B-120797, NOVEMBER 15, 1955, 35 COMP. GEN. 285

B-120797, NOVEMBER 15, 1955, 35 COMP. GEN. 285

IRRIGATION AND RECLAMATION PROJECTS - TRANSFER OF GOVERNMENT CONSTRUCTED HOUSING FACILITIES PERMANENT-TYPE HOUSING CONSTRUCTED BY THE INTERIOR DEPARTMENT ON LAND DONATED BY THE COACHELLA VALLEY COUNTY WATER DISTRICT TO HOUSE FEDERAL EMPLOYEES DURING CONSTRUCTION OF AN IRRIGATION PROJECT MAY BE CONSIDERED WITHIN THE TERMS "PROJECT" OR "PROJECT WORKS" WHICH ARE DEFINED IN 43 U.S.C. 485 (A) AS INCLUDING INCIDENTAL FEATURES OF RECLAMATION PROJECTS AND, THEREFORE, ON COMPLETION OF THE PROJECT SUCH HOUSING MAY BE TRANSFERRED TO THE DISTRICT UNDER THE DISCRETIONARY AUTHORITY VESTED IN THE SECRETARY BY THE ACT OF AUGUST 13, 1914, TO TRANSFER PROJECTS WORKS. 34 COMP. GEN. 374, MODIFIED.

TO THE SECRETARY OF THE INTERIOR, NOVEMBER 15, 1955:

REFERENCE IS MADE TO OUR DECISION OF FEBRUARY 9, 1955, B-120797, 34 COMP. GEN. 374, AND SUBSEQUENT CORRESPONDENCE, RELATIVE TO THE TRANSFER TO THE COACHELLA VALLEY COUNTY WATER DISTRICT OF THE CARE, OPERATION AND MAINTENANCE OF 25 PERMANENT-TYPE HOUSES ERECTED BY THE UNITED STATES IN CONNECTION WITH THE IRRIGATION WORKS OF THE COACHELLA DIVISION, ALL- AMERICAN CANAL SYSTEM.

UPON THE REPORTED FACTS AND INFORMATION THEN OF RECORD, SHOWING THAT THE HOUSES HAD NOT CONSISTENTLY BEEN REGARDED AS PART OF THE PROJECT WORKS BUT AS MERE CONSTRUCTION FACILITIES, IT WAS HELD IN THE SAID DECISION THAT THIS OFFICE WOULD BE REQUIRED TO OBJECT TO THE PROPOSED TRANSFER UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF AUGUST 13, 1914, 38 STAT. 687, 43 U.S.C. 499.

INFORMATION HAS NOW COME TO OUR ATTENTION THAT THE QUESTION OF WHAT TYPE OF HOUSING SHOULD BE ERECTED FOR THE CONSTRUCTION WORKERS UNDER THE 1934 CONTRACT WAS THE SUBJECT OF EXTENSIVE NEGOTIATIONS BETWEEN THE COACHELLA DISTRICT AND THE RECLAMATION BUREAU PRIOR TO THE DISTRICT GRANTING TITLE TO THE LAND ON WHICH THE HOUSES WERE ERECTED TO THE UNITED STATES. IN THE COURSE OF SUCH NEGOTIATIONS THE DISTRICT ADVOCATED AND INSISTED UPON THE ERECTION OF PERMANENT-TYPE HOUSING SO THAT THE HOUSING WOULD BE AVAILABLE FOR ITS WORKERS WHEN THE DISTRICT ASSUMED THE CARE AND MAINTENANCE OF THE CANAL AND DISTRIBUTION SYSTEM. AS EVIDENCE OF SUCH NEGOTIATIONS, THERE HAVE BEEN SUBMITTED EXCERPTS FROM THE MINUTES OF MEETINGS OF THE BOARD OF DIRECTORS OF THE DISTRICT SHOWING THAT THE DISTRICT PROPOSED GRANTING THE UNITED STATES TITLE TO THE LAND SUBJECT TO A RESERVATION THAT THE LAND AND BUILDINGS TO BE ERECTED THEREON REVERT TO THE DISTRICT FOR THE USE OF ITS OPERATING EMPLOYEES UPON COMPLETION OF CONSTRUCTION OF THE CANAL. WHILE SUCH REVERSIONARY CLAUSE WAS OMITTED IN THE DONATION DEED UPON THE INSISTENCE OF THE BUREAU OF RECLAMATION OR THE DEPARTMENT OF JUSTICE, IT APPEARS TO HAVE BEEN THE UNDERSTANDING OF THE DIRECTORS OF THE COACHELLA DISTRICT THAT THE USE OF THE LAND AND BUILDINGS WOULD BE TURNED OVER TO THE DISTRICT FOR THE HOUSING OF ITS OPERATING PERSONNEL UPON ITS ASSUMING CARE AND MAINTENANCE OF THE PROJECT. APPARENTLY BY REASON OF SUCH UNDERSTANDING AND BECAUSE THE HOUSING WOULD BE NECESSARY NOT ONLY TO HOUSE THE CONSTRUCTION LABORERS UNDER THE 1934 CONTRACT BUT, ALSO, THOSE IN CONNECTION WITH THE CONSTRUCTION OF THE DISTRIBUTION SYSTEM UNDER THE 1947 CONTRACT, THE PERMANENT-TYPE HOUSING WAS ERECTED. ALSO, THE COST OF THE HOUSING WAS DEFRAYED FROM THE FUNDS APPROPRIATED FOR THE CONSTRUCTION OF THE ALL-AMERICAN CANAL WHICH AMOUNTS ARE, WITHIN THE PROVISIONS AND LIMITATIONS OF THE 1934 CONTRACT, TO BE BORNE BY THE DISTRICT.

