ETSI PIPELINE PROJECT, PETITIONER V. STATE OF MISSOURI, ET AL.

   DONALD P. HODEL, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS V.
STATE OF MISSOURI, ET AL.

   No. 86-939 and 86-941

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Eighth Circuit

   Brief for the Federal Petitioners

                       PARTIES TO THE PROCEEDING

   A full list of the parties to this proceeding is set out in the
government's petition for a writ of certiorari.  See. Fed. Pet. II.

            TABLE OF CONTENTS
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Statutes involved
   Question presented
   Statement
      A. The formulation of the Pick-Sloan Plan
      B. The problem of unutilized irrigation water
      C. The present controversy
   Introduction and summary of argument
   Argument:
      The Secretary of the Interior may enter into
      contracts, pursuant to the federal reclamation
      laws, to supply unutilized irrigation water
      from Missouri River mainstem reservoirs for
      industrial use
      I. Congress, in approving the Pick-Sloan
         Plan, authorized the Secretary of the Interior
         to administer the reclamation aspects of
         mainstem reservoirs, including disposition
         of water stored, but not presently needed,
         for irrigation use
         A. Section 9(a) of the Flood Control Act
         B. Section 9(c) of the Flood Control Act
     II. The Secretary's interpretation of
         Section 9 of the Flood Control Act is
         consistent with the stated objectives of
         Congress and the overall plan for
         administration of the Pick-Sloan
         program
         A. The objectives of Congress
         B. The administration of the Pick-Sloan
         facilities
    III. The Secretary of the Interior's
         interpretation of Section 9 of the Flood
         Control Act is entitled to deference from
         the courts
   Conclusion
   Addendum

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-44a) /1/ is
reported at 787 F.2d 270.  The opinion of the district court (Pet.
App. 45a-72a) is reported at 586 F. Supp. 1268.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 73a) was entered on
March 13, 1986.  Petitions for rehearing were denied on July 10, 1986
(Pet. App. 74a-75a).  On September 26, 1986, Justice Blackmun extended
the time for filing a petition for a writ of certiorari to and
including December 7, 1986 (a Sunday), and the petitions were filed on
December 8, 1986.  This Court granted the petitions for a writ of
certiorari on March 2, 1987.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   Section 9 of the Flood Control Act of 1944, ch. 665, 58 Stat. 891,
and Section 9(c) of the Reclamation Project Act of 1939, 43 U.S.C.
485h(c), are set out in the Addendum to this brief.

                          QUESTION PRESENTED

   Whether the Secretary of the Interior may enter into a contract,
pursuant to the federal reclamation laws, to supply unutilized
irrigation water from a Missouri River mainstem reservoir for
industrial use.

                               STATEMENT

   Near the close of World War II, Congress enacted an omnibus flood
control bill authorizing a wide range of water resource programs to
protect the nation from devastating floods and to promote the post-war
domestic economy.  See Flood Control Act of 1944 (FCA), ch. 665, 58
Stat. 887 (partially codified in scattered sections of Titles 16, 33,
and 43 U.S.C.).  Congress specifically approved the Pick-Sloan Plan, a
comprehensive multiple-purpose development program for the Missouri
River Basin.  FCA Section 9, 58 Stat. 891.  This massive program,
which is jointly administered by the Secretary of the Army and the
Secretary of the Interior, provides flood control, navigation,
reclamation, and hydropower benefits for the midwestern United States.
 It includes numerous mainstem and tributary reservoirs that are
intended, among other purposes, to conserve water for irrigation use.
The anticipated irrigation needs, however, have not yet fully
materialized.  The Secretary of the Interior, who is responsible for
the reclamation aspects of the Pick-Sloan program, has therefore
applied some of the unutilized irrigation water to other beneficial
uses in accordance with Section 9(c) of the Reclamation Project Act of
1939, 43 U.S.C. 485h(c), which authorizes him to supply water from
reclamation projects for miscellaneous purposes.

   In 1982, the Secretary entered into a water service contract to
provide unutilized water presently stored for irrigation purposes at
Lake Oahe, a mainstem reservoir in South Dakota, to petitioner ETSI
Pipeline Project (ETSI) for use in a proposed coal slurry pipeline.
Respondents -- the states of Missouri, Iowa, and Nebraska, the Kansas
City Southern Railway, and several other parties -- filed suit seeking
to enjoin performance, contending, among other allegations, that the
Secretary of the Interior lacked statutory authority to enter into the
ETSI contract.  The United States District Court for the District of
Nebraska agreed and entered an order permanently enjoining performance
of the contract.  A court of appeals panel affirmed by a divided vote
and an equally divided en banc court denied rehearing.

   A. The Formulation of the Pick-Sloan Plan

   The Pick-Sloan program is the product of a vigorous national debate
over the proper development of the Missouri River Basin, a watershed
that encompasses roughly one-sixth of the contiguous United States.
It reflects a carefully wrought compromise between the interest of the
arid and semi-arid upper basin states -- including Montana, North
Dakota, South Dakota, and Wyoming -- which viewed the Missouri River
as a vitally important resource for agricultural and industrial use,
and the interests of the more humid lower basin states -- including
Iowa, Kansas, Missouri, and Nebraska -- which sought development of
the Missouri River for navigation and flood control purposes.  /2/

   1. Congress recognized the need to develop the Missouri River Basin
early in this century and authorized the Secretary of the Army and the
Secretary of the Interior to investigate possible projects within
their respective jurisdictions.  /3/ But the Missouri River's record
floods of 1943, which caused nearly $50 million in damages, created
the impetus for immediate congressional action.  On May 13, 1943, the
House Committee on Flood Control adopted a resolution calling upon the
Army to review appropriate flood control measures.  /4/

   The Army Corps of Engineers' Missouri River Division Engineer,
Colonel Lewis Pick, prepared a report, the "Pick Plan," that proposed
a comprehensive plan for improvement of the Missouri River Basin.
H.R. Doc. 475, 78th Cong., 2d Sess. (1944).  The report, submitted to
Congress on March 2, 1944, suggested a broad development scheme,
costing $481.6 million, that emphasized both navigational improvements
and flood control.  /5/ Other federal agencies, including the
Department of Agriculture, the Federal Power Commission, and the
Interior Department's Bureau of Reclamation, agreed on the need for a
comprehensive Missouri River Basin plan that would provide "the
maximum feasible multiple-purpose use of water" and that would make
due allowance "for any changed conditions that might arise in the
future" (H.R. Doc. 475, supra, at 3;  see generally id. at 5-13).  /6/
The Corps, in turn, recognized the need for coordinated inter-agency
development, stating that the Pick Plan "establishes a broad framework
for comprehensive basin-wide improvements" that "is flexible in that
it proposes sufficient latitude to permit such modifications thereof
and changes therein as may be found advisable, and it should be
augmented by appropriated work of other agencies duly constituted by
law to perform such work" (id. at 4-5;  see also id. at 29-30).

   Colonel Reber of the Army Corps of Engineers provided the House
Committee on Flood Control with a detailed exposition of the Pick
Plan, repeatedly emphasizing that the proposed program would provide a
broad and flexible framework for development of the Missouri River
Basin.  /7/ The committee later added the proposal to its pending
omnibus flood control bill, H.R. 4485, which authorized numerous flood
control projects throughout the nation.  See H.R. Rep. 1309, 78th
Cong., 2d Sess. 23-25 (1944).  /8/

   2. Shortly thereafter, the Bureau of Reclamation, through the
efforts of its Montana engineer, W.G. Sloan, completed its own
comprehensive plan for development of the Missouri River Basin, the
so-called Sloan Plan, which emphasized use of water resources for
irrigation in the upper basin states.  S. Doc. 191, 78th Cong., 2d
Sess. (1944).  This lengthy report presented a detailed analysis of
the water needs of each main drainage area in the basin and proposed
construction of ninety reservoirs (including 3 mainstem reservoirs)
that would provide reclamation, hydropower and flood control benefits
(id. at 2-4, 28-120).  /9/ The Bureau and the Corps both acknowledged
that the Pick Plan and the Sloan Plan differed in several significant
respects, but each agreed that the projects were largely complementary
and that differences could be worked out through inter-agency
cooperation as the projects proceeded (id. at 2-4, 6-8, 120-123).  The
Sloan Plan were referred to the Senate and House Committees on
Irrigation and Reclamation.  /10/

   Meanwhile, on May 8-9, 1944, the House debated H.R. 4485.  Two
issues figured significantly in that debate.  First, representatives
from the western states expressed concern that the omnibus bill as a
whole, by vesting the Corps with substantial flood control powers,
would affect the authority of the arid and semi-arid western states to
exercise their traditional control over water resources.  See 90 Cong.
Rec. 4125, 4133-4134, 4139, 4197, 4207-4208, 4228 (1944).  The chief
concern centered on Section 4 of the bill, which authorized the Corps
to provide surplus reservoir storage to meet local water needs.  /11/
Second, representatives from North Dakota objected that the Pick Plan
specifically would deprive the upper Missouri River Basin states of
control over water use within their borders.  Id. at 4140-4142,
4212-4218.  /12/ The House ultimately passed the bill with minor
amendments (id. at 4232) following repeated suggestions that the
Corps' Pick Plan would be coordinated with the Bureau's Sloan Plan
(id. at 4119, 4133, 4143-4147, 4214, 4217, 4223-4224).

   The question of state control of water resources arose again in
Senate hearings on H.R. 4485.  /13/ Senator Millikin (Colo.) proposed
and advocated the so-called "O'Mahoney Amendment," which set forth
detailed requirements for federal-state coordination of Corps
navigation and flood control plans and which gave upstream consumptive
water uses, including irrigation, domestic, and industrial
applications, priority over downstream navigational uses.  /14/ The
Secretary of the Interior, Harold Ickes, also suggested certain
amendments to clarify the responsibilities of the Corps and the
Bureau.  /15/ With respect to the Missouri River Basin, there were
general agreement among the Corps, the Bureau, the state governors,
and members of Congress that the Pick and Sloan plans could be
successfully coordinated to produce a comprehensive program for
development of the Missouri River Basin.  /16/ On June 22, 1944, the
Senate Committee on Commerce issued its report recommending passage of
an amended bill that included some of Secretary Ickes' recommendations
but did not contain the O'Mahoney Amendment.  See S. Rep. 1030, 78th
Cong., 2d Sess. (1944).  /17/

   3. Meanwhile, the Corps and the Bureau continued their efforts to
conciliate the Pick and Sloan plans.  The chief difference centered on
the number and capacity of the mainstem reservoirs between Fort Peck,
Montana, and Sioux City, Iowa.  /18/ On October 25, 1944, the Corps
and the Bureau issued a joint report concluding that their respective
plans could be coordinated if the agencies exercised shared
responsibility -- based on each agency's statutory mission and
practical expertise -- in design as well as in administration at each
of the multiple purpose mainstem reservoirs.  See S. Doc. 247, 78th
Cong. 2d Sess. 1 (1944).  /19/ This approach yielded a comprehensive
plan for six mainstem reservoirs -- the existing Fort Peck Reservoir,
a large capacity reservoir at Garrison, a large capacity reservoir at
Oahe, and three smaller reservoirs at Fort Randall, Big Bend, and
Gavins Point (id. at 3).  /20/ Each of these reservoirs would be truly
multiple purpose in character, serving "the present and ultimate
requirements of flood control, irrigation, navigation, hydroelectric
power and other uses" (ibid.).

   Shortly thereafter, on November 16, 1944, the Senate commenced
debate on H.R. 4485.  A focal point, again, was the matter of
protecting the arid states' traditional control of water within their
borders.  The Senate ultimately adopted, as Section 1 of the bill, a
modified version of the O'Mahoney Amendment.  /21/ The Senate also
adopted, with slight modifications, the committee's version of Section
6, authorizing the Secretary of the Army to supply surplus water for
domestic and industrial use, and Section 8, authorizing the Secretary
of the Interior (upon approval of the Army) to construct and operate
irrigation works at Army reservoirs.  /22/ Finally, the Senate removed
the Missouri River Basin project from the general list of flood
control works and created an entirely new provision -- Section 9 --
that authorized both the Pick Plan and the Sloan Plan, as coordinated
by the Corps-Bureau joint report.  See 90 Cong. Rec. 8553 (1944).

   Section 9, reflecting the hybrid character of the Corps-Bureau
compromise, implemented the proposed Missouri River Basin program
through three basic steps.  First, Section 9(a) expressly adopted the
Pick Plan, the Sloan Plan, and the Corps-Bureau coordinating document.
 /23/ Next, Section 9(b) specified that the work to be performed by
the Army would be an extension of previously authorized flood control
works, thereby assuring continuity in the Army's Missouri River Basin
programs.  /24/ Finally, Section 9(c) specified that the Interior
Department's activities, though authorized in a flood control act,
would nevertheless be governed by the reclamation laws in accordance
with the basin-wide cost and benefit findings contained in the Pick
Plan, the Sloan Plan, and the Corps-Bureau coordinating document.
/25/ Section 9(c) accordingly ensured that the Interior Department
would employ traditional reclamation principles in carrying out its
responsibilities.  /26/

   Following a House-Senate conference, Congress passed the Senate
version of H.R. 4485, including Section 9, thus approving the
Pick-Sloan Plan.  /27/

   B. The Problem of Unutilized Irrigation Water

   For the past one-half century, the Corps and the Bureau have
labored diligently and cooperatively to implement the Pick-Sloan Plan.
 They have completed numerous Pick-Sloan facilities, including the
five mainstem reservoirs, numerous tributary reservoirs, power
generation facilities, and various irrigation projects.  /28/ The
Pick-Sloan program has achieved several of its principal objectives:
it has protected the lower basin states from the ravaging floods that
once plagued the area;  it has provided low flow water augmentation
for navigation;  and it has permitted full development of
hydroelectric power.  However, another important objective, the
irrigation of arid and semi-arid lands, has not yet been fully
realized.  Construction of several large irrigation projects
contemplated by the Pick-Sloan Plan has, for various reasons, been
discontinued.  As a result, a number of the reservoirs that were
designed and constructed to accommodate irrigation storage have not
been put to full reclamation use.  /29/ Meanwhile, other potential
water uses have arisen in the upper basin states, including water
demand for development of the area's vast coal deposits.

