BNUMBER: B-277905
DATE:
TITLE: Prohibition on Use of Appropriated Funds for Defense G, B-
277905,
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Matter of:Prohibition on Use of Appropriated Funds for Defense Golf
Courses
File: B-277905
Date: March 17, 1998
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DIGEST
Neither 10 U.S.C. sec. 2866 or 16 U.S.C. sec. 1531(c)(2) have the effect of
overriding, modifying or repealing 10 U.S.C. sec. 2246 which prohibits
the use of appropriated funds to "equip, operate, or maintain" a golf
course at a facility or installation of the Department of Defense.
Thus, appropriated funds cannot be used to install or maintain
"greywater" pipelines on an Army golf course.
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DECISION
The Budget Office of the United States Army Garrison, Fort Sam
Houston, has requested our opinion regarding the availability of
appropriated funds to install and maintain water pipelines to support
the base golf course, notwithstanding the provisions of 10 U.S.C. sec.
2246(a) which prohibits the use of appropriated funds to "equip,
operate, or maintain" a golf course. The Budget Office asserts that
two other statutes may overcome this prohibition. As explained below,
we conclude that appropriated funds may not be used to install or
maintain water pipelines on the Fort Sam Houston golf course.[1]
BACKGROUND
The Edwards Aquifer is a unique underground system of water-bearing
formations in central Texas. Water enters the aquifer through the
ground as surface water and rainfall and leaves the aquifer through
well withdrawals and springflows. The aquifer is the primary source
of water for residents of central Texas including Fort Sam Houston.
It supplies over one million people with water in San Antonio alone.
In 1993 because of droughts and the anticipated increases in the
withdrawal of water from the aquifer, the Texas Legislature enacted
the Edwards Aquifer Act, creating a regulatory scheme to control and
manage the use of the aquifer. Act of May 30, 1993, 73d Leg., Ch.
626, as amended by Act of May 29, 1995, 74th Leg., Ch. 261. An
administrative body, the Edwards Aquifer Authority, was created to
oversee this regulatory scheme. Passage of the Aquifer Act generated
a number of lawsuits in both the state and federal courts.[2] In 1996
the Texas Supreme Court unanimously upheld the facial
constitutionality of the Act. Barshop v. Medina County Underground
Water Conservation Dist., 925 S.W.2d 618 (Tex. 1996).
As a result of the Act, the local water systems have adopted water
recycling and conservation regulations in order to preserve the
Edwards Aquifer. In accordance with these conservation regulations,
the Budget Office states that Fort Sam Houston will have to reduce the
volume of water it pumps from the Edwards Aquifer for installation
use, which includes watering of the installation golf course. One of
the water use reduction efforts implemented by the City of San Antonio
is the use of "greywater"--recycled waste water which is partially
purified--for irrigation in lieu of aquifer water. Fort Sam Houston
and other military installations will be able to use greywater if each
installation installs the necessary pipelines.
The Budget Office acknowledges that appropriated funds may not be used
to equip, operate, or maintain a golf course at a facility or
installation of the Department of Defense. 10 U.S.C. sec. 2246 (1994).
However, it asserts that two other provisions of law might allow the
use of appropriated funds to install a "greywater" pipeline on the
golf course notwithstanding the prohibition in section 2246(a). The
first proviso, 10 U.S.C. sec. 2866, directs that the Secretary of Defense
allow and encourage Department instrumentalities to participate in
water conservation efforts. The second provision is a statement of
Congressional policy which declares that federal agencies shall
cooperate with State and local agencies to resolve water resource
issues in concert with conservation of endangered species. 16 U.S.C. sec.
1531(c)(2). We conclude that neither of these provisions overrides
the explicit statutory prohibition found in 10 U.S.C. sec. 2246.
ANALYSIS
Title 10 of the U.S. Code section 2246 states:
(a) Limitation.--Except as provided in subsection (b), funds
appropriated to the Department of Defense may not be used to
equip, operate, or maintain a golf course at a facility or
installation of the Department of Defense.[3]
As a general rule, a statute that is clear and unambiguous on its face
should be construed to mean what it says. B-204874, July 28, 1982;
see also 2A, A. Sutherland, Statutes and Statutory Construction sec.
46.01, at 81 (5th ed. 1992). Section 2246(a) plainly proscribes the
use of appropriated funds for the maintenance and upkeep of military
golf course facilities.[4] In addition, an understanding of how golf
facilities operate under Army and DOD rules and regulations serves to
underscore one of the reasons for the prohibition. Military
recreational golf facilities operate as Morale, Welfare and Recreation
Nonappropriated Fund Activities (NAFA). Army Regulation 215-1 (Sept.
29, 1995). As NAFAs, golf course funds are separate from appropriated
funds of the U.S. Treasury, are not commingled with appropriated funds
and are managed separately even when supporting common programs or
activities. Id., sec. 3-1. While some NAFAs receive appropriated fund
support, golf facilities are presumed to recover most operating
expenses from income generated. Id. at sec. 4-1. Moreover, consistent
with section 2246(a), Army regulations do not authorize the use of
appropriated funds to finance construction of military MWR golf
courses and facilities. Id. at page 118, Table E-1. Thus, section
2246(a) and implementing regulations clearly prohibit the use of
appropriated funds to "equip, operate, or maintain" a DOD or NAFA golf
course.
