Title: Water Resources Law - Introduction
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Permanent Link: http://ufdc.ufl.edu/WL00003084/00001
 Material Information
Title: Water Resources Law - Introduction
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - Water Resources Law - Introduction
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003084
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

Chapter I


The breadth of the Commission's assignment is measured by
the direction that it study and makerecommendations to the
President respecting federal responsibility for and participa-
tion in the:1
development, utilization, and conservation of water re-
sources, including related land uses and other public
purposes to the extent that they are directly concerned
with water resources.
A comprehensive study of existing legislation is necessary to
fulfillment of that alignment.2 While we shallsummarize here
the study of that legislation, we shall not narrow its scope.
Water and land are interdependent, and man depends upon
both, his efforts to derive benefits from them being as old as
history. Moreover, a clear understanding of these efforts neces-
sitates consideration of governmental aids and controls. Thus,
our survey of the legal aspects of the relevant responsibilities
assumed by the United States, summary though it may be,
reflects important developments in the growth of the Nation.
4, Qp. No. 10095, January 3, 1950, 15 F. L 17.
SIn his letter of Janary 8,1950 to the Chairman, The President's Water
Resources Policy ommsson, the President said, "It is essential in my
judgment that a comprehensive study and review be made of all existing
water resources legislation and policies and that recommendations be
made in the full knowledge of national needs and objectives."
The President also said, "As you know, the Commission on the Organiza-
tion of the Executive Branch of the Government has made a detailed and
comprehensive study of the organizational Issues involved In the water
resources field. While problems of organization are closely re-
lated to the development of consistent policies in the field of water re-
sources, I am requesting your Commission to confine its recommendations to
the questions of policy set forth in the Executive order together with related
legislation." Accordingly, this survey will not include organizational mat-
ters, as such.

The central fact revealed is the lack of a unified federal policy
respecting the development, utilization, and conservation of
water resources, including related uses of land. From a pyra-
miding of statutes for over. 100 years, several policies have
evolved. Each addition has usually dealt with the most press-
ing need current at the time. Despite some harmonizing in-
fluences of the trend toward multiple-purpose projects, and
despite the unifying influences of the swing in recent years
toward comprehensive development, federal law concerning
water resources is today a unit in name only. For the com-
ponents have frequently been unmatched in the process of
legislating separately for different "primary" purposes while
treating other purposes as incidental or complementary.
To portray this legislative evolution, we shall first refer to
the sources of federal authority and then survey on a functional
basis the more significant laws as they deal with navigation,
flood control, irrigation, power, other public purposes, and re-
lated land uses. Separate attention will be required for those
legislative provisions trending toward comprehensive develop-
ment of river systems and their watersheds. Notwithstanding
that trend, however, repeated instances of lack of statutory
coordination lead finally to a comparative summary of the dif-
fering legislative requirements which vary with the type of
project or with the agency made responsible.
In thus surveying existing law, we shall see that-
The powers of the Federal Government are limited to those
delegated by the Constitution. But their character and scope
have facilitated their ready adaptation to the demands of our
geography and growth as the Federal Government has assumed
varied and increasing responsibilities and participation respect-
ing water-resource activities.
The availability of water has vitally influenced the Nation's
growth. Thus, cities sought and flourished on the best coastal
harbors. Later, our rivers became a principal means and chart
for westward expansion. And as interstate highways of com-
merce, they were subject to federal control under the grant of
power to regulate commerce among the states.
Relying on that power, the Federal Government early under-


took responsibility for the control, improvement, and protection
of navigable waters. Similarly but later, responsibility for con-
trolof floodson a national scale was assumed. Making clearer
the adequacy of federal power to discharge thqse functions, the
courts sustained assertions of federal authority in the upper
nonnavigable reaches of navigable waterways to protect the
navigable capacity of navigable waters and to protect interstate
commerce from flood damage.
In the West, where great areas of public-domain lands are
located, the aridity frequently prevailing led to invocation of
federal proprietary power to enable federal undertaking of irri-
gation responsibility. But while limited to the West, rriga
tion benefits from federal projects have notbeen, confined to
public lands.
In addition, federal authority has been exercised to license
nonfederal development of power on lands and in waters subject
to the jurisdiction of Congress, and it has been increasingly em-
ployed to enable federal development of hydroelectric power
as a part of navigation, flood-control, and irrigation projects.
And power has given impetus to the growth of multiple-purpose
Under existing legislation, many such projects comprehend
activities serving other public purposes, such as drainage, water
supply, fish and wildlife preservation, recreation, sediment con-
trol, and salinity control. Still other related public purposes
receiving legislative attention include shore protection, pollu-
tion control and abatement, and collection of basic data.
In addition, from the numerous laws implementing federal
participation in the promotion of proper use of land, we must
select and examine those significantly related to development,
utilization, and conservation of water resources. For the inter-
relationships among land and water resources are expressly rec-
ognized in many statutes. Other statutes, while not expressly
aimed at land and water as inseparable resources, are neverthe-
less adaptable to serving both.
While many of the foregoing statutes have emphasized vari-
ous primary and complementary purposes, the natural unity
between a river system and its watershed has been accorded

