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~ January, 1970 position of States concerning imposition of water service charges by the Secretary of the Interior for irrigation water diversions by non-federal-project irrigators from the Missouri River along certain reaches where river water flow characteristics are influenced by reservoirs constructed by the Corps of Engineers. 1. There is no basis in federal reclamation law for irrigation water service charges unless federal project works provide irrigation water supplies (benefits) not otherwise available to water users.ll 2. Congress, by virtue of Sec. l(b) of the Flood Control Act of 1944 (58 Stat. 887) and other acts, granted priority for irriga- tion and other uses of water, present and future, over navigation use in states wholly or partly west of the ninety-eighth meridian.21 Congress, thereby, excluded waters used for such priority purposes from the water stored or otherwise developed by the federal govern- ment pursuant to Sec. 9 of the Flood Control Act of 1944 and other federal project authorizing acts.31 3. Irrigation water diversions from the Missouri River by non- federal-project users, irrespective of where such diversions are located in states wholly or partly west of the ninety-eighth meridian, are not made from water stored in mainstem reservoirs constructed by t-,np ("nrn~ ()f' F.f'lO; nppr.~ _ 'l'npv ;::Irp mAnp f'rnm fl ()W~ n-f rnp Mi c:~nl1r; - - - River passing through these reservoirs pursuant to priority rights to do so granted by Congress 4/. Federal reclamation law has no application under these conditions.51 ' 11 Federal reclamation laws, applicable to furnishing water for non-federal-project irrigation, are the Warren Act (1911) (36 Stat. 925) and Sec. 9(e) of the Reclamation Project Act of 1939 (53 Stat. 1187). The Warren Act provides that the Secretary of the Interior may contract with non-federal-project irrigators for impound- ed, stored or carried waters which are surplus to federal project requirements. Sec. 9(e) of the Reclamation Project Act of 1939 pro- vides that the Secretary of the Interior may enter into contracts with non-federal-project irrigators to furnish water from federal works connected with water supply and allocated to irrigation. Under either of these laws, the contracts cover the furnishing of irriga- tion water supplies developed by federal project works when alterna- tive water supplies are not available to irrigators. 21 Based upon numerous U.S. Supreme Court decisions, it is generally accepted that, under its constitutional power to regulate commerce, dispose of federal property, or provide for the general welfare, Congress may develop the Nation's water resources and establish the criteria for such development. As T. Richard Wittmer, ' Counsel, Committee on Interior and Insular Affairs, House of Representatives, says on page 20, Committee Print No. 19, 86th Congress, 2nd Session,