Other Public Purposes
In previous Chapters, we examined the evolution of legisla-
tion focused on navigation, flood control, irrigation, and power
and multiple-purpose projects. In each of these Chapters and
particularly in the last, however, that examination compre-
hended aspects of laws incidentally serving public purposes
in addition to the major objectives. Thus, from time to time
we noted laws concerning drainage, water supply, fish and
wildlife preservation, recreation, refuse matter, and data to be
assembled in the course of examinations and surveys. Our en-
deavor here will be to collect and examine the significant stat-
utes treating each of these incidental matters separately. In
addition, we shall consider legislative attention to shore pro-
tection, sediment and salinity control, pollution abatement
and control, and federal programs independently established
for the collection of parts of the basic data prerequisite to ef-
ficient development of water resources. While some of these
activities are ends in themselves, all of them serve public pur-
poses in the course of development, utilization, and conser-
vation of water resources, including related land uses.
Drainage is a form of land reclamation and thus might be
considered in conjunction with other chapters devoted to
irrigation, flood control, or uses of land related to water
resources. Despite such interrelationships, however, this
activity has sufficient identity to warrant its separate con-
Drainage and reclamation of submerged lands have gen-
erally been left to private and local interests.1 With the Swamp
I See DAn&a oe AGeIoC TUwr A Laws, Sixteenth Census of the United
Land Acts of 1849 and 1850, came the beginning of federal in-
terest.2 Under this legislation, responsibility was still local in
character. For the Acts granted swamp and overflowed lands
to certain states and merely provided that the proceeds,
whether from sale or by direct appropriation in kind, be applied
"exclusively, as far as necessary, to the purpose of reclaiming
said lands by means of 'levees and drains.'"3 For some time
thereafter, Congressional attention to drainage continued to
be irregular and localized.4
ARMY ENGINEERs.-The Flood Control Act of 1936, as we
earlier noted, marked the undertaking of federal responsibility
on a Nation-wide basis for control of floods." And in 1944,
Congress provided that the words "flood control," as used in
the declaration of policy in the 1936 statute, shall be construed
to include "channel and major drainage improvementss" So
defined, this function automatically came within the flood-
control jurisdiction of the Army Engineers.7
SOIL CONSERVATION bERVICE. =ler jurisdiction over federal
drainage responsibilities is vested in the Soil Conservation
Service. Legislating for the prevention of soil erosion, Con-
gress in 1935 declared its policy to provide permanently for
the control and prevention of erosion, thereby to:
preserve natural resources, control floods, prevent im-
pairment of reservoirs, and maintain the navigability of
rivers and harbors, protect-public health, public lands,
and relieve unemployment.
At the same time, it authorized.the Secretary of Agriculture to
conduct investigations and research concerning soil erosion, and
See supra, p. 127.
Act of September 28, 1850, 2, 9 Stat. 519, see 48 U. S. 0. 983.
4 See, e. g., Act of March 12, 1860, 12 Stat. 3, see 43 U. S. C. 988; Act of
March 8, 1891, 18, 26 Stat. 1095, 1101, as amended, 43 U. S. C. 946. See
alsofDBnAnwAG or AGetlcmLa Ai LANDS, Siteenth Census of the United
SSee supra, pp. 130-131.
SAct of December 22, 1944; 2, 58 Stat. 867, 889, 33 U. S. C. 701a-1.
'Act of June 22, 1936, 2, 49 Stat. 1570, as amended, 33 U. B 70b.
'Act of April 27, 195, 1, 49 Stat. 163, 16 U. S. C. 590a.
to carry out preventive measures, directing him to establish the
Soil Conservation Service to exercise certain powers conferred
on him under the statute.' To this legislation, provisions were
added in 1936 which in sum constitute the Soil Conservation
and Domestic Allotment Act, one purpose of which Congress 1
declared to be: l
the protection of rivers and harbors against the results
of soil erosion in aid of maintaining the navigabilityof
waters and water courses and in aid of flood control.
SIn addition, the 1938 and 1944 Flood Control Acts provide
Federal investigations of watersheds and measures for
run-on an wMaterfiow retardation ad soi-erosion pre-
ven ro iton of
and sfhll hl prnm .untd hy thf Dflt pa1tm Ant nf Agmi
ture under the direction of the Secreta of Agriculture,
except as otherwise provided by Act of Congress.
Employing the forgo ii through con-
servation districts, the Soil Conjservation Service makes tech-
nical assistance available to individual farmers so that they
mnay carry out draining e nprations on their lands." Moreover,
direct financial assistance for drainage work is iurnisiied to
farmers by the Production and Marketing Admi istration."
