Power and Multiple-
The ever-increasing urge to derive maximum benefits from
natural resources in water and land made inevitable the transi-
tion from single-purpose to multiple-purpose projects. Early
developments were frequently designed to meet a single press-
ing need, and related possibilities were frequently overlooked.
Indeed, the resulting physical structure often foreclosed related
uses. But the advance of scientific knowledge soon proved that
a single structure could do double duty or better, yielding
optimum benefits at minimum cost when integrated with other
developments under a comprehensive plan for the river basin.
Such were the principles forged in the effort to correlate the
satisfaction of regional needs for water supply, irrigation, flood
control, navigation, power, and associated demands upon water
Correspondingly, the drive to make economical use of capital
investment has placed growing emphasis upon power as the
principal and often the only feasible means for recovering proj-
ect costs. Beyond providing substantial "economic justifi-
cation" through reimbursement of such costs, power attains
even greater significance through its economic and social in-
fluence upon regional growth, its widespread impact being
exerted directly and indirectly. Moreover, most water-resource
developments so impound water as to provide the necessary
head, making them naturally susceptible of power generation.
In the course of this process of multiplying benefits while
minimizing costs, the history of power development portrays
much of the growth of the multiple-purpose concept. Accord-
ingly, we shall .treat power, and-nultiple-purpose projects to-
getha@ mBreetbs ift W 6 ieidWiithderAb its importance,
however, we shall treat later and separately the acceptance
in legislation of the recognized necessity for comprehensive
river-basin development, the conjunctive sequel to the
The interference with navigation by early mill dams and
later hydroelectric developments evoked a large body of law
concerning riparian rights principally in the East. Similarly,
man's dependence upon water for drinking, mining, and irri-
gation in the arid and semiarid parts of the West induced other
complicated and varied legal rules affecting the use of waters.
The ensuing collisions between private and public interests,
local conflicts among water users, relationships between local
and national interests, and the overriding disregard of state
boundaries by interstate streams-all served to broaden the
multiplicity of considerations affecting use of water.
With this came a parallel enlargement of legislative and
judicial concepts of water control in which power development
has played an important role. Congress has legislated with
an increasing awareness of the national aspects of develop-
ment, use, and conservation of water resources. In so doing,
however, it has sought to accommodate local interests and to
encourage the cooperation of the states and local agencies,
apparently recognizing that the nature and sheer magnitude
of the task solicit coordination of actions and integrated as-
sumption of responsibilities. And although regularly recog-
nizing the supremacy of federal power where it exists, the
courts have generally found nothing objectionable in such
The principal conflicts between claims to rights acquired
under state law and assertions of federal power have concerned
the navigability of streams; the use and control of water in
streams; and the use and control of lands lying beneath or
riparian to both navigable and nonnavigable streams. As
already noted, the Supreme Court early held that, following
the Revolution, the people themselves became sovereign and
held absolute right to all their navigable waters and the soils
under them for their common use, subject to rights since sur-
SSee infra, pp. 384-491.
rendered by the Constitution.2 But the Supreme Court has
also made it plain that this does not mean that navigable
waters are capable of private ownership, holding such an idea
"inconceivable."" Indeed, another court has said that "run-
ning water in natural streams is not property and never was.""
Nevertheless, there may be limited property rights in certain
uses of running water, and such usufructuary -rights continue
to be the subject of many legal controversies." But private
rights to use are subordinate to valid assertions .of federal
authority over waters including control over or use of water
We have seen that, as an incident of expressly granted powers,
the United States has certain constitutional authority to con-
trol nonfederal development of water power, or to develop
such power itself. Thus, on streams subject to its jurisdiction
under the Commerce Clause, Congress may grant or deny the
privilege of nonfederal development.' Or it may direct federal
development of power as a part of commerce improvement
or regulation in legislating for navigation and flood control.8
Likewise, in its control over lands of the United States, Con-
gress may authorize nonfederal or federal development of
power by virtue of its proprietary authority to dispose of and
make rules respecting property of the United States." From
this latter proprietary authority is derived the right of the
United States to transmit and sell the electric power which it
generates." Also pertinent here are prior references to other
federal authority stemming from the War and Treaty powers."
