B-196672.OM, NOV 2, 1979

B-196672.OM, NOV 2, 1979

SUBJECT: LEGAL AUTHORITY OF THE WATER RESOURCES COUNCIL OVER RIVER BASIN COMMISSIONS (CODE 080470)

SENIOR GROUP DIRECTOR, CED - DON B. CLUFF:

WE ARE CURRENTLY CONDUCTING A REVIEW OF THE EFFECTIVENESS OF WATER RESOURCES PLANNING BY RIVER BASIN COMMISSIONS (RBCS). AS PART OF OUR WORK PLAN, WE WOULD LIKE TO ADDRESS THE QUESTION: "DOES THE WATER RESOURCES COUNCIL (WRC) HAVE SUFFICIENT AUTHORITY TO PROVIDE EFFECTIVE GUIDANCE TO RBCS?" THE LAW IS SUFFICIENTLY VAGUE ON THIS MATTER AS TO RENDER AN OPINION FROM YOUR OFFICE BOTH USEFUL AND NECESSARY.

THE RBCS ARE COMPOSED OF TWO GROUPS: STATES AND FEDERAL AGENCIES. FROM OUR INTERVIEWS WITH THE WRC AND OTHERS, AND A CURSORY REVIEW OF THE LEGISLATIVE HISTORY, IT APPEARS THAT ALTHOUGH THE WRC WAS ORIGINALLY INTENDED TO HAVE SUFFICIENT AUTHORITY TO ESTABLISH RULES AND REGULATIONS FOR RBCS, A CONTROVERSY SOON DEVELOPED OVER THE WRC'S AUTHORITY TO DICTATE TO THE STATES. THEREFORE, UPON CLOSER EXAMINATION, WE ARE REALLY SEEKING ANSWERS TO THREE SEPARATE QUESTIONS:

(1) WHAT IS THE EXTENT OF THE WRC'S AUTHORITY OVER THE STATES? MORE SPECIFICALLY: WHAT CAN THE WRC REQUIRE OF THE STATES IN ORDER TO BETTER MEET THE NEEDS OF RBCS?

(2) IS THE WRC'S AUTHORITY OVER RBCS LIMITED BY THE EXTENT OF ITS AUTHORITY OVER THE STATES? (I.E. CAN THE WRC DEMAND SOMETHING OF RBCS IT COULD NOT DEMAND DIRECTLY OF THE STATES?)

(3) WHAT IS THE EXTENT OF THE WRC'S AUTHORITY OVER THE FEDERAL PARTICIPANTS? (E.G. COULD THE WRC COMPEL FEDERAL PARTICIPANTS TO SUBMIT ALL WATER-RELATED PROJECTS TO RBCS FOR COORDINATION AND PRIORITIZING? COULD FEDERAL MONIES BE TIED TO SUCH A REQUIREMENT?)

IT IS HOPED THAT THE ANSWERS TO THESE QUESTIONS WILL INDICATE TO US WHETHER WRC CURRENTLY HAS SUFFICIENT AUTHORITY TO PROVIDE EFFECTIVE GUIDANCE TO RBCS OR WHETHER NEW LEGISLATION WOULD BE REQUIRED.

THE SPECIFIC PASSAGES OF THE WATER RESOURCES PLANNING ACT OF 1965, AS AMENDED, WHICH ARE MOST RELEVANT TO THESE QUESTIONS ARE:

SECTION 3 - NOTE THE EXCEPTIONS IN PARTS (B) AND (C).

SECTION 103 - NOTE THE EXCLUSION OF STATES FROM SUCH PRINCIPLES, STANDARDS, AND PROCEDURES.

SECTION 105 - NOTE ESPECIALLY PARTS (A)(7) AND (D), WITH NO CAVEAT FOR THE STATES.

SECTION 205 - NOTE ESPECIALLY PARTS (A)(8) AND (D), AGAIN WITH NO CAVEAT FOR THE STATES.