This latter aid is a part of the Agricultural Conservation Pro-
gram, which is entirely separate from the program of the Soil
Conservation Service though: both are authorized by the 1936
Soil Conservation and Domestic Allotment Act."
*Id.; 1 5,49 Stat. 164,16 U. S. C. 50e.
f 7(a), as added by Act of February 29, 1936, 1 1, 49 Stat. 1148, as
amended, 16 U. S. ..5O0g(a).
SAct of June 28, 198, 11, 52 Stat. 1215, see 38 U. S. C. 701b. Repeated in
Act bf December 22, 1944, j 2, 58 Stat. 887, 889, 33 U. S. 0. 701a-1.
7 F. IL 60001; RBmmw w Tra Omw or TFn Son CONSEBVATiON S~xVICE,
United States Department of Agriculture (1949).
7 0. R. 701..
"Act of April 27, 1935, 49 Stat. 163, as amended by Act of February 29,
1936,49 Stat. 1148, as amended, 16 U. S. 0. 590a-590q. See also 7 C. F. R. ch.
VI and ch. VIL
Excepting direct financial aid, the foregoing drainage
responsibilities are therefore divided between the Army Engi-
neers and the Soil Conservation Service. But the division is
unclear, for the foregoing statutes Wmke the partition depend-
ent largely upon the'meaning of "channel and major drainage
improvements." And there is no statutory definition of this
term, or of any of its components. IIence, the jurisdictional
division seems to be the different between "major," and
whatever is minor.
This lack of statutory clarity'apparently underlies a 1948
Memorandum of Understanding, whereby the two agenciWe
agreed that: "
The Soil Conservation Service is authorized to provide
assistance to soil conservation districts and other State
and local instrumentalities acceptable to the Secretary
of Agriculture on drainage and related problems in con-
nection with the conservation of soil and water resources,
and the Corps; of Engineers is authorized to provide
channel and major drainage improvements on rivers
and other waterways.
In general, drainage for a watershed area consists of
two complementary parts; one, the system required to
utilize, manage, or remove surplus water from farms or
groups of farms and two, the necessary channel and
major drainage improvements required to control, carry
off, and utilize these surplus waters. Therefore, in soil
conservation districts or other State or locally organized
areas, the activities of the Corps of Engineers and the
Soil Conservation Service, in cooperation with the local
districts or agencies provide for consideration of both of
these complementary parts of drainage.
ButEAT OF ECLTwAMAION.-The Bureau d R6c1amaion fre-
quently performs drainage work as a part of irrigation project
Unpublished Memorandum of Understanding between the Corps of En-
gineers, Department of the Army, and the Soil Conservation Service, United
States Department of Agriculture, with Respect to Drainage Activities (Jone
development." Except in the case of certain special acts, Rec-
lamation Law does not expressly deal with drainage." How-
ever, Congress has not attempted to enumerate in detail the
types of irrigation features which are authorized to be con-
structed in connection with irrigation projects.8
With the beginning of large-scale irrigation operations,
drainage works were undertaken in the face of rising water
tables and attendant water logging and resulting soil alkalinity
on several projects." Extensive drainage investigations and
Moreover, it has been specifically held that the "necessity for
daiinai follows irrigation on an extensive scale almost as a
matter of course.'" n Drainage work may be undertaken in
connection with federal irrigation projects either as an incident
of construction, or as an incident of operation and mainte-
nance." Some 3,500 miles of drains are embraced in the oper-
ating program of the Bureau of Reclamation for the fiscal year
Generally, the supplying of water for domestic, municipal,
stock-watering, and industrial purposes is largely a matter of
'For example, during the fiscal year 1912-1918, drainage studies and
investigations were carried on in connection with 17 projects, and a sub-
stantial amount of drainage construction had been accomplished as a part
of projects. WFJaTH ANNUAL RBPo T or THE RECLAMATION SMCEOE, pp.
or exceptions, see, e. g., Sen. .. Res. 89, 65th Cong., 1st sess. (1917), 40
Stat 426; Act of February 14,1923,42 Stat. 1240.
~See unpublished opinion of the Solicitor of the Department of the In-
terior concerning authority to prepare lands for irrigation, Opinion M3465,
September 24, 194.
See pram, p. 163. Forg table showing drainage expenditures by projects
through 1914, see Reimation Record, Vol. 5, No. 8, p. 818 (1914).
See, e. g., SIXrmwI T AmNoAL tWeT or TEE BREbAMATION S Xa E, pp.
ka impa and Merians Irr. Dist. v. Bond, 288 Fed. 541 (0. A. 9, 1923),
affirmed, 268 U. S. 188 (1925).
