Authority of Water Resources Council to Expend Carried-Over Funds ( 1978 )

September 6 , 1978
78-49 MEMORANDUM OPINION FOR THE GENERAL
COUNSEL, UNITED STATES WATER
RESOURCES COUNCIL
Water Resources Council (42 U .S.C . § 1962a)—
Authority to Expend Carried-Over Funds
This responds to your request for our opinion regarding the existence and
spending authority of the Water Resources Council after the end of fiscal year
(FY) 1978.
The Council was created by § 101 of the Water Resources Planning Act of
1965 (the Act), as amended, 42 U.S.C. § 1962a. Its membership consists of the
heads of eight Federal Agencies. Section 401 of the Act contains the
authorization for the Council’s appropriations. In 1977, § 401 was amended,
and the provisions authorizing “ annual” appropriations were replaced with
authorizations limited to fiscal year 1978. See Pub. L. No. 95-41, 42 U.S.C.
§ 1962d.
The Senate passed S. 2701, legislation that would continue the Council’s
authorization for 1 year. The version passed by the House would have
abolished the Council on September 30, 1978. A conference committee’s
report recommended the Council to continue for 1 year. See H. Rept. No.
95-1494, 95th Cong., 2d sess. (1978). The conference report has not yet
received floor consideration.
For fiscal year 1978, a total of $13,696,000 was appropriated for the
Council. (See Title IV of the Public Works for Water and Power Development
and Energy Research Appropriation Act for Fiscal Year 1978, Pub. L. No.
95-96.) The FY 1978 appropriation act (and its predecessors) expressly
provides that the funds appropriated for the Council are “ to remain available
until expended.” After September 30, 1978, the Council will have available
funds carried over from prior fiscal years.
The conference report on the FY 1979 appropriation bill, H. Rept. No.
95-1490, 95th Cong., 2d sess. (1978), is now awaiting floor action. Under that
report, no funds would be appropriated for the Council.
You assume that, as of October 1, 1978, no statute will have been enacted
either authorizing or appropriating FY 1979 funds for the Council.You ask
whether, in such circumstances, the Council would continue to exist and
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whether it would have authority to spend funds carried over from previous
fiscal years. Our opinion is that the Council would continue and that it could
properly spend the carried-over funds.
The provision establishing the Council will still be in effect. Notwithstanding
the absence of an FY 1979 authorization or appropriation, the Commission as
an entity will continue. The primary issue is whether funds appropriated in FY
1978 or a prior year could be used in FY 1979, because the Commission’s
ability to carry out its functions depends upon the availability of funds.
Section 501 of the FY 1978 appropriation act states that: “ No part of any
appropriation contained in this Act shall remain available for obligation beyond
the current fiscal year unless expressly so provided herein.” See also 31
U.S.C. §§ 712a and 718. As noted above, the appropriation for the Council is
subject to such an express exception; that is, the funds are “ to remain available
until expended.” Thus the Council can use carried-over funds after October 1,
1978.'
No contrary result is called for by the Supreme Court’s decision in the
Tellico Dam case, TVA v. Hill, 437 U.S. 153 (1978). There, relying in part on
the rule that repeals by implication are not favored, the majority held that the
requirements of the Endangered Species Act were not overridden by Congress’
action in appropriating funds for TVA, some of which were intended to be used
for the Tellico Dam. There is no comparable question of implied repeal here.
The present issue involves reconciling an authorization provision that is
silent regarding FY 1979 and an appropriation statute that expressly provides
for the possibility of the Council’s spending FY 1978 funds after October 1,
1978. The purpose of the latter provision is to change the effect of authorization
statutes that “ [do] not specifically authorize such extended availability.” H.
Rept. No. 95-379, 95th Cong., 1st sess. 105 (1977) (the House committee
report on the FY 1978 appropriation act). Accordingly, in order to give effect to
Congress’ intent, the authorization statute and the FY 1978 appropriation act
must be read together. The Council may properly rely upon the appropriation
act’s provision permitting extended availability of the funds. Cf. 40 Comp.
Gen. 694 (1961) (expenditure of “ no-year appropriations” by the FAA).
Larry A . Ham mond
Deputy Assistant Attorney General
Office o f Legal Counsel
'T he FY 1978 appropriation act allocates the C ouncil’s appropriation am ong its various
functions, e.g., $ 1 ,158,000 for adm inistration. If carried-over funds are used, these allocations
m ust be observed. See 31 U .S .C . § 628.