1. Reclamation projects

The Boulder Canyon Project Act was passed in exercise of Congressional power to control navigable water for purposes of flood control, navigation, power generation, and other objects, and is equally sustained by power of Congress to promote the general welfare through projects for reclamation, irrigation, and other internal improvements. Arizona v. California, 373 U.S. 546, 587 (1963).

There can be no doubt of the federal government's general authority to construct projects for reclamation and other internal improvements under the general welfare clause, article I, section 8, of the Constitution as well as article IV, section 3, relating to the management and disposal of

federal property. Ivanhoe Irr. Dist. ບ. McCracken, 357 U.S. 275, 294 (1958).

In conferring power upon Congress to tax "to pay the Debts and provide for the common Defence and general Welfare of the United States," the Constitution delegates a power separate and distinct from those later enumerated, and one not restricted by them; thus Congress has a substantive power to tax and appropriate for the general welfare, limited only by the requirement that it shall be exercised for the common benefit as distinguished from some mere local purpose. It is now clear that this includes the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement. United States v. Gerlach Live Stock Co., 339 U.S. 725, 738 (1950).

Interstate transmission 3 Navigable waters 2 Reclamation projects 1

1. Reclamation projects

The Boulder Canyon Project Act was passed in exercise of Congressional power to control navigable water for purposes of

flood control, navigation, power generation, and other objects, and is equally sustained by power of Congress to promote the general welfare through projects for reclamation, irrigation, and other internal improvements. Arizona v. California, 373 U.S. 546, 587 (1963).

Inasmuch as the grant of authority under the Boulder Canyon Project Act to build the dam and reservoir is valid as the constitutional power of Congress to improve navigation, it is not necessary to decide whether the authority might constitutionally be conferred for other purposes. Arizona v. California, 283 U.S. 423, 457 (1931).

2. Navigable waters

Under its broad powers to regulate navigable waters under the Commerce Clause and to regulate government lands under Art. IV, § 3, of the Constitution, the United States has power to reserve water rights for its reservations and its property. Arizona v. California, 373 U.S. 546, 597-98 (1963).

It was the intention of Congress in enacting the Federal Power Act to secure comprehensive development of national resources and not merely to prevent obstructions to navigation. The detailed provisions of the Act providing for the Federal plan of regulation leave no room or need for conflicting state controls. Where the Federal Government supersedes the state government, there is no suggestion that the two agencies both shall have final authority. Therefore, since a state permit is not required, there is no justification for the Federal Power Commission, as a condition precedent to considering an application for a license for a water power project on navigable waters, to require that the applicant first obtain a permit for the project under state law. The securing of a state permit is not in any sense a condition precedent or an administrative procedure that must be exhausted before securing a Federal license. First Iowa Cooperative v. Federal Power Commission, 328 U.S. 152 (1946).

The title of the riparian owner to the bed of a navigable stream is a qualified one, and subordinate to the public right of navigation and subject to the absolute power of Congress over the improvement of navigable rivers. The judgment of Congress expressed in the Act of March 3, 1909, that a public necessity exists for absolute control of all waters of the St. Marys River is an exercise of legislative power wholly within its control and not subject to judicial review. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913).

The jurisdiction of the General Government over interstate commerce and its natural highways vests in that Government the right to take all needed measures to preserve the navigability of the navigable water courses of the country even against any

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state action. However, until in some way the Congress asserts its superior power and the necessity of preserving the general interests of the people of all the States, it is assumed that state action, although involving temporarily an obstruction to the free navigability of a stream, is not subject to challenge. United States v. Rio Grande Dam and Irr. Co., 174 U.S. 690, 703 (1899).

The Act of September 19, 1890 [See Act of March 3, 1899, herein] prohibiting "the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction," applies to any action taken with respect to nonnavigable streams, including the appropriation of the waters thereof under state law, which substantially interferes with the navigable capacity of one of the navigable waters of the United States, United States v. Rio Grande Dam and Irr. Co., 174 U.S. 690, 707-10 (1899).

