LEGISLATION--Authority for Conducting Water Resources Investigations In Reply Refer To:

In Reply Refer To: February 11, 1992

Mail Stop 404

WATER RESOURCES DIVISION MEMORANDUM NO. 92.14

SUBJECT: LEGISLATION--Authority for Conducting Water Resources Investigations

This memorandum replaces Water Resources Division (WRD) Memorandum No. 90.47 (May 24, 1990) on this subject. The principal revisions are in item c.

Headquarters, Regional, and District officials of the Water Resources Division are requested from time to time to cite the legal authority for conducting water resources surveys, investigations, and research, and for publishing the results of that work. This memorandum lists the citations of the principal laws that establish such authority. The laws cited most often are the Organic Act (item a, below) and the most recent appropriations act--Public Law 102-154 described in item c. Underlining has been added as an aid to quick reference.

Abbreviations (examples):

20 Stat. 394 -- Page 394 of volume 20 of U.S. Statutes at Large. 43 U.S.C. 31 -- Section 31 of Title 43 (Public Lands) of U.S. Code. P.L. 102-154 -- Public Law 102-154 (Public Law 154 of the 102nd Congress).

Legal Authority

a. Act of March 3, 1879 (20 Stat. 394; 43 U.S.C. 31), was the organic act that established the Geological Survey, providing for ". . . the classification of public lands, the examination of the geological structure, mineral resources, and products of the national domain," but making no specific reference to water except as relevant to land classification. The next sentence of this same law clearly forbids the Survey from doing work for individuals and non-government organizations: "The Director and members of the Geological Survey shall have no personal and private interests in the lands or mineral wealth of the region under survey, and shall execute no surveys or examinations for private parties or corporations." (See last paragraph of item c., below, regarding authorization for carrying out work cooperatively with private agencies, financed entirely by contributions from such agencies. Special rules and procedures apply.)

WATER RESOURCES DIVISION MEMORANDUM NO. 92.14 2

b. Act of October 2, 1888 (25 Stat. 526), authorized surveys to identify irrigable lands in arid regions, and "selection of sites for reservoirs and other hydraulic works necessary for the, storage and utilization of water for irrigation and the prevent of floods.

c. Specific appropriations by Congress for gaging streams and performing other functions relating to water resources have been made annually since the act of August 18, 1894, for fiscal year 1895 (28 Stat. 398), providing for "gauging the streams and determining the water supply of the United States, including the investigation of underground currents and artesian wells in arid and semiarid sections..." These appropriations are sometimes referred to as SIR funds (an acronym for "Surveys, Investigations, and Research").

The most recent annual appropriations act is Public Law 102-154, November 13, 1991, which makes appropriations for fiscal year 1992. This act includes the words (re: USGS) " . . . to perform surveys, investigations, and research covering topography, geology, hydrology, and the mineral and water resources of the United States, its Territories and possessions, and other areas as authorized by law (43 U.S.C. 31. 1332. and 1340)." Each annual appropriation act also authorizes the Survey to "give engineering supervision to power permittees and Federal Energy Regulatory Commission licensees..." (Re: FERC, see 16 U.S.C. 797a and 797c).

The annual appropriations act also states that the "amount appropriated for the Geological Survey shall be available for...payment of compensation and expenses of persons on the rolls of the Geological Survey appointed, as authorized by law, to represent the United States in the negotiation and administration of interstate compacts." The public law approving each interstate compact is the authorizing legislation for the appointment, usually made by the President.

The following is provided for your information and future reference. A provision was added to the appropriations act for FY 1991 (P.L. 101-512, 104 State. 1924-1925) regarding, a definition of cooperative funding. It reads: "That beginning October 1, 1990, and thereafter, funds received from any State, territory, possession, country, international organization, or political subdivision thereof, for topographic, geologic, or water resources mapping or investigations involving cooperation with such an entity shall be considered as intragovernmental funds as defined in the publication titled "A Glossary of Terms Used in the Federal Budget Process." The significance of this provision is that cooperative funds are no longer subject to sequestration under the provisions of the Balanced Budget and Emergency Deficit Control Act of 1985 (P.L. 99-177, 99 Stat. 1038).

A provision of the annual appropriations act for fiscal year 1988 (P.L. 100-202, 101 Stat. 1329-224) is applicable to volunteers who assist the Geological Survey: "...appropriations herein and hereafter...shall be available for paying costs incidental to the utilization of services

WATER RESOURCES DIVISION MEMORANDUM NO. 92.14 3

contributed by individuals who serve without compensation as volunteers in aid of work of the Geological Survey, and that within appropriations herein and hereafter provided, Geological Survey officials may authorize either direct procurement of or reimbursement for expenses incidental to the effective use of volunteers such as, but not limited to, training, transportation, lodging, subsistence, equipment, and supplies" provided that "provision for such expenses or services is in accord with volunteer or cooperative agreements made with such individuals, private organizations, educational institutions, or State or local government."

