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First, you ask whether any of the above laws requires the

Department of Interior "to consult appropriate federal and state agencies prior to entry into contracts related to use of water in the Upper

Missouri system."

Both the Fish and Wildlife Coordination Act and the National

Environmental Policy Act expressly require consultation with appropriate state agencies in cerain circumstances. Section 2 (a) of the Coordination

(a) Consultations between agencies.

Except as hereafter stated in subsection (h) of this section, whenever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the United States Fish and Wildlife Service, Department

the Interior, and with the head of the agency exercising administration over the wildlife resources of the particular State wherein the impoundment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources by preventing loss of and damage to such resources as well as providing for the development and improvement thereof in connection with such water-resource development.

Subsection (h) of the same section contains the limitation that the provisions of the Act "shall not be applicable to activities for or in connection with programs primarily for land management and use carried out by Federal agencies with respect to Federal lands under their jurisdiction"; this limitation does not appear to encompass administration of reclamation projects. The National Environmental Policy Act requires

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the preparation of an environmental impact statement by any federal agency

before undertaking "major federal actions significantly affecting the

quality of the human environment." 42 U.S.C. $4332 (2) (C). Prior to making a final statement the federal agency is to obtain the "comments and views of the appropriate Federal, State, and local agencies." Id. It is possible that the water marketing program as a whole, or perhaps the program for sale of water from one particular reservoir, or perhaps a particular contract for sale of water, might be considered a "major" action "significantly affecting the quality of the human environment." The effective date of NEPA was Jan. 1, 1970. If an impact statement is required for any aspect of the program, then appropriate state agencies would have to be consulted.

The Act of Feb. 25, 1920, supra, requires that the Secretary of Interior obtain the "approval" of the water-users' association or associations before entering contracts to supply water for purposes other 43 U.S.C. $521 provides:

than irrigation.

§621. Sale of surplus waters generally.

The Secretary of the Interior in connection with the operations under the reclamation law is authorized to enter into contract to supply water from any project irrigation system for other purposes than irrigation. upon such conditions of delivery, use, and payment as he may deem proper: Provided, That the approval of such contract by the water-users' association or associations shall have first been obtained: Provided. That no such contract shall be entered into except upon a showing that there is no other practicable source of water supply for the purpose. Provided further. That no water shall be furnished for the uses aforesaid if the delivery of such water shall be detrimental to the water service for such irrigation project. nor to the rights of any prior appropriator: Provided further. That the moneys derived from such contracts shall be covered into the reclamation fund and be placed to the credit of the project from which such water is supplied. Feb. 25, 1920. ch. 86. 41 Stat. 451.)

56-062 O - 75-6

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The second claim for relief in the EDF complaint, supra, is that the Bureau of Reclamation has entered into option contracts for the sale of water from Yellowtail and Boysen Reservoirs, for industrial purposes, without obtaining the consent of the water users' association, as required by the Act of Feb. 25, 1920, supra.

Important to a resolution of this claim, and of various questions raised in your letter, is a determination of the relationship between the 1920 act and the Reclamation Project Act of 1939, supra.

Section 9 (c) of the 1939 law, 43 U.S.C. $485 h (c), authorizes the Secretary of Interior "to enter into contracts to furnish water [from reclamation projects] for municipal water supply or miscellaneous purposes," provided that "(n)o contract relating to municipal water supply or miscellaneous purposes... shall be made unless, in the judgment of the Secretary, it will not impair the efficiency of the project for irrigation purposes." This requirement overlaps with that imposed by the 1920 law, that "no water shall be furnished for the uses aforesaid if the delivery of such water shall be detrimental to the water service for such irrigation project," but the 1939 law lacks the additional requirements of the 1920 law, viz. that consent of the water users be obtained, that a showing is made that there exists "no other practicable source of water supply for the purpose,' and that the diversion of water would not be "detrimental to the rights

of any prior appropirator."

...

"

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Primary emphasis must be given to the fact that section 16 of

the 1939 law provided that "(t)he provisions of previous acts of Congress not inconsistent with the provisions of this act shall remain in full force and effect." That section appears in the Code as 43 U.S.C. $485 j. As indicated above, the 1920 law imposes additional requirements on the Secretary before he can sell reclamation water for non-irrigation purposes; these requirements, however, do not appear to be inconsistent with the requirement imposed by the 1939 law.

This express congressional intent in section 16 would probably have the effect of rendering inapplicable the rules of statutory construction on repeal by implication. Even disregarding section 16 and applying those rules however, it is questionable whether the 1939 law would be held to repeal by implication the 1920 law. The Supreme Court has often repeated the applicable principles.

The cardinal rule is that repeals by implication
are not favored. There are two well-settled
eategories of repeal by implication

(1)

where provisions in the two acts are in
irreconcilable conflict, the later act to the
extent of the conflict constitutes an implied
repeal of the earlier one; and (2) if the
later act covers the whole subject of the earlier
one and is clearly intended as a substitute, it
will operate similarly as a repeal of the earlier
act. But, in either case, the intention of the
legislature to repeal must be clear and manifest;
otherwise, at least as a general thing, the later
act is to be construed as a continuation of and
not a substitute for, the first act and will
continue to speak, so far as the two acts are
the same, from the time of the first enactment.

Posadas v. National City Bank, 296 U.S. 497, 503 (1936).

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The first category would seem inapplicable for the reasons out

lined above

the 1920 and 1939 laws do not appear to conflict. The case for repeal by implication would have to be based on the second category, and that case does not appear to be strong. Although the 1939 law covers the whole subject of the 1920 law, if that subject is defined as the contracting for sale of reclamation project water for non-irrigation purposes, we find in the legislative history no clear and manifest intent to repeal.

The Reclamation Project Act of 1939, ch. 418, 53 Stat. 1187, was the enactment of H.R. 6984, 76th Cong., 1st Sess. The bill was introduced by Congressman White of Idaho, Chairman of the Committee on Irrigation and Reclamation, and was similar to a previous bill H.R. 6773, also introduced by Mr. White. Relevant portions of sections 9 (c) and 16 were identical

in the two bills. H.R. 6773 was described by its sponsor as being the "direct result" of the report of a commission established to report on the problem of repayment of construction costs of reclamation projects. 84 Cong. Rec. 8741 (1939). The Report of the Special Repayment Commission Appointed to Devise a More Equitable and Flexible Permanent Plan for the Repayment of the Construction Costs of Federal and Indian Reclamation Projects, had been printed as H. Doc. No. 673, 75th Cong., 3d Sess. (1938). The capacity of the irrigation users to comply with the repayment contracts had varied from project to project, and from crop year to crop year. The recommendation of the commission, incorporated into both H.R. 6773 and H.R. 6984, 76th Cong., was to provide a more flexible repayment schedule whereby more