   Following the 1973 Arab oil embargo, the Interior Department, after
careful study and consultation with the Army, proposed a program for
supplying unutilized irrigation water from the Pick-Sloan program to
assist in developing coal resources in the upper basin states.  /30/
The Interior Department determined that it could exercise its
authority under Section 9(c) of the Reclamation Project Act of 1939,
to market for industrial use unutilized irrigation water stored in
Missouri River mainstem reservoirs.  /31/ The Army's Acting General
Counsel recognized the need for consultation between the two agencies
and suggested coordination and cooperation in determining whether the
marketing of water for industrial purposes would adversely affect the
reclamation and flood control purposes of the project.  /32/ Shortly
thereafter, on February 24, 1975, the Secretary of the Interior and
the Secretary of the Army entered into a Memorandum of Understanding
(MOU) stating that "the Secretary of the Interior may, pursuant to
applicable authorities, both on his own behalf and as agent for the
Secretary of the Army, contract for the marketing of water for
industrial uses" (J.A. 136).  /33/ The Secretary of the Interior
subsequently approved two water service contracts that would provide
water from mainstem reservoirs for energy development projects in the
upper basin states.  /34/ The MOU expired, following several
extensions, in 1978 (see id. at 138-144).

   C. The Present Controversy

   After the expiration of the MOU, ETSI Pipeline Project, a joint
venture formed to design, construct, and operate a coal slurry
pipeline from Wyoming's Powder River Basin to the southeastern United
States, petitioned the Interior Department for a forty-year water
service contract permitting the withdrawal of 20,000 acre-feet of
water per year from Lake Oahe, an underutilized mainstem reservoir.
/35/ The Interior Department's Bureau of Reclamation which continued
to follow the basic policy and principles set forth in the MOU (J.A.
147-151), reviewed ETSI's request, discussed it with the Army Corps of
Engineers, and negotiated a water service contract for the proposed
diversion (J.A. 212-223).  The Secretary of the Interior approved the
contract and it was signed on behalf of the United States on July 2,
1982 (J.A. 224-256).

   Shortly thereafter, respondents brought a suit against ETSI, the
Secretary of the Interior, and the Secretary of the Army, challenging
the contract and the associated federal permits and approvals.  South
Dakota, which had issued the underlying state water use permit,
attempted to intervene in the matter.  However, a magistrate denied
that request (Mem. Op. No. CV82-L442 (D. Neb. Jan. 13, 1983).  The
district court later rejected the government's objections that the
lower basin states lacked standing to challenge the ETSI contract
(Mem. Op. No. CV82-L-442 (D. Neb. Mar. 7, 1984)).

   With respect to the merits, respondents contended, among many other
allegations, that the Secretary of the Interior lacked statutory
authority to enter into a water service contract with ETSI.  The
government responded that Congress, by approving the Pick-Sloan Plan
in Section 9 of the Flood Control Act, authorized the Secretary of the
Interior to administer water stored for irrigation at the Missouri
River mainstem reservoirs and that Section 9(c) of the Reclamation
Project Act specifically authorized the Secretary to market that water
for industrial use.  The district court disagreed and permanently
enjoined performance of the ETSI water service contract (Pet. App.
45a-72a).

   The court focused on Section 9(c) of the Flood Control Act, which
provides that "the reclamation and power developments to be undertaken
by the Secretary of the Interior under said plans shall be governed by
the Federal Reclamation Laws" (58 Stat. 891).  It reasoned that this
Section permits the Secretary to invoke the reclamation laws only
where the Bureau had undertaken "reclamation of power developments"
(Pet. App. 53a-54a).  The court concluded that "Oahe Dam was not a
reclamation or power development to be undertaken by the Secretary of
the Interior pursuant to Section 9(c) of the Flood Control Act" (id.
at 54a).  Instead, it "was built under Section 9(b), which concerned
projects to be built by the Corps" (ibid.).  /36/

   The court of appeals affirmed the district court's judgment (Pet.
App. 1a-44a).  It first rejected the government's standing and
jurisdictional arguments (id. at 11a-15a & n.7), which we no longer
assert in this Court.  Following the district court's analysis, it
then stated that "(t)he inquiry in this case is whether Lake Oahe is a
reclamation development undertaken by the Secretary of the Interior
pursuant to section 9(c) of the (Flood Control) Act" (id. at 19a).
The court of appeals agreed with the district court that Oahe is not a
reclamation development and rejected the government's argument that
the Pick-Sloan authorizes the Secretary of the Interior to exercise
control over water stored in Lake Oahe for irrigation use.  It stated
that "Section 9 of the Act simply adopts the projects proposed in the
Pick-Sloan plan and directs that the reclamation laws apply to those
undertaken by the Secretary of the Interior" (id. at 23a-24a).  The
court cited other provisions of the Flood Control Act to support its
conclusion (id. at 24a-32a) and refused to defer to the Secretary's
contrary interpretation (id. at 32a-35a).  Judge Bright dissented (id.
at 36a-44a) and an equally divided court denied rehearing en banc (id.
at 74a-75a).  /37/

                   INTRODUCTION AND SUMMARY ARGUMENT

   Congress approved the Pick-Sloan Plan to serve the needs of the
entire Missouri River Basin by providing the arid and semi-arid upper
basin states with irrigation water while promoting commerce and
protecting the lower basin states from seasonal floods.  The
Pick-Sloan program has met the flood control and navigation needs of
the lower basin states and has provided full development of
hydroelectric power;  however, the upper basin's anticipated
irrigation needs have not yet materialized.  The question now is
whether the Secretary of the Interior may distribute unutilized
irrigation water from the mainstem reservoirs for other state-approved
beneficial uses.

   The answer to this question would seem almost self-evident.
Congress approved a flexible program, jointly administered by the
Department of the Army and the Interior Department, that could respond
to the evolving water resource requirements of the basin states.  The
Interior Department's distribution of presently unneeded irrigation
water to other state-approved beneficial uses is fully consistent with
the intentions of Congress and with desires of the arid upper basin
states, which supported the Pick-Sloan Plan in the expectation that
they would be permitted to put the vast amounts of water impounded
within their borders to beneficial use.  Respondents' legal objections
are insubstantial and reflect a parochial unwillingness to share the
Missour River Basin's resources for the benefit of the nation.

   Section 9 of the Flood Control Act provides the Secretary of the
Interior with legal authority to enter into the ETSI contract.
Section 9(a) approves the Pick-Sloan Plan, which specifically grants
the Secretary of the Interior authority to administer the reclamation
aspects of the program.  That authority, under the specific terms of
the Plan, includes the power to dispose of waters stored for
irrigation at the mainstem reservoirs.  Section 9(c) of the Flood
Control Act provides, in turn, that the Secretary shall exercise his
authority in accordance with the federal reclamation laws.  Those laws
specifically permit the Secretary to supply reclamation water for
industrial use.  See Reclamation Project Act of 1939, Section 9(c), 43
U.S.C. 485h(c).  Thus, the Secretary may supply water stored but not
needed for irrigation at Lake Oahe to ETSI for that company's proposed
industrial application.

   The Secretary of the Interior's conclusion that he is authorized to
enter into the ETSI contract finds additional support outside the
specific language of Section 9 of the Flood Control Act and the
Pick-Sloan Plan.  First, it is consistent with the overall objectives
of Congress, which passed the Flood Control Act to provide a
comprehensive yet flexible program for development of the Missouri
River Basin that would provide maximum basin-wide benefits.  The
Secretary's marketing of water intended but not presently needed for
irrigation purposes plainly advances that goal.  The Secretary's
interpretation of Section 9 is further supported by the established
practices that have historically governed the administration of the
Pick-Sloan Plan.  Those practices demonstrate that the Army and the
Interior Department have long recognized that each agency plays an
important role at each facility based on the functions that the
facility is designed to fulfill.  The Secretary's undertaking to
provide unutilized irrigation water from Army-operated facilities for
industrial purposes is simply one example of that functional division
of authority.

   In these circumstances, the Secretary of the Interior's
interpretation of his powers under Section 9 of the Flood Control Act
is entitled to deference from the courts.  The Secretary's
interpretation is plainly reasonable.  And deference is particularly
appropriate here, where the governing statute is written in broad
language, the Secretary was intimately involved in the creation of the
legislative program, he has consistently adhered to his
interpretation, and Congress has expressed no dissatisfaction with his
construction of the statute.

                               ARGUMENT

 THE SECRETARY OF THE INTERIOR MAY ENTER INTO CONTRACTS, PURSUANT TO
THE FEDERAL RECLAMATION LAWS, TO SUPPLY UNUTILIZED IRRIGATION WATER
FROM MISSOURI RIVER MAINSTEM RESERVOIRS FOR INDUSTRIAL USE

   The question in this case is whether the Secretary of the Interior
may enter into a contract pursuant to the federal reclamation laws to
supply the ETSI Pipeline Project with water, presently stored but not
utilized for irrigation purposes at Lake Oahe, for ETSI's proposed
industrial use.  We submit that the Secretary correctly determined
that he possesses such authority.  That determination is consistent
with the language and purpose of the Flood Control Act, as well as
with the actual design and longstanding administration of the
Pick-Sloan Plan.  The Secretary's interpretation of his authority is
plainly reasonable and entitled to deference from the courts.

         I. Congress, In Approving The Pick-Sloan Plan, Authorized The
      Secretary Of The Interior to Administer The Reclamation Aspects
      Of Mainstem Reservoirs, Including Disposition Of Water Stored,
      But Not Presently Needed, For Irrigation Use

   Our analysis begins, of course, with the language of the
controlling statute, Section 9 of the Flood Control Act.  /38/ Section
9(a), through its approval of the Pick-Sloan Plan, grants the
Secretary of the Interior authority to administer the reclamation
aspects of the program.  And Section 9(c) specifies, in turn, that the
Secretary shall exercise that authority in accordance with the federal
reclamation laws, including the Reclamation Project Act of 1939, which
specifically permits the Secretary to supply irrigation water for
industrial use.  Section 9(c), 43 U.S.C. 485h(c).  Thus, the Secretary
may supply water stored for irrigation at Lake Oahe to ETSI for that
company's proposed industrial application.

   A. Section 9(a) of the Flood Control Act

   Section 9(a) of the Flood Control Act specifically approved the
comprehensive program for the Missouri River Basin set forth in the
Pick Plan, the Sloan Plan, and the Corps-Bureau coordination report
(58 Stat. 891).  Those documents, which express the basic expectation
of Congress and the implementing agencies, /39/ specify that the
Secretary of the Interior shall administer the reclamation aspects of
the mainstem reservoirs for maximum beneficial use.  The documents
indicate that the Secretary's authority extends to disposition of
water stored, but not presently used, for irrigation purposes.

   The Pick Plan articulates three principles of particular relevance
to this case.  First, it proposes that the Missouri River Basin
program be constructed and administered to assure that the Missouri
River's water are put to full and efficient use.  H.R. Doc. 475,
supra, at 3-5.  /40/ Second, it indicates that the program must be
sufficiently flexible to permit adjustment in response to changing
needs of the basin (ibid.).  /41/ And third, it emphasized that the
Secretary of the Interior shall administer the reclamation aspects of
the program, including disposition of water stored for irrigation
purposes.  The Pick Plan describes the functional division of
authority between the Corps and the Bureau as follows (H.R. Doc. 475,
supra, at 3-4 (emphasis added):

         It is essential * * * that the mainstem projects be built,
      operated, and maintained by the Corps of Engineers, and that the
      utilization of storage reserved for flood control in all
      multiple-purpose reservoirs on tributaries be in accordance with
      regulations prescribed by the Secretary of War * * *.
      Conversely, utilization of storage reserved for irrigation in
      all multiple-purpose reservoirs should be in accordance with
      regulations prescribed by the Secretary of the Interior.

   The Pick Plan thus places responsibility for the day-to-day
operation of the mainstem reservoirs with the Army, but provides that
the Secretary of the Interior shall prescribe how waters, collected
for irrigation purposes, should be applied for optimal reclamation
use.