In addition, it should again be noted that Congress has the
Martin v. Waddell, 16 Pet. 367, 410 (U. S. 1842) ; see supra, pp. 12, 25-29,
United States v. Chandler-Dunbar Co., 229 U. S. 53, 69 (1913) ; see supra,
pp. 20, 26-27.
SSyracuse v. Stacey, 169 N. Y. 231, 245, 62 N. B. 354, 355 (1901) ; Br. COM.,
II, pp. 14, 18.
SSee, e. g., United States v. Gerlach ILve Stock Co., 339 U. S. 725 (1950);
and see supra, pp. 19-23,32-50.
SSee supra, pp. 19-29, 50-52.
'See supra, pp. 21-23.
SSee supra, pp. 19-21.
g See supra, pp. 29-32.
'See supra, pp. 50-52.
SSee supra, pp. 54-57.
power to tax and appropriate for the general welfare, an
authority which the Supreme Court has recently described as
"limited only by the requirement that it shall be exercised for
the common benefit as distinguished from some mere local
The year 1879 marks the real beginning for power and mul-
tiple-purpose projects." Congress then authorized the See-
retary of the Army to lease water power at Moline to a private
company upon agreed terms and conditions "if the same can
be done consistently with the interests of the Government of
the United States." And in the same year, it gave the Mis-
sissippi River Comnissioi duties requiring combined consid-
eration of navigation and flood control."
In 1884 came the first specific authorization for construction
of a private power development on a navigable stream.' This
and some 30 similar special statutes enacted prior to the 1906
General Dam Act," while subject to alteration or repeal, were
perpetual in, their terms and without significant restriction
except for varying protection of navigation." Furthermore, in
providing for a federal navigation improvement in 1888, Con-
gress empowered the Secretary of the Army to lease the use
of power in waters surplus to the needs of navigation, with
rates, conditions, and periods deemed by him to be "just, equi-
table and expedient." In that same year, while enactment
of general reclamation legislation was still 14 years away, Con-
United States v. Geriachl Live Stock Co., 39 U. S. 725, 738 (1950); see
sspra, pp. 57-58.
"For an outline of state and colonial regulation of water power, see THE
FEDERAL PWEBZ COMMISSION, SERVICE MONOGRAPHS OF THE UNTrfiD STATES
GOVENMxTi~,T No. 17, Institute for Governmet t Research, pp. 1-15 (1923).
SAct of March 3, 1879, 1, 20 Stat. 377, 387. Water power was ap-
parently developed here to serve the -purposes of the military arsenal at
Rock Island. See Act of June 27, 1866, 14 Stat. 75; J. Res. of March 2
1867, 14 Stat. 573.
Act of June 28, 1879, 4, 21 Stat. 37, 38, as amended, 33 U. S. 0. 647.
See also Oklahoma v. Atk nson, 313 U. S. 508, 516-517 (1941).
SAct of July 5, 1884, 23 Stat. 154.
"See infra, p. 265.
"See FIRST ANNUAL REPORT OF THE FEDERAL POWEB COMMISSION, p. 48
SAct of August 11, 1888, 1, 25 Stat. 400, 417.
gress anticipated the advantage of multiple-use possibilities
in authorizing federal surveys contemplating combined irrig-l
tionand flood-control projects."
The 1890-1900 period saw further noteworthy develop-
mentks In the 1890 River and Harbor Act, Congress adopted
a general prohibition against the building of dams and other
structures in navigable waters without the permission of the
Secretary of the Army.k- The prohibition, of course, extended
to power dams. That same statute contained a special au-
thorization for him to grant leases, "not to exceed the period of
twenty years," of power in waters of the Green and Barren
Rivers surplus to the needs of navigation, with rates, condi-
tions, and periods deemed by him to be "just, equitable, and
expedient." 2 Another type of limitation was specified in a
novel 1896 statute authorizing the Secretary of the Interior
to permit the use of rights-of-way to the extent of 25 feet, and
necessary ground "not exceeding 40 acres" upon public lands
and forest reservations for generating, manufacturing, or dis-
tributing electric power." In 1897, Congress declared that all
reservoir sites, reserved or to be reserved, shall be open to ise
under the 1891 right-of-way statute, by states, individuals, or
private corporations. 2 Charges for water from such sites were
made subject to state control. The years 1898 and 1899 also
furnished examples of special legislation authorizing non-
federal power development with provision for installation of
navigation facilities, a principle sometimes appearing in such
early special legislation and soon to be carried over into general
SAet of October 2,. 1888, 25 Stat. 505, 52. See also Act of March 2, 1889,
S1, 25 Stat 989, 60s(making a further appropriation); Act of August 80,
1800, 1, 26 Stat. 89 1 (repealing a portion of the 1888 statute pro-
vidingr or the withdrawal of lands selected for sites, and providing in-
stead that grants of patents should include a reservation of a right-of-way
for federally constructed ditches and canals); Act of March 3, 1891, II 17,18,
26 Stat. 1095, 1101 (limiting lands to those necessary for reservoir sites
and providing for grants of rights-of-way to canal and ditch companies).
