an appropriate share as determined by the Secretary of that part of the construction costs allocated by him to municipal water suply or other miscellaneous purposes; or (2) shall be for such periods, not to exceed forty years, and at such rates as in the Secretary's judgment will produce revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper, and shall require the payment of said rates each year in advance of delivery of water for said year. Any sale of electric power or lease of power privileges, made by the Secretary in connection with the operation of any project or division of a project, shall be for such periods, not to exceed forty years, and at such rates as in his judgment will produce power revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost, interest on an appropriate share of the construction investment at not less than 3 percentum per annum, and such other fixed charges as the Secretary deems proper: SEC. 9 (d) (2). That the part of the construction costs allocated by the Secretary to irrigation shall be included in a general repayment obligation of the organization; and that the organization may vary its distribution of construction charges in a manner that takes into account the productivity of the various classes of lands and the benefits accruing to the lands by reason of the construction: Provided, that no distribution of construction charges over the lands included in the organization shall in any manner be deemed to relieve the organization or any party or any land therein of the organization's general obligation to the United States. SEC. 9 (d) (3). That the general repayment obligation of the organiza tion shall be spread in annual installments, of the number and amounts fixed by the Secretary, over a period not exceeding forty years, exclusive of any development period fixed under subsection (d) (1) of this section, for any project contract unit, or for any irrigation block, if the project contract unit be divided into two or more irrigation blocks. SEC. 9 (e). In lieu of entering into a repayment contract pursuant to the provisions of subsection (d) of this section to cover that part of the cost of the construction of works connected with water supply and allocated to irrigation, the Secretary, in his discretion, may enter into either short-or-longterm contracts to furnish water for irrigation purposes. Each such contract shall be for such period, not to exceed forty years, and at such rates as in the Secretary's judgment will produce revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper, due consideration being given to that part of the cost of construction of works connected with water supply and allocated to irrigation; and shall require payment of said rates each year in advance of delivery of water for said year. In the event such contracts are made for furnishing water for irrigation purposes, the costs of any irrigation water distribution works constructed by the United States in connection with the new project, new division of a project, or supplemental works on a project, shall be covered by a repayment contract entered into pursuant to said subsection (d). Reclamation law was further modified in 1946 by passage of the act of August 14, wherein provision was made by Congress that costs properly allocable to fish and wildlife benefits need not be repaid by the project beneficiaries. The applicable part of this act reads as follows: SEC. 1. That the Act of March 10, 1934 (48 Stat. 401), is hereby amended to read as follows: In order to promote effectual planning, development, maintenance, and coordination of wildlife conservation and rehabilitation in the United States, its Territories and possessions, the Secretary of the Interior, through the Fish and Wildlife Service, is authorized (a) to provide assistance to, and cooperate with, Federal, State, and public or private agencies and organizations in the development, protection, rearing, and stocking of all species of wildlife, resources thereof, and their habitat, in controlling losses of the same from disease or other causes; in minimizing damages from overabundant species, in providing public shooting areas, and in carrying out other measures necessary to effectuate the purposes of this Act; and (b) to make surveys and investigations of the wildlife of the public domain, including lands and waters or interests therein acquired or controlled by any agency of the United States. SEC. 2. Whenever the waters of any stream or other body of water are authorized to be impounded, diverted, or otherwise controlled for any purpose whatever by any department or agency of the United States, or by any public or private agency under Federal permit, such department or agency of the United States first shall consult with the Fish and Wildlife Service and the head of the agency exercising administration over the wildlife resources of the State wherein the impoundment, diversion, or other control facility is to be constructed with a view to preventing loss of and damage to wildlife resources, and the reports and recommendations of the Secretary of the Interior and of the head of the agency exercising administration over the wildlife resources of the State, based on surveys and investigations conducted by the Fish and Wildlife Service and by the said head of the agency exercising administration over the wildlife resources of the State, for the purpose of determining the possible damage to wildlife resources and of the means and measures that should be adopted to prevent loss of and damage to wildlife resources, shall be made an integral part of any report submitted |