DONALD P. HODEL, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS V. STATE OF MISSOURI, ET AL. No. 86-941 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit The Solicitor General, on behalf of the Secretary of the Interior, et al., petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the Eighth Circuit in this case. PARTIES TO THE PROCEEDING The following federal parties were named in the complaints below: Donald P. Hodel, Secretary of the Interior; John O. Marsh, Secretary of the Army; Colonel Steven G. West, District Engineer, Omaha District, United States Army Corps of Engineers, Brigadier General Charles E. Dominy, Division Engineer, Missouri River Division, United States Army Corps of Engineers; Lieutenant General E.R. Heiberg, III, Chief of Engineers, United States Army Corps of Engineers; Bill E. Martin, Regional Director, Upper Missouri Region, Bureau of Reclamation; C. Dale Duvall, Commissioner, Bureau of Reclamation; Wayne Marchant, Acting Assistant Secretary of the Interior for Water and Science; Robert T. Burford, Director, Bureau of Land Management; Maxwell T. Lieurance, Wyoming State Director, Bureau of Land Management; Craig W. Rupp, Regional Forester, Region II, United States Forest Service; R. Max Peterson, Chief, United States Forest Service; John R. Block, Secretary of Agriculture; and Lee Thomas, Administrator of the United States Environmental Protection Agency. /1/ The non-federal parties below were Energy Transportation Systems, Inc., the States of Missouri, Nebraska, and Iowa, the Kansas City Southern Railway Company, the Sierra Club and the Rocky Mountain, Iowa, and the Nebraska Chapters of the Farmers Educational and Cooperative Union of America. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Statute involved Question presented Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-44a) /2/ 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. The petition for rehearing was 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. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED Section 9 of the 1944 Flood Control Act, ch. 665, 58 Stat. 891 provides as follows: (a) The general comprehensive plans set forth in House Document 475 and Senate Document 191, Seventy-eighth 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. (b) 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 of Engineers. (c) 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 (Acts of June 17, 1902, 32 Stat. 388, and Acts amendatory thereof or supplementary thereto), except that irrigation of Indian trust and tribal lands, and repayment therefor, shall be in accordance with the laws relating to Indian lands. (d) In addition to previous authorizations there is hereby authorized to be appropriated the sum of $200,000,000 for the partial accomplishment of the works to be undertaken under said expanded plans by the Corps of Engineers. (e) The sum of $200,000,000 is hereby authorized to be appropriated for the partial accomplishment of the works to be undertaken under said plans by the Secretary of the Interior. 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 In 1982, the Secretary of the Interior entered into a water service contract to provide water, presently stored in the Lake Oahe Reservoir, to Energy Transportation Systems, Inc. (ETSI) for use in a proposed coal slurry pipeline. The states of Missouri, Iowa, and Nebraska, as well as several other parties, sought to enjoin performance of the contract, contending (among other objections) that the Secretary of the Interior lacked statutory authority to execute the contract. The district court agreed and entered a permanent injunction. The court of appeals affirmed by a divided vote and an equally divided en banc court denied rehearing. 1. This case arises from a comprehensive water resources development project for the Missouri River Basin authorized under the Flood Control Act of 1944 (FCA), ch. 665, 58 Stat. 887 et seq. (partially codified in scattered Sections of Titles 16, 33 and 43 U.S.C.). This project, the so-called Pick-Sloan Plan, originated in separate recommendations by the War Department's Army Corps of Engineers and the Department of the Interior's Bureau of Reclamation. The Corps' recommendation, known as the Pick Plan, is described in H.R. Doc. 475, 78th Cong., 2d Sess. (1944). The Bureau's recommendation, known as the Sloan Plan, is described in S. Doc. 191, 78th Cong., 2d Sess. (1944). The differences between these two plans reflect, in many ways, the different functional responsibilities of the Corps and the Bureau. /3/ The Corps' Pick Plan proposed construction of five major reservoirs on the main stem of the Missouri River, including a six million acre-foot reservoir at Oahe, South Dakota. See H.R. Doc. 475, supra. The Corps described in detail the important flood control benefits that would result from its construction of these reservoirs (id. at 22-28). /4/ The Bureau commented on the Pick Plan, urging that the Missouri River Basin be developed in a