SAct of September 19, 1890, 7, 26 Stat. 426, 454.
1, 26 Stat. 447.
"Act of May 14, 1896, 29 Stat. 120.
SAct of February 26, 1897, 29 Stat. 500.
legislation.2 Furthermore, in an 1899 repetition and
strengthening of the prohibition of the 1890 River and Harbor
Act, Congress absolutely forbade the construction of obstruc-
tive dams and other structures in navigable waters without its
consent and the approval of plans by the Chief of Engineers
and the Secretary of the Army." But from the requirement of
Congressional consent, it excepted state-authorized structures
to be built in waters, the navigable portions of which lie wholly
within the state.
The ensuing 20 years record a number of pertinent events
of significance as signposts leading to enactment of the 1920
Federal Water Power Act.27 In the first place, many valuable
power sites on public lands had already gone to patent before
1901 without federal attention to their peculiar value.28 In
1901, however, Congress delegated broad authority to the Sec-
retary of the Interior to permit use of rights-of-way across
public lands and forest and other reservations, "for electrical
plants, poles, and lines for the generation and distribution
of electrical power," and for dams and reservoirs used to
promote irrigation or to supply water for domestic, public,
SAct of March 5, 1898, f 1, 30 Stat. 253; Act of February 27, 1899, 1,
30 Stat. 904, 905 (provision also made for "suitable fishways."). See infra,
2 Act of March 3, 1899, 10, 30 Stat. 1121, 1151, 33 U. S. C. 403.
See FIRST ANNUAL REPORT OF THE FEDERAL POWER COMMISSION, pp. 44-50
(1921); Kerwin, FEDEBAL WATER-PowER LEGISIATION, ch. 5 (1926).
"Prior to the act of February 15, 1901, there was no legislation on the
subject at all; water-power sites, went to patent unmolested either as parts
of homesteads or by purchase, and were given no Federal attention whatever.
Under this procedure a large number of the power sites on the public do-
main were frittered away and have passed into private ownership beyond
regulation, beyond control. As we look back on this procedure it seems
like criminal neglect. Many of the valuable water-power sites of the
country passed as fast as eager private concerns and persons could grab
them under the several lax laws then in existence. These are now forever,
in part, to be enjoyed by the few who at will may practice extortion and
monopoly upon the consuming public, subject only to inadequate State
regulation where the business is intrastate and with little or no regulation
where the concern is doing an interstate business. The titles to these sites
have forever passed out of the hands of the Federal Government and the
people." WATER POWER DEVELOPMENT AND USE OF PUBLIC LANDS, H. Rep.
No. 16, 64th Cong., 1st sess., p. 8 (1916).
