43 U.S.C. § 617d — Contracts for storage and use of waters

Page 211 TITLE 43—PUBLIC LANDS § 617d within six months from December 21, 1928, 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 para- graph of Article XI of said compact, which makes the same binding and obligatory only when approved by each of the seven States sig- natory 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, fur- ther, until the State of California, by act of its legislature, shall agree irrevocably and uncondi- tionally with the United States and for the ben- efit of the States of Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming, as an express covenant and in consideration of the passage of this subchapter, that the aggregate annual con- sumptive 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 subchapter and all water necessary for the supply of any rights which existed on De- cember 21, 1928, shall not exceed four million four hundred thousand acre-feet of the waters apportioned to the lower basin States by para- graph (a) of Article III of the Colorado River compact, plus not more than one-half of any ex- cess 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 bene- ficial 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 Mex- ico but if, as provided in paragraph (c) of Article III of the Colorado River compact, it shall be- come 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 fur- ther mutually agree with the States of Arizona and Nevada that none of said three States shall withhold water and none shall require the deliv- ery of water, which cannot reasonably be ap- plied to domestic and agricultural uses, and (6) that all of the provisions of said tri-State agree- ment shall be subject in all particulars to the provisions of the Colorado River compact and (7) said agreement to take effect upon the ratifica- tion of the Colorado River compact by Arizona, California, and Nevada. (b) Agreements for revenues to meet expenses of construction, operation, and maintenance of works Before any money is appropriated for the con- struction 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 subchapter, adequate in his judgment to insure payment of all expenses of operation and maintenance of said works in- curred by the United States and the repayment, within fifty years from the date of the comple- tion of said works, of all amounts advanced to the fund under subdivision (b) of section 617a of this title for such works together with interest thereon made reimbursable under this sub- chapter. Before any money is appropriated for the con- struction 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, oper- ation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law. If during the period of amortization the Sec- retary of the Interior shall receive revenues in excess of the amount necessary to meet the peri- odical payments to the United States as pro- vided in the contract, or contracts, executed under this subchapter, then, immediately after the settlement of such periodical payments, he shall pay to the State of Arizona 183⁄4 per cen- tum of such excess revenues and to the State of Nevada 183⁄4 per centum of such excess revenues. (Dec. 21, 1928, ch. 42, § 4, 45 Stat. 1058.) Editorial Notes REFERENCES IN TEXT The reclamation law, referred to in text, is defined in section 617k of this title. § 617d. Contracts for storage and use of waters for irrigation and domestic purposes; genera- tion and sale of electrical energy The Secretary of the Interior is authorized, under such general regulations as he may pre- scribe, to contract for the storage of water in said reservoir and for the delivery thereof at such points on the river and on said canal as may be agreed upon, for irrigation and domestic uses, and generation of electrical energy and de- livery at the switchboard to States, municipal corporations, political subdivisions, and private corporations of electrical energy generated at said dam, upon charges that will provide rev- enue which, in addition to other revenue accru- ing under the reclamation law and under this subchapter, will in his judgment cover all ex- penses of operation and maintenance incurred Page 212 TITLE 43—PUBLIC LANDS § 617d by the United States on account of works con- structed under this subchapter and the pay- ments to the United States under subdivision (b) of section 617c of this title. Contracts respecting water for irrigation and domestic uses shall be for permanent service and shall conform to paragraph (a) of section 617c of this title. No person shall have or be entitled to have the use for any purpose of the water stored as aforesaid except by contract made as herein stated. After the repayments to the United States of all money advanced with interest, charges shall be on such basis and the revenues derived there- from shall be kept in a separate fund to be ex- pended within the Colorado River Basin as may hereafter be prescribed by the Congress. General and uniform regulations shall be pre- scribed by the said Secretary for the awarding of contracts for the sale and delivery of electrical energy, and for renewals under subdivision (b) of this section, and in making such contracts the following shall govern: (a) Duration of contracts for electrical energy; price of water and electrical energy to yield reasonable returns; readjustments of prices No contract for electrical energy or for gen- eration of electrical energy shall be of longer duration than fifty years from the date at which such energy is ready for delivery. Contracts made pursuant to subdivision (a) of this section shall be made with a view to obtain- ing reasonable returns and shall contain provi- sions whereby at the end of fifteen years from the date of their execution and every ten years thereafter, there shall be readjustment of the contract, upon the demand of either party there- to, either upward or downward as to price, as the Secretary of the Interior may find to be jus- tified by competitive conditions at distributing points or competitive centers, and with provi- sions under which disputes or disagreements as to interpretation or performance of such con- tract shall be determined either by arbitration or court proceedings, the Secretary of the Inte- rior being authorized to act for the United States in such readjustments or proceedings. (b) Renewal of contracts for electrical energy The holder of any contract for electrical en- ergy not in default thereunder shall be entitled to a renewal thereof upon such terms and condi- tions as may be authorized or required under the then existing laws and regulations, unless the property of such holder dependent for its useful- ness on a continuation of the contract be pur- chased or acquired and such holder be com- pensated for damages to its property, used and useful in the transmission and distribution of such electrical energy and not taken, resulting from the termination of the supply. (c) Applicants for purchase of water and elec- trical energy; preferences Contracts for the use of water and necessary privileges for the generation and distribution of hydroelectric energy or for the sale and delivery of electrical energy shall be made with respon- sible applicants therefor who will pay the price fixed by the said Secretary with a view to meet- ing the revenue requirements herein provided for. In case of conflicting applications, if any, such conflicts shall be resolved by the said Sec- retary, after hearing, with due regard to the public interest, and in conformity with the pol- icy expressed in the Federal Power Act [16 U.S.C. 791a et seq.] as to conflicting applications for permits and licenses, except that preference to applicants for the use of water and appur- tenant works and privileges necessary for the generation and distribution of hydroelectric en- ergy, or for delivery at the switchboard of a hy- droelectric plant, shall be given, first, to a State for the generation or purchase of electric energy for use in the State, and the States of Arizona, California, and Nevada shall be given equal op- portunity as such applicants. The rights covered by such preference shall be contracted for by such State within six months after notice by the Secretary of the Interior and to be paid for on the same terms and conditions as may be provided in other similar contracts made by said Secretary: Provided, however, That no application of a State or a political subdivi- sion for an allocation of water for power pur- poses or of electrical energy shall be denied or another application in conflict therewith be granted on the ground that the bond issue of such State or political subdivision necessary to enable the applicant to utilize such water and appurtenant works and privileges necessary for the generation and distribution of hydroelectric energy or the electrical energy applied for, has not been authorized or marketed, until after a reasonable time, to be determined by the said Secretary, has been given to such applicant to have such bond issue authorized and marketed. (d) Transmission lines for electrical energy; use; rights of way over public and reserved lands Any agency receiving a contract for electrical energy equivalent to one hundred thousand firm horsepower, or more, may, when deemed feasible by the said Secretary, from engineering and eco- nomic considerations and under general regula- tions prescribed by him, be required to permit any other agency having contracts hereunder for less than the equivalent of twenty-five thousand firm horsepower, upon application to the Sec- retary of the Interior made within sixty days from the execution of the contract of the agency the use of whose transmission line is applied for, to participate in the benefits and use of any main transmission line constructed or to be con- structed by the former for carrying such energy (not exceeding, however, one-fourth the capacity of such line), upon payment by such other agen- cies of a reasonable share of the cost of con- struction, operation, and maintenance thereof. The use is authorized of such public and re- served lands of the United States as may be nec- essary or convenient for the construction, oper- ation, and maintenance of main transmission lines to transmit said electrical energy. (Dec. 21, 1928, ch. 42, § 5, 45 Stat. 1060.) Editorial Notes REFERENCES IN TEXT The reclamation law, referred to in text preceding subsec. (a), is defined in section 617k of this title. The Federal Power Act, referred to subsec. (c), which was in the original the ‘‘Federal Water Power Act’’, is Page 213 TITLE 43—PUBLIC LANDS § 617g defined in section 617k of this title. For further details, see note set out under section 617k of this title. § 617e. Uses to be made of dam and reservoir; title in whom; leases, regulations; limitation on authority The dam and reservoir provided for by section 617 of this title shall be used: First, for river reg- ulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of said Colorado River compact; and third, for power. The title to said dam, reservoir, plant, and incidental works shall forever remain in the United States, and the