manner that "is most beneficial to the residents of the basin" (H.R. Doc. 475, supra, at 6). /5/ The Bureau later submitted the Sloan Plan, representing a view of optimal development that placed major emphasis on reclamation of arid lands. See S. Doc. 191, supra. The Bureau's plan also differed from the Corps' Pick Plan in terms of basic dam and reservior features. For example, the Sloan Plan called for the construction of three multiple-purpose mainstem reservoirs, including a 19.6 million acre-foot storage reservoir at Oahe, South Dakota. It also contemplated shared responsibility in the construction and operation of the program, stating that "(t)he agency with primary interest in the dominant function of any feature proposed in the plan should construct and operate that feature, giving full recognition, in the design, construction, and operation, to the needs of other agencies with minor interests" (id. at 11). /6/ The Corps and the Bureau reconciled the differences between the Pick and Sloan Plans through a coordinating document. See S. Doc. 247, 78th Cong., 2d Sess. (1944). They agreed to recognize certain "basic principles" in dividing responsibility for the project (id. at 1). /7/ They also agreed to certain basic design features. In particular, the Corps and the Bureau agreed to construct five multiple-purpose mainstem reservoirs, including the 19.6 million acre-foot reservoir at Oahe, South Dakota (id. at 2-3). This design was intended "to more fully utilize the water resources of the basin and to most effectively serve the present and ultimate requirements of flood control, irrigation, navigation, hydroelectric power, and other uses" (id. at 3). The coordinated program became known as the Pick-Sloan Plan. Shortly thereafter, Congress enacted the FCA. Sections 1 through 8 contain a number of general provisions, applicable to all FCA projects, concerning construction, operation, and authorized uses. 58 Stat. 887-891. /8/ Section 10 authorized a number of specific navigation and flood control projects to be prosecuted by the Corps. 58 Stat. 891-903. Section 9 authorized the development of the Missouri River Basin pursuant to the Pick-Sloan Plan. 58 Stat. 891. Section 9(a) specifically approved the "general comprehensive plans set forth in House Document 475 and Senate Document 191 * * * as revised and coordinated by Senate Document 247." 58 Stat. 891. The following paragraphs described the authority of the Corps and the Bureau. Section 9(b) stated that the previous flood control program built in the Missouri River Basin "is hereby expanded to include the works referred to in paragraph (a) to be undertaken by the War Department." 58 Stat. 891. Section 9(c) stated 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. /9/ 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. 58 Stat. 891. 2. Since the enactment of the FCA in 1944, the federal government has constructed numerous water development facilities on the Missouri River pursuant to the Pick-Sloan Plan, including the Oahe Dam and Reservoir in South Dakota. That facility, like the other mainstem dams on the Missouri River, was built and is operated by the Corps. Although a significant portion of the Oahe Reservoir's storage capacity was designed to accommodate future irrigation, Interior, pursuant to congressional direction, has discontinued construction of irrigation works associated with the Oahe Reservoir. In the early 1970's, Energy Transportation Systems, Inc. (ETSI) began a search for a water source to support a proposed coal slurry pipeline stretching from Wyoming to the Gulf Coast States. In 1981, the South Dakota Water Conservancy District assigned to ETSI a conditional state water use permit granting the right to appropriate and use 50,000 acre-feet of water per year from the Oahe Reservoir. ETSI then approached the Secretary of the Interior and the Corps for permission to withdraw and use 20,000 acre-feet per year from the reservoir. On July 2, 1982, the Secretary entered into a water service contract to make available to ETSI for its proposed industrial use water originally intended, but not used, for irrigation purposes. The Secretary executed this contract pursuant to Section 9(c) of the Reclamation Project Act of 1939, which permits the Secretary "to enter into contracts to furnish water for municipal water supply or miscellaneous purposes" (43 U.S.C. 485h(c)). Several days later, the Corps issued excavation and discharge permits necessary for physical withdrawal of the water from the reservoir (see 33 U.S.C. 403, 1344). Three lower basin states -- Missouri, Iowa and Nebraska -- and other entities -- the Kansas City Southern Railway Company, the Sierra Club and the Rocky Mountain, Iowa, and Nebraska Chapters of the Farmers Educational and Cooperative Union of America -- brought suit in the United States District court for the District of Nebraska against the Secretary of the Interior and other federal officials. They challenged the government's approval of the removal