B-156498, MAY 24, 1966, 45 COMP. GEN. 724

B-156498, MAY 24, 1966, 45 COMP. GEN. 724

MISCELLANEOUS RECEIPTS - FEES FOR SERVICES TO PUBLIC - ADJUSTMENT THE AMOUNT OF THE CHARGES COLLECTED FROM LICENSEES AND OTHERS BENEFITING FROM HEADWATER IMPROVEMENTS AND RESERVOIRS CONSTRUCTED BY THE UNITED STATES UNDER SECTION 10 (F) OF THE FEDERAL POWER ACT, APPROVED AUGUST 26, 1935, AND DEPOSITED AS MISCELLANEOUS RECEIPTS IN "2461 LICENSEE BENEFIT CHARGES," WHICH IS FOR CREDIT UNDER SECTION 17 (A) TO THE SPECIAL FUND APPROPRIATION ACCOUNT "96X5125 MAINTENANCE AND OPERATION OF DAMS AND OTHER IMPROVEMENTS OF NAVIGABLE WATERS," FOR EXPENDITURE AT THE DIRECTION OF THE SECRETARY OF THE ARMY WITHOUT APPROPRIATION BY CONGRESS, MAY BE ALLOCATED TO THE BUREAU OF RECLAMATION, AS WELL AS TO THE CORPS OF ENGINEERS, THE BUREAU PARTICIPATING IN CONSTRUCTION PROJECTS, AND THE ACT OF MAY 9, 1938 AUTHORIZING CREDIT TO THE ,RECLAMATION FUND" OF MONEYS RECEIVED IN CONNECTION WITH BUREAU PROJECTS SUPERSEDING CONFLICTING PROVISIONS IN THE 1935 ACT, THE BUREAU'S SHARE HOWEVER SUBJECT TO ANNUAL APPROPRIATION, AND ADJUSTMENT OF DEPOSITS IN "2461" MAY BE EFFECTED PURSUANT TO GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, TITLE 7, SECTION 4420.

TO THE SECRETARY OF THE TREASURY, MAY 24, 1966:

REFERENCE IS MADE TO LETTER OF APRIL 6, 1965, WITH ENCLOSURE, FROM THE FISCAL ASSISTANT SECRETARY OF THE TREASURY, CONCERNING THE DISPOSITION OF CHARGES COLLECTED BY THE FEDERAL POWER COMMISSION, UNDER THE TERMS OF SUBSECTION 10 (F) OF THE FEDERAL POWER ACT, APPROVED AUGUST 26, 1935, AS AMENDED, 16 U.S.C. 803 (F), FOR BENEFITS TO LICENSEES ACCRUING DIRECTLY FROM HEADWATER IMPROVEMENTS CONSTRUCTED BY THE UNITED STATES.

THERE ACCOMPANIED THE LETTER OF APRIL 6, A COPY OF A LETTER DATED FEBRUARY 16, 1965, FROM THE OFFICE OF THE CHIEF OF ENGINEERS, HEADQUARTERS, DEPARTMENT OF THE ARMY, TO YOUR DEPARTMENT. THE LETTER POINTS OUT THAT WHILE FUNDS COLLECTED BY THE FEDERAL POWER COMMISSION FROM LICENSEES FOR CERTAIN LICENSES ISSUED UNDER THE FEDERAL POWER ACT, AS AMENDED, ARE WARRANTED TO THE CHIEF OF ENGINEERS ANNUALLY UNDER THE APPROPRIATION ACCOUNT "96X5125 MAINTENANCE AND OPERATION OF DAMS AND OTHER IMPROVEMENTS OF NAVIGABLE WATERS," FUNDS COLLECTED BY THE COMMISSION FOR HEADWATER BENEFITS HAVE NOT BEEN SO MADE AVAILABLE TO THE CHIEF OF ENGINEERS BUT INSTEAD HAVE BEEN DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. CONSEQUENTLY, REQUEST IS MADE THAT 50 PERCENT OF THE RECEIPTS COLLECTED BY THE COMMISSION FROM LICENSEES FOR HEADWATER BENEFITS AND DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS BE WARRANTED TO THE CHIEF OF ENGINEERS UNDER THE APPROPRIATION ACCOUNT "96X5125" IN ACCORDANCE WITH THE TERMS OF SECTION 17 (A) OF THE FEDERAL POWER ACT, AS AMENDED, 16 U.S.C. 810 (A).