increasing legislative recognition during the last 50 years. A
number of such statutes variously employ the term "compre-
hensive development," and it may fairly be said that these move
generally toward a definition of that term as basin-wide devel-
opment for optimum beneficial uses of a river system and its
On the other hand, when existing laws are laid side-by-side
and their varying provisions serving lik purposes are eompara-
tively analyzed, lack of coordination is often disclosed. For the
steps taken to permit construction of multiple-pirpose projects
have not harmh6nied the underlying bodies of law which re-
main largely articulated separately with the principal water-
resource purposes. That comparative summary will show a
composite of these differing and sometimes conflicting statu-
tory provisions which apply to present-day development.

Chapter J



S This Constitution, and the Laws of .he United States
which shall, be made, in EPuruance thereof; and all
-i. ,Treaties made, or which shall be made, under the Au-
thority of the United States, shall be .the supreme Law
of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.'
zSo provides the Constitution of the Uiiited State. Or as the
Supreme Court of the United States has said,"The Constitu-
tion is the supreme law of the land ordained and established
by the people." nd iler it the authority of the Federal Gov-
erament is limited to those powers expressly delegated and
such as may reasonably be implied from those granted.' All
other powers are reserved to the states or the people.' Hence,
as the Court observed long ago:
n Aerica, the powers of sovereignty are divided be-
tween the government of tf~enion, and those of the
states. They are, each sovereign, with respect to the
Subjects committed toit, and neither sovereign, with re-
spect to the objects committed to the other ,
Rdgardless of the character of federal undetakings respect
i g water and land resources, therefore, enabling authority mast
U. S. cOmer., Art.yt, ie. 2:
StUnlaed states v. Buler, 297 U. 8. 1, 2 (1988).
207 U. 8. at 88; see Oooley's CONTITrrUTIONAL LnTATiroNs, voL 1, p. i (8th
6d., Carrington, 192).
U. S. CONST., Amend 10; Mark v. gukter' Leaee, 1 Wheat 04, 825-828
(U. S. 1816).
.*'aWOiUch v. Mar~land, 4 Wheat. 816, 410 (U. 1819).

be found among the constitutional powers conferred by the
people. This points to the desirability of considering the na-
ture of these powers as a backgrot$ for and as related to our
survey of legislation. To this enid,w'e hall preliminarily note
generally the character of federal powers, and then mop ppecif-
ically discuss certain enumerated powers respecting commerce,
property, war, treaties, and general welfare. Thereafter, we
shall refer to the doctrine of equitable apportionment as de-
veloped .by the Buxieme Court i deciding water controversies
between states. And finally, we shall consider certain inter-
state compacts, the validity of which depends upon conform-
ance with express constitutional requirements.

-Gen fdgly

It has long.been established th4t he Government of the
.United States is paramount in its sphere of delegated authority.
As the Supreme Court said in 181.9: .
If any one proposition could command the universal
assent of mankind, we might expect it would be this-
that the government of the Union, though limited in
S its powers, is supreme within itspsphere of action.
That statement in M'Culloch v. Maryland is accompanied by
others making it clear that this supremacy is such as "to re-
move al obstacles to its action within its own sphere, and so to
modify every power vested in subordinate governments, as to

S4 Wheat. at 405-; Sint Congress may vadl auth6riie federal construe-
tion, or license no~ederal construction, of projects in water under its
jurisdiction, no interference with the sovereignty of the state results when
itdS^;' birerft Stads t AppaaloaisnE~k' d ~tt Power'Co., 311 U: S. s7t,
427-428 (1940), reh. den., 312 U. S. 712 (1941),; Oklaho a V. Atlinsoq, 3818
U. S. 508, 534-535 (1941). Any state rights un.er a judicial apportionment
among states of unappropriated waters in an Itierstate navigable stream are
subordinate to and dependent upon the superior federal right of control for
navigation improvement. Arizona v. California, 298 U. S. 558, 571 (1936).
"Whenever'the constitutional powers of the federal government and those
of the state come into conflict, the latter must yield." Florida v. Mellon, 273
U. s. 12, 17 (1927). See alo'Ftrat Towa Hydro-Electrio Cooperative v.
Federal Power Commission, 328 U. S. 152, 181 (1946).