   The House was plainly aware of, and approved of, this functional
division of authority when it included the Pick Plan among the
projects authorized by the House Bill.  /42/ Indeed, it approved the
extension of similar authority to all of the flood control programs
contained in the house bill by providing -- in Section 6 -- that
whenever the Secretary of the Army determines that an Army-operated
resvoir could be used for reclamation purposes, "it shall be the duty
of the Secretary of the Interior to prescribe regulations for the use
of the storage available for such purpose" (H.R. Rep. 1309, supra, at
8, 53).  /43/

   The Sloan Plan, which was issued several months after the Pick
Plan, also proposes that the Missouri River Basin be developed in a
comprehensive, yet flexible, manner that assures full and efficient
use of the available water resources.  See S. Doc. 191, supra, at 1-4,
10-11.

   Furthermore, it designates the same functional division of
authority prescribed by the Pick Plan (id. at 3-4).  The Sloan Plan
specifically states (id. at 11 (emphasis added)):

         All reservoirs where flood control and navigation are
      dominant should be operated by the Corps of Engineers, and where
      flood control and navigation functions are minor, the reservoirs
      should be operated in accordance with regulations of the Corps
      so far as flood control and navigation are concerned.

         * * * All reservoirs in which irrigation, restoration of
      surface and ground waters, or power, is dominant, should be
      operated by the Bureau of Reclamation.  Where these functions
      are minor, the reservoirs should be operated under regulations
      of the Bureau of Reclamation so far as such functions are
      concerned.

   Thus, the Pick Plan and the Sloan Plan are in complete accord in
designating the division of authority between the Army and Interior.
Both plans provide, quite sensibly, that each agency shall have
authority at the various reservoirs to administer the functions that
fall within the particular agency's mission and expertise.  /44/

   The Corps-Bureau coordinating document served to reconcile the
differences between the Pick and Sloan Plans.  See S. Doc. 247, supra.
 Because the plans agreed on the proper division of administrative
authority, there was no need for the coordinating document to address
that issue.  Instead, the document addressed certain basic design
differences between the two plans, involving the size and location of
the mainstem reservoirs (see pages 11-12, supra).  Notably, however,
the document resolved the design differences through a functional
division of authority analogous to that employed for the
administrative features of the Pick and Sloan plans:  the Corps would
determine water storage capacities for flood control and navigation
purposes at each mainstem reservoir, while the Bureau would determine
water storage capacities for reclamation purposes at those same
reservoirs.  S. Doc. 247, supra, at 1;  see pages 11-12, supra.

   Thus, when the Senate turned to H.R. 4485, there was no dispute
between the Corps and the Bureau over how design and administrative
authority in the Missouri River Basin should be allocated.  See 90
Cong. Rec. 8375 (1944) (Sen. Overton).  The Corps and the Bureau had
already reached a full consensus on the matter through coordination of
the Pick and Sloan Plans, and Congress, through Section 9(a) of the
Flood Control Act, simply ratified the inter-agency agreement
contained in the three relevant documents (90 Cong. Rec. 8553 (1944)).
 /45/ Indeed, when Congress modified the Pick-Sloan program twelve
years later, approving construction of two additional tributary dams
(Act of May 2, 1956, ch. 231, 70 Stat. 126), the accompanying Senate
report described the longstanding arrangement as an accepted feature
of the program, stating that "the Secretary of the Interior is
responsible for the disposal of water for irrigation or space reserved
for this purpose in any of the dams in the Missouri River Basin
project, while the Secretary of the Army is responsible for
flood-control regulation." S. Rep. 1066, 84th Cong., 1st Sess. 3
(1955).

   Section 9(a) of the Flood Control Act, through its approval of the
Pick-Sloan Plan, thus answers the question of who should ensure that
water stored but not presently needed for irrigation purposes at Lake
Oahe is put to maximum beneficial use.  The Secretary of the Interior
is responsible "for determining the reservoir capacities on the main
stem and tributaries of the Missouri River for irrigation, the
probable extent of future irrigation, and the amount of stream
depletion due to irrigation development" (S. Doc. 247, supra, at 1).
He is responsible for administration of reclamation functions (S. Doc.
191, supra, at 11) and the "utilization of storage reserved for
irrigation" (H.R. Doc. 475, supra at 4).  It naturally follows, under
the Pick-Sloan Plan's functional division of authority, that he is
authorized to determine the proper application of irrigation waters
not presently needed for irrigation use.

   B. Section 9(c) of the Flood Control Act

   Section 9(a) of the Flood Control Act authorizes the Secretary of
the Interior to administer all reclamation aspects of the resulting
water resources program.  But the Secretary does not have unbridled
discretionary power.  Section 9(c) of the Act makes clear that the
"reclamation and power developments to be undertaken by the Secretary
under said plans shall be governed by the Federal Reclamation Laws"
(58 Stat. 891).  Section 9(c) thus identifies the source of law --
namely, federal reclamation law -- that governs how the Secretary
shall exercise his authority.  The Secretary has looked to that body
of law to determine how to apply Lake Oahe's unutilized irrigation
water to other beneficial uses.  He has relied specifically -- and, we
submit, quite properly -- on another Section 9(c), Section 9(c) of the
Reclamation Project Act of 1939, which permits him to "enter into
contracts to furnish water for municipal water supply or miscellaneous
purposes" provided that the contracts "will not impair the efficiency
of the project for irrigation purposes" (43 U.S.C. 485h(c)).  See J.A.
120-127.  /46/

   There is no legislative history explicitly describing the interplay
of Section 9(a) and Section 9(c) of the Flood Control Act.  See 90
Cong. Rec. 8553 (1944).  We submit, however, that the Congress's
objective is apparent.  Congress originally drafted the Flood Control
Act of 1944 as a vehicle for authorization of Army flood control
programs, including the Pick Plan.  It recognized, however, that it
could not simply add the Sloan Plan -- an Interior-conceived
reclamation program -- to the list of Army flood control programs.
Congress therefore formulated Section 9 specifically to address the
hybrid character of the Pick-Sloan Plan.  Section 9(a) approved the
Pick and Sloan Plans, as coordinated by the Corps-Bureau agreement.
Section 9(b) ensured that the Army-constructed works would be
integrated with pre-existing Army flood control structures.  And
Section 9(c) satisfied the wary arid states that the Pick-Sloan Plan's
reclamation activities, though authorized in a flood control act,
would nevertheless be governed by familiar principles of federal
reclamation law.  /47/

   The court of appeals rejected this sensible interpretation of
Section 9.  The court mistakenly concluded that Section 9 "simply
adopts the projects proposed in the Pick-Sloan plan and directs that
the reclamation laws apply to those undertaken by the Secretary of the
Interior" (Pet. App. 23a-24a (emphasis added)).  It stated that the
only inquiry in this case "is whether Lake Oahe is a reclamation
development undertaken by the Secretary of the Interior pursuant to
Section 9(c)" (id. at 19a).  We submit that this is the wrong
question.  The court's central premise -- that the Secretary can
exercise reclamation authority only at Bureau-constructed projects --
cannot be squared with Section 9 and the Pick-Sloan scheme.

   As an initial matter, Section 9(a) of the Flood Control Act quite
plainly approves "general comprehensive plans" (58 Stat. 891) and not
merely the projects contained therein.  /48/ It therefore approves the
division of administrative authority specified in three complementary
documents that comprise the Pick-Sloan Plan.  Second, as we have
explained (pages 24-28, supra), those three documents specify that the
Secretary shall administer all of the reclamation aspects of the
program;  they do not limit the Secretary's authority to those
physical works that the Bureau of Reclamation has constructed.  And
third, Section 9(c)'s requirement that "reclamation and power
developments to be undertaken by the Secretary * * * under said plans
shall be governed by the Federal Reclamation Laws" (58 Stat. 891) was
enacted to ensure that the Secretary's resulting broad powers,
including the authority to distribute irrigation water, will be
exercised in accordance with federal reclamation law.  Section 9(c)
was intended to eliminate any doubt that the Secretary's activities
under the Pick-Sloan Plan would be governed by familiar reclamation
principles.  There is no reason to believe that Congress enacted
Section 9(c) to override an inter-agency plan for cooperation by
preventing the Secretary from administering the reclamation aspects of
Army-constructed facilities.  /49/

   The court of appeals' inquiry (Pet. App. 19a-20a) into whether the
Department of the Interior constructed or operated Lake Oahe
accordingly is misdirected.  The Secretary need not pour concrete or
turn valves to engage in "reclamation developments" within the meaning
of Section 9(c).  The dictionary meaning of the word "development"
plainly embraces activities other than construction of physical works
and specifically includes the act of "making usable or avaliable"
(Webster's New International Dictionary 618 (3d ed. 1976)).  /50/
Thus, when the Secretary defines the irrigation storage needs at
mainstem reservoirs, determines the proper disposition of the
resulting impounded water, or enters into contracts to make that water
available for a recognized reclamation use (see note 46, supra), he is
engaged in a reclamation development.  /51/ Congress plainly
understood that the Secretary would administer reclamation storage at
Army reservoirs as well as construct and operate Bureau of Reclamation
facilities.  /52/ The court of appeals' contrary determination
undermines a fundamental pillar of the Pick-Sloan Plan.

         II. The Secretary's Interpretation Of Section 9 Of The Flood
      Control Act Is Consistent With The Stated Objectives Of Congress
      And The Overall Plan For Administration Of The Pick-Sloan
      Program

   The Secretary's conclusion that he is authorized to enter into
contracts providing water from mainstem reservoirs for industrial use
finds additional support outside of the specific language of Section 9
and the Pick-Sloan Plan.  His conclusion is fully consistent with the
goals that Congress expressed in approving the Pick-Sloan program and
with the established practices of the Army and the Interior Department
for its effective administration.

   A. The Objectives of Congress

   This Court has repeatedly stated that when courts or agencies
expound a statute, they should pay heed "to the provisions of the
whole law, and to its object and policy." /53/ Here, Congress passed
the Flood Control Act to provide for comprehensive development of the
nation's water resources.  Congress specifically intended that Section
9 would authorize a flexible development program for the Missouri
River Basin that would provide maximum basin-wide benefits.  The
Secretary's marketing of water intended but not presently needed for
irrigation purposes plainly advances that goal.

   As we have noted (see pages 24-26, supra), the Corps and the Bureau
formulated the Pick-Sloan Plan to ensure that the Missouri River's
waters would be put to their best use.  Congress fully supported that
objective and repeatedly expressed the importance of maintaining
flexible programs that would utilize the Missouri River's waters to
meet the basin's evolving needs.  For example, the House Report states
(H.R. Rep. 1309, supra, at 24):

         (T)he committee is of the opinion that the works recommended
      by the Chief of Engineers will form a broad framework for the
      comprehensive development of the entire Missouri River Basin in
      the interest of flood control, irrigation, power development,
      navigation and other purposes and that the adjustment of the
      water use to meet the changing needs of the Missouri River Basin
      as a whole can and will be made if the comprehensive development
      proceeds step by step toward ultimate accomplishment.

   See note 41, supra.  /54/ The Senate, in its debate, fully agreed
on the need for flexibility, and established, in addition, a federal
policy that navigational uses should not conflict with beneficial
consumptive uses in states lying west of the 98th meridian.  FCA
Section 1(b), 58 Stat. 889.  /55/

   Congress plainly understood that the Army and the Interior
Department could provide the most effective utilization of the
Missouri River's waters through a functional division of authority
over the Pick-Sloan programs's multiple purpose reservoirs.  While
only one agency can conduct the day-to-day operation of a reservoir,
both agencies can and should participate in the multiple purpose
management scheme.  The Corps of Engineers, which has extensive
experience in improving waters for navigation and flood control, is
clearly best equipped to determine how multiple-purpose reservoirs
should be administered to meet those needs.  Similarly, the Bureau,
which has extensive experience in delivering water for irrigation and
allied uses, is best situated to determine how those reservoirs should
be administered for reclamation purposes.  The Pick-Sloan Plan's
division of authority takes full advantage of each agency's particular
expertise.  There is no reason why this sensible approach should not
be applied to administration of stored water at the Missouri River
mainstem reservoirs.  A functional division of authority over
reservoir storage is not only consistent with Section 9 of the Flood
Control Act (see pages 23-34, supra), it also promotes the optimal
utilization of the basin's water resources.

   The situation at Lake Oahe demonstrates that point.  As the
Corps-Bureau coordinating report explains, the Army and Interior
agreed to a reservoir design that would satisfy the needs of both
agencies.  See S. Doc. 247, supra.  A large capacity reservoir,
impounding approximately 19.6 million acre-feet of water, was selected
primarily to provide the Bureau with irrigation water for the James
River Basin (id. at 3;  S. Doc. 191, supra, at 115-116 (see note 29,
supra)), and the final capacity at 23.34 million acre-feet, was
selected following the agencies' more detailed assessment of their
needs.  But as a result of the postponement or abandonment of planned
irrigation projects, Interior's anticipated water needs at Lake Oahe
for irrigation purposes have not yet materialized.  In these
circumstances, Interior is the logical agency to determine the best
use for the resulting unutilized supply.