THE FISCAL ASSISTANT SECRETARY STATES THAT FUNDS COLLECTED BY THE FEDERAL POWER COMMISSION FROM LICENSEES FOR HEADWATER BENEFITS WERE FIRST RECEIVED BY THE TREASURY FOR DEPOSIT IN 1956, AND THAT AS INDICATED BY THE CORPS OF ENGINEERS, SUCH COLLECTIONS HAVE BEEN DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS TO THE CREDIT OF "2461 LICENSEE BENEFIT CHARGES.' THROUGH JANUARY 31, 1965, SUCH DEPOSITS ARE IN EXCESS OF $4,800,000. THIS ACCOUNT IS SAID TO HAVE BEEN ESTABLISHED BY TREASURY ANNOUNCEMENT OF ACCOUNT SYMBOLS AND TITLES NO. 3382, DATED JULY 1, 1955, AFTER CONSULTATION AND AGREEMENT WITH REPRESENTATIVES OF BOTH THE FEDERAL POWER COMMISSION AND THE GENERAL ACCOUNTING OFFICE.

IT IS STATED FURTHER THAT PRIOR TO 1955 CHARGES PAYABLE BY LICENSEES HAD BEEN ASSESSED ON RESERVOIRS ONLY AND WERE ACCOUNTED FOR, IN ACCORDANCE WITH SECTION 17 (A) OF THE FEDERAL POWER ACT, AS AMENDED, 16 U.S.C. 810 (A), BY DEPOSITING 100 PERCENT OF THESE COLLECTIONS INTO THE TREASURY TO THE CREDIT OF THE SPECIAL ACCOUNT "5012 LICENSES UNDER FEDERAL POWER ACT, IMPROVEMENTS OF NAVIGABLE WATERS (100 PERCENT).' THE COLLECTIONS THEN WERE DISTRIBUTED BY TREASURY 50 PERCENT TO THE CREDIT OF THE GENERAL FUND RECEIPT ACCOUNT"0797 LICENSES UNDER FEDERAL POWER ACT" NOW CONSOLIDATED UNDER "0899 MISCELLANEOUS FEES FOR PERMITS AND LICENSES, NOT OTHERWISE CLASSIFIED," AND 50 PERCENT TO THE SPECIAL FUND RECEIPT ACCOUNT "5125 LICENSES UNDER FEDERAL POWER ACT, IMPROVEMENTS OF NAVIGABLE WATERS, MAINTENANCE AND OPERATION OF DAMS, ETC., (50 PERCENT)" FOR SUBSEQUENT APPROPRIATION TO THE DEPARTMENT OF THE ARMY UNDER THE APPROPRIATION ACCOUNT "96X5125.'

ON THE BASIS OF THE FOREGOING, THE FISCAL ASSISTANT SECRETARY OF THE TREASURY REQUESTS TO BE ADVISED WHETHER THE CORPS OF ENGINEERS IS ENTITLED TO ANY PART OF THE $4,800,000 RECEIPTS DEPOSITED TO THE CREDIT OF THE GENERAL FUND ACCOUNT "2461 LICENSEE BENEFIT CHARGES.' AT THIS POINT WE WOULD NOTE THAT IT IS NOT CLEAR TO US WHETHER THE CHARGES PRIOR TO 1955 ON RESERVOIRS WERE OF THE SAME TYPE AS THOSE FOR HEADWATER BENEFITS CONSIDERED HEREIN, THAT IS, PURSUANT TO SECTION 10 (F). IF SO, THE CONCLUSIONS REACHED IN THIS DECISION SHOULD BE APPLIED TO ANY SUCH FUTURE RECEIPTS.