or any other beneficial uses." But while granting him wide
power to prescribe general regulations, the statute did not
expressly stipulate requirements or standards directly either
as to charges or terms of rights-of-way. Shortly thereafter,
Congress in 1905 transferred the forest reserves to the Depart-
ment of Agricultulre. In so doing, it also made a blanket
grant of rights-of-way for dams and similar works "for munici-
pal or mining purposes; and for the purposes of the milling and
reduction of ores, during the period of their beneficial use,"
subject to regulations prescribed by the Secretary :of the Inte-
rior and also to the laws of the state where the reserves are
situated."3 In 1906, .Congress supplemented the 1902 Recla-
mation Act by authorizingithe lease of surplus:power or power
privikigeat irrigation works for periods not exceeding ten
years, "giving preference to municipal purposes." However,
thantaxiin1m was soon enlarged to 50 years in the case of the
Rio Grande irrigation project." Under a 1910 statute, effective
today, the President is authorized to withdraw any public lands
and reserve them for water-power sites, irrigation, or other
stated uses." Legislation in 1911 authorized the granting of
rights-of-way for transmission lines over public lands, na-
tional forests and reservations, leaving the details of adminis-
tration for the discretion of the head of the department con-
Limited legislative progress was also made during this 20-
year period in'the matter of development of power on streams
subject to the jurisdiction of Congress. Some measure of uni-
formity was attained in the 1906 General Dam Act, which pre-
scribed conditions for general application to nonfederal power
developments thereafter authorized by Congress." Among
SAct of Btebruary 15; 1901,81 Stat. 790,791.
SAct of February 1, 1905,33 Stat. 628,16 U. S. C. 524.
4, 83 Stat. 628.16 U. SB C. 524.
"Act of Aprl 16, 1906, 1 5, 34 Stat. 116, 117, as amended, 43 U. S. C. 522.
SAct of February 24, 1911, 36 Stat. 930, 931, see 43 U. S. C. 522.
SAct of June 25 1910, 6 1, Stat. 847,43 U. S. C. 141.
TAct of March 4, 1911, 86 Stat. 1235, 1258-1i54; 43 C. F. R. 245; 36
C. F. B. 251.50-251.64.
" Act of June 21, 1906, 84 Stat. 886.
such conditions, approval of plans by the Chief of Engineers
and the Secretary of the Army was made prerequisite, and
these officials were authorized to require at any time the con-
struction and operation of navigation facilities by the grantee."
Provision was also made for fishways. But no provision was
made for charges, and no time limit was placed on the duration
of the grant. Since, however, the right to alter or repeal with-
out liability was expressly reserved, the grantee's investment
In the main, the provisions of the 1906 statute were re-
peated in the 1910 General Dam Act. The latter Act, how-
ever, limited grants to 50 years and reserved the right to re-
voke them at any time for public use but only upon payment
of reasonable value of the works, exclusive of the value of the
grant."8 In addition, the 1910 Act provided for certain charges,
including compensation for benefits from federal headwater
improvements.89 But still no provision was made for imposi-
tion of a charge for the privilege itself. Nor was provision
made for disposition of the properties upon termination of the
Some consistency was achieved for special grants adopted
after passage of the 1906 and 1910 statutes." But considerable
variations may be noted in conditions of such grants, both be-
fore and after the 1906 and 1910 legislation, especially as to
disposition of properties." Some of them required transfer of
1, 34 Stat. 386.
SAct of June 23,1910, 4, 6 Stat. 593,595.
1, 86 Stat. 593, 594.
In the ten years following enactment of the 1906 Act, Congress adopted
20 special acts subject to its provisions, and 16 new or amended special
grants in the two years following the 1910 amendment. FIsT ANNUAL
REPORT OF THE FEDERAL POWER COMMISSION, pp. 48-49 (1921). Under these
two statutes, only eight dams were actually: completed, developing a total
of 140,000 horsepower. H. Rep. No. 61, 66th Cong., 1st sess., p. 3 (1919).
4 See, e. g., Act of April 26, 1904, 4, 33 Stat. 309 granteee to give lock
and dam to the United States free of cost, but to have use of water power
for 99 years); Act of February 9, 1905, 1, 33 Stat. 712 (upon grantee's
completion of dam, lock, and related facilities, United States to have
ownership of lock and related facilities) ; Act of March 3, 1905, 1, 33 Stat.