   First, Interior, through its Bureau of Reclamation, determined Lake
Oahe's irrigation storage capacity and is thus intimately familiar
with the total amount of water stored for reclamation purposes.
Second, it designed the discontinued irrigation works and thus is best
situated to determine the amount of water that is presently available
for alternative use.  Third, as the federal agency generally
responsible for reclamation activities, it can best forecast the
duration of water availability in light of anticipated future
reclamation needs, select among the alternative reclamation
applications, and specify appropriate conditions that will attach to
the resulting water service contracts.  In short, Interior is the
agency best suited to determine how to put the available water here to
its optimal use.  /56/

   Thus, the Secretary's exercise of marketing authority is not only
consistent with the basic terms of the Flood Control Act, it also
comports with the fundamental congressional policy that the Pick-Sloan
program would be administered flexibly to assure that the Missouri
River's waters are put to their most beneficial use.  The court of
appeals' conclusion that the Secretary is forbidden from utilizing
Lake Oahe's waters because he had not yet built physical irrigation
works at the facility (Pet. App. 20a) cannot be squared with that
policy.  There is no plausible reason why Congress would have wished
to condition the Secretary's power to promote optimal utilization of
water resources on the presence or absence of presently unneeded
irrigation canals.

   The court of appeals suggests that its result does not "leave the
irrigation storage in Oahe without an agency to administer it" because
the "Secretary of the Army retains the authority, pursuant to Section
6 of the (Flood Control) Act to use any surplus water in
Army-controlled reservoirs for domestic or industrial purposes" (Pet.
App. 29a n. 20).  /57/ It is far from clear, however, that the
Secretary of the Army can fill the Secretary of the Interior's shoes.
/58/ More importantly, the court's citation to the Army's authority
misses the point.  The Army and the Interior Department can best
administer the multiple purpose reservoirs if both agencies have
authority to supply unneeded water to its best possible uses.  The
Army and the Interior Department should be allowed to determine,
through consultation and coordinated review, which agency is best
suited to supply water in light of the Pick-Sloan Plan's functional
division of authority and the particular circumstances presented.
This approach not only is consistent with congressional intent and
maximizes the effectiveness of the multiple purpose reservoirs, it
also reduces federal-state tensions in those cases where a state may
prefer that one federal agency, rather than another, dispense water
within its borders.  /59/

   B. The Administration of the Pick-Sloan Facilities

   The Secretary of the Interior's interpretation of Section 9 of the
Flood Control Act is further supported by the established practices
that have consistently governed the administration of the Pick-Sloan
program.  Those practices, which date back to the approval of the
Pick-Sloan Plan, illustrate that the Army and the Interior Department
have long recognized that each agency plays an important role at each
facility based on the functions that the facility is designed to
fulfill.  The functional diversion of authority is apparent in both
the operational and the financial elements of the Pick-Sloan
management scheme.

   As Congress recognized, only one agency can be responsible for the
day-to-day operations at each particular Pick-Sloan facility.  See 90
Cong. Rec. 8315 (1944) (Sen. Overton).  The Army and the Interior
Department, following the "dominant interest" criterion set forth in
the Pick-Sloan Plan, /60/ divide that responsibility on the basis of
which agency constructed and has a dominant interest in the facility;
the Corps of Engineers operates the Corps-constructed mainstem
facilities and the Bureau of Reclamation operates the
Bureau-constructed tributary facilities.  But this division of
operational authority does not foreclose the Bureau from administering
the reclamation aspects of Corps-operated facilities, nor does it
prevent the Corps from regulating the flood control aspects of
Bureau-operated facilities.  The Corps and the Bureau closely
coordinate their activities at each facility;  indeed, that has been
the practice since the inception of the program.  /61/

   The Corps and the Bureau jointly develop the actual operating
criteria at applicable facilities based on their respective functions.
 For example, the Corps operates the mainstem reservoirs under
criteria that ensure that water storage is sufficient to meet
Interior's reclamation needs, and the Bureau operates tributary
reservoirs under criteria that satisfy the Army's flood control
requirements.  The Army and the Interior Department have successfully
operated the Pick-Sloan facilities on this basis for more than 30
years.  This functional approach ensures that each facility serves as
an integrated element of a fully unified and jointly administered
program;  indeed, it would not be possible, as a practical matter, to
operate the facilities in any other way.  /62/

   The same approach is reflected in the financial management of the
Pick-Sloan facilities.  The Pick-Sloan Plan, in keeping with the basic
principles of reclamation law, contemplates that the reclamation costs
of the program shall be recovered through revenues obtained from water
service contracts and hydropower generation.  See, e.g., S. Doc. 191,
supra, at 1-2, 11, 22;  see also, e.g., 90 Cong. Rec. 8549 (1944) (Sen
Hayden);  H.R. 4485 Senate Hearings 210 (Commissioner Bashore);  id.
at 672 (Sen. Millikin).  /63/ The cost recovery requirements are
applicable to all facilities that contribute to reclamation,
regardless of who constructed or operates them.  Thus, irrigators are
required to repay that portion of mainstem reservoir construction
costs allocable to irrigation, including both the cost of providing
irrigation storage and the cost of providing power for irrigation
pumping, that is within their power to repay.  See ibid.  These
financial requirements recognize that the mainstem reservoirs, like
Lake Oahe, are hybrid facilities in the sense that they are dedicated
to both Army and Interior functions.

   The financial management of Pick-Sloan hydropower revenues
specifically illustrates this point.  The Pick-Sloan provides that
hydropower revenues from both the mainstem and tributary facilities
shall be applied to recover the cost of power production and, in
addition, other program costs including irrigation costs beyond the
irrigators' ability to repay.  See S. Doc. 191, supra, at 11, 25.  The
Army and Interior (as well as the Department of Energy, which
presently administers the Pick-Sloan facilities' hydropower marketing
program) /64/ have long adhered to this financing requirement even at
those reservoirs, like Lake Oahe, where Interior has not yet put water
stored for irrigation purposes to irrigation use.  /65/ Lake Oahe
operations accordingly contribute to reclamation financing, even
though Interior has not constructed irrigation works at that
reservoir.  /66/

   Thus, the court of appeals' treatment of the Pick-Sloan program as
a series of autonomous Army and Interior Department projects is flatly
inconsistent with the operational and financial character of the
program.  The Army and the Interior Department jointly administer the
Pick-Sloan program as a single basin-wide development that is fully
integrated, from both an operational and a financial perspective, to
serve both Army and Interior functions.  The court's conclusion that
the Secretary of the Interior can market irrigation water only from
those reservoirs that he has constructed runs directly contrary to
that principle and cannot be squared with the established practices
that have long governed the Pick-Sloan program.

         III. The Secretary Of The Interior's Interpretation Of
      Section 9 Of The Flood Control Act Is Entitled To Deference From
      The Courts

   As the foregoing discussion demonstrates, Section 9 of the Flood
Control Act, by its own terms and by necessary implication, authorizes
the Secretary of the Interior to provide unutilized irrigation water
from mainstem reservoirs for industrial use.  But even if there were
any doubt, the Secretary's construction of the statute should control.
 It is well settled that "a court may not substitute its own
construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency." Chevron U.S.A. Inc. V.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)
(footnote omitted).  /67/ The agency's construction must be given
effect unless the interpretation is inconsistent with a clearly
expressed legislative intent.  See Japan Whaling Ass'n v. American
Cetacean Society, No. 85-954 (June 30, 1986), slip op. 11.  /68/ The
Secretary's construction of Section 9 of the Flood Control Act amply
meets that test.  Indeed, the Secretary's construction is entitled to
especial deference in this instance.

   The Flood Control Act of 1944 is written in unusually broad
language that vests the responsible agencies with extraordinarily
broad discretion.  Congress plainly intended to give those agencies
extensive latitude in designing, constructing and administering the
complex public works projects authorized in this legislation.  See
United States v. City of Fulton, No. 84-1725 (Apr. 7, 1986).  /69/

   Such delegations are common in the case of public works projects.
For example, this Court stated with respect to the Flood Control Act
of 1928 (ch. 569, 45 Stat. 534):

         Since it envisaged a vast program, the Act naturally left
      much to the discretion of its administrators and future
      decisions of Congress.  Recognizing the value of experience in
      flood control, Congress and the sponsors of the Act did not
      intend it to foreclose the possibility of changing the program's
      details as trial and error might demand.

   United States v. Sponenbarger, 308 U.S. 256, 268 (1939) (footnote
omitted).  Congress's repeated expressions of the need for flexibility
in administering the Pick-Sloan program (see pages 35-36, supra)
specifically demonstrate that point in the present case.

   The Secretary of the Interior is further entitled to deference
because the Interior Department was intimately involved in the
creation of the legislative program.  See Miller v. Youakim, 440 U.S.
125, 144 (1979);  United States v. American Trucking Ass'ns, 310 U.S.
534, 549 (1940).  "Administrative interpretations are especially
persuasive where, as here, the agency participated in developing the
provision." Youakim, 440 U.S. at 144.  In this instance, Congress,
through its approval of the Pick-Sloan Plan, ratified a functional
division of authority that was formulated by the Interior Department
and the Army.  The Secretary of the Interior's interpretation of that
division of authority, which the Army considers acceptable, is
therefore entitled to great weight.  See Adams v. United States, 319
U.S. 312, 314-315 (1943).  Indeed, in a very real sense, the issue in
this case has been resolved, as Congress intended, within the
Executive Branch.  /70/

   The Secretary's interpretation is also entitled to deference
because the Interior Department has consistently adhered to the
present interpretation since the inception of the Pick-Sloan program.
See Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978);
Udall v. Tallman, 380 U.S. 1, 16 (1965).  The Solicitor's opinion
expressing the present interpretation is now more than 12 years old
(see J.A. 120-127) and the Interior Department's prior practices in
administering the Pick-Sloan Plan are all consistent with the
Secretary's present interpretation (see pages 40-44, supra).  There is
no reason to doubt that Secretary Ickes and Commissioner Bashore fully
expected that approval of the Pick-Sloan Plan would give the Bureau of
Reclamation authority over water stored for irrigation at the mainstem
reservoirs.  /71/ Thus, the Secretary's interpretation rests upon a
longstanding and consistent view of the Interior Department's role in
administering the Pick-Sloan program.

   Finally, Congress has been fully informed of the Secretary's
practice of providing water from mainstem reservoirs and has expressed
no dissatisfaction with the Secretary's exercise of that authority,
even while making other changes in the law.  /72/ Although we do not
place great weight on congressional inaction, Congress's failure to
act does weigh in favor, rather than against, deference to the
Secretary's interpretation.  See United States v. Riverside Bayview
Homes, Inc., No. 84-701 (Dec. 4, 1985), slip op. 15.  /73/

   Thus, we believe that the court of appeals seriously erred in
holding that the Secretary's interpretation is "beyond his statutory
mandate and therefore not entitled to judicial deference" (Pet. App.
33a-34a (footnote omitted)).  The court's determination that the
Secretary lacks "jurisdiction to decide" (id. at 33a) whether or not
he may enter into water service contracts is plainly wrong.  The
Secretary must answer that question, either affirmatively or
negatively, in carrying out his responsibilities under the Pick-Sloan
Plan.  And this Court has decisively rejected the notion that an
agency's answer to such questions, which involve the scope of an
agency's administrative authority, is not entitled to deference.  /74/
The Secretary's determination that Section 9 of the Flood Control Act
authorizes him to enter into the ETSI water service contract is fully
entitled to deference from the courts.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   MYLES E. FLINT

      Acting Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   JEFFREY P. MINEAR

      Assistant to the Solicitor General

   FRED R. DISHEROON

   KATHLEEN P. DEWEY

      Attorneys

   RALPH W. TARR

      Solicitor

   LOUIS D. MAURO

      Senior Attorney Department of the Interior

   SUSAN J. CRAWFORD

      General Counsel Department of the Army

   MAY 1987

   /1/ "Pet. App." refers to the appendix to the petition for a writ
of certiorari filed in this case by the private petitioner, ETSI
Pipeline Project (No. 86-939).

   /2/ See generally M. Ridgeway, The Missouri Basin's Pick-Sloan
Plan:  A Case Study in Congressional Policy Determination (1955)
(hereinafter The Pick-Sloan Plan);  Guhin, The Law of the Missouri, 30
S.D. L. Rev. 347 (1985)

   /3/ Congress, from 1912 to 1927, authorized the Army to make
navigational improvements between Sioux City, Iowa, and St. Louis,
Missouri.  See Rivers and Harbors Act of 1927, ch. 47, Section 1, 44
Stat. 1013;  Rivers and Harbors Act of 1925, ch. 467, Section 1, 43
Stat. 1188;  Rivers and Harbors Act of 1917, ch. 49 Section 1, 40
Stat. 259;  Rivers and Harbors Act of 1912, ch. 253 Section 1, 37
Stat. 219.  It also authorized the Army to study the prospects for
further navigational and flood control improvements (Rivers and
Harbors Act of 1927, ch. 47, Section 4, 44 Stat. 1020;  Flood Control
Act of 1928, ch. 569 Section 10, 45 Stat. 538) and the Army submitted
a lengthy report.  See H.R. Doc. 238, 73d Cong., 2d Sess.  (1934).
Shortly thereafter, Congress approved construction of the Fort Peck
Reservoir on the upper reaches of the Missouri River to improve
downstream navigation (Rivers and Harbors Act of 1935, ch. 831,
Section 1, 49 Stat. 1034) as well as the number of minor flood control
projects (Flood Control Act of 1938, ch. 795, Section 4, 52 Stat.
1218).  See The Pick-Sloan Plan 73.  Congress, through Section 2 of
the Reclamation Act of 1902, ch. 1093, 32 Stat. 388 (43 U.S.C. 411),
and Section 9 of the Reclamation Project Act of 1939, 43 U.S.C. 485h,
also authorized the Interior Department to investigate projects that
would secure water supplies for irrigation, industrial and municipal
uses in the arid regions of the nation.  In 1939, the Interior
Department's Bureau of Reclamation initiated a comprehensive study of
reclamation possibilities in the Missouri River basin.