DETERMINATION OF THE QUESTION PRESENTED FOR CONSIDERATION INVOLVES PROVISIONS OF THE FEDERAL POWER ACT, APPROVED AUGUST 26, 1935, 49 STAT. 838, AS AMENDED, 16 U.S.C. 791A, IN PERTINENT PART, AS FOLLOWS:

SECTION 206. (49 STAT. 842). SECTION 10 OF THE FEDERAL WATER POWER ACT, AS AMENDED, IS AMENDED TO READ AS FOLLOWS:

SEC. 10. ALL LICENSES ISSUED UNDER THIS PART SHALL BE ON THE FOLLOWING CONDITIONS:

(F) THAT WHENEVER ANY LICENSEE HEREUNDER IS DIRECTLY BENEFITED BY THE CONSTRUCTION WORK OF ANOTHER LICENSEE, A PERMITTEE, OR OF THE UNITED STATES OF A STORAGE RESERVOIR OR OTHER HEADWATER IMPROVEMENT, THE COMMISSION SHALL REQUIRE AS A CONDITION OF THE LICENSE THAT THE LICENSEE SO BENEFITED SHALL REIMBURSE THE OWNER OF SUCH RESERVOIR OR OTHER IMPROVEMENTS FOR SUCH PART OF THE ANNUAL CHARGES FOR INTEREST, MAINTENANCE, AND DEPRECIATION THEREON AS THE COMMISSION MAY DEEM EQUITABLE. THE PROPORTION OF SUCH CHARGES TO BE PAID BY ANY LICENSEE SHALL BE DETERMINED BY THE COMMISSION. THE LICENSEES OR PERMITTEES AFFECTED SHALL PAY TO THE UNITED STATES THE COST OF MAKING SUCH DETERMINATION AS FIXED BY THE COMMISSION.

WHENEVER SUCH RESERVOIR OR OTHER IMPROVEMENT IS CONSTRUCTED BY THE UNITED STATES THE COMMISSION SHALL ASSESS SIMILAR CHARGES AGAINST ANY LICENSEE DIRECTLY BENEFITED THEREBY, AND ANY AMOUNT SO ASSESSED SHALL BE PAID INTO THE TREASURY OF THE UNITED STATES, TO BE RESERVED AND APPROPRIATED AS A PART OF THE SPECIAL FUND FOR HEADWATER IMPROVEMENTS AS PROVIDED IN SECTION 17 HEREOF.

SECTION 208. (49 STAT. 845). SECTION 17 OF THE FEDERAL WATER POWER ACT, AS AMENDED, IS AMENDED TO READ AS FOLLOWS:

SEC. 17. (A) ALL PROCEEDS FROM ANY INDIAN RESERVATION SHALL BE PLACED TO THE CREDIT OF THE INDIANS OF SUCH RESERVATION. ALL OTHER CHARGES ARISING FROM LICENSES HEREUNDER, EXCEPT CHARGES FIXED BY THE COMMISSION FOR THE PURPOSE OF REIMBURSING THE UNITED STATES FOR THE COSTS OF ADMINISTRATION OF THIS PART, SHALL BE PAID INTO THE TREASURY OF THE UNITED STATES, SUBJECT TO THE FOLLOWING DISTRIBUTION:

12-1/2 PERCENTUM THEREOF IS HEREBY APPROPRIATED TO BE PAID INTO THE TREASURY OF THE UNITED STATES AND CREDITED TO "MISCELLANEOUS RECEIPTS; " 50 PERCENTUM OF THE CHARGES ARISING FROM LICENSES HEREUNDER FOR THE OCCUPANCY AND USE OF/PUBLIC LANDS AND NATIONAL FORESTS SHALL BE PAID INTO, RESERVED, AND APPROPRIATED AS A PART OF THE RECLAMATION FUND CREATED BY THE ACT OF CONGRESS KNOWN AS THE RECLAMATION ACT, APPROVED JUNE 17, 1902; AND 37-1/2 PERCENTUM OF THE CHARGES ARISING FROM LICENSES HEREUNDER FOR THE OCCUPANCY AND USE OF NATIONAL FORESTS AND PUBLIC LANDS FROM DEVELOPMENT WITHIN THE BOUNDARIES OF ANY STATE SHALL BE PAID BY THE SECRETARY OF THE TREASURY TO SUCH STATE; AND 50 PERCENTUM OF THE CHARGES ARISING FROM ALL OTHER LICENSES HEREUNDER IS HEREBY RESERVED AND APPROPRIATED AS A SPECIAL FUND IN THE TREASURY TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF WAR IN THE MAINTENANCE AND OPERATION OF DAMS AND OTHER NAVIGATION STRUCTURES OWNED BY THE UNITED STATES OR IN THE CONSTRUCTION, MAINTENANCE, OR OPERATION OF HEADWATER OR OTHER IMPROVEMENTS OF NAVIGABLE WATERS OF THE UNITED STATES. * * *

AS A MATTER OF LEGISLATIVE BACKGROUND, THE PROVISIONS OF SUBSECTION 10 (F) AND SECTION 17 (A) OF THE FEDERAL POWER ACT OF AUGUST 26, 1935, AS AMENDED, QUOTED ABOVE, 16 U.S.C. 803 (F) AND 810 (A), RESPECTIVELY, REENACTED IN SUBSTANTIALLY THE SAME LANGUAGE, SO FAR AS MATERIAL HERE, THE RELATED PROVISIONS, NAMELY, SUBSECTION 10 (F) AND SECTION 17 OF THE ORIGINAL FEDERAL WATER POWER ACT OF JUNE 10, 1920, 16 U.S.C. 803 (F) AND 810. ALSO, IN THIS CONNECTION, IN ACCORDANCE WITH SECTION 4 (A) OF THE PERMANENT APPROPRIATION REPEAL ACT, 1934, 48 STAT. 1227, 31 U.S.C. 725C, THERE WAS REPEALED THE SPECIAL FUND APPROPRIATION ACCOUNT "8S876 MAINTENANCE AND OPERATION OF DAMS AND OTHER IMPROVEMENTS OF NAVIGABLE WATERS," ESTABLISHED PURSUANT TO THE SAID SECTION 17. THE EFFECT OF THIS STATUTE WAS TO TERMINATE THE AUTHORITY TO AUTOMATICALLY APPROPRIATE RECEIPTS AND, ALSO, TO REQUIRE THAT RECEIPTS OF THE CHARACTER THERETOFORE CREDITED TO SUCH APPROPRIATIONS BE DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, AND THE USE THEREOF AUTHORIZED SUBJECT TO ANNUAL APPROPRIATION BY CONGRESS. HOWEVER, AS INDICATED ABOVE, SECTION 17 (A) OF THE FEDERAL POWER ACT, APPROVED AUGUST 26, 1935, REENACTED IN SUBSTANTIALLY THE SAME LANGUAGE THE TERMS OF SECTION 17 OF THE ORIGINAL LAW, SO THAT THERE WAS REESTABLISHED THE CITED SPECIAL FUND APPROPRIATION ACCOUNT "8S876" UNDER THE SYMBOL NUMBER AND TITLE CITED ABOVE, NAMELY,"96 TIMES 5125 MAINTENANCE AND OPERATION OF DAMS AND OTHER IMPROVEMENTS OF NAVIGABLE WATERS.'

IN THE DECISION REPORTED AT 1 COMP. GEN. 49, REFERRED TO IN THE FISCAL ASSISTANT SECRETARY'S LETTER, THERE WAS CONSIDERED THE DISTRIBUTION TO BE MADE OF CHARGES PAYABLE BY LICENSEES TO THE FEDERAL POWER COMMISSION UNDER THE PROVISIONS OF THE ORIGINAL FEDERAL WATER POWER ACT OF JUNE 10, 1920, 41 STAT. 1063, 16 U.S.C. 792. IT WAS HELD THAT ALL MONEYS DERIVED FROM CHARGES ON ACCOUNT OF BENEFITS TO LICENSEES ACCRUING DIRECTLY FROM RESERVOIRS OR OTHER HEADWATER IMPROVEMENTS CONSTRUCTED BY THE UNITED STATES ARE TO BE DEPOSITED INTO THE TREASURY TO BE RESERVED AND APPROPRIATED TO THE CREDIT OF THE SPECIAL FUND APPROPRIATION ESTABLISHED UNDER AUTHORITY OF THE LAST CLAUSE OF SECTION 17 OF THAT ACT, 41 STAT. 1072.