of water from the Oahe Reservoir, arguing -- among other grounds -- that the Secretary lacked stautory authority to enter into a water service contract with ETSI to supply water for industrial purposes. South Dakota attempted to intervene in the action; however, a magistrate denied that request. /10/ The government raised several procedural objections to the suit, arguing that the lower basin states lacked standing and that South Dakota was an indispensable party. /11/ The district court rejected these contentions. On May 3, 1984, the court ruled that the Secretary of the Interior lacked authority under the FCA to execute contracts furnishing water from Oahe Reservoir for industrial purposes. It permanently enjoined performance of the ETSI water service contract (Pet. App. 45a-72a). The court reasoned that Section 9(c) of the FCA permitted the Secretary to invoke the reclamation laws only where the Bureau had undertaken "reclamation or 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.). The court rejected the government's argument that Congress, in enacting the FCA, intended federal reclamation law to control the use of unutilized irrigation water stored in Corps-constructed reservoirs even in the absence of Bureau-constructed irrigation works and structures (id. at 57a-58a). The government appealed the district court's decision, challenging the court's rulings on the lower basin states' standing, the indispensability of South Dakota, and the authority of the Secretary to execute the water service contract. /12/ 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 FCA effected a statutory apportionment of the Missouri River, giving South Dakota control over the use of waters stored for irrigation in the Corps' Missouri River mainstem reservoirs. The United States, in response to this Court's invitation, filed a brief 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)). The court of appeals ultimately affirmed the district court's judgment (Pet. App. 1a-44a). The court 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 Act" (id. at 19a). It agreed with the district court's conclusion that Oahe is not a reclamation development. The court rejected the government's argument that the Pick-Sloan Plan authorizes the Secretary of the Interior to exercise control over water stored in the Oahe Reservoir 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 refused to defer to the Secretary's contrary interpretation (id. at 32a-35a). /13/ Judge Bright dissented (Pet. App. 36a-44a). He concluded that the Secretary's interpretation is a reasonable construction of ambiguous statutory language and is therefore entitled to deference (id. at 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). The government and ETSI petitioner for rehearing and suggested rehearing en banc. The petitions were denied by an equally divided en banc court (Pet. App. 74a-75a). Judge Bright, as a senior judge, was not eligible to participate on the request for rehearing en banc. REASONS FOR GRANTING THE PETITION This case presents a question of fundamental importance to the administration of the vast water resources in the Missouri River Basin. The court of appeals' ruling deprives the Secretary of the Interior of authority to utilize water stored in federal mainstem reservoirs within the upper basin states. The decision is contrary to congressional intent and to the longstanding administrative practices that have governed the Pick-Sloan Plan. /14/ 1. The importance of this case is obvious. The waters stored within the Missouri River mainstem reservoirs are the chief water resources of the upper basin states. The federal government, the midwestern states, and the consumers of Missouri Basin water all have a vital interest in ascertaining the scope of Interior's authority over that water. Indeed, this case has precipitated an original action in this Court between South Dakota (joined by North Dakota) and the lower basin states of Nebraska, Iowa, and Missouri. South Dakota v. Nebraska, No. 103, Orig. (Mar. 31, 1986). South Dakota has recently filed a renewed motion for leave to file a complaint in that case. The case remains important even though the obligations under the particular contract at issue here have been suspended. The courts below determined that the contract has not been abandoned and that the case is not moot. Furthermore, the Secretary has entered into three similar contracts supplying water from mainstem reservoirs operated by the Corps and has begun water service on two of those three contracts. The Secretary may wish to execute other such contracts in the future. The court of appeals' decision will stand as a significant obstacle to that action. Review by this Court is especially warranted in light of the court of appeals' denial of our suggestion for rehearing en banc by an equally divided vote. /15/ The deadlocked vote of the en banc court demonstrates that the issue in this case, which has special importance throughout the Eighth Circuit, has sharply divided the court of appeals. Furthermore, it has divided the court along upper and lower basin lines. /16/ In these circumstances, this Court should act as final arbiter of the dispute. 