   /4/ See Flood Control Plans and New Projects:  Hearings on H.R.
4485 Before the House Comm. on Flood Control, 78th Cong., 1st Sess.
1-24, 99-103, 884-887 (1944) (hereinafter H.R. 4485 House Hearings);
90 Cong. Rec. 4131 (1944) (reprinting resolution);  see also The
Pick-Sloan Plan 3-5, 51-53.

   /5/ The Pick Plan envisioned the construction of 12 multiple
purpose reservoirs (including five mainstem reservoirs);  diversion
works for transporting water from the proposed Garrison mainstem
reservoir in central North Dakota to the Devils Lake area in eastern
North Dakota;  and levees on the mainstem from Sioux City, Iowa, to
the river's mouth.  H.R. Doc. 475, supra, at 16, 18, 26-28;  see The
Pick-Sloan Plan 78-82;  Guhin, supra, 30 S.D. L. Rev. at 358-359.

   /6/ See, e.g., H.R. Doc. 475, supra, at 10 (comments of the Federal
Power Commission) ("the details must, of necessity, be worked out step
by step and the authorizing legislation should, therefore, permit wide
latitude in the selection and modification of projects");  id. at 13
(comments of the Dep't of Agriculture) ("the extensive program
contemplated would necessarily be carried out step by step, with the
details formulated progressively in cooperation with other Federal
agencies").  The Bureau of Reclamation, which was preparing its own
plan, specifically emphasized that any plan for development of the
Missouri River Basin "should be truly comprehensive in adequately
providing not only for the control of floods and the improvement of
navigation, but also for full development of irrigation, hydroelectric
power production, and all other beneficial uses of water" (id. at
5-6).  The Bureau further suggested that the Corps' plan be integrated
with the Bureau's forthcoming plan (id. at 6).

   /7/ See H.R. 4485 House Hearings 883-908, 1059-1078.  Congress also
heard testimony from Commissioner Bashore of the Bureau of Reclamation
(id. at 957-972, 1078-1088), several governors from the Missouri River
Basin states (id. at 936-956, 973-984), and various state and local
officials (id. at 984-1057, 1089-1095).  The Commissioner explained
that the climatic differences within the Missouri River Basin could
result in conflicts "between the beneficial, consumptive use of water
in the drier areas for domestic, irrigation, industrial and mining
purposes, and the use of waters in the humid areas to maintain flowing
navigation channels" (id. at 958).  He suggested that the Basin be
developed through coordinated inter-agency efforts (id. at 960,
1078-1079) and that Congress exercise care to ensure that the
authorized works would not curtail other beneficial water uses (id. at
960, 970, 1088).  The governors of the upper basin states joined in
that suggestion.  See id. at 945, 974, 978, 982-983.

   /8/ The committee inserted provisions stating that nothing in the
authorization shall be construed to create a demand upon upper basin
water resources in excess of that presently authorized by law and that
mainstem storage may be placed on tributaries in order to make more
water readily available for agricultural and industrial use.  See H.R.
1309, supra, at 24-25.  Rep. Case of South Dakota proposed these
provisions to "guard against any loss of rights now existing" and to
"emphasize the flexibility (of the Corps' plan) and express the
thought of Congress that where the benefits from the project could be
increased by a certain modification, it should be done" (90 Cong. Rec.
4222-4224 (1944)).

   /9/ See generally The Pick-Sloan Plan 82-88;  Guhin, supra, 30 S.D.
L. Rev. at 359-361.  The fully developed plan would provide irrigation
for 4.7 million acres of dry land and would produce nearly 4 billion
kilowatt-hours of power annually.  S. Doc. 191, supra, at 2-3, 21-25.
As in any Bureau reclamation project, irrigators and power users would
be expected to repay the project costs assignable to irrigation and
power production (id. at 4).  See Reclamation Project Act of 1939,
Section 9, 43 U.S.C. 485h.  The Bureau estimated that, of the total
project cost of $1.2 billion, $741 million would be repayable.

   /10/ See Control and Use of the Water Resources of the Missouri
River Basin:  Hearings on S. 1915 Before a Subcomm. of the Senate
Comm. on Irrigation and Reclamation, 78th Cong., 2d Sess. (1944)
(hereinafter S. 1915 hearings);  Missouri River Basin -- Conservation,
Control, and Use of Water Resources Including Floodwaters:  Hearings
on H.R. 4795 Before the House Comm. on Irrigation and Reclamation,
78th Cong., 2d Sess.  (1944) (hereinafter H.R. 4795 Hearings).

   /11/ Under the existing law, communities could obtain storage space
at proposed reservoirs by paying the associated costs.  Smaller
communities had difficulties in raising the large lump sums necessary,
and their water needs tended to arise after the reservoirs had been
built.  See 90 Cong. Rec. 4125-4127, 4197 (1944).  Section 4 removed
these obstacles by permitting the Army to market surplus water "at
such prices and on such terms" as it deemed reasonable.  But Rep.
Chenoweth (Colo.) expressed concern, later echoed by Rep. Robinson
(Utah), that Section 4 could impair water rights obtained under state
law (90 Cong. Rec. 4125, 4133-4134, 4197 (1944)).  Rep Curtis (Neb.),
a proponent of the bill, stated that "water appropriated for
irrigation is not surplus water," that "section 4 would not be
controlled in reference to irrigation waters," and that "where there
is storage space available for irrigating farm lands that the
regulations of that shall be turned over to the Bureau of Reclamation"
(id. at 4133-4134).  Rep. Whittington (Miss.), the chairman of the
Flood Control Committee agreed, stating that Section 4 "would apply
only to waters that were surplus and not needed for irrigation or
other purposes" (id. at 4134).  Rep. Curtis added that section 6 of
the bill, which authorized the Secretary of the Interior to regulate
reclamation storage at Corps flood control facilities, ensured that
"control with reference to the available space for irrigation water
shall be exercised by the Bureau of Reclamation" (ibid.), a point that
was reiterated throughout the debate (see id. at 4123, 4126 (Rep.
Whittington);  id. at 4130 (Rep. Curtis);  id. at 4141 (Rep.
Whittington)).

   /12/ Rep. Burdick (N.D.) contended that the Pick Plan would give
the Corps control over irrigation works and permit the Corps to
deplete basin waters for navigation and flood control purposes (90
Cong. Rec. 4140 (1944)).  Rep. Case (S.D.) responded that the special
provision he attached to the Pick Plan (see note 8, supra),
disclaiming authorization of new water uses below Sioux City, Iowa,
protected the upper basin from downstream depletion (ibid.).  He noted
that the Pick Plan recognized that the Bureau would construct new
irrigation works in the upper basin and that the Bureau's Sloan Plan
would soon be available (id. at 4141).  He stated that the Pick Plan
"reserves for use above Sioux City the water not previously authorized
for projects below Sioux City but makes no distribution of this
reservation, leaving that for allocation by agreement among interested
parties as reservoirs are constructed from time to time and storage
becomes available for distribution" (id. at 4142).  Rep. Burdick and
Rep. Lemke (N.D.) later proposed an amendment requiring that future
navigational uses be subordinated to reclamation uses (id. at 4212).
That amendment was rejected (id. at 4218).

   /13/ See Flood Control:  Hearings on H.R. 4485 Before a Subcomm. of
the Senate Comm. on Commerce, 78th Cong., 2d Sess. 413-420, 449-455,
465-486, 499-533, 537-622, 641-755, 761-786, 814-816 (1944)
(hereinafter H.R. 4485 Senate Hearings).

   /14/ See H.R. 4485 Senate Hearings 535-537, 675-728.  The O'Mahoney
Amendment was precipitated, in part, by the pending omnibus rivers and
harbors bill (H.R. 3961, 78th Cong., 2d Sess. (1944)), which included
an authorization to dredge a nine-foot channel in the Missouri River
from Sioux City, Iowa to the river's mouth.  See H.R. Rep. 1000, 78th
Cong., 2d Sess. 73 (1944);  River and Harbor Bill:  Hearings on H.R.
3961 Before the House Comm. on Rivers and Harbors, 78th Cong., 2d
Sess. 82 (1944)).  The upstream states believed that authorization of
that project would deplete water available for upstream consumptive
use.  See Missouri River Basin:  Hearings on H.R. 3961 Before the
House Comm. on Rivers and Harbors, 78th Cong., 2d Sess. (1944).  The
House, in response, ultimately added a provision to the bill stating
that the nine-foot channel would create no new water rights that would
displace existing upstream uses.  See 90 Cong. 2835-2846 (1944).  The
upstream states expressed continued concern in Senate hearings on H.R.
3961, where discussion centered on a proposal by Senator O'Mahoney
(Wyo.) to provide general protection to upstream interests.  See
Rivers and Harbors Omnibus Bill, Missouri River Project, et al.:
Hearing on H.R. 3961 Before a Subcomm. of the Senate Comm. on
Commerce, 78th Cong. 2d Sess. (1944).  The O'Mahoney proposal was
later modified and introduced as an amendment to both H.R. 3961 and
H.R. 4485.  See generally The Pick-Sloan Plan 91-93;  Guhin, supra, 30
S.D. L. Rev. at 383-411.

   /15/ See H.R. 4485 Senate Hearings 310-314, 455-465.  Secretary
Ickes proposed, among other matters, that Section 4 (which permitted
the Corps to sell surplus water for domestic and industrial uses) be
amended to provide that "the Federal reclamation laws shall govern the
disposition for domestic or industrial uses of surplus water from any
reservoir utilized for irrigation purposes pursuant to section 6 of
this Act" (id. at 311-313), thus "extend(ing) these provisions of the
reclamation laws to reservoirs where the other provisions of the
reclamation laws would be made applicable by section 6 of the bill"
(id. at 457-458).  He also proposed that Section 6 (which authorized
the Secretary to prescribe regulations for reclamation use of
reservoir storage) be substantially rewritten for purposes of
conforming the section to "various technical features of the Federal
reclamation laws" (id. at 313), including the fact that those laws
"are largely designed to authorize a system of contractual
relationships" (id. at 458).  Finally, he suggested that a provision
be added to the Missouri River Basin authorization indicating that
"nothing in this Act shall be construed as authorizing any demand upon
the water resources of the Missouri River Basin that will adversely
affect the beneficial consumptive use of such water resources for
municipal, domestic, and livestock water supply, for irrigation of
arid and semiarid lands and for mining and industrial purposes" (id.
at 313), thus "assur(ing) the States and the people of the upper basin
that the water upon which their agricultural economy is dependent may
not be taken from them" (id. at 459).

   /16/ See H.R. 4485 Senate Hearings 467, 476 (Gov. Sharpe (S.D.));
id. at 507-510, 513-514, 648, 651, 668-669, 697 (Col. Reber);  id. at
522, 524 (Mr. Sloan);  id. at 524-525 (Sen. Robertson (Wyo.));  id. at
545-546 (Sen. Cordon (Or.));  id. at 609-610 (Rep. Case (S.D.)).

   /17/ The Senate committee did not adopt the Secretary's suggested
amendment (see note 15, supra) of Section 4, which would have required
application of the reclamation laws to the disposition of surplus
water from reservoirs utilized for irrigation purposes under Section
6.  Instead, the committee amended that section (renumbering it as
Section 6) to provide that "no sale of such water shall adversely
affect existing lawful uses" (S. Rep. 1030, supra, at 4).  The
committee adopted the Secretary's proposal concerning Section 6 (now
renumbered as Section 8), which clarified the Secretary's role in
controlling irrigation storage at Army reservoirs (ibid.), but it did
not adopt the Secretary's suggestion for protecting upstream water
consumers in the Missouri River Basin.  The committee also added a
provision creating a "Missouri River Commission" to assist in planning
and controlling navigation and flood control projects in the basin
(id. at 15).  The committee specifically rejected that O'Mahoney
Amendment (id. at 30-31).

   /18/ See H.R. 4485 Senate Hearings 507-510.  The Pick Plan called
for the construction of 5 mainstem reservoirs, including the 17
million acre-foot Garrison Reservoir, which was central to the Corps'
flood control objectives, and four smaller reservoirs at Oak Creek,
Oahe, Fort Randall, and Gavins Point (ibid.).  The Sloan Plan called
for the construction of 3 mainstem reservoirs, including the 19.6
million acre-foot Oahe Reservoir, which was central to the Bureau's
reclamation objectives, and two smaller reservoirs at Fort Randall and
Big Bend (ibid.).

   /19/ The coordinating document specifically recognized as "basic
principles" that:  "(a) The Corps of Engineers should have the
responsibility for determining mainstem reservoir capacities and
capacities for tributary reservoirs for flood control and
navigation(;) (b) The Bureau of Reclamation should have the
responsibility for determining the reservoir capacities on the main
stem and tributaries of the Missouri River for irrigation, the
probable extent of future irrigation, and the amount of stream
depletion due to irrigation development(;) (c) Both agencies recognize
the importance of the fullest development of the potential
hydroelectric power in the basin consistent with other beneficial uses
of water." S. Doc. 247, supra, at 1.  The Pick Plan and the Sloan Plan
already provided that the agencies would share a similar functional
division of responsibilities in administering the reservoir system.
See H.R. Doc. 475, supra, at 3-4, 7;  S. Doc. 191, supra, at 3-4.  See
also discussion at pages 24-27, infra.