STnH BouDer or THE UNmuD STATEs GOVBmiMENT FOB THE FISCAL YEAB
ENDIeNG JwNE 30, 1951, p. 12 (1950).
concern primarily to localinterests, public and private." Con-
gress-has made possible some assistance to such purposes while
legislating for federal and nonfederal development of water
resources. We shall focus attention here on these provisions.
Preliminarily, it may be observed that conflicting interests
in a common water source are at times a matter of vital concern
to two or more states simultaneolsly. For example, demands
for water supply for the New York metropolitan area produced
a serious dispute,be6ween New Jersey and New, York.s And
it may be noted that water supply is one of the concerns of
reciprocal legislation enacted by states in the Delaware River
Basin, and of Incodel, an interstate comission.2 kewise,
the need for large quantities of water for municipal purposes
has been a factor contributing to collisions of interests among
states both in the East and in the West.2 Detailed reference
"For an inventory of public and private Water facilities of the United
States in communities having a population of 100 or more, see INvzNTORY
oV WATE AND SEWAGE FAOUcnTI IN THE UNlMT STATES, 1945, Public Health
SNew Jersey v. New York, 283 U. S. 338 (1931).
"See infra, p. 470.
For examples of such controversies In the East, see Connwetiout v.
Masedftustts, 288 U. : 680 (1931); Nero Jersey v. New York, 288 U. S.
In arid and semiarid areas of the West, such problems may become more
acute. Thus, the need for large quantities of water for municipal pur-
poses was one of the factors which contributed to the extended controversy
over apportionment of waters of the Colorado River. Congress In 1921
authorized Arizona, California, Colorado, Nevada, New Mexico, Utah, and
Wyoming to negotiate a Colorado River Compact respecting apportionment
of the waters of the Colorado River. Act of August 19, 1921, 42 Stat. 171.
BrooVE DAM DOCUMENTS, H. Doc. No. 71, 80th Cong., 2d sess., p. A17 (1948),
But this Compact was not ratified by Arizona until 1944.
In 1928, the Boulder Canyon Project Act was enacted, approving the
Colorado River Compact when it shall have been approved by the legisla-
tures of California and five of the other, six.Colorado River Basin States.
Act of December 21, 1928, j13, 45 Stat. 1057, 1064, 48 U. S. C. .617. The
effectiveness of that Act was made dependent upon such approval by the
States, together with passage by California of an act whereby it would
agree irrevocably and unconditionally to limit its aggregate 'annual con-
sumptive use of Colorado River water to 4,400,000 acre-feet .of Compact
water, plus not more than one-half of any surplus water unapportioned by
the Compact. 4(a), 13, 45 Stat. 1058, 1064, 43 U. S. C. 617c(a), 6171.
California enacted such a statute in 1929. Act of March 4, 1929, ch. 16,
48th sess., STATUTES AND AMENDMENTS TO TME OCODE, pp. 38-39 (1929).
has previously been made to the continuing concern of states
over apportionment of waters of interstate streams, evident
both in litigation and in compacts."
The Secretary of the Interior is also authorized to enter into contracts
for furnishing water for irrigation and domestic uses. 1 5, 45 Stat. 1060,
43 U.. C., 617d.
In 1929, a Presidential Proclamation declared that the Boulder Canyon
Project Act had, become effective, the Compact having been approved br
al of the States except Arizona. Proclamation No. 1882, June 25, 1929,
4 Stat. 3000. Pursuant to authority under the Act, the' Secretary of -the
Interior in 1980 executed a contract with the Metropolitan Water District
of Southern California. THE HOOVER DAm POWER AND WATER CONTRACTS AND
REATkED arA, Department of the Interior, Bureau of Reclamation, p. 49
(l5)0)j. As amended on September 28, 1981, this contract provides for
a water supply, to the extent available under the Compact, in accordance
vith the California "Seven-Party Water Agreement" of August 18, 1981.
Under this Agreement, ater to which California might be entitled under
.the Compact and Project Act was allocated among various agencies in an
order of priority. The Metropolitan Water District received a fourth pri-
ority of 550,000 acre-feet of water per annum, which with the first three
priorities totals 4,400,000 acre-feet, and a fifth priority for an additional
550,000 acre-feet, a total of 1,100,000 acre-feet in all. THE HoovEB DAM
POWEB AND WATER CONTRACTS AND RELATED DATA, Department of the Interior,
Bureau of Reclamation, pp. 49-64, 283-287. Arizona sought unsuccessfully
to enjoin both operation of the Compact and performance of contracts made
under authority of the Act. Arizona v. Calfornia, 283 U. S. 423 (1931).