United States shall, until otherwise provided by Congress, control, manage, and operate the same, except as herein otherwise provided: Pro- vided, however, That the Secretary of the Inte- rior may, in his discretion, enter into contracts of lease of a unit or units of any Government- built plant, with right to generate electrical en- ergy, or alternatively, to enter into contracts of lease for the use of water for the generation of electrical energy as herein provided, in either of which events the provisions of section 617d of this title relating to revenue, term, renewals, determination of conflicting applications, and joint use of transmission lines under contracts for the sale of electrical energy, shall apply. The Secretary of the Interior shall prescribe and enforce rules and regulations conforming with the requirements of the Federal Power Act [16 U.S.C. 791a et seq.], so far as applicable, re- specting maintenance of works in condition of repair adequate for their efficient operation, maintenance of a system of accounting, control of rates and service in the absence of State regu- lation or interstate agreement, valuation for rate-making purposes, transfers of contracts, contracts extending beyond the lease period, ex- propriation of excessive profits, recapture and/or emergency use by the United States of property of lessees, and penalties for enforcing regula- tions made under this subchapter or penalizing failure to comply with such regulations or with the provisions of this subchapter. He shall also conform with other provisions of the Federal Power Act and of the rules and regulations of the Federal Power Commission, which have been devised or which may be hereafter devised, for the protection of the investor and consumer. The Federal Power Commission is directed not to issue or approve any permits or licenses under said Federal Power Act [16 U.S.C. 791a et seq.] upon or affecting the Colorado River or any of its tributaries, except the Gila River, in the States of Colorado, Wyoming, Utah, New Mex- ico, Nevada, Arizona, and California until this subchapter shall become effective as provided in sections 617c of this title. (Dec. 21, 1928, ch. 42, § 6, 45 Stat. 1061.) Editorial Notes REFERENCES IN TEXT The Federal Power Act, referred to in text, which was in the original the ‘‘Federal Water Power Act’’, is de- fined in section 617k of this title. For further details, see note set out under section 617k of this title. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS The Federal Power Commission was terminated, and its functions, personnel, property, funds, etc., were transferred to the Secretary of Energy (except for cer- tain functions which were transferred to the Federal Energy Regulatory Commission) by sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title 42, The Public Health and Welfare. Executive Documents TRANSFER OF FUNCTIONS Executive and administrative functions of Federal Power Commission, with certain reservations, trans- ferred to Chairman of Commission, with authority vested in him to authorize their performance by any of- ficer, employee, or administrative unit under his juris- diction, by Reorg. Plan No. 9 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out in the Appendix to Title 5, Government Organization and Employees. § 617f. Canals and appurtenant structures; trans- fer of title; power development The Secretary of the Interior may, in his dis- cretion, when repayments to the United States of all money advanced, with interest, reimburs- able hereunder, shall have been made, transfer the title to said canal and appurtenant struc- tures, except the Laguna Dam and the main canal and appurtenant structures down to and including Syphon Drop, to the districts or other agencies of the United States having a beneficial interest therein in proportion to their respective capital investments under such form of organi- zation as may be acceptable to him. The said districts or other agencies shall have the privi- lege at any time of utilizing by contract or oth- erwise such power possibilities as may exist upon said canal, in proportion to their respec- tive contributions or obligations toward the capital cost of said canal and appurtenant struc- tures from and including the diversion works to the point where each respective power plant may be located. The net proceeds from any power development on said canal shall be paid into the fund and credited to said districts or other agencies on their said contracts, in pro- portion to their rights to develop power, until the districts or other agencies using said canal shall have paid thereby and under any contract or otherwise an amount of money equivalent to the operation and maintenance expense and cost of construction thereof. (Dec. 21, 1928, ch. 42, § 7, 45 Stat. 1062.) § 617g. Colorado River compact as controlling au- thority in construction and maintenance of dam, reservoir, canals, and other works (a) The United States, its permittees, licens- ees, and contractees, and all users and appropri- ators of water stored, diverted, carried, and/or distributed by the reservoir, canals, and other works herein, authorized shall observe and be subject to and controlled by said Colorado River compact in the construction, management, and operation of said reservoir, canals, and other works and the storage, diversion, delivery, and use of water for the generation of power, irriga- tion, and other purposes, anything in this sub- chapter to the contrary notwithstanding, and all permits, licenses, and contracts shall so provide.