A-96906, AUGUST 17, 1938, 18 COMP. GEN. 178

A-96906, AUGUST 17, 1938, 18 COMP. GEN. 178

PROJECTS - RECLAMATION - REQUIREMENT FOR FUNDS FROM SOURCES OTHER THAN RECLAMATION FUNDS PRIOR TO INSTITUTION OF PROJECTS - AVAILABILITY OF 1938 APPROPRIATED RELIEF OR PUBLIC WORKS FUNDS THE REQUIREMENT OF THE ACT OF AUGUST 2, 1937, AS AMENDED BY ACT OF APRIL 9, 1938, 52 STAT. 211, REGARDING THE CONSTRUCTION OF A FEDERAL RECLAMATION PROJECT FOR THE IRRIGATION OF THE LANDS OF THE ARCH HURLEY CONSERVANCY DISTRICT IN NEW MEXICO, THAT THE PROJECT MAY BE FOUND TO BE FINANCIALLY FEASIBLE IF THE AMOUNT OF MONEY TO BE EXPENDED FROM THE RECLAMATION FUND, PLUS THE AMOUNT OF MONEY WHICH HAS BEEN MADE AVAILABLE FROM OTHER SOURCES FOR THE ESTIMATED PERIOD OF CONSTRUCTION, EQUALS THE ESTIMATED COST OF CONSTRUCTION, IS NOT MET BY AN ARRANGEMENT PROPOSING TO MAKE AVAILABLE FROM EMERGENCY RELIEF FUNDS THE AMOUNT OF MONEY NEEDED FROM SOURCES OTHER THAN THE RECLAMATION FUND, ANY ALLOTMENT OF FUNDS FROM THE WORKS PROGRESS ADMINISTRATION UNDER SUBSECTION (1) (D) (2) OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, BEING AVAILABLE ONLY TO INCLUDE JUNE 30, 1939, AND ANY FURTHER ALLOTMENT UNDER THAT SECTION FOR THE COMPLETION OF THE PROJECT WITHIN THE REQUIRED TIME BEING DEPENDENT UPON WHETHER FUTURE RELIEF APPROPRIATIONS ARE MADE BY THE CONGRESS, BUT FUNDS APPROPRIATED UNDER SECTION 201 (A) OF THE LATTER ACT BEING AVAILABLE FOR ALLOTMENTS TO FINANCE FEDERAL PROJECTS PROVIDED THE PROJECT IS COMMENCED PRIOR TO JANUARY 1, 1939, AND CAN BE SUBSTANTIALLY COMPLETED PRIOR TO JUNE 30, 1940, SUCH PUBLIC WORKS FUNDS AS NECESSARY TO MEET THE REQUIREMENT MAY BE ALLOTTED FOR THAT PURPOSE, THE PROVISIONS OF SECTION 201 (H) WHICH PROHIBIT THE UNDERTAKING OF ANY FEDERAL PROJECT PRIOR TO THE IRREVOCABLE SETTING ASIDE OF SUFFICIENT FUNDS FOR ITS COMPLETION BEING FOR APPLICATION TO FUNDS APPROPRIATED UNDER THE TITLE IN WHICH THE SUBSECTION APPEARS AND NOT WHERE THE FUNDS FOR COMPLETION ARE TO BE APPROPRIATED FROM THE RECLAMATION FUND AS IN THE PRESENT CASE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, AUGUST 17, 1938:

YOUR LETTER OF JULY 29, 1938, IS AS FOLLOWS:

YOUR DECISION IS REQUESTED UPON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH A PROPOSED FEDERAL RECLAMATION PROJECT TO FURNISH A WATER SUPPLY FOR THE LANDS OF THE ARCH HURLEY CONSERVANCY DISTRICT IN NEW MEXICO. THE ACT OF AUGUST 2, 1937 (50 STAT. 557), AS AMENDED BY THE ACT OF APRIL 9, 1938 (PUB., NO. 477, 75TH CONG., 52 STAT. 211), AUTHORIZING THE CONSTRUCTION OF THIS PROJECT, READS IN PART AS FOLLOWS:

"THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO CONSTRUCT A FEDERAL RECLAMATION PROJECT FOR THE IRRIGATION OF THE LANDS OF THE ARCH HURLEY CONSERVANCY DISTRICT IN NEW MEXICO UNDER THE FEDERAL RECLAMATION LAWS: PROVIDED, THAT CONSTRUCTION WORK IS NOT TO BE INITIATED ON SAID IRRIGATION PROJECT UNTIL (A) THE PROJECT SHALL HAVE BEEN FOUND TO BE FEASIBLE UNDER SUBSECTION B OF SECTION 4 OF THE ACT OF DECEMBER 5, 1924 (43 STAT. 702), BUT THE PROJECT MAY BE FOUND TO BE FINANCIALLY FEASIBLE IF THE SECRETARY OF THE INTERIOR FINDS THAT THE AMOUNT TO BE EXPENDED FROM THE RECLAMATION FUND CAN BE REPAID BY THE DISTRICT, AND FURTHER THAT THE AMOUNT OF MONEY TO BE EXPENDED FROM THE RECLAMATION FUND, PLUS THE AMOUNT OF MONEY WHICH HAS BEEN MADE AVAILABLE FROM OTHER SOURCES (FOR THE ESTIMATED PERIOD OF CONSTRUCTION), EQUALS THE ESTIMATED COST OF CONSTRUCTION; (B) A CONTRACT SHALL HAVE BEEN EXECUTED WITH AN IRRIGATION OR CONSERVATION DISTRICT EMBRACING THE LAND TO BE IRRIGATED UNDER SAID PROJECT, WHICH CONTRACT SHALL OBLIGATE THE CONTRACTING DISTRICT TO REPAY THE COST OF CONSTRUCTION OF SAID PROJECT MET BY EXPENDITURE OF MONEYS FROM THE RECLAMATION FUND IN FORTY EQUAL ANNUAL INSTALLMENTS, WITHOUT INTEREST;

THE ITEM APPROPRIATING OUT OF THE RECLAMATION FUND MONIES FOR THIS PROJECT APPEARS IN THE SECOND DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1938 (PUB., NO. 723, 75TH CONG.) AS FOLLOWS:

"TUCUMCARI PROJECT, NEW MEXICO: FOR CONSTRUCTION OF A PROJECT FOR THE IRRIGATION OF THE LANDS OF THE ARCH HURLEY CONSERVANCY DISTRICT IN NEW MEXICO AS AUTHORIZED BY THE ACT OF AUGUST 2, 1937 (50 STAT. 557), AS AMENDED BY THE ACT OF APRIL 9, 1938 (PUBLIC, NUMBERED 477, SEVENTY FIFTH CONGRESS, THIRD SESSION), $250,000; "

IT IS ESTIMATED BY THE BUREAU OF RECLAMATION THAT THE CONSTRUCTION COST OF THE PROJECT WILL BE $8,308,000; AND IT HAS BEEN DETERMINED THAT THAT PORTION OF THE CONSTRUCTION COST OF THE PROJECT WHICH CAN BE REPAID BY THE DISTRICT, AND WHICH UNDER THE ENABLING LEGISLATION MAY THEREFORE BE EXPENDED FROM THE RECLAMATION FUND, IS $5,808,000. IT HAS ALSO BEEN DETERMINED THAT, ASSUMING THE REQUIREMENTS OF THE ENABLING LEGISLATION ARE MET WITHIN A REASONABLE TIME, CONSTRUCTION OF THE PROJECT CAN BE COMMENCED PRIOR TO JANUARY 1, 1939, AND THE COMPLETION OF THE CONSTRUCTION CAN BE SUBSTANTIALLY ACCOMPLISHED PRIOR TO JUNE 30, 1940.

THE SUGGESTION HAS BEEN ADVANCED THAT SUCH PORTION OF THE ESTIMATED COST OF CONSTRUCTION OF THE PROJECT AS WILL NOT BE PAID FROM THE RECLAMATION FUND MIGHT BE OBTAINED FROM THE WORKS PROGRESS ADMINISTRATION UNDER SUBSECTION (1) (D) (2) OF SECTION 1 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938. WITH REFERENCE TO THIS SUGGESTION, I HAVE RECEIVED A LETTER DATED JUNE 28, 1938, FROM MR. AUBREY WILLIAMS, DEPUTY ADMINISTRATOR, WORKS PROGRESS ADMINISTRATION, THE PERTINENT PORTION OF WHICH IS AS FOLLOWS:

"THIS ADMINISTRATION HAS BEEN INFORMED THAT IN ORDER THAT THIS PROJECT SHALL BE CONSIDERED FINANCIALLY FEASIBLE, IT IS NECESSARY THAT APPROXIMATELY $2,500,000 OF THE TOTAL ESTIMATED COST SHALL BE IN NON REIMBURSABLE FUNDS. IT IS ALSO UNDERSTOOD THAT THE TOTAL TIME FOR THE CONSTRUCTION OF THE PROJECT WILL BE TWO YEARS OR MORE, AND THAT WHILE THE AMOUNT OF NON-REIMBURSABLE FUNDS IN THE FORM OF WAGES FOR RELIEF LABOR THAT WOULD BE EXPENDED FURING THE FISCAL YEAR 1939 IS NOT YET DEFINITELY DETERMINED, IT WILL BE CONSIDERABLY LESS THAN THIS FIGURE.