The Geological Survey part of the appropriations act for fiscal year 1987 (P.L. 99-591, 100 Stat. 3341-252) included the following provision: "That in fiscal year 1987 and thereafter the Geological Survey is authorized to accept lands, buildings, equipment, and other contributions from public and private sources and to prosecute projects in cooperation with other agencies, Federal, State, or private." This provision, excluding the words "and thereafter, n first appeared in the annual appropriations act for fiscal year 1983 (P.L. 97-394, 96 Stat, 1972). Special rules and procedures must be followed regarding the subject of this provision, as detailed in (1) WRD Memorandum No. 83-91, July 11, 1983, Subject: LEGAL--Contributions from and Collaborative Work with Private Sources; and (2) Geological Survey Manual Series/Chapter/Paragraphs 308.46.1 and 500.20.1 to 500.20.8E. (Please note that after April 1, 1992, reference to 308.46.1 will change to 308.42.2E as Chapter 308.46 will be superseded by revised chapter 308.42.)

d. Congressional recognition and endorsement of the water-related missions of the Geological Survey are also reflected in (1) the act of June 11, 1896 (29 Stat. 453), providing that "hereafter the reports of the Geological Survey in relation to the gauging of streams and to the methods of utilizing the water resources may be printed in octavo form..." (2) the joint resolution of May 16, 1902 (32 Stat. 741; 44 U.S.C. 1318), providing that "hereafter the publications of the Geological Survey shall consist of...water-supply papers and irrigation papers... " and (3) the act of December 24, 1942 (56 Stat. 1086), as amended (43 U.S.C. 36b), authorizing the Secretary of the Interior to acquire lands (or obtain easements, etc.) "for use by the Geological Survey in gaging streams and underground water resources."

e. Cooperative (joint) funding of Geological Survey scientific and technical investigations with State and local governmental agencies, first begun in 1884, was first referred to (re: water) in Public Law 70-100 (45 Stat. 231; 43 U.S.C. 50), March 7, 1928, for fiscal year 1929: " . . . such share of the Geological Survey in no case exceeding 50 per centum... " For fiscal year 1992, Public Law 102-154, the language is " . . . no part of this appropriation shall be used to pay more than one-half the cost of any topographic mapping or water resources investigations carried on in cooperation with any State or municipality." This has been interpreted to mean a public agency or entity having taxing authority or a public institution that is an integral part of such tax-levying entity.

WATER RESOURCES DIVISION MEMORANDUM NO. 92.14 4

Indian tribes are considered public entities (rather than private), as substantiated by their possessing "powers of self-government" as described in Section 1301 of Title 25 of the U.S. Code. United States island possessions also are considered public entities.

f. By the act of September 5, 1962 (P.L. 87-626; 76 Stat. 427; 43 U.S.C. 31b), the Survey's geographic jurisdiction was extended to areas outside the national domain where determined by the Secretary to be in the national interest.

g. Authority for the Geological Survey to perform reimbursable work for other Federal agencies (OFA) program is the Economy Act of 1932, and its codification in 1982 with minimal substantive change as part of Public Law 97-258, September 13, 1982. The relevant wording of the Economy Act is, in part, as follows:

"The head of any agency or major organizational unit within an agency may place an order with a major organizational unit within the same agency or another agency for goods or services if...the head of the ordering agency or unit decides the order is in the best interest of the United States Government;...and the head of the agency decides ordered goods or services cannot be provided as conveniently or cheaply by a commercial enterprise" (31 U.S.C. 1535).

See WRD Memorandum No. 85.76, May 22, 1985, "POLICY--Relevance to the Division's Other Federal Agency Program of the Competition in Contracting Act of 1984" for a further discussion of the applicability of the Economy Act.

h. The authorizing legislation, through fiscal year 1994, for the Federal part of the support of the State Water Resources Research Institutes and the Research and Technology Development Program is Title I of Public Law 98-242 (98 Stat. 97), May 22, 1984--the Water Resources Research Act of 1984, as amended by Public Law 101-397 (104 Stat. 852), September 28, 1990.

Office of Management and Budget (OMB) Memorandum No. M-92-01, signed by OMB Director Richard Darman on December 10, 1991, designates the Geological Survey as the lead agency to implement the Water Information Coordination Program (WICP) of the Federal Government. This new memorandum replaces OMB Circular A-67, dated August 28, 1964. The program covers information about streams, lakes, reservoirs, ground water, estuaries, and other aquatic habitats influenced primarily by fresh water. Through this memorandum, the USGS has principal responsibility for operating the national network for water-data collection and analysis and for maintaining the national historical water-information base. The WICP functions are conducted in collaboration with other Federal and non-Federal organizations.

WATER RESOURCES DIVISION MEMORANDUM NO. 92.14 5

The large appendix volume of the President's annual budget contains copy of the appropriations language and brief fiscal and descriptive data for the Geological Survey, identification code 14-0804-0-1-306, within the chapters for the Department of the Interior.

The Catalog of Federal Domestic Assistance, updated twice a year, briefly describes the objectives and eligibility requirements of the Water Resources Institute Program and Water Research Grant Program under items "l5.805 Assistance to State Water Resources Research Institutes" and "15.806 National Water Resources Research Program, " respectively.

The U.S. Code of Federal Regulations (CFR) contains regulations promulgated by the Geological Survey regarding water resources with respect to the Water Resources Research Institutes (WRRI) and the Research and Technology Development Programs. The regulations are in CFR Title 30, Part 401 for WRRI, and in Part 402 for the other two programs.

William B. Mann IV Assistant Chief Hydrologist for Operations

WRD Distribution: A, B, S, FO, PO

This memorandum supersedes WRD Memorandum No. 90.47 (May 24, 1990).