In 1984, construction of Parker Dam was begun by the United States
under contract with the Metropolitan Water Distridt of Southern California,
which recited, among other things, the execution jof contracts for the
delivery of water to the District, and construction by the District of an
aqueduct for conveying water from the Colorado River to the metropolitan
area of Southern California for domesticc, municipal, and other useful
purposes," Hoova DAM DooumENTs, H. Doc No. 717, 80th Cong., 2d sess.,
p. A689 (1948). When Arizona threatened to use military force to stop
the work on the dam, the United States sought to enjoin interference by
the State. The Supreme Court denied the injunction, however, on the
ground that construction was not properly authorized. United States v.
Arizona, 295 U. S. 174 (1935). Construction of the Parker Dam was later
authorized in the 1985 River and Harbor Act. Act of August 30, 1935, 5 2,
49 Stat. 1028, 1039. Arizona approved the Colorado River Compact in
1944 See Act approved February 24, 1944, Ch. 5, 17th Legislature; Session
Laws of Arizona, 1944, pp. 427-428.
During the contract year ending May 31, 1950, a total of 188,261.0 acre-
feet of water was diverted into the Metropolitan Aqueduct. Monthly Water
Diversion Report, Department of the Interior, Bureau of Reclamation
See also S. 75, 81st Cong., 1st seas. (1949) (Central Arizona Project).
See supra, pp. 58-64, 65-68.
RaCLAATIONPROJENC.-By a 1906 supplement to the Rec-
lamation Act, Congress authorized the Secretary of the Interior
to "provide for water rights" for towns established by him in
connection with reclamation projects and to contract with such
towns and with towns in the immediate vicinity of projects
which "shall have a water right from the same source" as the
project, for delivery of water supply to some convenient point.2
Charges must not be less nor upon terms more favorable than
those fixed for the irrigation project, and must be paid into the
A 1920 statute empowers the Secretary to contract to supply
water "for other purposes than irrigation." I Such a contract
may be executed only when there is "no other practicable
source of water supply for the purpose," and when the delivery
of such water would not be detrimental to water service from
the irrigation project or rights of prior appropriators. Proceeds
must be covered into the Reclamation Fund.
Under 1939 reclamation legislation, the Secretary is author-
ized to enter into contracts to furnish water for "municipal
water supply or miscellaneous purposes." The contract must
require repayment of "an appropriate share" of that part of con-
struction costs allocated by the Secretary to "municipal water
supply or other miscellaneous purposes," within not to exceed
40 years and with interest at not exceeding 3% percent per
annum if he deems an interest charge proper. Or the con-
tract must produce revenues at least sufficient to cover an
"appropriate" share of annual operation and maintenance
costs and fixed charges, within not to exceed 40 years
and with annual payments made in advance of delivery of
water. Here again, the contract must not impair the efficiency
of the project for irrigation purposes.
Special note should be made of the history of the authoriza-
tion of the Parker Dam, operation of which provides impor-
"Act of April 16,1906, 4, 34 Stat. 116, 4 U. S.. 567.
Act of February 25, 1920,41 Stat. 451, 4 U. 8. 0. 521.
SAct of August 4, 1989, g 9(c), 58 Stat. 1187,1194, 48 U. 8. 485h (c).
tantly for water supply, among other uses.' Moreover, large
tentative allocations to municipal water supply have been
iade in connection with the Central Valley and the Missouri
River Basin Projects."
ARMY PROJECT-.-In 1937, Congress made special provision
for domestic water supply at flood-control projects. It author-
ized the Secretary of the Army to receive contributions from
states and political subdivisions and expend them in conneC-
tion with Federal funds appropriated for authorized flood-con-
trol work, whenever on recommendation of the Chief of Engi-
neers he deems such work "advantageous in the public inter-
est." And plans for any reservoir project may be modified
to provide additional storage capacity for "domestic water
supply or other conservation storage," if the cost of such in-
creased capacity is contributed by local agencies and they agree
to utilize such capacity in a manner consistent with "Federal
uses and purposes.""
A 1944 authorization vests broad authority in the Secretary
of the Army to contract for surplus water at any reservoir un-
der Army control." Under it, he may contract with states,
municipalities, private concerns, or individuals, "at such prices
and on such terms as he may deem reasonable, for domestic
and industrial uses for surplus water that may be available."