THE LAST CLAUSE OF SECTION 17, JUST REFERRED TO, DIRECTS THAT SUCH FUNDS BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF THE ARMY FOR THE OPERATION AND MAINTENANCE OF DAMS AND OTHER NAVIGATION STRUCTURES OWNED BY THE UNITED STATES, OR IN THE CONSTRUCTION, MAINTENANCE, OR OPERATION OF HEADWATER OR OTHER IMPROVEMENTS OF NAVIGABLE WATERS OF THE UNITED STATES, AND PROVIDES FOR THE USE OF ALL SUCH RECEIPTS WITHOUT FURTHER APPROPRIATION ACTION BY THE CONGRESS. WE FIND NOTHING IN THE PRINTED LEGISLATIVE RECORD OF THE ORIGINAL FEDERAL WATER POWER ACT OR IN ITS AMENDATORY ACTS WITH REFERENCE TO THE DISPOSITION OF CHARGES DERIVED FROM LICENSEES AND OTHERS FOR HEADWATER BENEFITS WHICH WOULD INDICATE A CONTRARY LEGISLATIVE INTENT.

ACCORDINGLY, REPLYING SPECIFICALLY TO THE QUESTION PRESENTED, YOU ARE ADVISED THAT WE ADHERE TO THE CONCLUSION EXPRESSED IN OUR DECISION 1 COMP. GEN. 49. THAT IS, THAT ALL OF THE CHARGES COLLECTED BY THE FEDERAL POWER COMMISSION FROM LICENSEES AND OTHERS BENEFITED BY HEADWATER IMPROVEMENTS CONSTRUCTED BY THE UNITED STATES, UNDER THE TERMS OF SUBSECTION 10 (F) OF THE FEDERAL POWER ACT, AS AMENDED, ARE PROPERLY FOR DEPOSIT INTO THE TREASURY AND APPROPRIATION TO THE SPECIAL FUND APPROPRIATION ACCOUNT "96X5125 MAINTENANCE AND OPERATION OF DAMS AND OTHER IMPROVEMENTS OF NAVIGABLE WATERS" FOR EXPENDITURE UNDER DIRECTION OF THE SECRETARY OF THE ARMY IN THE MAINTENANCE AND OPERATION OF DAMS AND OTHER NAVIGATION STRUCTURES, ETC., SUBJECT TO THE VIEWS HEREINAFTER EXPRESSED.

IN THIS CONNECTION, THERE HAS BEEN RECEIVED AND CONSIDERED A LETTER DATED JULY 2, 1965, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY OF THE INTERIOR, RELATIVE TO THE MATTER, IT BEING STATED THEREIN THAT A COPY OF THE LETTER OF APRIL 6 WAS MADE AVAILABLE TO THAT DEPARTMENT.

IT IS STATED IN THIS LETTER THAT THE PROJECTS GIVING RISE TO BENEFITS ATTRIBUTABLE TO HEADWATER IMPROVEMENTS INCIDENT TO WHICH THE SUM OF $4,800,000 WAS COLLECTED FROM LICENSEES AND OTHERS BY THE FEDERAL POWER COMMISSION THROUGH JANUARY 31, 1965, WERE CONSTRUCTED EITHER BY THE CORPS OF ENGINEERS OR THE BUREAU OF RECLAMATION. IT IS ESTIMATED THAT SUCH COLLECTIONS WILL AMOUNT TO ABOUT $1,400,000 THIS YEAR (1965) AND BY INCREASING AMOUNTS EACH YEAR THEREAFTER.