   /20/ The joint report estimated approximate storage capacities for
the five new reservoirs, noting that "final storage capacities to be
selected for the above reservoirs will be jointly agreed upon after
more detailed plans and cost estimates have been made" (S. Doc. 247,
supra, at 3).

   /21/ See 90 Cong. Rec. 8485-8493, 8546-8548 (1944).  These
provisions, which were ultimately enacted, provided for federal-state
coordination in future Corps and Bureau projects (FCA Section 1(a) and
(c), 58 Stat. 888-889) and provided that, in the case of projects
authorized by the bill, use of water for navigation "shall be only
such use as does not conflict with any beneficial consumptive use" in
states lying wholly or partly west of the 98th meridian (FCA Section
1(b), 58 Stat. 889).

   /22/ See 90 Cong. Rec. 8551-8553 (1944).  The Senate modified
Section 6 to state that the Army may "make contracts for" rather than
"sell" surplus water (90 Cong. Rec. 8551 (1944) and added a provision
to Section 8 excluding the Section's application to certain previously
constructed reservoirs (id. at 8552-8553).  See FCA Sections 6, 8, 58
Stat. 890, 891.

   /23/ "The general comprehensive plans set forth in House Document
475 (the Pick Plan) and Senate Document 191 (the Sloan Plan),
seventy-eight Congress, second session, as revised and coordinated by
Senate Document 247, seventy-eighth Congress, second session, are
hereby approved and the initial stages recommended are hereby
authorized and shall be prosecuted by the War Department and the
Department of the Interior as speedily as may be consistent with
budgetary requirements." FCA Section 9(a), 58 Stat. 891.

   /24/ "The general comprehensive plan for flood control and other
purposes in the Missouri River Basin approved by the Act of June 28,
1938, as modified by subsequent Acts, is hereby expanded to include
the works referred to in paragraph (a) to be undertaken by the War
Department;  and said expanded plan shall be prosecuted under the
direction of the Secretary of War and supervision of the Chief
ofEngineers." FCA Section 9(b), 58 Stat. 891.

   /25/ "Subject to the basin-wide findings and recommendations
regarding the benefits, the allocations of costs and the repayments by
water users, made in said House and Senate documents, the reclamation
and power developments to be undertaken by the Secretary of the
Interior under said plans shall be governed by the Federal Reclamation
Laws (Act of June 17, 1902, 32 Stat. 388, and Acts amendatory thereof
or supplementary thereto), except that the irrigation of Indian trust
and tribal lands, and repayment therefor, shall be in accordance with
the laws relating to Indian lands." FCA Section 9(c), 58 Stat. 891.

   /26/ In addition, Section 9(d) authorized an appropriation of $200
million for the partial completion of the Corps works, while Section
9(e) authorized an equal appropriation for partial completion of the
Bureau works.  See FCA Section 9(d) and (e), 58 Stat. 891.  The Senate
omitted previous provisions (see note 17, supra) establishing a
Missouri River Commission and left, for another day, the possibility
of establishing a "Missouri Valley Authority." See 90 Cong. Rec.
8421-8425 (1944).

   /27/ H.R. Conf. Rep. 2051, 78th Cong., 2d Sess. (1944);  90 Cong.
Rec. 9259-9269, 9277-9287 (1944).

   /28/ See Guhin, supra, 30 S.D. L. Rev. at 411-414.  The mainstem
reservoirs presently have a total normal storage capacity of 74
million acre-feet that is categorized for administrative purposes into
four "storage zones" designated as (1) flood control (4,675,000
acre-ft);  (2) flood control and multiple use (11,644,000 acre-ft);
(3) carryover multiple use (39,467,000 acre-ft);  and (4) inactive
(18,335,000 acre-ft).

   /29/ Lake Oahe, South Dakota's 231 mile-long mainstem reservoir, is
the leading example.  Under the Corps of Engineers' Pick Plan, that
reservoir would have had a capacity of only 6 million acre feet.  The
Pick-Sloan compromise adopted the Bureau of Reclamation's design,
which specified an approximate capacity of 19.6 million acre feet, to
provide, among other uses, for the irrigation of 750,000 acres of
cropland in the James River Basin.  See S. Doc. 247, supra, at 2-3;
S. Doc. 191, supra, at 115.  Congress later withdrew its authorization
to construct the James River irrigation works.  See Act of Aug. 14,
1964, Pub L. No. 88-442, 78 Stat. 446.  It subsequently reauthorized
the James River project under a different design (Act of Aug. 3, 1968,
Pub. L. No. 90-453, 82 Stat. 624), but thereafter discontinued the
project (WEB Rural Water Development Project Act of 1982, Pub. L. No.
97-273, Sections 3a, 4, 96 Stat. 1181, 1182).  See Guhin, supra, 30
S.D. L. Rev. at 425-431.  As a result, Lake Oahe presently has
substantial unutilized irrigation storage capacity.

   /30/ See Report of the Ad Hoc Committee on Water Marketing (July 1,
1974) (C.A. App. 157-163).  That report concluded that up to 3 million
acre-feet of water stored, but not currently used, for irrigation
purposes in the Missouri River mainstem reservoirs could be made
available for industrial use (id. at 159).  See generally Bureau of
Reclamation, U.S. Dep't of the Interior, Final Environmental Impact
Statement:  Water for Energy -- Missouri River Reservoirs (1977).

   /31/ See Memorandum from the Solicitor to the Secretary of the
Interior (Nov. 27, 1974) (J.A. 120-127).  Section 9(c) of the
Reclamation Project Act authorizes the Secretary "to enter into
contracts to furnish water for municipal water supply or miscellaneous
purposes" provided that the contracts "will not impair the efficiency
of the project for irrigation purposes" (43 U.S.C. 485h(c)).

   /32/ See Memorandum from Richard V. Kearney, Office of the Gen.
Coun., Dep't of the Army, to the Chief, Office of Civil Functions
(Dec. 16, 1974) (J.A. 128-135).  Mr. Kearney concluded that "if
Interior certifies that the storage proposed to be marketed for
industrial purposes * * * 'will not impair the efficiency of the
project for irrigation,' 43 U.S.C. Section 485h, the Army should be
prepared jointly to cooperate with Interior * * * unless it
determines, pursuant to its responsibility under S. Doc. 247, that
such use would interfere with the operation of the reservoirs for
flood control" (J.A. 135).  He saw "no legal reason" why Interior
could not provide mainstem water for industrial use (ibid.), but added
that "the Secretary of Interior may not market the water from these
reservoirs independently" (id. at 135n.*).

   /33/ The Interior Department and the Army described the water
marketing program to Congress in subsequent hearings.  See Missouri
River Basin Industrial Water Marketing:  Hearing Before the Subcomm.
on Energy Research and Water Resources of the Senate Comm. on Interior
and Insular Affairs, 94th Cong., 1st Sess. 3-11, 22-62, 403-455 (1975)
(hereinafter 1975 Industrial Water Marketing Hearing).

   /34/ The Secretary entered into contracts with Basin Electric Power
Cooperative providing water from Lake Sakakawea (the Garrison
Reservoir) (J.A. 145) and with the State of Montana providing water
from the Fort Peck Reservoir (see Montana Amicus Br. at 2-3).  A third
contract providing water to ANG Coal Gasification Company from Lake
Sakakawea, refers to the MOU but was signed after the MOU expired
(J.A. 146).

   /35/ See note 29, supra.  ETSI first petitioned the Army and
Interior for a water service contract in 1973.  1975 Industrial Water
Marketing Hearing 9, 436-438.  Since that time, ETSI had obtained a
state water use permit through assignment from the South Dakota
Conservancy District for its proposed use (J.A. 152-206), the Interior
Department's Bureau of Land Management had prepared an Environmental
Impact Statement evaluating ETSI's project (J.A. 213), and the Army
Corps of Engineers had prepared an Environmental Assessment addressing
ETSI's proposed intake structure at Lake Oahe (J.A. 213-214).

   /36/ Following the district court's injunction, ETSI announced that
it had decided to suspend the coal slurry project.  Prior to argument,
the court of appeals remanded the case to the district court for a
determination of mootness.  The district court concluded that a live
controversy remained because the contract had not been terminated or
abandoned and because the contract was part of Interior's basin-wide
water marketing program (U.S. Reply Br. Addendum 3a-7a).  The court of
appeals subsequently affirmed that conclusion (id. at 1a-2a).
Meanwhile, the State of South Dakota, excluded from direct
participation in this case, sought leave to file an original action in
this Court against the States of Nebraska, Iowa, and Missouri.  South
Dakota v. Nebraska, No. 103, Orig. (Mar. 31, 1986).  South Dakota
urged that the Flood Control Act effected a statutory apportionment of
the Missouri River, giving South Dakota control over the use of waters
stored for irrigation in the Corps of Engineers' Missouri River
mainstem reservoirs within that state.  The United States, in response
to this Court's invitation, filed a bried amicus curiae suggesting
that the Court defer action on South Dakota's application for leave to
file a complaint pending resolution of the instant case by the court
of appeals.  This Court subsequently permitted the State of North
Dakota to intervene and dismissed South Dakota's application without
prejudice (No. 103, Orig. (Mar. 31, 1986)).  On October 1, 1986, South
Dakota renewed its motion for leave to file a complaint.

   /37/ Judge Bright concluded that the Secretary's interpretation is
a reasonable construction of ambiguous statutory language and
therefore entitled to deference (Pet. App. 36a).  He noted that the
majority's construction would deprive Interior of authority to manage
the waters contained "in the largest federal reservoir in the Missouri
Basin -- a reservoir located in an upstream state and designed with
the anticipation that its major consumptive use would be irrigation"
(id. at 43a).  Judge Bright, as a senior judge, was not eligible to
participate on the request for rehearing en banc.

   /38/ See, e.g., United States V. James, No. 85-434 (July 2, 1986);
FDIC v. Philadelphia Gear Corp., No. 84-1972 (May 27, 1986), slip op.
5;  Florida Power & Light Co. v. Lorion, 470 U.S. 729, 735 (1985);
United States v. Yermian, 468 U.S. 63, 68 (1984);  American Tobacco
Co. v. Patterson, 456 U.S. 63, 68 (1982);  Consumer Product Safety
Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980);  Reiter v.
Sonotone Corp., 442 U.S. 330, 337 (1979).

   /39/ When Congress approves a proposed plan for such projects, it
adopts the basic policy for the systematic development of the river
basin set forth in the accompanying reports.  See United States ex
rel. Chapman v. FPC, 345 U.S. 153, 163 (1953).  Senator Overton
described the process for formulation and congressional review of
public works projects in considerable detail.  See 90 Cong. Rec.
8227-8228 (1944) (Sen. Overton).  As he later explained, "the course
has not been to reproduce an entire report in the bill, but simply to
refer to the report * * *.  Then the projects are authorized pursuant
to the report.  There could not very well be any other legislative
process" (id. at 8564).  See also H.R. 4485 Senate Hearings 667 (Col.
Reber).

   /40/ "It is evident that all the Federal agencies concerned agree
that the maximum feasible multiple-purpose use of water and the
broadest economic program of reservoirs for that type of use are the
primary principles on which the planned development of the water
resources of the Missouri River Valley should be based." H.R. Doc.
475, supra, at 3.  See H.R. 4485 House Hearings 1065, 1076 (Col.
Reber);  H.R. 4485 Senate Hearings 513-514, 650, 669 (Col. Reber).
See also pages 5-6, supra.

   /41/ "It is equally evident that to accomplish this type of
development, the details of planning must be worked out in a
progressive manner through the correlation and coordinated efforts of
all agencies, Federal, State, and local, concerned with these
resources.  Due allowance must be made for any changed conditions that
may arise in the future." H.R. Doc. 475, supra, at 3.  See H.R. 4485
House Hearings 1065-1066 (Col. Reber);  H.R. 4485 Senate Hearings 508,
513-514, 669, 671, 695 (Col. Reber).  See also pages 5-6 & n.8, supra.

   /42/ Thus, Rep. Case stated, "I know by the testimony before the
Flood Control Committee and by specific statements made over the
signature of the Chief of Engineers and by the provisions of House
Document 475, which is referred to in the Missouri River paragraph,
that it is contemplated the Bureau of Reclamation shall operate all
reclamation that may grow out of the storage or (sic) main stem, and
most specifically that the Bureau of Reclamation shall develop as much
irrigation as it wants to on any of the tributaries or branches of the
Missouri River and that the Army engineers care nothing about it." 90
Cong. Rec. 4141 (1944).  He lated added, "It will be clear * * * from
this record, that there is no objection by the Army engineers to the
program of Reclamation for handling irrigation water and for
constructing and operating irrigation works" (id. at 4147).