3. Interstate transmission

The City of Altus, Oklahoma, obtained a declaratory judgment decreeing that a Texas statute forbidding the extraction of underground water in Texas for exportation outside of the State was unconstitutional. The city had purchased the subsurface water rights in approximately 5,663 acres of privately owned land in northern Texas from which it intended to supplement its annual water allotment of 4,800 acre feet from the W. C. Austin project. Relying on Commonwealth of Pennsyl vania v. State of West Virginia, 262 U.S. 553 (1923) and West v. Kansas Natural Gas Co., 221 U.S. 229 (1911), cases involving interstate transmission of natural gas, the Court held the Texas statute to constitute an unreasonable burden upon and interference with interstate commerce and therefore void as being in violation of the Commerce Clause of the United States Constitution. City of Altus, Oklahoma v. Carr, 255 F. Supp. 828 (W. D. Tex. 1966), aff'd per curiam, 385 U.S. 35 (1966).

A State has an obvious public interest in maintaining the rivers that are wholly within it substantially undiminished except by such drafts as may be authorized for a more perfect use; and a statute prohibiting the transportation through pipes or ditches of such waters for use in another State is a valid exercise of the police power of the State to protect such public interest. Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908).

Reclamation projects 1 Water rights 2

1. Reclamation projects

There can be no doubt of the federal government's general authority to construct projects for reclamation and other internal improvements under the general welfare clause, article I, section 8, of the Constitution as well as article IV, section 3, relating to the management and disposal of federal property. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 294 (1958).

The authority to impose excess land limitation conditions in repayment contracts comes from the power of the Congress to condition the use of federal funds, works, and projects on compliance with reasonable requirements. Conversely, a State cannot compel use of federal property on terms other than those prescribed or authorized by Congress. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 291, 295 (1958).

The United States has constitutional authority to organize and maintain an irrigation project within a State where it owns arid lands whereby it will associate with itself other owners of like lands for the purpose of reclaiming and improving them, and for that purpose it exercises the right of eminent domain against other land owners to obtain land necessary to carry the proposed project into effect. Burley v. United States, et al., 179 F. 1, 102 C.C.A. 429 (Ida. 1910), affirming 172 F. 615 (1909). See also Magruder v. Belle Fourche Valley Water Users' Association, 219 F. 72, 133 C.C.A. 524 (S. Dak. 1914).

The Reclamation Act is within the power of Congress as to lands within the States as well as Territories, under Constitution, article IV, section 3, giving it power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," and is not in violation of the Constitution on the ground that it authorizes the expenditure of public money without an appropriation, since it is in itself an appropriation of the proceeds of land sold, nor as delegating legislative authority to the Secretary of the Interior. United States v. Hanson, 167 F. 881, 93 C.C.A. 371 (Wash. 1909).

and to regulate government lands under Art. IV, § 3, of the Constitution, the United States has power to reserve water rights for its reservations and its property. Arizona v. California, 373 U.S. 546, 597-98 (1963).

The Congress has the same power under the Property Clause of the Constitution to grant exclusive regulatory authority to the Federal Power Commission to issue licenses for water power projects on a non-navigable stream on lands in the ownership or control of the United States, as it does under the Commerce Clause with respect to navigable waters. Federal Power Commission v. Oregon, 349 U.S. 435, 441-46 (1955).

In a suit for the equitable apportionment of the waters of the interstate non-navigable North Platte River among three States, it is not necessary to pass upon the contention of the United States that it owns all the unappropriated water in the river by virtue of its original ownership of the water as well as the land in the basin, where the rights to the waters required for the reclamation projects on the river have been appropriated under State law pursuant to the directive of section 8 of the Reclamation Act, where the individual landowners have become the appropriators of the water rights appurtenant to their land, and where the decree in the case is limited to natural flow, not storage water, and does not involve a conflict between a Congressionally provided system of regulation for Federal projects and an inconsistent State system. Nebraska v. Wyoming, et al., 325 U.S. 589, 611–16, 629-30 (1945).

Where Indian tribes, under an agreement approved by an act of Congress, ceded to the United States part of a large tract of arid lands in the Territory of Montana, which by an earlier act of Congress had been set aside and reserved for their benefit, and retained a smaller portion for settlement and cultivation, it must be implied that they reserved the right to the use of water necessary for that purpose. And this reservation was not repealed by the subsequent admission of Montana into the Union, for the power of the Government to reserve the waters and exempt them from appropriation under the state laws cannot be denied. Winters v. United States, 207 U.S. 564 (1908).