ON SEPTEMBER 21, 1979, THESE ISSUES WERE DISCUSSED IN YOUR OFFICE WITH MR. STAN FEINSTEIN. HE ALSO FELT IT WOULD BE USEFUL TO OUR JOB TO HAVE A LEGAL OPINION ON THESE MATTERS. WE AGREED TO DO SOME OF THE PRELIMINARY RESEARCH, AND HE IN TURN AGREED TO PROVIDE US WITH A MEMO RESPONDING TO THESE QUESTIONS BY MID-JANUARY 1980. IF YOU HAVE ANY QUESTIONS OR NEED FURTHER INFORMATION, PLEASE CONTACT MARGIE STONE (693 8287) AT THE CORPS AUDIT SITE.

INDORSEMENT

DIRECTOR, CED - HENRY ESCHWEGE

RETURNED. THE UNITED STATES WATER RESOURCES COUNCIL (COUNCIL) WAS ESTABLISHED UNDER TITLE I OF THE WATER RESOURCES PLANNING ACT, PUB. L. NO. 89-80, APPROVED JULY 22, 1965, 79 STAT. 244, AS AMENDED, 42 U.S.C. 1962, ET SEQ. (1976). IT IS COMPOSED OF THE HEADS OF FEDERAL DEPARTMENTS AND AGENCIES DIRECTLY CONCERNED WITH WATER RESOURCES, INCLUDING THE DEPARTMENTS OF THE INTERIOR, ARMY (CORPS OF ENGINEERS), AND AGRICULTURE, AND THE ENVIRONMENTAL PROTECTION AGENCY.

RIVER BASIN COMMISSIONS (COMMISSIONS) WERE ESTABLISHED UNDER TITLE II OF THE ACT. EACH COMMISSION'S MEMBERSHIP INCLUDES A CHAIRMAN APPOINTED BY THE PRESIDENT, ONE MEMBER FROM EACH CONCERNED FEDERAL DEPARTMENT OR AGENCY, A MEMBER FROM EACH STATE WITHIN ITS AREA, INTERSTATE AGENCIES, AND THE UNITED STATES SECTION OF AN INTERNATIONAL COMMISSION, WHERE APPROPRIATE. THE ACT'S PURPOSE IN SETTING UP THE COUNCIL AND PROVIDING FOR COMMISSIONS WAS TO ENCOURAGE COMPREHENSIVE AND COORDINATED PLANNING FOR WATER AND RELATED LAND RESOURCES WITH THE COOPERATION OF ALL INTERESTED PARTIES. THE THREE QUESTIONS POSED ALL DEAL WITH THE DISTRIBUTION OF POWER AMONG THE FEDERAL AGENCIES, THE COUNCIL, THE COMMISSIONS, AND THE STATES. GENERALLY, WE CAN STATE THAT THE ACT DOES NOT GIVE A DOMINANT ROLE TO ANY ENTITY AND THAT IT ENVISIONS COOPERATION AMONG THEM.

YOUR SENIOR GROUP DIRECTOR'S FIRST QUESTION IS CONCERNED WITH THE COUNCIL'S AUTHORITY OVER THE STATES. SPECIFICALLY, HE WISHES TO KNOW IF THE COUNCIL CAN REQUIRE STATE ACTION IN ORDER TO BETTER MEET THE NEEDS OF THE RIVER BASIN COMMISSIONS.

SECTION 3 (42 U.S.C. 1962-1) STATES THAT: "NOTHING IN THIS ACT SHALL BE CONSTRUED - (A) TO EXPAND OR DIMINISH EITHER FEDERAL OR STATE JURISDICTION, RESPONSIBILITY, OR RIGHTS IN THE FIELD OF WATER RESOURCES PLANNING, DEVELOPMENT, OR CONTROL; ***" THIS PROVISION WAS ADDED BECAUSE OF FEARS THAT THE LEGISLATION WOULD PERMIT THE FEDERAL GOVERNMENT TO TELL THE STATES AND LOCALITIES HOW TO DEVELOP THEIR WATER RESOURCES. ACCORDINGLY, TITLE I GAVE THE COUNCIL VERY LIMITED POWERS. 42 U.S.C. SEC. 1962A-1 TO 1962A-3.