THE CORPS OF ENGINEERS, IT IS SAID, WANTS TO DISBURSE 50 PERCENT OF THESE RECEIPTS WITHOUT FURTHER APPROPRIATION BY THE CONGRESS. HOWEVER, THE POSITION OF THE BUREAU OF RECLAMATION IS THAT THE RECEIPTS SHOULD BE FAIRLY ALLOCATED BETWEEN THE CORPS OF ENGINEERS AND THE BUREAU ON THE BASIS OF WHETHER THE PAYMENTS WERE COLLECTED FOR BENEFITS DERIVED FROM CORPS OR BUREAU FINANCED PROJECTS. IN JUSTIFICATION OF THE BUREAU'S CONTENTION FOR THE AMOUNT OF PAYMENTS DERIVED FROM ITS PROJECTS, IT IS STATED, IN PERTINENT PART, AS FOLLOWS:

IN 1921, WHEN THE COMPTROLLER GENERAL RENDERED THE FOREGOING DECISION (1 COMP. GEN. 49), THE CORPS WAS THE PRINCIPAL FEDERAL AGENCY ACTIVE IN THE CONSTRUCTION OF HEADWATER IMPROVEMENTS, AND IT PROBABLY SEEMED NATURAL AT THAT TIME TO CREDIT IT WITH ALL OF THE PAYMENTS FOR HEADWATER BENEFITS. SINCE THEN, HOWEVER, THE BUREAU HAS ALSO ASSUMED A SIGNIFICANT ROLE IN THE CONSTRUCTION OF HEADWATER IMPROVEMENTS, AND IT WOULD NOT BE PROPER TO DENY THE BUREAU CREDIT FOR PAYMENTS ATTRIBUTABLE TO BUREAU PROJECTS.

IN ANY EVENT, THE COMPTROLLER GENERAL'S INTERPRETATION OF SECTION 10 (F) AND SECTION 17 OF THE FEDERAL POWER ACT WAS RENDERED MOOT BY THE CONGRESS ON MAY 9, 1938, WHEN IT AMENDED THE INTERIOR DEPARTMENT APPROPRIATION ACT FOR 1939 (43 U.S.C. SECS. 392A), BY ADDING THESO CALLED HAYDEN-O-MAHONEY AMENDMENT. UNDER THE LATTER PROVISO,"ALL MONEYS RECEIVED BY THE UNITED STATES IN CONNECTION WITH ANY IRRIGATION PROJECTS, INCLUDING THE INCIDENTAL POWER FEATURES THEREOF, CONSTRUCTED BY THE SECRETARY OF THE INTERIOR THROUGH THE BUREAU OF RECLAMATION . . . SHALL BE COVERED INTO THE RECLAMATION FUND . . .' ALTHOUGH THE AVAILABLE RECORD OF THE LEGISLATIVE HISTORY DOES NOT REFLECT THAT THE CONGRESS, IN ENACTING THIS MEASURE, HAD IMMEDIATELY IN MIND THE PROVISIONS OF SECTION 10 (F) AND SECTION 17, OF THE FEDERAL POWER ACT, ITS INTENT WAS UNMISTAKABLE--- TO ASSURE THAT THE RECLAMATION FUND RECEIVED PROPER CREDIT FOR ALL MONEYS RETURNED TO THE UNITED STATES IN CONNECTION WITH BUREAU PROJECTS. WITH AN AIM SO DIRECT, THERE CAN BE NO DOUBT THAT IF THE QUESTION HAD BEEN EXPRESSLY RAISED IN THE RECORD OF THE LEGISLATIVE HISTORY, THE ANSWER WOULD HAVE BEEN EXPLICIT --- THAT SECTION 10 (F) AND SECTION 17 OF THE FEDERAL POWER ACT WERE AMENDED TO THE EXTENT NECESSARY TO ASSURE THAT RECEIPTS ATTRIBUTABLE TO BUREAU PROJECTS WOULD BE CREDITED TO THE RECLAMATION FUND. THERE IS NO PLAUSIBLE REASON WHY THE CONGRESS WOULD WANT TO GIVE THE CORPS CREDIT FOR BUREAU OPERATIONS, ANY MORE THAN IT WOULD WANT TO GIVE THE BUREAU CREDIT FOR CORPS OPERATIONS; NOR WHY EITHER THE CORPS OR THE BUREAU WOULD WANT TO TAKE SUCH CREDIT.