"AMPLE RELIEF LABOR IS AVAILABLE IN THE AREA ADJACENT TO THE TUCUMCARI PROJECT TO CARRY ON THE WORK WHICH THIS TYPE OF LABOR CAN PERFORM. HOWEVER, SINCE THE CURRENT APPROPRIATION FOR THE WORKS PROGRESS ADMINISTRATION IS ON A FISCAL YEAR BASIS AND THE FUNDS NOW AVAILABLE CAN BE EXPENDED ONLY UNTIL JUNE 30, 1939, A COMMITMENT AS TO THE PARTICIPATION OF THE WORKS PROGRESS ADMINISTRATION IN THIS PROJECT CAN BE MADE ONLY ON THE FOLLOWING CONDITIONS:

"/A) THAT DURING THE FISCAL YEAR 1939 THE WORKS PROGRESS ADMINISTRATION WILL FURNISH THE AMOUNT OF RELIEF LABOR THAT CAN BE EFFICIENTLY USED ON THE WORK AND PAY THE WAGES THEREOF.

"/B) THAT, PROVIDED APPROPRIATIONS FOR SUBSEQUENT FISCAL YEARS ARE MADE FOR THE WORKS PROGRESS ADMINISTRATION AND THAT THE PROVISIONS OF THE APPROPRIATION ACTS ARE SUCH AS TO RENDER IT POSSIBLE TO USE RELIEF LABOR ON THIS PROJECT, THE WORKS PROGRESS ADMINISTRATION WILL CONTINUE TO PROVIDE RELIEF LABOR AND PAY THE WAGES THEREOF UP TO A CUMULATIVE TOTAL OF AT LEAST $2,500,000.'

THE QUESTION ARISES WHETHER THIS COMMITMENT BY THE WORKS PROGRESS ADMINISTRATION MAY BE CONSIDERED TO SATISFY THE REQUIREMENT OF THE ACT QUOTED ABOVE THAT "THE PROJECT MAY BE FOUND TO BE FINANCIALLY FEASIBLE IF THE SECRETARY OF THE INTERIOR FINDS THAT * * * THE AMOUNT OF MONEY TO BE EXPENDED FROM THE RECLAMATION FUND, PLUS THE AMOUNT OF MONEY WHICH HAS BEEN MADE AVAILABLE FROM OTHER SOURCES (FOR THE ESTIMATED PERIOD OF CONSTRUCTION), EQUALS THE ESTIMATED COST OF CONSTRUCTION.' YOUR DECISION ON THIS QUESTION WILL BE APPRECIATED.

IT HAS BEEN SUGGESTED AS AN ALTERNATIVE METHOD OF FINANCING SUCH PORTION OF THE ESTIMATED COST OF CONSTRUCTION OF THE PROJECT AS WILL NOT BE PAID FROM THE RECLAMATION FUND, THAT AN ALLOTMENT THEREFOR IN THE AMOUNT OF $2,500,000 MIGHT BE MADE TO THE BUREAU OF RECLAMATION BY THE PUBLIC WORKS ADMINISTRATION UNDER SUBSECTION (C) (1) OF SECTION 201 OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, INASMUCH AS THE REQUIREMENT OF THAT SUBSECTION "BE AUTHORIZED BY LAW" IS MET BY THE AUTHORIZING LEGISLATION QUOTED AT THE BEGINNING OF THIS LETTER. HOWEVER, IN CONNECTION WITH THIS SUGGESTION, REFERENCE HAS BEEN MADE TO SUBSECTION (H) OF SECTION 201 OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, WHICH READS IN PART AS FOLLOWS:

"NO FEDERAL CONSTRUCTION PROJECT, EXCEPT FLOOD CONTROL AND WATER CONSERVATION OR UTILIZATION PROJECTS NOW UNDER ACTUAL CONSTRUCTION, SHALL BE UNDERTAKEN OR PROSECUTED UNDER THE APPROPRIATION IN THIS TITLE UNLESS AND UNTIL THERE SHALL HAVE BEEN ALLOCATED AND IRREVOCABLY SET ASIDE FEDERAL FUNDS SUFFICIENT FOR ITS COMPLETION; * * *.'