THESE POWERS DO NOT INCLUDE THE IMPOSITION OF DUTIES OR REQUIREMENTS ON THE STATES. WHILE SECTION 103 MANDATES COUNCIL PREPARATION OF PRINCIPLES, STANDARDS, AND PROCEDURES FOR FEDERAL PARTICIPANTS IN THE PREPARATION OF REGIONAL OR RIVER BASIN PLANS AND THE FORMULATION AND EVALUATION OF FEDERAL WATER AND RELATED LAND RESOURCES PROJECTS, THIS REQUIREMENT DOES NOT EXTEND TO THE STATES OR THEIR REPRESENTATIVES. SECTION 105 AUTHORIZES THE COUNCIL TO INCURE NECESSARY EXPENSES AND EXERCISE SUCH OTHER POWERS AS ARE CONSISTENT WITH AND REASONABLY REQUIRED TO PERFORM ITS FUNCTIONS UNDER THE ACT. HOWEVER, THIS IS IN AID OF POWERS OTHERWISE GRANTED TO IT AND AS SUCH, DOES NOT CONSTITUTE A SEPARATE GRANT OF POWERS AVAILABLE FOR SECURING ACTION BY THE STATES.

TITLE III OF THE WATER RESOURCES PLANNING ACT ESTABLISHES A PROGRAM OF GRANTS TO STATES TO ASSIST THEM IN DEVELOPING AND PARTICIPATING IN THE DEVELOPMENT OF COMPREHENSIVE WATER AND RELATED LAND RESOURCES PLANS (SECTION 301). THE COUNCIL ADMINISTERS THE PROGRAM UNDER WHICH GRANTS ARE TO BE MADE ON THE BASIS OF STATE POPULATION, LAND AREA, NEED FOR COMPREHENSIVE PLANNING PROGRAMS, AND FINANCIAL NEED (SECTION 302). DOES NOT APPEAR THAT A STATE'S FAILURE TO SUPPORT A RIVER BASIN COMMISSION OR TO TAKE ACTION RELATING TO ONE WOULD BE A PROPER BASIS FOR DENIAL OR REDUCTION OF A STATE PLANNING GRANT.

ACCORDINGLY, IN ANSWER TO THE FIRST QUESTION, WE DO NOT BELIEVE THAT THE U. S. WATER RESOURCES COUNCIL HAS THE AUTHORITY TO COMPEL A STATE TO SUPPORT A COMMISSION'S ACTIONS OR BETTER MEET ITS NEEDS.

THE SECOND QUESTION IS WHETHER THE COUNCIL'S AUTHORITY OVER THE COMMISSIONS IS LIMITED BY THE EXTENT OF ITS AUTHORITY OVER THE STATES. CAN IT DEMAND SOMETHING OF THE COMMISSIONS WHICH IT CAN NOT DEMAND DIRECTLY OF THE STATES?

IN OUR VIEW, THE COUNCIL HAS LITTLE POWER OVER THE COMMISSIONS. UNDER THE WATER RESOURCES PLANNING ACT, THE COUNCIL HAS FEW POWERS RELATING TO THE COMMISSIONS. A COMMISSION IS REQUIRED TO SUBMIT TO THE COUNCIL A REPORT ON ITS WORK AT LEAST ONCE A YEAR. IT MUST ALSO SUBMIT TO THE COUNCIL FOR TRANSMISSION TO THE PRESIDENT AND BY HIM TO THE CONGRESS PLANS FOR WATER AND RELATED LAND RESOURCES DEVELOPMENT (SECTION 204). THE COUNCIL REVIEWS THE PLANS (WHICH IT CANNOT CHANGE) AND FORWARDS THEM WITH ANY RECOMMENDATIONS TO THE PRESIDENT (SECTION 104). A RIVER BASIN COMMISSION'S RECOMMENDATION AS TO THE SHARE OF ITS EXPENSES TO BE BORNE BY THE FEDERAL GOVERNMENT MUST BE APPROVED BY THE WATER RESOURCES COUNCIL. REQUESTS FOR SUCH EXPENSES ARE INCLUDED IN THE COUNCIL'S BUDGET, TOGETHER WITH REQUESTS FOR PROPOSED ADVANCES TO COMMISSIONS AGAINST ANTICIPATED STATE APPROPRIATIONS (SECTION 207). UNDER SECTION 203(A), A COMMISSION CAN BE TERMINATED BY COUNCIL DECISION OR BY AGREEMENT OF A MAJORITY OF THE STATES REPRESENTED ON A COMMISSION.

