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
____________________________________________________________________
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.  
____________________________________________________________________
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).