1117, 1133 (upon expiration of 40-year right to grantee to collect navigation
tolls, United States to assume possession of locks without compensation, but
the dam and navigation works upon completion to the United
States, while others contained differing or no comparable
This pre-1920 period is also marked by sporadic attention to
provisions governing the development and use of power at fed-
eral projects. For example, arrangements for the use or lease
of power available at specific projects included scant but widely
varied restrictions." Foreshadowing later general legislation,
the 1909 River and Harbor Act, in appropriating for certain
surveys, directed that full information be obtained as to the
feasibility of developing water power for commercial purposes
as an incident of navigation development, but restricted con-
sideration to specified relationships to navigation.4 "In order
"without in any way impairing the right or ownership of the water power
and dams") ; Act of June 28, 1906, 1, 84 Stat. 586 (Secretary of the Army to
fix "reasonable charges" for use of power) ; Act of June 29, 1906, 4, 34 Stat.
028, 629 granteee to give completed lock and dam to the United States and
to have use of water power for 99 years) ; Act of March 4, 1907, 1 2, 34 Stat.
1288 granteee to have use of any government land for construction and
maintenance of dam and to convey land to the United States for locks and
approaches which it may construct) ; Act of March 8, 1909, 1 8, 35 Stat. 815,
819 (upon completion, dam to become property of the United States, and
grantee to maintain works in accordance with 1906 General Dam Act); Act
of February 27, 1911, 5 1, 83 Stat. 988, 939, 940 (upon grantee's completion
of dam partially constructed by the United States, dam to become property
of the United States, and grantee to have use of water power for 50 years;
provision made for a charge beginning in 1925).
See, e. g., Act of June 28, 1902, 82 Stat. 408, 409 (Secretary of the Army
to grant leases "to the highest responsible bidder," with rates, conditions,
and periods of time as seem to him "expedient."); Act of March 2, 1907,
1, 34 Stat. 1073, 1108 (authorizing the Secretary of the Army to permit
a named company to construct a power station in connection with a federal
dam, with no significant provisions excepting protection of navigation);
Act of March 8, 190, 9, 85 Stat. 815, 819 (rates, conditions, and periods
of time in leases to be such as seem "just, equitable, and expedient" to the
Secretary of the Army, but for a "period not exceeding 20 years."); 12, 35
Stat. 821 (authority for development of power "for direct use of the United
States" or by lease through the Secretary of the Army "upon such terms
and conditions as shall be best calculated in his judgment to insure the full
development" of power, provided that "Just and adequate compensation"
be paid for the use and that the period not exceed "30 years."); Act of
June 25, 1910, 1, 36 Stat. 680, 659 (leases to provide "reasonable com-
pensation" to the United States, with rates fixed to be "subject to revision
Act of March 3, 1909, 13, 35 Stat. 815, 822.
to make possible the economical future development of water
power," the Secretary of the Army in 1912 was authorized under
legislation effective today to provide, in the permanent parts
of any authorized navigation dam, such works as may be
desirable "for the future development of its water power." 4
And in 1913, continuing legislation required that reports on
examinations and surveys of proposed navigation improve-
ments include data concerning the development and utiliza-
tion of water, power for industrial and commercial purposes."
Unlike its 1909 predecessor, this statute did not confine con-
sideration of such data merely to navigation relationships,
extending also "to their relation to the development and regu-
lation of commerce."
Examination of the legislative developments of the 1900-1920
period is enlightened by consideration of certain government
reports and presidential veto messages which strongly empha-
sized the power and multiple-purpose aspects of water-resource
developments. Outstanding in this respect is the 1908 Pre-
liminary Report of the Inland Waterways Commission."
Pointing out the necessity for combined consideration of power,
navigation, and other uses, this Commission asserted that water
power is a permanent asset "which should be utilized for the
benefit of the people of the country." 4 Moreover, from facts
ascertained in certain cases, it found basis for the claim that
"the value of the power would pay the costs of all engineering
and other works required in such cases to control the streams
for navigation and other uses." But it cautioned that "ap-
propriation of water power offers an unequalled opportunity
for monopolistic control of industries," and that in certain
circumstances it would entail, unless regulated, "monopolistic
control of the daily life of our people in an unprecedented
degree." o0 Taking cognizance of enumerated multiple uses,
Act of July 25, 1912, 12,37 Stat. 201, 23, 33 U. S. C. 609.
Act of March 4, 1913, 3, 37 Stat. 801, 825, 33 U. S. C. 545.
Sen. Doc. No. 325, 60th Cong., 1st sess. (1908).