2. On the merits, we submit that the court of appeals erred in concluding that the Secretary of the Interior lacks authority, absent the presence of Bureau-constructed physical irrigation works, to enter into contracts providing unutilized irrigation water from Missouri River mainstem reservoirs. Our position is supported by Section 9 of the FCA and the congressional documents describing the Pick-Sloan Plan, by the longstanding practices that have governed Missouri Basin reservoirs, and by the general principle requiring the courts to defer to an agency's reasonable interpretation of a statute it is charged with administering. a. The congressional documents describing the Pick-Sloan Plan expressly contemplate that the Secretary of the Interior would control the utilization of reservoir storage capacity designed for irrigation water. For example, the Corps acknowledged in the Pick Plan that "utilization of storage reserved for irrigation in all multi-purpose reservoirs should be in accordance with regulations prescribed by the Secretary of the Interior" (H.R. Doc. 475, supra, at 4). The Bureau likewise stated in the Sloan Plan that (S. Doc. 191, supra, at 11): All irrigation features should be operated by the Bureau of Reclamation or its agents. 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 as far as such functions are concerned. The Pick-Sloan compromise recognized the Secretary's authority to determine the irrigation water storage space of mainstem reservoirs and specifically chose a design for the Oahe Reservoir that would accommodate a large irrigation water storage capacity (S. Doc. 247, supra, at 1, 3). /17/ When Congress authorized the Pick-Sloan Plan through Section 9 of the FCA, it ratified these understandings. Furthermore, Congress made clear, through Section 9(c), 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. In our view, Section 9(c) does not restrict the Secretary's role in administering the Pick-Sloan Plan to regulation of specific irrigation works that the Bureau of Reclamation has constructed. Instead, it requires that the Secretary's regulation of irrigation features of the multi-purpose facilities authorized in the Pick-Sloan Plan, including irrigation storage at Oahe, be conducted under the reclamation laws. /18/ b. The application of the reclamation laws to the Missouri Basin mainstem reservoirs is hardly novel. The Solicitor of the Interior concluded, in 1974, that the Secretary could utilize the reclamation laws to supply unused irrigation water from Missouri River mainstem reservoirs for industrial purposes (C.A. App. 164-169). Prior to that time, the Secretary had long applied the cost allocation and repayment provisions of the reclamation laws to the mainstem reservoirs, despite the absence of physical irrigation works at those facilities. See, e.g., 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. 313-344 (1957). And Congress, in enacting legislation related to the Pick-Sloan Plan (Act of May 2, 1956, Pub. L. No. 84-505, 70 Stat. 126 et seq.), had specifically recognized 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). c. As Judge Bright observed (Pet. App. 38a-39a (Bright, J., dissenting)), the Secretary's determination that he may supply unutilized irrigation water from mainstem reservoirs is consistent with the language and legislative history of the FCA. Indeed, the Secretary's construction of the FCA is entitled to the deference that normally attaches to an expert agency's construction of its empowering statute. See, e.g., United States v. City of Fulton, No. 84-1725 (Apr. 7, 1986), slip op. 9. A contrary result, depriving the Secretary of control over waters that were originally proposed to be used for irrigation purposes, would cause "incongruous consequences" (Pet. App. 43a (Bright, J., dissenting)). It would seriously undermine the concept of shared jurisdiction that is central to the Pick-Sloan Plan, and would unjustifiably restrict the government's ability -- and the ability of the states in which the water is stored -- to dedicate to beneficial uses the vast quantities of water that have been stored in the multi-purpose reservoirs created pursuant to the Plan. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT II 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 DECEMBER 1986 /1/ Names of current public officers have been substituted for those of former officials. /2/ "Pet. App." citations are to the appendix to the petition for a writ of certiorari filed in this case by Energy Transportation Systems, Inc. /3/ The Corps, since the early nineteenth century, has been responsible for navigational improvement of the nation's waterways and, in later years, has been responsible for flood control projects. The Bureau, by contrast, has generally been responsible for reclamation of arid lands through irrigation projects (often with related furnishing of water for municipal and industrial uses). /4/ The Corps also noted (H.R. Doc. 475, supra, at 28-29): In addition to providing flood control benefits on the Missouri and Mississippi Rivers, the comprehensive plan would also provide for the most efficient utilization of the waters of the Missouri River Basin for all purposes, including irrigation, navigation, power, domestic and sanitary purposes, wildlife, and recreation. /5/ The Bureau observed (H.R. Doc. 475, supra, at 7): It is, for example, the view of the Bureau of Reclamation, that the waters of the Missouri River and its tributaries west of or entering above Sioux City are more useful to more people if utilized for domestic, agricultural, and industrial purposes than for navigation-improvement purposes. To the extent that these uses are competitive, domestic, agricultural, and industrial uses should have preference. /6/ The Bureau specifically stated (S. Doc. 191, supra, at 11): All reservoirs where flood control and navigation are dominant should be operated by the Corps of Engineers, and where the 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 irrigation features should be operated by the Bureau of Reclamation or its agents." /7/ They agreed that (S. Doc. 247, supra, at 1): (a) The Corps of Engineers should have the responsibility for determining main stem reservoir capacities and capacities of tributary reservoirs for flood control and navigation. (b) The Bureau of Relcamation 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 the other beneficial uses of water. /8/ For example, Section 1 declares "the policy of the Congress to recognize the interests and rights of the States in determining the development of the watersheds within their borders and likewise their interests and rights in water utilization and control." 58 Stat. 888 (codified at 33 U.S.C. 701-1). Section 6 authorizes the Secretary of War "to make contracts with States, municipalities, private concerns, or individuals" for domestic and industrial use of "surplus water." 58 Stat. 890 (codified at 33 U.S.C. 708). Section 8 permits the Secretary of the Interior, upon concurrence with the Secretary of War, to seek authorization to construct irrigation works at previously authorized Corps-operated dams. 58 Stat. 891 (codified at 43 U.S.C. 390). /9/ Section 9(c) specifically cited the Reclamation Act of 1902, ch. 1093, 32 Stat. 388 et seq., and "acts amendatory thereof or supplementary thereto." 58 Stat. 891. In general, federal reclamation law requires deference to state water law in the acquisition and distribution of water, except where state law is inconsistent with congressional directives concerning the federal water project involved. See, e.g., California v. United States, 438 U.S. 645 (1978). /10/ South Dakota did not appeal that ruling. It has participated in the litigation as amicus curiae. /11/ We urged that South Dakota's participation was necessary to protect its sovereign interests in the use and allocation of waters within its borders. The joinder of South Dakota as a defendant, however, would have deprived the district court of jurisdiction. See 28 U.S.C. 1251(a). We therefore urged dismissal of the action. Cf. California v. Arizona, 440 U.S. 59, 61-63 (1979). /12/ 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 industrial water marketing program. The court of appeals subsequenlty affirmed that conclusion. /13/ The court of appeals cited other provisions of the FCA to support its conclusion (Pet. App. 24a-32a). The court of appeals also rejected the government's standing and jurisdictional arguments (id. at 11a-15a). We do not renew those arguments here. /14/ This case does not raise any question concerning the Department of the Army's authority to manage water within the mainstem reservoirs. /15/ Notably, the dissenting panel member, Senior Judge Bright, was ineligible to participate on the request for rehearing en banc. /16/ The judges residing in the upper basin states -- Judges Lay, Heaney, Wollman, and Magill -- as well as one judge residing in a lower basin state -- Judge McMillian -- voted for rehearing en banc. The remaining judges -- all from lower basin states -- voted against rehearing en banc. /17/ Indeed, the Reservoir's overall capacity is more than three times the size originally proposed by the Corps for its purposes and coincides with the size proposed by Interior (see pages 4-6, supra). /18/ As we have noted, the Oahe Reservoir's design capacity for irrigation water storage has proven far greater than present irrigation needs. The "Federal Reclamation Laws" provide a sensible solution to this problem. Section 9(c) of the Reclamation Project Act of 1939 states that the Secretary of the Interior "is authorized to enter into contracts to furnish water for municipal water supply or miscellaneous purposes" (43 U.S.C. 485h(c)). This provision provides specific authority for the Secretary's water service contract with ETSI.