THE FEDERAL PARTICIPANTS ON A RIVER BASIN COMMISSION ESTABLISHED UNDER TITLE II INCLUDE ONE MEMBER FROM EACH FEDERAL DEPARTMENT OR AGENCY DETERMINED BY THE PRESIDENT TO HAVE A SUBSTANTIAL INTEREST IN THE COMMISSION'S WORK. THE MEMBER IS APPOINTED BY THE HEAD OF THE DEPARTMENT OR AGENCY TO REPRESENT IT ON THE COMMISSION. CLEARLY, EACH OF THE FEDERAL DEPARTMENTS AND AGENCIES REPRESENTED ON A COMMISSION (IN MOST CASES ALSO MEMBERS OF THE COUNCIL) COULD INFLUENCE COMMISSION ACTIONS. HOWEVER, ON SUBSTANTIVE ISSUES, THIS WOULD NOT BE SUFFICIENT IN THE FACE OF STATE OPPOSITION, SINCE CONSENSUS IS REQUIRED.

UNDER SECTION 103, THE COUNCIL IS TO ESTABLISH PRINCIPLES, STANDARDS, AND PROCEDURES FOR FEDERAL PARTICIPANTS IN THE PREPARATION OF COMPREHENSIVE REGIONAL OR RIVER BASIN PLANS. WHILE THIS WOULD NOT BE BINDING ON THE STATE PARTICIPANTS IN RIVER BASIN COMMISSIONS, IT COULD HAVE SUBSTANTIAL IMPACT ON SUCH PLANS. HOWEVER, GUIDELINES HAVE NOT YET BEEN ESTABLISHED. THE THREAT OF REDUCTION OR WITHDRAWAL OF FEDERAL FUNDING OR OF COMMISSION TERMINATION ARE WEAPONS WITH WHICH THE COUNCIL MIGHT BE ABLE TO IMPOSE ITS WILL ON COMMISSIONS. BUT SUCH ACTIONS OBVIOUSLY WOULD LOSE THE COOPERATION AND GOODWILL OF THE STATE PARTICIPANTS AND RAISE THE SPECTOR OF A FEDERAL "TAKEOVER" OF STATE RESPONSIBILITIES IN WATER RESOURCES PLANNING.

THE LAST QUESTION DEALS WITH THE WATER RESOURCES COUNCIL'S AUTHORITY TO COMPEL FEDERAL DEPARTMENTS AND AGENCIES TO SUBMIT ALL WATER-RELATED PROJECTS TO RIVER BASIN COMMISSIONS FOR COORDINATION AND THE ESTABLISHMENT OF PRIORITIES. WE BELIEVE THAT THE COUNCIL DOES NOT HAVE THIS POWER.

THE WATER RESOURCES PLANNING ACT CAREFULLY AVOIDED MAKING MAJOR CHANGES IN THE AUTHORITIES OF THE CONCERNED FEDERAL AGENCIES AND OFFICIALS (SEE SECTION 3(B) AND (C)). IT DOES NOT REQUIRE FEDERAL WATER RESOURCE PROJECTS TO BE SUBMITTED TO A COMMISSION NOR ARE WE AWARE OF ANY OTHER STATUTES REQUIRING SUCH SUBMISSION. UNDER SECTION 103, THE COUNCIL MAY ESTABLISH PROCEDURES FOR ITS REVISION OF FEDERAL PROJECT PLANS PROPOSED IN PLANS SUBMITTED BY A COMMISSION. HOWEVER, SUBMISSION OF PROPOSED FEDERAL PROJECTS BY THE DEPARTMENTS OR AGENCIES CONCERNED IS VOLUNTARY.

IN SUCH CIRCUMSTANCES, THE COUNCIL HAS NO POWER TO COMPEL THE SPONSORING FEDERAL ENTITIES TO SUBMIT THEIR PROJECTS TO COMMISSION REVIEW. CONSEQUENTLY, ADDITIONAL LEGISLATION WOULD BE NECESSARY TO COMPEL RIVER BASIN COMMISSION REVIEW OF FEDERAL WATER-RELATED PROJECTS.