   /43/ The provision received extensive discussion in the House
debate.  See 90 Cong. Rec. 4126 (1944) (Rep. Whittington) ("Section 6
* * * gives to the Secretary of the Interior power of handling
reclamation and the disposal of reclamation waters provided by the
projects authorized in this bill.");  id. at 4134 (Rep. Curtis) ("The
thing that we have done in this bill is to state that in any reservoir
where there is storage space available for irrigating farmlands that
the regulation of that shall be turned over to the Bureau of
Reclamation, which is a concession on the part of the Army.");  ibid.
(Rep. Curtis) ("We have stated in this bill that control with
reference to the available space for irrigation water shall be
exercised by the Bureau of Reclamation.");  id. at 4141 (Rep.
Whittington) ("(T)he Corps of Engineers is not going to do a thing on
earth except to make the water there available to (the Bureau of
Reclamation), when there is water for reclamation.").  The Senate
later modified the language of this section (renumbering it as Section
8) but, as we discuss later (see notes 45, 71, infra), that
modification did not change the basic goal of the provision or alter
the Interior Department's authority over the reclamation aspects of
the Pick-Sloan program.

   /44/ Notably, President Roosevelt fully supported this functional
division of authority.  He stated in a February 7, 1944 letter to Rep.
Whittington (90 Cong. Rec. 8623 (emphasis added)):

         In my letter of May 5, 1941, I suggested that a sound policy
      in connection with (multiple purpose) water projects would
      consist of selecting the construction agency by determining the
      dominant interest.  * * * No matter which agency builds a
      multiple-purpose structure involving in even a minor way the
      interests of the other, the agency with the responsibility for
      that particular interest should administer it in accordance with
      its authorizing legislation and general policies.  For example,
      the Bureau of Reclamation * * * * should administer, under the
      reclamation laws and its general policies those irrigation
      benefits and phases of projects built by the Corps of Engineers.

   As Senator O'Mahoney later explained, the President himself played
a role in achieving the Pick-Sloan compromise.  See id. at 8489;  see
also Missouri Basin Water Problems:  Joint Hearings Before the Senate
Comm. on Interior and Insular Affairs and the Senate Comm. on Public
Works, 85th Cong. 1st Sess. Pt. 1, at 320 (1957) (hereinafter 1957
Senate Hearings).

   /45/ Congress also retained the substance of Section 6 of the House
bill renumbered as Section 8), which specified how administrative
authority should be divided for other flood control programs where no
such inter-agency cooperative arrangements had been worked out in
advance.  The Senate made certain technical changes to that section at
Secretary Ickes' suggestion (see notes 15 & 17, supra) there were
intended simply to reflect that reclamation laws are largely designed
to authorize a system of contractual relationships.  See generally
United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1105-1111 (9th
Cir. 1976), cert. denied, 429 U.S. 1121 (1977).  Those changes could
not, of course, alter the specifically agreed-upon and independently
approved division of administrative authority for the Pick-Sloan
program.  It is well settled that special provisions prevail over
general ones which, in the absence of the special provisions, might
otherwise control.  See, e.g., Radzanower v. Touche Ross & Co., 426
U.S. 148, 158 (1976);  Bulova Watch Co. v. United States, 365 U.S.
753, 756, 758 (1961);  Fourco Glass Co. v. Transmirra Products Corp.,
353 U.S. 222, 228-229 (1957);  Missouri v. Ross, 299 U.S. 72, 76
(1936);  Kepner v. United States, 195 U.S. 100, 125 (1904).

   /46/ As the court of appeals recognized (Pet. App. 30a n.21), it is
not disputed that the Secretary may rely on this provision when
entering into industrial water service contracts for irrigation water
stored at the Bureau of Reclamation's Pick-Sloan tributary facilities.
 See Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848 (9th
Cir. 1979), aff'g in pertinent part, Environmental Defense Fund, Inc.
v. Morton, 420 F. Supp. 1037 (D. Mont. 1976).

   /47/ See note 59, infra.  Congress took similar action with respect
to Section 8 of the Flood Control Act, which permits the Secretary of
the Interior to construct reclamation works at other dams (not
authorized under Section 9) constructed by the Army.  See FCA Section
10, 58 Stat. 891.  That section, when originally drafted by the House
committee (and then numbered Section 6) simply provided that the
Secretary of the Interior would prescribe regulations governing
reclamation use of Army reservoirs.  See H.R. Rep. 1309, supra, at 53.
 The chairman of the House Flood Control Committee, Rep. Whittington,
received objections that the Commissioner of Reclamation might
"prescribe regulations ad libitum without regard to existing law" (90
Cong. Rec. 4202 (1944)).  The House therefore amended that section to
require that the Secretary prescribe regulations "under existing
reclamation law" (ibid).  When Section 8 emerged from the Senate
committee, it contained a provision substantially identical to that
contained in Section 9(c), requiring compliance with "the Federal
reclamation laws" (58 Stat. 891).  See Tulare Lake Canal Co., 535 F.2d
at 1104-1111.

   /48/ See H.R. Conf. Rep. 2051, supra, at 7-8;  90 Cong. Rec. 9284
(1944) (Rep. Curtis) (explaining that the Pick Plan and the Sloan Plan
are each "approved and authorized" as coordinated by the Corps-Bureau
report).

   /49/ As Rep. Curtis stated in presenting the House conference
report, "This legislation retains for the Army engineers authority
over flood control and retains for the Bureau of Reclamation authority
over irrigation.  It lays down a pattern for their future
cooperation." 90 Cong. Rec. 9284 (1944).

   /50/ Indeed, when Congress wished to describe particular physicial
works in Section 9's other subsections, it specifically used the word
"works." See FCA Section 9(b), (d), and (e), 58 Stat. 891.  The
significant linguistic differences between the words used in these
adjoining subsections strongly indicate that Congress intended the
term "reclamation developments" to have a broader meaning than the
term "works." See INS V. Cardoza-Fonseca, No. 85-782 (Mar. 9, 1987),
slip op. 9.

   /51/ Notably, Section 9(c) provides that "reclamation * * *
developments to be undertaken by the Secretary" shall be subject to
the federal reclamation laws (58 Stat. 891 (emphasis added)).  Thus,
Section 9(c) requires the Secretary to apply federal reclamation law
to activities "to be undertaken" at some future date as well as those
actually undertaken and completed.  It naturally follows that the
Secretary should also look to federal reclamation law to determine how
best to use water resources that are made available when, as in the
present case, the construction of planned irrigation works is
suspended.

   /52/ As Rep. Whittington, chairman of the House Committee on Flood
Control, stated, "public policy requires not only that flood control
storage be under the supervision of the Secretary of War and the Chief
of Engineers but also that storage for the reclamation of arid lands
be under the supervision of the Secretary of the Interior" (90 Cong.
Rec. 4127 (1944) (emphasis added)).  See also id. at 4126 (Rep.
Whittington) (the Secretary is responsible for "reclamation and the
disposal of reclamation waters provided by the projects authorized in
this bill") (emphasis added);  id. at 4130 (Rep. Curtis) (the bill
"gives the Bureau of Reclamation jurisdiction over the irrigation
features of the reservoirs and the distribution system") (emphasis
added);  id. at 4134 (Rep. Curtis) ("control with reference to the
available space for irrigation water shall be exercised by the Bureau
of Reclamation") (emphasis added);  id. at 4147 (Rep. Case) ("there is
no objection by the Army engineers to the program of Reclamation for
handling irrigation water and for constructing and operating
irrigation works") (emphasis added).  See also note 42, supra.
Senator Overton, chairman of the Senate Commerce Committee's
Subcommittee on Flood Control expressed the same view (id. at 8625,
8626).

   /53/ Pilot Life Insurance Co. v. Dedeaux, No. 85-1043 (Apr. 6,
1987), slip op. 10;  Kelly v. Robinson, No. 85-1033 (Nov. 12, 1986),
slip op. 6;  Offshore Logistics, Inc. v. Tallentire, No. 85-202 (June
23, 1986), slip op. 13;  Mastro Plastics Corp. v. NLRB, 350 U.S. 270,
285 (1956);  United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113,
122 (1850).

   /54/ See also, e.g., 90 Cong. Rec. 4132 (1944) (Rep. Curtis) ("The
proposed plan is subject to modification as conditions warrant or as a
result of further studies now being prosecuted and to be prosecuted in
the future.");  id. at 4133 (Rep. Curtis) ("The report of the Army
engineers * * * is submitted * * * as a flexible plan, designed with
the thought that all problems, controversies, and differences among
localities, agencies, and individuals cannot be solved in advance,
that by cooperation and coordination of effort between the agencies,
needed changes can be made in the future.");  id. at 4214 (Rep.
Mansfield (Mont.)) ("There is no reason why a sound, well intergrated
economy cannot be equitably worked out between the Army engineers and
the Bureau of Reclamation so that the waters of the Missouri and the
Yellowstone can be utilized to their fullest extent, first, for
domestic purposes, such as irrigation, mining, industrial and
municipal uses, and then for flood control and navigation.");  id. at
4218 (Rep. Hoeven (Iowa)) ("By these proposed improvements not only
would large flood damages be prevented * * * but also flood-water
would be retained for their (sic) best uses for all purposes,
including irrigation, navigation, power, domestic and sanitary
purposes, wildlife, and recreation.");  id. at 4224 (Rep. Carlson
(Kan.)) ("During the testimony before the committee * * * it was
brought out that the entire program was flexible and the final
construction of it would be through a coordinated policy approved by
the Federal, State, and local areas.");  id. at 9284 (Rep. Curtis).

   /55/ See 90 Cong. Rec. 8376 (1944) (Sen. Overton) ("Modifications
must be made whenever necessary, and I think it would be a very
unsound thing for the Congress to authorize the development of any
basin and not give authority to those entrusted with the development
to make such minor modifications as may be necessary.");  id. at 8547
(Sen. Millikin (Colo.)) ("(W)e have no crystal bowl (sic) here which
we can use to foresee the future and we certainly do not want to
preclude any industrial development which it might be possible to
bring about.");  see also id. at 8544 (Sen. Overton) ("When a
comprehensive plan is adopted in connection with the recommendations
of the engineers, the provision that the Chief of Engineers may make
modifications becomes a part of the law without being so expressed in
the statute.").

   /56/ The Interior Department must, of course, coordinate its water
marketing decisions with the Army, which has its own water marketing
authority under Section 6 of the Flood Control Act.  But Interior has
always recognized that responsibility (see J.A. 147-151) and it
followed that practice in this case (see J.A. 212-223).

   /57/ Section 6 provides in relevant part that the Secretary of the
Army "is authorized to make contracts with States, municipalities,
private concerns, or individuals, at such prices and on such terms as
he may deem reasonable, for domestic and industrial uses for surplus
water * * *" (58 Stat. 890).  See notes 11, 15, 17, supra.

   /58/ While the legislative history makes clear that Section 6 was
intended to grant the Army authority comparable to that exercised by
the Interior Department under the reclamation laws (90 Cong. Rec. 4134
(1944) (Rep. Whittington)), the Army, in the past, has defined
"surplus water" as "water trapped or stored in a reservoir project
which is not utilized to fulfill an authorized project purpose." Army
Project Purpose Planning Guidance Reg. 1105-2-20, Section 7.3(c) (Jan
29, 1982).  See J.A. 209-210.  Under that definition, water stored at
mainstem reservoirs that can be used for hydropower purposes would not
be considered surplus water, even though it might be put more
profitably to industrial use.  Thus, the lower basin states contended
in their second amended complaint (at paras. 100-101) that the Army --
as well as Interior -- lacked authority to market water from Oahe
because the water stored there was not "surplus." The Army's General
Counsel recently determined that such water, in certain circumstances,
may be termed "surplus." See Memorandum from Susan J. Crawford, Gen.
Coun., Dep't of the Army, to the Assistant Secretary of the Army
(Civil Works), Proposed Contracts for Municipal and Industrial Water
Withdrawals from Mainstem Reservoirs (Mar. 13, 1986).  To date,
however, the Army has not treated the unutilized water stored, but not
used, for irrigation purposes at Lake Oahe as "surplus." Furthermore,
the financial effect of Army marketing is quite different from that of
Interior marketing.  The proceeds received by the Army are deposited
in the Treasury as miscellaneous receipts (FCA Section 6, 58 Stat.
890) while the proceeds received by the Interior Department are
applied toward repayment of the reclamation features of the Pick-Sloan
program.  See pages 42-44, infra.

   /59/ Section 8 of the Reclamation Act of 1902, 32 Stat. 390 (43
U.S.C. 383), specifically requires that the Secretary of the Interior
proceed in conformity with state laws regarding appropriation and
beneficial uses of water, unless such laws are inconsistent with
congressional directives concerning the project.  See generally
California v. United States, 438 U.S. 645 (1978).  The Corps is not
subject to any similar generic statutory mandate, although the
directive in Section 1(b) and the proviso in Section 6 of the Flood
Control Act imposes some restrictions in this regard.  Thus, the arid
and semi-arid states may prefer that the Interior Department, rather
than the Army, administer water resource programs within their
borders.  Congress was acutely aware of this difference when it passed
the Flood Control Act (see, e.g., 90 Cong. Rec. 4134 (1944) (Rep.
Curtis);  id. at 4140 (Rep. Burdick);  id. at 8617 (Sen. Murray)) and
the functional division of authority expressed in that Act reflects a
sensitivity to that concern.