AS PREVIOUSLY STATED, THERE IS NOTHING IN THE LANGUAGE OF SUBSECTION 10 (F) AND SECTION 17 (A) OF THE FEDERAL POWER ACT, AS AMENDED, QUOTED ABOVE, OR IN THEIR LEGISLATIVE HISTORY, TO INDICATE ANY INTENT THAT THE CHARGES DERIVED FROM LICENSEES AND OTHERS FOR HEADWATER BENEFITS WERE TO BE RELATED BACK TO THE PARTICULAR PROJECT PROVIDING THE BENEFITS, OR THAT ANY DISTRIBUTION OF THE CHARGES BE MADE ON THE BASIS OF WHETHER CONSTRUCTION OF THE PROJECT WAS ORIGINATED AND FINANCED BY THE CORPS OF ENGINEERS OR THE BUREAU OF RECLAMATION. THESE STATUTES APPROPRIATE ALL SUCH FUNDS TO THE SECRETARY OF THE ARMY FOR USE IN HIS DISCRETION IN THE "MAINTENANCE AND OPERATION OF DAMS AND OTHER NAVIGATION STRUCTURES OWNED BY THE UNITED STATES OR IN THE CONSTRUCTION, MAINTENANCE, OR OPERATION OF HEADWATER OR OTHER IMPROVEMENTS OF NAVIGABLE WATERS OF THE UNITED STATES," INDEPENDENTLY OF THE SOURCE OF PUBLIC FUNDS USED TO CONSTRUCT THE PROJECT. THUS, THESE STATUTES, STANDING ALONE, PROVIDE NO LEGAL BASIS FOR DISTRIBUTING PAYMENTS FOR HEADWATER BENEFITS TO THE BUREAU OF RECLAMATION SOLELY BECAUSE CONSTRUCTION OF THE PROJECT PROVIDING THE HEADWATER BENEFITS WAS FINANCED WITH BUREAU FUNDS. SUCH WAS THE REASONING FOLLOWED IN THE CONCLUSION STATED IN 1 COMP. GEN. 49.

HOWEVER, THERE IS FOR CONSIDERATION IN THIS MATTER THE ACT OF MAY 9, 1938, 52 STAT. 322, 43 U.S.C. 392A, CITED BY THE DEPUTY ASSISTANT SECRETARY OF THE INTERIOR, WHICH PROVIDES IN PART:

ALL MONEYS RECEIVED BY THE UNITED STATES IN CONNECTION WITH ANY IRRIGATION PROJECTS, INCLUDING THE INCIDENTAL POWER FEATURES THEREOF, CONSTRUCTED BY THE SECRETARY OF THE INTERIOR THROUGH THE BUREAU OF RECLAMATION, AND FINANCED IN WHOLE OR IN PART WITH MONEYS HERETOFORE OR HEREAFTER APPROPRIATED OR ALLOCATED THEREFOR BY THE FEDERAL GOVERNMENT, SHALL BE COVERED INTO THE RECLAMATION FUND, EXCEPT IN CASES WHERE PROVISION HAS BEEN MADE BY LAW OR CONTRACT FOR THE USE OF SUCH REVENUES FOR THE BENEFIT OF USERS OF WATER FROM SUCH PROJECT * * *.