But no such contract may adversely affect "then existing law-
ful uses of such water." Proceeds are deposited in the Treasury
"Act of August 30, 1985, 2, 4 Stat. 1028, 109. Conf. Rep. No. 181,
74th Cong., lt Sees. (1985) which sets forth that Parker Dam is a diversion
dam intended to lift water up into the Metropolitan Aqueduct Also stating
that the dam is a "loan and grant project which is to be financed from
the sale of bonds of the City of Los Angeles," p. 21. See also supra, n. 27,
SSee AvznR&e RATE AND REPAYMNT STUODEm Fo Pow=B SrsTeM oN
Bumaru Or BRuCLAxATr PBorrors, Department of the Interior, Bureau of
Reclamation, second table following p. 18 (January 1950), showing tenta-
tive allocations of $11,721,000 in the case of the Central Valley Project, and
$48,550,000 in the case of the Missouri River Basin Project.
"Act of July 19, 1987, 1 1, 50 Stat. 51, 518, 83 U. S. 701h.
Id. When the contributions are in excess of the actual cost of the work
contemplated and properly chargeable to such contributions, such excess
may be returned to the contributing interests.
"Act of December 22, 1944, 6, 8 Stat. 887, 890, 83 U. 8. .708.
as miscellaneous receipts. Moreover, since 1944, all River and
Harbor and all Flood Control Acts have provided that use for
navigation, in connection with operation and maintenance
of works therein authorized for construction, of waters arising
in states lying wholly or partly west of the ninety-eighth me-
ridian shall be only such use as does not conflict with any bene-
ficial consumptive use, present or future, in states lying wholly
or partly west of the ninety-eighth meridian, of such waters
for domestic, municipal, stock-water, irrigation, mining, or
FPC LICENSED PROJECTS.-In discussing the Federal Power
Act, we pointed out that the project adopted must be best
adapted to a comprehensive plan for improving or developing
the waterway for commerce, for power, and "for other bene-
ficial public uses." Pursuant to this requirement, provision
has been made against interference *ith water supply." Also
relevant here is the Act's prohibition against interference with
state laws relating to "control, appropriation, use or distribu-
tion of water used in irrigation or for municipal or other uses,
or any vested right acquired therein."
STOCK WATERING.-Provision of water supply for stock-
watering purposes is authorized by the Taylor Grazing Act. It
empowers the Secretary of the Interior to issue permits and
approve cooperative arrangements for the construction of
"fences, wells, reservoirs, and other improvements necessary
to the care and management of the permitted livestock." "
Additional provision is made for water supply for stock
watering on public lands. Such lands containing "water holes
or other bodies of water needed or used by the public for
m see, e g., Act of December 22, 1944, l(b), 58 Stat. 887, 889; Act of
March 2, 1945, l(b), 59 Stat. 10, 11.
See supra, p. 275.
See Great Northern Pow er company, Project 1105, THIBTEENTH ANNUAL
REPOBT, FEDEnBA POWEB COMMIBSION, pp. 302, 304 (1933), and final order,
FOURTEENTH ANNUAL REPORT, FEDERAL POWER COMMISSION, p. 118 (1934) in
which the Federal Power Commission denied the license.
See supra, p. 276.
aAct of June 28, 1934, 4 48 Stat. 269, 1271, 43 U. S. C. 315c.
watering purposes" shall not be reserved but held open for
public use.4' Furthermore, the Secretary of the Interior may
withdraw from entry lands necessary to insure access by the
public to reserved "watering places needed for use in the move-
ment of stock." An earlier statute provides that any person,
livestock company, or transportation corporation engaged in
breeding, grazing, driving, or transporting livestock may con-
struct "reservoirs upon unoccupied public lands" of the United
States, not mineral or otherwise reserved, for the purpose of
"furnishing water to such livestock," provided that such reser-
voir shall not be fenced and shall be open to the "free use of
any person desiring to water animals of any kind." "
SPECIAL PROVISIONS IN ARID AND SEMARID AREAS.-A de-
clared purpose of Congress under the 1937 Water Facilities Act
is "to assist in providing facilities for water storage and utiliza-
tion in the arid and semiarid areas of the United States." 4
Congress announced this purpose in express recognition of the
wastage and inadequate utilization of water resources on farm,
grazing, and forest lands in the arid and semiarid areas of the
United States resulting from inadequate facilities for storage
and use. To effectuate this policy, the Secretary of Agriculture
is authorized to formulate and keep current a program of proj-
ects for the construction and maintenance in those areas of
"ponds, reservoirs, wells, cheek-dams, pumping installations,
and other facilities for water storage and utilization, together
with appurtenances to such facilities." "
Also noteworthy here is the authority vested in the Secre-
tary of the Interior to construct "water conservation and utili-
zation projects in the Great Plains and arid and semiarid areas
of the United States," for the declared purpose of "stabilizing
water supply and thereby rehabilitating farms on the land
SAct of December 29, 1916, 10, 39 Stat. 862, 86, as amended, 43 U. S. C.