"Id. p. 22.
the Commission recommended that future plans take account
of all uses and benefits, and that federal agencies cooperate
with states and local entities and individuals "with a view to
an equitable distribution of costs and benefits." 1
Similarly, the 1909 Report of the National Conservation
Commission pointed out the need for development of power
in coordination with other uses "to reduce the drain on other
resources" and to aid in controlling streams for navigation and
other uses.5" Likewise, the 1910 Preliminary Report of the
National Waterways Comr mission, composed of 12 members of
Congress, emphasized the need for consideration of multiple
uses in planning navigation improvements, recommending
"greatest care in the conservation of water power for the use
of the people." "8 And its Final Report in 1912 noted the in-
crease in practicability of flood-control reservoirs when associ-
ated with the development of power and aid to navigation, and
that reasonable charges should be assessed for grant of the
"special privilege" for development of water power."5 It also
asserted that there can be no doubt "that the authority of
Congress reaches to the remotest sources in the mountains of
every navigable stream." In that same year, a Senate sub-
committee forcefully reported on the Government's "un-
doubted" right to generate power at a navigation dam, and to
"lease or sell such power on such terms and for such compen-
sation as it may deem just." s
| Id. pp. 22-23, 25.
'Sen. Doc. No. 676, 60th Cong., 2d sess., vol. 1, p. 24 (1909).
See FINAL REPoRT OF THE NATIONAL WATBEWATY COMMISSION, Sen. Doe.
No. 469, 62d Cong., 2d sess., App. I, p. 85 (1912). This document contains
an informative collection of federal water-power legislation prior to 1912.
Id App. VIII, pp. 323-454.
Id. pp. 27, 61.
"Id. p. 47. Strangely enough, the report elsewhere concluded that there
is no federal authority to engage in works- intended primarily for flood
prevention or power development. Id. p. 27.
POWER OF THE FEDERAL GOVERNMENT OVER THE DEVELOPMENT AND USE
OF WATER PowEB, Sen. Doe. No. 246, 64th Cong., 1st sess., pp. 17-18 (1916).
See also 48 CONG. Rac. 11568-11577 (1912). For other relevant reports of
this period, see REPORT ON WATER POWER DEVELOPMENT IN THE UNITED
STATES, Commissioner of Corporations (1912); LIMITATION OF FEDERAL CON-
Tno or WATER POWERS, Sen. Doc. No. 721 62d Cong., 2d sess. (1912);
Equally important were the veto messages. Almost a half
century ago, in vetoing a bill granting consent for private con-
struction of a power dam at Muscle Shoals, President Theodore
Roosevelt took the position that power should be developed at,
and should aid in financing federal navigation improvements,
It does not seem right or just that this element of local
value should be given away to private individuals of the
vicinage, and at the same time the people of the whole
community should be taxed for the local improvement.
Concluding that the entire matter of granting privileges should
be considered in a comprehensive way, he said they should be
disposed of "after full competition in such a way as shall best
conserve the public interests." President Roosevelt was even
more explicit in stating his views in veto messages on the Rainy
River and James River bills granting broad rights for nonfed-
eral development." Among other things, he noted that nat-
ural resources should not be granted and held in an undeveloped
condition; that a definite time limit should be fixed in grants,
permitting the public to retain control; that charges for the
privilege should be imposed; and that in approving plans,
maximum development of navigation and power should be
assured. Later, President Taft voiced similar considerations
when he vetoed bills to permit private construction of power
dams on the White and Coosa Rivers."
Not to be overlooked is the Waterways Commission, created
by Congress in 1917."0 For the mere statement of its functions
and duties signifies the broad importance of its assigned mis-
sion to power and multiple-purpose projects, both federal and
FEDERAI CONTROL OF WATER POWER (Papers submitted to Senate Committee
on Commerce), 62d Cong., 3d sess. (1913); ELMcku Ca POWER DEVELOPMENT
IN THE UNITED STATES, Sen. Doe. No. 316, 64th Cong., 1st sess. (1916).
S36 CoNG. REc. 3071 (1908).