THE PROVISIONS OF 43 U.S.C. 499, AUTHORIZE THE SECRETARY OF INTERIOR, IN HIS DISCRETION, UPON REQUEST OF A LEGALLY ORGANIZED WATER USERS' ASSOCIATION OR IRRIGATION DISTRICT, TO TRANSFER TO SUCH ASSOCIATION OR DISTRICT, THE CARE, OPERATION AND MAINTENANCE OF ALL OR ANY PART OF THE PROJECT WORKS SUBJECT TO SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE. VOLUME XV, 6.8.20 OF THE BUREAU OF RECLAMATION MANUAL STATES:

PROJECT WORKS SUBJECT TO TRANSFER SHALL BE THE MAXIMUM FACILITIES CONSISTENT WITH GOOD OPERATING PRACTICES.

THE WORD "PROJECT" USED IN THE 1914 STATUTE APPEARS TO BE USED IN THE SAME SENSE AS THAT TERM IS DEFINED IN 43 U.S.C. 485 (A) NAMELY "ANY RECLAMATION OR IRRIGATION PROJECT, INCLUDING INCIDENTAL FEATURE THEREOF, AUTHORIZED BY THE FEDERAL RECLAMATION LAWS, OR CONSTRUCTED BY THE UNITED STATES PURSUANT TO SAID LAWS, OR IN CONNECTION WITH WHICH THERE IS A REPAYMENT CONTRACT EXECUTED BY THE UNITED STATES, PURSUANT TO SUCH LAWS, OR ANY PROJECT CONSTRUCTED OR OPERATED AND MAINTAINED BY THE SECRETARY THROUGH THE BUREAU OF RECLAMATION FOR THE RECLAMATION OF ARID LANDS OR OTHER PURPOSES.'

CONSIDERING SUCH DEFINITIONS OF THE TERMS "PROJECT" AND "PROJECT WORKS" AS INCLUDING INCIDENTAL FEATURES OF PROJECTS CONSTRUCTED PURSUANT TO THE FEDERAL RECLAMATION LAWS, AND THAT THE DISCRETION TO TRANSFER PROJECT WORKS OVER TO A WATER USERS' ASSOCIATION OR IRRIGATION DISTRICT IS VESTED IN THE SECRETARY BY THE STATUTE, AND THAT THE PERMANENT-TYPE OF HOUSING APPARENTLY WAS CONSTRUCTED IN ACCORDANCE WITH THE DESIRES OF THE DISTRICT SO THAT IT WOULD BE AVAILABLE FOR ITS USE UPON THE MAINTENANCE OF THE PROJECT BEING TRANSFERRED TO IT, WE NOW CONCLUDE THAT THE HOUSING PROPERLY FALLS WITHIN THE TERM "PROJECT WORKS" AS USED IN 43 U.S.C. 499. WE, ACCORDINGLY, WILL NOT BE REQUIRED TO OBJECT IF THE DEPARTMENT TRANSFERS TO THE DISTRICT THE CARE, OPERATION AND MAINTENANCE OF THE HOUSING. OUR PRIOR DECISION IS MODIFIED ACCORDINGLY.