The remaining question is whether the two provisions of law cited by
the Army can be read to override, modify or repeal the specific
prohibition on the use of appropriated funds found in section 2246(a)
and Army/DOD regulations. As summarized above, 10 U.S.C. sec. 2866,
directs that the Secretary of Defense allow and encourage Department
instrumentalities to participate in water conservation efforts. It
authorizes DOD instrumentalities to enter into financial incentives
and other agreements with water utilities to implement water
conservation programs. Id. The Secretary of Defense may carry out a
military construction project for water conservation, not previously
authorized, using funds appropriated or otherwise made available to
the Secretary for water conservation. The second provision cited by
the Budget Office declares that federal agencies shall cooperate with
State and local agencies to resolve water resource issues in concert
with conservation of endangered species. 16 U.S.C. sec. 1531(c)(2).
Neither provision has the effect of overriding, modifying or repealing
section 2246(a). The first provision cited by the Budget Office is a
law intended to allow the Army to enter into agreements with water
utilities to implement water conservation programs using funds
appropriated or otherwise made available to the Secretary for water
conservation. 10 U.S.C. sec. 2866. The general authorization in section
2866 makes appropriations an available source of funds for water
conservation, if otherwise proper. A more specific statute, section
2246(a), explicitly prohibits the use of appropriated funds for
maintenance or operations of military golf installations. Clearly,
watering a golf course, whether with aquifer water or "greywater"
under a water conservation measure, is an essential activity in
maintaining and operating most golf courses. Thus, while the
proposal may have merit as a significant conservation effort, the
specific prohibition found in 10 U.S.C. sec. 2246(a) cannot be overcome
by the more general statute authorizing the use of appropriations for
water conservation efforts. See, e.g., 62 Comp. Gen. 617 (1983). The
same can be said for the provision found in 16 U.S.C. sec. 1531(c)(2)
which is a general declaration of Congressional policy. Such a
declaration of Congressional policy, without more, does not make
inapplicable definite statutory restrictions otherwise applicable.
See, 37 Comp. Gen. 268, 270-271 (1957). Thus, 16 U.S.C. sec. 1531(c)(2)
cannot be read to overcome the more specific provision found in
section 2246(a).
While Congress is free to amend or repeal prior legislation, rules of
statutory construction presume that Congress amends or repeals a
statute directly and explicitly. Morton v. Mancari, 417 U.S. 535, 550
(1974); see also Tennessee Valley Authority v. Hill, 437 U.S. 153,
189-190 (1978). Although one statute may implicitly amend or repeal a
prior statute, repeals by implication are disfavored, and statutes are
construed to avoid this result whenever reasonably possible. See,
e.g., T.V.A. v. Hill, 437 U.S. at 189-90 (1978); 58 Comp. Gen. 687,
691-92 (1979). Indeed, the presumption is always against repeal
unless "the intention of the legislature to repeal [is] clear and
manifest" Posadas v. National City Bank, 296 U.S. 497, 503 (1936),
and no reasonable basis exists to give effect to both statutes.
This presumption is particularly strong where, as with 10 U.S.C. sec.
2246 and 2866, Congress considered and enacted the two provisions in
the same Act, namely, the National Defense Authorization Act for
Fiscal Year 1994, Public Law 103-160, 107 Stat. 1618 and 1884 (1993).
Their location in the same Act is forceful evidence that Congress
intended the two provisions to stand separately. Cf. B-198096, May 8,
1980. One section generally authorizes the use of appropriated funds
for water conservation activities at military installations; the other
specifically prohibits the use of appropriated funds to equip, operate
or maintain a golf course. Had Congress intended to allow the use of
appropriated funds for water conservation projects on military golf
facilities it would have done so. Instead it enacted a broad
statutory prohibition prescribing the use of appropriated funds for
any activity to "equip, operate, or maintain" military golf courses.
As for 16 U.S.C. sec. 1531(c)(2), as noted above, it is a general
declaration of Congressional policy and, without more, does not repeal
or make inapplicable definite statutory restrictions otherwise
applicable. See, 37 Comp. Gen. 268, 270-271 (1957). Thus, we do not
read section 1531(c)(2) as impliedly amending or repealing the
explicit prohibition found in section 2246.
Accordingly, without more explicit authority, appropriated funds may
not be used to install or maintain water pipelines for the purpose of
irrigating the Fort Sam Houston golf course.
Comptroller General
of the United States
1. We have not been asked whether the Army could use funds to install
pipelines to distribute "greywater" for irrigation of other facilities
at the Fort.
2. Cases in the Texas courts centered on individual rights under the
state constitution. See Barshop v. Medina County Underground Water
Conservation Dist., 925 S.W.2d 618 (Tex. 1996). Another series of
lawsuits bought in federal courts alleged that the Aquifer Act failed
to adopt an adequate recovery plan under the Endangered Species Act.
See Sierra Club v. Lujan, No. Mo-91-CA-069 (W.D. Tex. 1993); Sierra
Club v. City of San Antonio, et al., 112 F.3d 789 (5th Cir.
1997)(vacating a district court grant of a preliminary injunction
regulating the withdrawal of water from the aquifer).
3. Subsection 2246(b) provides that the prohibition does not apply to
any golf facilities outside the United States or remote or isolated
facilities in the United States as designated by the Secretary of
Defense. Therefore, subsection (b) does not apply to this case.
4. The only legislative history regarding the limitation restates the
unambiguous language of the statute: "This section would prohibit the
use of any appropriated funds for the operations of the Department of
Defense golf courses." H.R. Rep. No. 200, 103rd Cong., 1st Sess.
267 (1993).