   /60/ See S. Doc. 191, supra, at 3-4, 11;  H.R. Doc. 475, supra, at
3-4, 7.  See also note 44, supra.

   /61/ Shortly after the Pick-Sloan Plan was authorized, the Corps
organized the Coordinating Committee on Missouri River Main Stem
Reservoir Operations.  See 1957 Senate Hearings 419-432.  This
committee, which included representatives from various federal
agencies and the affected states, ensured that reservoir operations
accommodate federal and state interests "insofar as possible and
consistent with the authorizations of the projects" (id. at 421).  See
U.S. Army Corps of Engineers, Missouri River Main Stem Reservoir
System, Reservoir Regulation Manual:  Master Manual, at VI-4 to VI-5
(1979).  The Committee's coordinating functions are now carried out
through semi-annual meetings and through informal Corps-Bureau
consultations.

   /62/ Respondents (Mo. Br. in Opp. 10-11) and the court of appeals
(Pet. App. 22a n.15) suggest that there is no irrigation storage at
Lake Oahe because the Army has not defined and set aside a specific
block of water for Interior's irrigation use.  That formalistic
suggestion is without merit.  The Army and Interior jointly designed
that reservoir to impound massive amounts of water for irrigation (S.
Doc. 247, supra, at 3;  S. Doc. 191, supra, at 115-116).  Indeed, the
reservoir's overall capacity is more than three times the size
originally proposed by the Corps for its purposes and more closely
coincides with the size proposed by Interior in the Sloan Plan (see
note 29, supra).  The Army, in operating the reservoirs, classifies
the total storage space on the basis of four general categories:  (1)
exclusive flood control storage;  (2) annual flood control and
multiple-use storage;  (3) carry-over multiple use storage;  and (4)
inactive storage.  U.S. Army Corps of Engineers, Missouri River Main
Stem Reservoir System, Reservoir Regulation Manual;  Master Manual, at
V-1 to V-2 (1979).  See also Guhin, supra, S.D. L. Rev. at 411-420.
The "multiple use" categories, which contain 16.79 million acre-feet
of storage, include water available for irrigation as well as other
multiple use purposes.  See 128 Cong. Rec. 16609 (1982) (Letter from
Maj. Gen. Heilberg to Sen. Moynihan, Table II).  Indeed, Colonel Reber
explained the practical difficulties of defining more specific storage
allocations to the Senate Flood Control Committee in 1944.  See H.R.
4485 Senate Hearings 728-730.  Plainly, Interior does not lose its
authority over water available for irrigation simply because the Army
classifies it, for operational purposes, as part of the water
available for multiple purposes.

   /63/ The federal reclamation laws, as a basic principle, envision
that the cost of constructing reclamation facilities shall be repaid
over time by the project beneficiaries.  See Reclamation Project Act
of 1939 Section 9, 43 U.S.C. 485h.  See generally, J. Sax, Federal
Reclamation Law in 2 Waters and Water Rights at 111 (R. Clark ed.
1967).  The Pick-Sloan Plan further refines that principle by
requiring that the repayment provisions of the reclamation laws shall
be applied on the basis of "basin-wide findings, and recommendations
regarding the benefits, the allocations of costs, and the repayments
by water users" contained in the plans (Section 9(c), 58 Stat. 891).
Thus, the benefits, costs, and repayment schedules are determined on
the basin-wide plan for ultimate development, rather than on
facility-specific calculations.  See, e.g., Western Area Power
Administration (Pick-Sloan Project);  Order Confirming and Approving
Rate Schedules, Noting Interventions, and Denying Request for Hearing,
49 Fed. Reg. 6986 (1984).  See also S. 1915 Hearings 40 (Mr. Sloan)
("The plan must be considered as one project for the whole basin.  Any
time you break it down into individual projects * * * you run into
trouble in allocating the benefits of these various large
multiple-purpose features of the plan.").  See generally Guhin, supra,
30 S.D. L. Rev. at 366-372.

   /64/ See Department of Energy Organization Act Section
302(a)(1)(E), 42 U.S.C. 7152(a)(1)(E);  see generally United States v.
City of Fulton, No. 84-1725 (Apr. 7. 1986), slip op. 4-6.

   /65/ See Western Area Power Administration, 49 Fed. Reg. 6987
(1984);  Western Area Power Administration Pick-Sloan Missouri Basin
Program;  Submission of Rate Order, 47 Fed. Reg. 31738, 31740-31742
(1982);  1957 Senate Hearings 344-353, 443-447.  The Interior
Department noted that practice 30 years ago, stating, "Actually, if
the Power revenues are not made available for aid to irrigation the
proposed irrigation developments would not be feasible.  Therefore,
most of the irrigation would have to be left out of the project and
this would require that a new cost allocation be made for the main
stem reservoir system to reallocate to other project purposes,
including power, the costs now allocated to irrigation" (id. at 446).

   /66/ The Power rates for the midwestern states are based on the
Pick-Sloan cost allocation principles and specifically include a
suballocation reflecting that the proceeds from power intended but not
used for irrigation pumping are credited toward interest-free
repayments on basin-wide irrigation costs.  See Western Power
Administration, Pick-Sloan Missouri Basin Program Power Rate
Adjustment Customer Brochure 28 (June 1984);  49 Fed. Reg. 6987
(1984);  47 Fed. Reg. 31742-31743 (1982);  1957 Senate Hearings 446.
The Interior Department's water marketing program follows the same
pattern;  the proceeds from providing irrigation water for industrial
use are applied to defray ultimate irrigation costs.  See J.A. 221.
As we have noted (see note 58, supra), if the Army were to market
available irrigation water under Section 6 of the Flood Control Act,
the revenues would be deposited in the Treasury as miscellaneous
receipts rather than credited toward repayment or irrigation costs.
See 58 Stat. 890.

   /67/ See, e.g., Clarke v. Securities Industry Ass'n, No. 85-971
(Jan. 14, 1987), slip op. 14-15;  Japan Whaling Ass'n v. American
Cetacean Society, No. 85-954 (June 30, 1986), slip op. 11;  Young v.
Community Nutrition Institute, No. 85-664 (June 17, 1986), slip op.
5-7;  FDIC v. Philadelphia Gear Corp., No. 84-1972 (May 27, 1986),
slip op. 13;  United States v. City of Fulton, No. 84-1725 (Apr. 7,
1986), slip op. 9;  United States v. Riverside Bayview Homes, Inc.,
No. 84-701 (Dec. 4, 1985), slip op. 9;  Hillsborough County v.
Automated Medical Laboratories, Inc., 471 U.S. 707, 714 (1985);
Chemical Manufacturers Ass'n v. Natural Resources Defense Council,
Inc., 470 U.S. 116, 125, 126 (1985).

   /68/ See also, e.g., United States v. City of Fulton, No. 84-1725
(Apr. 7, 1986), slip op. 9;  United States v. Riverside Bayview Homes,
Inc., No. 84-701 (Dec. 4, 1985), slip op. 9;  Hillsborough County v.
Automated Medical Laboratories, Inc., 471 U.S. 707, 714 (1985);
Chemical Manufacturers Ass'n v. Natural Resources Defense Council,
Inc., 470 U.S. 116, 125, 126 (1985).

   /69/ In Fulton, this Court held that Section 5 of the Flood Control
Act, which governs hydropower generation, vests the Secretary of
Energy with broad latitude in establishing administrative procedures
for ratemaking, stating that "Congress, in declining to set out a
detailed mandatory procedural scheme, apparently intended to leave the
agency substantial discretion as to how to structure its review" (slip
op. 12).  The Secretary of the Interior is entitled to even greater
deference in determining the best manner for the actual management of
the program, an area, unlike questions of administrative procedure,
where the courts have no practical experience or expertise.

   /70/ As we have noted (see note 32, supra), the Army's Acting
General Counsel recommended that the Army cooperate with Interior's
mainstem water marketing program, but observed that Interior "may not
market the water from these reservoirs independently" (J.A. 135 n.*).
That qualification did not imply that Interior lacked statutory
authority to supply irrigation water to industrial users;  it
signified only that Interior's actions must be coordinated with the
Army to ensure that they do not "interfere with the operation of the
reservoirs for flood control" (J.A. 135).

   /71/ That is, of course, what the Pick and Sloan plans specifically
state (see pages 24-27, supra).  Indeed, Secretary Ickes had sought
even broader authority, urging in hearings preceding passage of the
Flood Control Act, that Section 4 of the House bill (which would
become Section 6 of the Act) include a proviso to "assure that the
disposition of water for domestic and industrial purposes, from
reservoirs serving irrigation purposes as well, * * * be handled
pursuant to the Federal reclamation laws." H.R. 4485 Senate Hearings
312-313;  see notes 15-17, supra.  This amendment would have greatly
expanded the Interior Department's powers by giving the Bureau of
Reclamation exclusive authority to supply water for domestic and
industrial purposes of all Corps-constructed facilities.  See H.R.
4485 Hearings 457-458.  Congress did not accept the Secretary's
proposal, but did give him the specific authority, through approval of
the Pick-Sloan Plan, to supply water from the Missouri River's
mainstem reservoirs.

   Secretary Ickes also proposed simultaneous changes to Section 6 of
the House bill (which would later become Section 8 of the Act) that
authorized the Secretary to add irrigation features to
Corps-constructed reservoirs.  See H.R. 4485 Senate Hearings 313,
458-459;  see also notes 15, 17, supra.  The Secretary described these
changes as "technical" (H.R. 4485 Senate Hearings 313) and "purely for
purposes of clarification" (id. at 458), but the court of appeals
nevertheless concluded (Pet. App. 26a-27a) that they reflect an
intention by the Secretary to limit his authority at those facilities.
 That inference is, of course, plainly unreasonable;  the Secretary
would not have sought to paralyze with one hand what he sought to
promote with the other.  Cf. Escondido Mutual Water Co. v. La Jolla
Indians, 466 U.S. 765, 773 (1984).  As we have explained (see note 45,
supra), Section 8 does not address the Secretary's authority to supply
water from Pick-Sloan facilities.

   /72/ The Interior Department and the Army described their mainstem
water marketing activities to Congress in the course of its
consideration of the Reclamation Reform Act of 1982, Pub. L. No.
97-293, Tit. II, 96 Stat. 1263-1274.  Commissioner of Reclamation
Broadbent specifically noted that Section 212(b) of the Act (codified
at 43 U.S.C. 390 ll(b)), which preserved existing repayment
requirements of Corps-constructed dams (including Lake Oahe) would
"assure that the Secretary of the Interior's authority to contract
with water users for irrigation water supplies from Corps of Engineers
projects continues in effect and is not inhibited in any way." 128
Cong. Rec. 16607 (1982) (letter from Comm'r Broadbent to Sen.
Moynihan).  General Heiberg of the Corps noted that the Missouri River
mainstem reservoir costs are allocated, in part, to irrigation and
that a "portion of the mainstem storage space set aside for irrigation
has been contracted for by industrial water users for interim water
supplies" (id. at 16611) (letter from Gen. Heiberg to Sen. Moynihan)).
 As we have observed (see note 33, supra), Congress held extensive
hearings on the Interior Department's water marketing program shortly
after its inception in 1974 (see 1975 Industrial Water Marketing
Hearing) and took no action suggesting that the Secretary's exercise
of this authority is improper.  And as we noted (page 29, supra), a
1955 Senate report supporting legislation modifying the Pick-Sloan
Plan expressly acknowledged the authority the Secretary asserts here,
stating "the Secretary of the Interior is responsible for the disposal
of water for irrigation or space reserved for this purpose in any of
the dams in the Missouri River Basin project, while the Secretary of
the Army is responsible for flood-control regulation." S. Rep. 1066,
84th Cong., 1st Sess. 3 (1955) (emphasis added).

   /73/ See also CFTC v. Schor, No. 85-621 (July 7, 1986);  Young v.
Community Nutrition Institute, No. 85-664 (June 17, 1986), slip op. 9;
 FDIC v. Philadelphia Gear Corp., No. 84-1972 (May 27, 1986), slip op.
11;  Haig v. Agee, 453 U.S. 280, 301 (1981);  United States v.
Rutherford, 442 U.S. 544, 554 (1979);  Chemehuevi Tribe v. FPC, 420
U.S. 395, 410 (1975);  NLRB v. Bell Aerospace Co., 416 U.S. 267,
274-275 (1974);  Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
381-382 (1969).

   /74/ See CFTC v. Schor, No. 85-621 (July 7, 1986), slip op. 11
(giving deference to the CFTC's determination that it may entertain
state law counterclaims in reparation proceedings, despite the
"'statutory interpretation-jurisdictional' nature of the question at
issue");  United States v. Riverside Bayview Homes, Inc., No. 84-701
(Dec. 4, 1985), slip op. 9-13 (giving deference to the Corps'
determination of its regulatory jurisdiction over wetlands).  See also
Young v. Community Nutrition Institute, No. 85-664 (June 17, 1986),
slip op. 5-7 (giving deference to the FDA's determination that it has
no mandatory duty to promulgate aflatoxin regulations);  Japan Whaling
Ass'n v. American Cetacean Society, No. 85-954 (June 30, 1986), slip
op. 11-12 (giving deference to the Secretary of Commerce's
determination that he has no mandatory duty to sanction all foreign
whale harvests in excess of international convention quotas).

   APPENDIX