Statement on Signing the Reclamation Projects Authorization and Adjustment Act of 1992

Today I am signing into law H.R. 429, the "Reclamation Projects Authorization and Adjustment Act of 1992."

The Act will make a major contribution to the development and reform of water resources in States throughout the West. It is the product of years of debate and compromise in the Congress. This bill will provide substantial economic and environmental benefits throughout the West.

H.R. 429 authorizes numerous water projects in the western States that the Administration has supported. Included among the projects in the bill are the Buffalo Bill Dam and Reservoir in Wyoming; the Central Utah Project; South Dakota water planning studies; the Cedar Bluff Unit in Kansas; the Vermejo and Elephant Butte Projects in New Mexico; the Glen Canyon Dam affecting the Grand Canyon in Arizona; the Sunnyside Valley Irrigation District in Washington; the Platoro Dam and Reservoir and the Leadville Mine Drainage Tunnel in Colorado; the Mountain Park Project in Oklahoma; and the Central Valley Project in California.

Several of the provisions that substantially reform the operation of the Central Valley Project in California are less flexible and more intrusive on the rights of the State of California and current project beneficiaries than I would have preferred. Nevertheless, the final bill includes several substantial modifications to the original House-passed version. These modifications will ensure that the fish and wildlife objectives of the legislation can be met in a manner that maintains the viability of other important uses to which CVP water is now devoted. Moreover, by establishing a voluntary system of water transfers -- on a willing seller basis -- H.R. 429 presents an important opportunity to increase the availability of water for uses which will best accommodate California's growth. A market-oriented water policy will create new jobs in the California economy.

I am concerned, however, that a number of provisions, if broadly construed, could violate the basic principle of Federal Western water policy -- State primacy. A fundamental principle of my Western water policy is that the Federal Government must respect the primary role that individual States have in shaping and controlling their own policies regarding water use and allocation. An individual State is best positioned to assess its needs and to accommodate competing interests. Except in those instances where an overriding Federal interest or an interstate conflict is present, States should retain primacy in fashioning their policies regarding water. Accordingly, I am directing the Secretary of the Interior, in implementing this legislation, to ensure that its provisions are conducted with due deference to State primacy. In addition, in implementing section 3411(a), I am directing the Secretary of the Interior to consult with the California Water Resources Control Board before reallocating water to implement title XXXIV, even if such reallocation might be allowable under the current conditions in existing permits or licenses. Lastly, I intend to submit legislation in the coming Congress which is substantially consistent with that introduced by Senator Seymour (S. 2016) in the 102nd Congress. This legislation has as its primary objectives the mitigation and enhancement of fish and wildlife resources in the Central Valley of California and the orderly allocation of available water supplies while maintaining the productivity of the Bureau of Reclamation's Central Valley Project.

H.R. 429 also contains certain provisions that warrant careful construction to avoid constitutional concerns. First, section 301 establishes a Utah Reclamation Mitigation and Conservation Commission that would formulate the policies and objectives for the implementation of certain projects authorized by the Act and administer expenditures of substantial Federal funds. The Commission members are to be appointed by the President from lists submitted by certain members of the Congress, the Central Utah Water Conservancy District, and the Governor of Utah. In order to avoid any conflict with the Appointments Clause of the Constitution, I will interpret the Act to provide for the appointment of members of the Commission after due consideration of the recommendations of those submitting lists, and not to inhibit my discretion to request from those groups and individuals the names of additional potential nominees.

Second, section 301(h)(3) permits the Commission to "secure directly from any department or agency of the United States" information necessary to enable it to carry out the Act, and requires the heads of all agencies and departments to comply with a request for information from the Commission. I will construe this section consistent with my authority to supervise and guide executive branch officials, and to control access to information the disclosure of which might significantly impair the conduct of foreign relations, the national security, or the deliberative processes of the executive branch or the performance of its constitutional duties.

Third, section 3201 establishes the conditions under which a South Dakota Preservation and Restoration Trust may receive and disburse Federal funds. Under the Act, such a trust must be governed by a five-member Board of Trustees, three of whom would be appointed by the members of the South Dakota congressional delegation, and one each of whom would be appointed by the South Dakota Academy of Sciences and the Governor of South Dakota. Under the Supreme Court's decision in Washington Metropolitan Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., such a board exercises sufficient Federal power to subject it to separation of powers scrutiny. The Board, moreover, performs functions that are executive in nature, and therefore agents of the Congress may not manage its affairs. In addition, all members of the Board appear to exercise significant governmental authority, yet are not appointed in a manner consistent with the Appointments Clause. For all these reasons, I direct the Secretary of the Interior, in consultation with the Attorney General, to propose legislation to remedy these constitutional defects. Such legislation must be effective prior to the expenditure of any appropriated funds.

Fourth, section 3405(a)(1), which purports to give contracting districts or agencies the authority to review and approve certain transfers of water under standards established by the Act, could be construed to permit the exercise of Federal executive power by the districts or agencies, which are not composed of individuals appointed pursuant to the Appointments Clause of the Constitution. To avoid constitutional questions that might otherwise arise, this section must be interpreted so as not to vest such power in those districts or agencies. Accordingly, I will interpret the role of these bodies under this section to be an advisory one.

Notwithstanding the concerns I continue to have with certain provisions of the bill, I am signing H.R. 429 so that the establishment of water markets in California, and the bill's numerous beneficial water projects, can move forward without further delay. On balance, these projects will better enable the citizens in our western States to manage one of their most precious resources.

George Bush

The White House,

October 30, 1992.