THE ARGUMENT HAS BEEN MADE THAT THE PROJECT IS NOT ELIGIBLE FOR A P.W.A. ALLOTMENT UNDER THIS REQUIREMENT BECAUSE THE APPROPRIATION FROM THE RECLAMATION FUND UNDER THE SECOND DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1938, DOES NOT EQUAL THE TOTAL AMOUNT TO BE PROVIDED OUT OF THE RECLAMATION FUND FOR THE CONSTRUCTION COST OF THE PROJECT.

IT IS BELIEVED, HOWEVER, THAT THIS ARGUMENT IS BASED ON AN INCORRECT INTERPRETATION OF SUBSECTION (H) OF SECTION 201. THE REQUIREMENT OF THAT SUBSECTION IS THAT NO FEDERAL CONSTRUCTION PROJECT, WITH CERTAIN EXCEPTIONS, SHALL BE UNDERTAKEN UNLESS AND UNTIL THERE SHALL HAVE BEEN ,ALLOCATED AND IRREVOCABLY SET ASIDE" FEDERAL FUNDS SUFFICIENT FOR ITS COMPLETION. IT MUST BE KEPT IN MIND THAT THE PROJECT IS ELIGIBLE FOR A P.W.A. ALLOTMENT, UNDER SUBSECTION (C) (1) OF SECTION 201 ONLY IF IT IS AUTHORIZED BY LAW. CONSEQUENTLY THE AUTHORIZING LEGISLATION WILL DETERMINE THE EXTENT TO WHICH THE PROJECT IS ELIGIBLE FOR AN ALLOTMENT. UNDER THE AUTHORIZING LEGISLATION IN THE INSTANT CASE, CONSTRUCTION OF THE PROJECT UNDER THE RECLAMATION LAW IS REQUIRED. SECTION 16 OF THE ACT OF AUGUST 13, 1914 (38 STAT. 690), PROVIDES AS FOLLOWS:

"THAT FROM AND AFTER JULY FIRST, NINETEEN HUNDRED AND FIFTEEN, EXPENDITURES SHALL NOT BE MADE FOR CARRYING OUT THE PURPOSES OF THE RECLAMATION LAW EXCEPT OUT OF APPROPRIATIONS MADE ANNUALLY BY CONGRESS THEREFOR, AND THE SECRETARY OF THE INTERIOR SHALL, FOR THE FISCAL YEAR NINETEEN HUNDRED AND SIXTEEN, AND ANNUALLY THEREAFTER, IN THE REGULAR BOOK OF ESTIMATES, SUBMIT TO CONGRESS ESTIMATES OF THE AMOUNT OF MONEY NECESSARY TO BE EXPENDED FOR CARRYING OUT ANY OR ALL OF THE PURPOSES AUTHORIZED BY THE RECLAMATION LAW, INCLUDING THE EXTENSION AND COMPLETION OF EXISTING PROJECTS AND UNITS THEREOF AND THE CONSTRUCTION OF NEW PROJECTS. THE ANNUAL APPROPRIATIONS MADE HEREUNDER BY CONGRESS FOR SUCH PURPOSES SHALL BE PAID OUT OF THE RECLAMATION FUND PROVIDED FOR BY THE RECLAMATION LAW.'

THERE IS NO REQUIREMENT IN THE RECLAMATION LAW THAT THE TOTAL ESTIMATED COST OF A RECLAMATION PROJECT SHALL BE PROVIDED FOR BY ONE APPROPRIATION. IT FOLLOWS THEREFORE THAT, CONSIDERING THE PROVISIONS OF THE AUTHORIZING LEGISLATION, WHICH ARE INCORPORATED IN THE ACT BY SUBSECTION (C) (1) OF SECTION 201, THE REQUIREMENT OF SUBSECTION (H) OF SECTION 201 MAY BE SATISFIED BY AN ALLOTMENT OF THE WHOLE OF THAT PORTION OF THE CONSTRUCTION COST OF THE PROJECT WHICH WILL NOT BE PAID FROM THE RECLAMATION FUND.

THIS CONCLUSION IS SUPPORTED BY CONSIDERATION OF THE GRAMMATICAL MEANING OF THE REQUIREMENT THAT FEDERAL FUNDS BE "ALLOCATED AND IRREVOCABLY SET ASIDE," AN EXPRESSION WHICH HAS REFERENCE TO THE EAR MARKING UNDER EXECUTIVE AUTHORITY OF A PORTION OF AN APPROPRIATION FOR GENERAL PURPOSES, SUCH AS AN APPROPRIATION OF WORK RELIEF OR PUBLIC WORKS, TO BE APPLIED TO A SPECIFIC UNDERTAKING. IT IS NOT AN EXPRESSION WHICH,AS FAR AS I AM INFORMED, HAS EVER BEEN USED WITH REFERENCE TO APPROPRIATIONS FROM THE RECLAMATION FUND MADE BY THE CONGRESS FOR SPECIFIC RECLAMATION PROJECTS. FURTHERMORE, THIS CONCLUSION IS ENTIRELY CONSISTENT WITH THE LEGISLATION SPECIFICALLY AUTHORIZING THE CONSTRUCTION OF THE PROJECT, BY WHICH THE CONGRESS CLEARLY INTENDED AND PROVIDED THAT THE PROJECT COULD BE UNDERTAKEN WHEN THAT PART OF THE ESTIMATED COST THEREOF TO BE REIMBURSABLE UNDER THE RECLAMATION LAW HAD BEEN SUPPLEMENTED BY AN AMOUNT OF NONREIMBURSABLE FUNDS SUFFICIENT FOR THE COMPLETION OF THE PROJECT.