Sen. Doc. No. 438, 60th Cong., 1st sess. (1908) ; 42 CONG. REc. 4698, and
H. Doe. No. 1350, 60th Cong., 2d sess. (1909) ; 43 CONG. REC. 978-980.
"H. Doc. No. 899, 62d Cong., 2d sess. (1912) ; 48 CONG. REC. 10318, and
Sen. Doc. No. 949, 62d Cong., 2d sess. (1912) ; 48 CONO. REC. 11796.
SAct of August 8, 1917, 18, 40 Stat. 250, 269. For a more detailed dis-
esasion of this legislation, see infra, pp. 403-405.
nonfederal. Congress authorized it to bring into "coordina-
tion and cooperation the engineering, scientific, and construc-
tive services, bureaus, boards, and commissions" of the sev-
eral executive departments and commissions created by Con-
gress that relate to numerous specified aspects of water re-
sources and related subjects, and to report to Congress a com-
prehensive plan for development of the waterways and water
resources of the United States." In so doing, the Commission
was directed to give consideration to matters to be undertaken
by the United States alone or in cooperation with states and
local entities and individuals, with a view to "assigning" to
each such portions as belong to their respective "jurisdictions,
rights, and interests." "
But the efficacy of the foregoing approach was never tested.
Despite its objectives, the Waterways Commission had very
restricted powers, being nebulously "authorized" to bring into
"coordination and cooperation" the various agencies. More-
over, the possible success of the venture was qualified by an
appended requirement that nothing in the arrangement should
be construed to interfere with navigation improvements there-
tofore or thereafter authorized or with legislative action on re-
ports theretofore or thereafter submitted. Any attempt to
evaluate this plan adopted during World War I would
have to be entirely academic, since the seven members author-
ized for the Commission were never appointed." And
S during the legislative history of the 1920 Federal Water
Power Act, defeat greeted efforts to have the functions of the
Waterways Commission transferred to the Federal Power Com-
mission or preserved but assigned to different personnel." In-
deed, the 1920 Act as passed included a provision expressly
repealing the legislation creating the Waterways Commission."
An informative legislative history of the Federal Water
"Id. For the exact language of the statute, see itfra, pp. 408-405.
SSee 59 CoNe. RMo. 1178-1176, 7773.
59 CONo. Rmc. 1178-1176; 44. pp. 1585, 7770-7778; H. Rep. No. 910, 66th
Cong., 2d sess., pp. 13-14 (1920).
Act of June 10, 1920, 29,41 Stat. 1063, 1077.
Power Act would embrace many of the foregoing developments
of the 1900-1920 period. Sharp were the conflicts among views
as to the proper means for development of hydroelectric power
in streams and on lands subject to the jurisdiction of Congress.
During the period from 1913 to 1917, many power bills dealing
with navigable waters and many dealing with public lands were
actively and often heatedly debated in Congress without
passage.67 Shortly after the beginning of World War I, Presi-
dent Wilson sought a coordination of executive and legislative
attack on the problem, focusing attention in 1918 on the "Ad-
ministration Bill" which combined both the land and water
jurisdictional bases.8" Despite extensive consideration of this
and related legislative proposals, the 65th Congress adjourned
without adoption of any bill.69 But the 66th Congress finally
enacted the Federal Water Power Act of 1920, which in many
respects corresponds with the 1918 "Administration Bill." 70
Elaborate attention would be required to measure the degree
to which this Act represents a compromise between the zealous
contentions of the early "conservationists" and those of their
equally zealous opponents, each group having long persevered
for general acceptance of its views. Suffice it for present pur-
poses to say that beginning with this legislation we may best
summarize existing law relating to both nonfederal and federal
development and operation. As we discuss these two main
divisions, we shall continue simultaneously to treat the growth
of the multiple-purpose concept in relation to individual
Nonfederal Development and Operation
As we have seen, Congress until 1920 generally gave direct
legislative authorization on a project-by-project basis for non-
federal development of power on streams under its jurisdic-
tion. Restrictive conditions in grants were few and incon-
"See Kerwin, FEDaEAL WATEB-PowEn LEGISLATION, ch. IV (1926).
"Id. ch. V; H. R. 8716, 65th Cong., 2d sess. (1918).
Kerwin, op. oft., 8upra, n. 67, at p. 253.
O Id. pp. 261-263; Act of June 10, 1920, 41 Stat. 1063.