SAct of January 13, 1897, 1, 29 Stat. 484, as amended, 43 U. BS.. 952.
SAct of August 28, 1937, 1, 50 Stat. 869, 16 U. S. 0. 590r.
2, 50 Stat. 869. 16 U. S. C. 590s.
and providing opportunities for permanent settlement of farm
MmIscISIANxous.-One of the purposes for the establishment
of national forests is declared to be the "securing of favorable
conditions of water flows."'? Further, all waters within the
boundaries of national forests may be used for "domestic, min-
ing, milling, or irrigation purposes," under the laws of the state
wherein such national forests are situated, or under the laws of
the United States and the rules and regulations established
Of interest is a 1934 statute providing that in case a permitted
or lessee strikes water while drilling for oil or gas on public lands
and such water is of a quality and quantity to be valuable and
usable at reasonable cost for agricultural, domestic, or other
purposes, the Secretary of the Interior may purchase the casing
in the well.1
Also noteworthy is an authorization whereby the Secretary
of the Interior may grant certain rights-of-way over public
lands for ditches, canals, or reservoirs to be used for purposes of
"water transportation" for domestic uses."2
No survey concerning water supply would be complete with-
out mention of the potentialities of desalination of sea and
other saline water, and also of artificial rainmaking.
Obviously, if a feasible method of converting salt water into
fresh water were developed, many water shortages and resultant
controversies would be solved. Several bills were introduced
in the Eighty-first Congress to provide for research to determine
-Act of August 11, 198, 1, 53 Stat. 1418, as amended, 16 U. S. .90y.
See also supra, pp. 243-245.
Act of June 4, 197, 1, 8 Stat. 11, 8, 16 U. 0. 475.
1, 80 Stat. 88, 16 U. S. 0. 481; 86 -0. F. 251. See also Act of
February 1, 1905, 4, 88 Stat. 28, 16 U. S. 0. 524; Act of May 28, 1940
54 Stat. 224, 16 U. S. 0. 652a-552d, providing for protection for purposes
of municipal water supply of watersheds within national forests.
m Act of February 25, 1920, 1 40, 41 Stat. 487, as added by Act of June 16,
1984, 48 Stat. 977, 80 U. S. 229a.
Act of May 11,1898, 2, 80 Stat 404, as amended, 48 U. 8. ,. 951.
the most practical method of desalination of sea or other saline
Artificial rainmaking poses several legal problems. These
include possible liability arising from personal injury or propi-
erty damage resulting from the artificially induced precipi-
tation, and possible claim to property rights in weather."
There is also the question of the nature and extent of possible
Fish and Wildlife Preservation
Since water and land are both important to wildlife, prelim-
inary note should be made of certain statutory provisions re-
specting wildlife refuges. For example, in an Act establishing
the Federal Aid to Wildlife Fund, Congress has provided that
states constructing wildlife refuges which conform to standards
fixed by the Secretary of the Interior may receive financial aid
under a prescribed formula." Likewise, provision is made for
federal acquisition of wildlife refuges under the Migratory Bird
Conservation Act.' Other statutes authorize federal acquisi-
tio and development of specific areas of land and water for
Of more direct relevance to our survey are certain pro-
tective provisions of statutes concerning federal and liensed
nonfederal developments. For example, since 1888 the Sec-
retary of the Army has had discretionary authority to provide
"sufficient fishways," whenever navigation improvements are
SSee e. ., 100; H. 265; H. R. 8128; H. B. 850-all 81st Cong., 1st
Because of the recency of the development, precise legal principles have
not yet evolved. See Ball, Shaping the Law of Weather Control, 58 YATB
*Act of September 2, 1987, 50 Stat. 917, as amended, 16 U. S. C. 669-661.
SAct of February 18, 1929,45 Stat. 1222, as amended, i16 U 0. 715-115d,
715e, 715f-715k, 715l-715r.
See, e. g., Act of June 7, 1924, 48 Stat. 650, as amended, 6 U. S. C.
721-781; Act of April 28, 1928, 45 Stat. 448, as amended, 16 U. S. C. 90-
690h8 Act of June 12, 1080 46 Stat. 579, as amended 16 U. S. C. 69L
found to operate as obstructions to the passage of fish." Sim-
ilarly, Army Engineer investigations and improvements of
waterways must include "a dueregard for wildlife conserva-
tion." w Also, no use of Army reservoir areas is permitted in-
consistent with laws for the "protection of fish and game" of the
state in which such area is situated." In the management of
existing facilities in the upper Mississippi River, the Depart-
ment of the Ariny is directed to give full consideration and
recognition to the needs of fish and other wildlife resources and
their habitat dependent on such waters and it is required gen-
erally to operate and maintain pool levels as though navigation
were carried on throughout the year."