IN VIEW OF THE REQUIREMENTS OF SUBSECTION (B) OF SECTION 201 OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, WITH RESPECT TO THE DETERMINATION OF THE COMMENCEMENT AND COMPLETION DATES FOR CONSTRUCTION OF PROJECTS, YOUR PROMPT DECISION AS TO WHETHER A P.W.A. ALLOTMENT MAY BE MADE IN AID OF THE TUCUMCARI RECLAMATION PROJECT WILL BE APPRECIATED.

IN VIEW OF THE FACT THAT AN ALLOTMENT OF FUNDS FROM THE WORKS PROGRESS ADMINISTRATION UNDER SUBSECTION (1) (D) (2) OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 WOULD NOT BE AVAILABLE AFTER JUNE 30, 1939, AND ANY FURTHER ALLOTMENT UNDER THAT SECTION WOULD BE DEPENDENT UPON WHETHER FUTURE RELIEF APPROPRIATIONS ARE MADE BY THE CONGRESS, ANY AGREEMENT ON THE PART OF THE WORKS PROGRESS ADMINISTRATOR TO MAKE FURTHER ALLOTMENTS, IF AND WHEN FURTHER APPROPRIATIONS ARE MADE, WOULD NOT SATISFY THE REQUIREMENT OF THE PROVISIONS OF THE ACT AUTHORIZING THE CONSTRUCTION OF THE ARCH HURLEY PROJECT, AS TO AVAILABILITY OF FUNDS FROM SOURCES OTHER THAN THE RECLAMATION FUND.

UNDER SECTION 201 (A), HOWEVER, THE FUNDS APPROPRIATED BY THAT SECTION ARE MADE AVAILABLE UNTIL JUNE 30, 1940, FOR THE PURPOSE, AMONG OTHERS, OF MAKING ALLOTMENTS TO FINANCE FEDERAL PROJECTS, WITH PROVISION IN SUBSECTION (B) THAT NO FUNDS SHALL BE ALLOTTED FOR ANY PROJECT WHICH IN THE DETERMINATION OF THE PUBLIC WORKS ADMINISTRATOR CANNOT BE COMMENCED PRIOR TO JANUARY 1, 1939, OR THE COMPLETION OF WHICH CANNOT BE SUBSTANTIALLY ACCOMPLISHED PRIOR TO JUNE 30, 1940. THE PROVISION IN SECTION 201 (H) THAT NO FEDERAL PROJECT SHALL BE UNDERTAKEN UNTIL THERE SHALL HAVE BEEN ALLOCATED AND IRREVOCABLY SET ASIDE SUFFICIENT FUNDS FOR ITS COMPLETION APPEARS TO HAVE PARTICULAR REFERENCE TO PROJECTS WHICH ARE TO BE FINANCED TO COMPLETION WITH FUNDS APPROPRIATED UNDER THE TITLE IN WHICH THE SUBSECTION APPEARS, AND IS NOT NECESSARILY FOR APPLICATION WHERE THE FUNDS FOR COMPLETION ARE TO BE APPROPRIATED FROM THE RECLAMATION FUND AS IN THE PRESENT CASE, EXCEPT INSOFAR AS CONCERNS THE SETTING ASIDE OF THE AMOUNT OF THE PROPOSED ALLOTMENT FROM PUBLIC WORKS FUNDS.

ACCORDINGLY, I HAVE TO ADVISE THAT IF IN THE DETERMINATION OF THE PUBLIC WORKS ADMINISTRATOR THERE MAY BE COMPLIANCE WITH THE LAW RELATING TO DATES OF COMMENCEMENT AND COMPLETION WITH RESPECT TO THE CONSTRUCTION OF THE ARCH HURLEY PROJECT, THERE APPEARS NO LEGAL OBJECTION TO ALLOTTING PUBLIC WORKS FUNDS AS PROPOSED.