exempt ts rtvfoperatti~odfroi teirowl influence."' ITiad-
dition, the Court asserted that:`
No traes is to be found in the constitution, of an inteu-
tion to create a dependence of the go rent of the
Union on those of the states, for the execution of the
great powers assigned to it Its means are adequate to
its ends; and on those means alone was it expected to
ely for the accomplishment of its ends.
SIt ma a.o be noted that the powers of the Federal Govern-
ment are exercised by three braces, the legislative, the exec-
utive, and the judicial.W "The first was to pass laws, the second,
to approve and execute them, and the third, to expound and

'i4 Wheat. at 427. For example, while validfy exreidsi its commerce
power In the construction of a river development, the "United States may
perform its functions without conforming to the police regulations of a
State" which require that plarle b ihbmitted to a state doiciai for approval.
Ari4na v. o06Afor1i 8 U 42, 451 (1981). Skaillaly, when deer were
killed at the instance of the Secretary of Agr .cltT1 te.tQO!e P, erpaV i
in a national forest, state game laws to the contrary notwithstanding, the
Supaseie Court stid that,, "the power of the United Statep to thus protect its
lands and property does not admt of doubt." uan,* TUited States, 278
U. IS. 96, 100(lf2).
Nor may the United States be subjected to legal proceedings without its
consent. The Bres, 7 Wal. 152, 154 (U. 8. 1868). This. immunity ?extends
to suits of every class." IU. Cent. R. R. Co. v. PubUc Utiities Commission,
245 U. S. 498, 505 (1918). And any waiver mpst be strictly interpreted,
"since it is a relinquishment of sovere~~ iik liiunfty" United States v. Sher-
wood, 312 U. 8. 584, 590 (1914). Likewise, properties of the United States
are not subject to state or locai taxes or special aesJMentL, UiM eiWBe-
rneoent Corp. United States, 290 U. S. 89, 94 (1~M8), : ;
Otherwise, as the Supreme, Court said in M'COUoo v. Marpanh tpo I-
pose upon the United States "the necessity of resorting to meaIs which it
cannot control, which another government may furnish lbr withblod, would
render its course precarious, the result of its measures uncertain, and ere-
ate a dependenceeon other governments, which might disappoint itS most
*important designs, and is incompatible with the language of the :cOstitu-
tion." 4 Wheat. at 424.
*4 Wheat. at 424.
"The Constitution provides that: "All legislative Poaers herein granted
shall be vested in a Congress of the United States" (Art. 1, f 1);' "The
executive Power shall be vested in a President of the United States of
America" (Art. II, J 1). "The judicial Power of the United States shall be
vested in one is'deme Court and in such interior ,COdtrts s the Congress
may from time to time ordain and establish" (Art. IB} j1).

e.~ oe them."0 And though theq. w itq, wWnowhere
clares expressly that these three lrapches of th~e government
shall be separate and independent, it remains true, as a general
r~e, that the power confided y the Constitution to one
branch cannot be exeirdied by another.u Nor is Congress "per-
mitted t abdicate or to transfer to others, the essential legis-
latiie functions with which it is thus vested." "
Before turning to a more detailed consideration of t4e rele-
vant powers deleted to the Federal Gi3vernm9nt, we should
p6it ortit that Cdng'ss is expressly empowered 'to nmke ll
laws "necessary and foper" for in into execution its
expressly delegate powers and "all other Powers" vested by the
Constitution in the Federal Government." Nor should we
forget, in examining.the constitutional powers entrusted to the
Federal Governmei~t bthe people, that the instrument was
intended to "endure through a long apse.f ages; g t -we.
this charter of ,~ovtuneut which the people of the United
States established in bder:' ..
to form a more perfect Union, establish Justice, insure
domestic T'% uilit,' provide for thi common defence,
promote the general Welfare, and aseure the.Bleesings
of Liberty to ourselves and ourfPosterity *.

3 imzerce Power
At the outset, it should be remembered that waterways pro-
vided a principal iWfiiB fr conducting commerce in bur eafly J
hiftoisy." Indeqd, t.e n(ed forh cental control of commerce
song the colonies was an important factor leading to the
tMartifn v. Hti er'u.#esee, I Wheat.3804,,82 (U. S.181i).
pE parteia roseaW 267 p. 8 7, fl (0015) SK(lbout v. T1.e.peen, 10I
U. S. 168, 191 (1880).
"Panama Refining Co. v. Ryan, 298 U. S. 888, 421 (1935). For ample,
the Supreme Court ha9 said that "Congress cannot transfer its legislative
power to the States-by nature thts is non-delegable." Knickerbooker Ice
oo. v. 81Jwart 258 U, S. 49,164 (1920).
8. Cowsr.,,AritI, 8, eL 1&
"1(Arrtiw v, Hteti leaseed, 1 Wheat. 304, 328 (U. 8. 1816).
"t. CoHsNTPrW., P/.a. ;l_ r :

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