In the case of nonfederal power developments, Federal
Power Commission licensees must construct, maintain, and
operate "such fishways as may be prescribed by the Secretary
of the Interior."'"
In the case of the Columbia River and its tributaries, the
Secretary of the Interior is directed to conduct such investiga-
tions, surveys, and experiments as may be necessary to direct
and facilitate conservation of fishery resources." He is also
directed to construct and install devices in the Columbia River
Basin for the improvement of feeding and spawning conditions
for fish, for the protection of migratory fish from irrigation
projects, and for facilitating free migration of fish over
Conservation of wildlife is also declared to be one of the
purposes of national parks, monuments, and reservations."
Since national parks and monuments are sanctuaries for wild-
"Aet of August 11, 1888, 11, 25 Stat. 400, 425, 33 U. S. C. 008.
"Act of June 20, 1988, 1, 52 Stat. 802, 33 U. S. C. 540.
SAct of December 22,1944, S 4, 58 Stat. 887, 889, as amended, 16 U. S. C.
"Act of March 10, 1934, 48 Stat. 401, as added by Act of June 19, 1948, 62
"Act of June 10, 1920, 18, 41 Stat. 1063, 1073, as amended, 16 U. S. C.
-Act of May 11, 1988, 2, 52 Stat. 845, as amended, 16 U. S. C. 756.
gAct of August 25, 1916, t1, 39 Stat. 5385, as amended, 16 U. S6, CO I.
life of every sort, protection is afforded in these areas." Like-
wise, regulations limit, hunting and fishing in national forests.7
Much broader in, effect are provisions for protection of fish
and wildlife in other ptattes as implemented principally in
1946.6 In the interest of wildlife conservation and rehabilita-
tion, the Fish and Wildlife Service of the Department of the
Interior has authority to provide specified assistance to, and
cooperate with federal, state, and public or private agencies.
It is also empowered to make surveys and investigations of the
"wildlife of the public domain, including lands and waters or
interests therein acquired or controlled by any agency of the
United States." .
Furthermore, whenever any federal agency or private agency
under federal permit impounds, diverts, or otherwise controls
waters, it must consult with the Fish and Wildlife Service and
the head of the state agency concerned with wildlife resources
"with a view to preventing loss of and damage to wildlife re-
sources." The reports and recommendations of the Secretary
of the Interior and the state agency must be made an integral
part of any report submitted by the federal agency responsible
for engineering surveys and construction of water-control
projects." The cost of planning for and construction and
maintenance of facilities for protection of fish and wildlife
shall be an integral part of the cost of such projects." Costs
allocated to the preservation and propagation of fish and wild-
life are made nonreimbursable specifically in the case of rec-
S86 0. F. R. 1.9.
S86 C. F. R. 261.8, 281.9.
SAct of August 14, 1946, 60 Stat. 1080, 16 U. S. 0. 661 et seq. The
Tennessee Valley Authority is specifically exempted. 1 9, 60 Stat. 1082,
16 U. S. C. 666c.
*1, 60 Stat. 1080, 16 U. S. C. 661.
SAct of August 14, 1946, 1, 60 Stat. 1080, 16 U. S. C. 661.
2, 60 Stat. 1080,16 U. S. C. 662.
Id. Of. the President's message vetoing the Vermejo Project, H. R. 3788,
81st Cong., 1st sess. (1949), printed in H. Doe. No. 316, 81st Cong., 1st sess.
In addition, whenever waters are controlled by the United
States, the projects must make adequate provision consistent
with the primary purposes for their use, together with certain
related lands or interests therein "for the conservation, mainte-
nance, and management of wildlife resources thereof, and its
habitat thereon." In accordance with general plans, such
waters and other interests shall be made available without
cost for administration by the state agency exercising adminis-
tration over wildlife resources if migratory birds are not in
question." Or if they have value in carrying out the migratory
bird-management program, those waters and interests must
be similarly made available to the Secretary of the Interior."
Complementing the foregoing provisions is certain investi-
gative authority' of the Fish aid Wildlife Service and the
Bureau of Mines.O They may inquire as to the effects of
"domestic sewage, mine, petroleum, and industrial wastes,
erosion silt, and other polluting substances on wildlife," report-
ing to Congress thereoii with recommendations. Such investi-
gations shall include:
(1) the determination of standards of water quality
for the maintenance of wildlife;
(2) the study:of methods of abating and preventing
pollution, including methods for the recovery of useful
or marketable products and byproducts of waste; and
(3) the collation and distribution of data on the
progress a;id results of such investigations for the use
of Federal, State, municipal, and private agencies, in-
dividuals, organizations, and enterprises.