THIS STATUTE IS SPECIFIC IN ITS DIRECTION TO CREDIT THE "RECLAMATION FUND" WITH ALL FUNDS RECEIVED IN CONNECTION WITH ANY BUREAU OF RECLAMATION PROJECT. THUS, THERE IS AN OBVIOUS CONFLICT BETWEEN THE PROVISIONS OF THE ACT OF MAY 9, 1938, QUOTED ABOVE, AND THE CITED SECTION 17 (A) OF THE FEDERAL POWER ACT, AS AMENDED, IN RESPECT OF THE DISPOSITION OF THE RECEIPTS DERIVED FROM LICENSEES AND OTHERS FOR BENEFITS FROM HEADWATER IMPROVEMENTS. TO GIVE EFFECT TO THE REQUIREMENT OF THE ACT OF MAY 9, 1938, TO CREDIT THE "RECLAMATION FUND" WITH ALL MONEYS RECEIVED BY THE UNITED STATES IN CONNECTION WITH BUREAU PROJECTS, THE SAID ACT, BEING A LATER EXPRESSION OF THE CONGRESS, MUST BE CONSTRUED AS SUPERSEDING THE PROVISIONS OF THE EARLIER STATUTE ONLY INSOFAR AS THE PROVISIONS OF THE 1938 ACT ARE INCONSISTENT WITH THE PRIOR ACT. SEE 26 COMP. GEN. 857; 32 ID. 35.

ACCORDINGLY, WE AGREE WITH THE POSITION TAKEN BY THE DEPARTMENT OF THE INTERIOR IN THIS MATTER. THAT IS, THAT OF THE SUM OF $4,800,000 REFERRED TO ABOVE, REPRESENTING PAYMENTS COLLECTED BY THE FEDERAL POWER COMMISSION FROM LICENSEES AND OTHERS FOR BENEFITS DERIVED FROM HEADWATER IMPROVEMENTS CONSTRUCTED BY EITHER THE CORPS OF ENGINEERS OR THE BUREAU OF RECLAMATION, THE SHARE THEREOF COVERING PAYMENTS FOR HEADWATER BENEFITS ATTRIBUTABLE TO BUREAU CONSTRUCTED PROJECTS SHOULD BE CREDITED TO THE "RECLAMATION FUND" IN ACCORDANCE WITH THE CITED PROVISIONS OF THE ACT OF MAY 9, 1938. FUNDS DEPOSITED INTO THE TREASURY TO THE CREDIT OF THIS ACCOUNT, OF COURSE, MAY NOT BE EXPENDED EXCEPT IN PURSUANCE OF APPROPRIATIONS MADE ANNUALLY BY CONGRESS. 43 U.S.C. 414.

INASMUCH AS THE COLLECTIONS FOR HEADWATER BENEFITS ($4,800,000) WERE DEPOSITED INTO THE TREASURY TO THE CREDIT OF THE MISCELLANEOUS RECEIPT ACCOUNT "2461" APPROPRIATE ACTION MAY BE TAKEN BY YOUR DEPARTMENT TO EFFECT AN ADJUSTMENT THEREOF AS OUTLINED ABOVE. 7 GAO MANUAL 4420. UNDERSTAND THAT THE RECORDS OF THE FEDERAL POWER COMMISSION ARE MAINTAINED TO RELATE HEADWATER BENEFITS PAYMENTS TO THE PARTICULAR PROJECT INVOLVED, VIZ., ENGINEER CORPS OR BUREAU OF RECLAMATION PROJECT, AND THAT INFORMATION RELATIVE THERETO TO ACCOMPLISH THE ADJUSTMENT OF $4,800,000 WILL BE FURNISHED TO YOUR DEPARTMENT UPON REQUEST THEREFOR. OUR CIVIL DIVISION IS BEING DIRECTED TO WORK WITH REPRESENTATIVES OF THE COMMISSION AND THE TREASURY DEPARTMENT TOWARDS DEVELOPING APPROPRIATE PROCEDURES FOR THE DISTRIBUTION OF ADDITIONAL PAYMENTS TO THE UNITED STATES FOR HEADWATER BENEFITS COLLECTED BY THE FEDERAL POWER COMMISSION.

A COPY OF THIS LETTER IS BEING FURNISHED TO THE SECRETARY OF THE ARMY, THE SECRETARY OF THE INTERIOR, THE CHAIRMAN OF THE FEDERAL POWER COMMISSION AND THE DIRECTOR, BUREAU OF THE BUDGET.