No provision is made for requiring corrective action.
Noteworthy also are recent statutes making available to
states certain financial aid by the United States for wildlife
restoration and fish restoration and management projects."
3, 60 Stat. 1081, 16 U. S. 0. 663.
8 5, 60 Stat. 1081, 16 U. 8. 665.
L Act of September 2,19S7, 50 Stat. 917, as amended, 16 U. S. 0. 668691:;
Act of August 9, 1950,64 Stat. 480.
Water plays an important role in recreation. And Con-
gress has provided many water-resource programs and author-
ized tie construction of many projects suitable for recreation
as well as for their primary purposes. Reservoir projects often
provideideal recreation areas. National parks contain many
lakes and streams similarly useful. Nor are the national for-
ests to be overlooked.
In the case of reservoir projects under Army control, Con-
gress in 1944 made provision for recreation." The Chief of
Engineers is thereby authorized to construct, maintain, and
operate public park and recreational facilities. Also, the Sec-
retary of the Army may grant leases of such areas and facilities
upon terms he deems reasonable, giving preference to federal,
state, or local governmental agencies. These may be made
without monetary consideration when the Secretary of the
Army determines it to be in the public interest. Similarly,
leases are permitted to nonprofit organizations at nominal
rentals. Moreover, it is expressly declared that, when deter-
mined by the Secretary of the Army not to be contrary to the
The water areas of all such reservoirs shall be open to
public use generally, without charge, for boating, swim-
ming, bathing, fishing, and other recreational pur-
In the case of reclamation projects, there is no corresponding
general authorization." However, recreational facilities are
available at certain reclamation projects, the facilities being
under the control of the National Park Service in some cases,
as we shall shortly see.
Also the Federal Power Commission may require licensees
"Act of December 22,19444, 4, 58 Stat 887, 889, as amended, 16 U. S. C.
"But see H. 4408, 81st Cong, 1st sess. (1949) which passed the House
of Representatives August 1, 1949 and made provision for recreational uses
at reclamation projects; see H. Rep. No. 918, 81st Cong., 1st sess. (1949).
to make provision for "beneficial public uses, including recre-
ational purposes," in approving project plans.82
In the case of theTennessee Valley Authority, any real prop-
erty may be conveyed by deed, lease, or otherwise, to any per-
son or persons for the purpose of recreation, or use as a summer
residence, or for the operation on such premises of pleasure
resorts for boating, fishing, bathing, or any similar purpose."
Of general importance are the authorizations for and activi-
ties of the National Park Service. .With a specified exception,
the fundamental purpose of national parks, monuments, and
reservations is declared to be: 8
to conserve the scenery and the natural historic objects
and the wildlife therein and to provide for the enjoyment
of the same in such manner and by such means as will
leave them unimpaired for the enjoyment of future gen-
Reserving for late~ discussion the possibility of conflict be-
tween that purpose and the development and use of water
resources," it is important to note here that Congress in 1946
included in its statement of purposes for which appropriations
for the National Park Service are authorized the: *
administration, protection, improvement, and mainte-
nance of areas, under the jurisdiction of other agencies
of the Government, devoted to recreational use pur-
suant to cooperative agreements.-
"Act of June 10, l920~ 10(a), 41 Stat. 106, 1068, as amended, 16
U. S. C. 8038(a). See also Concord Blectrf Company, Project No. -1908,
4 F. P. C. 686, 687; Wisconsi Publi c erWvce Oorporatim, Project No. 1940,
5 P. P. C. 550; First lobo Hydro-Electrio ooperative, Project No. 1858,
6 F. P. C. 284; Pacifei Gas and Nlectrio Company, Project No. 1962, 6 F, P. C.
731; Georgia Power Company,.Project No. 1951, 6 F. P. C. 809; Southern
California Edison Company, Project No. 1980, F. P. C. Order of May 18,
"Act of May 18, 1933, 4(k), 48 Stat. 58, 60, as amended, 16 U. S. C.
SAct of August 25, 1916, 1, 89 Stat. 585, as amended, 16 U. S. 0. 1.
4 See infra, Comparative Summary, Chapter 10, pp. 493-643.
Act o` August 7, 1946, 0 Stat. 885, 16 U. S. C. 17J-2(b).
Under this authorization, funds are made available to the
Service for maintenance of recreational facilities in reservoir
areas such as the Lake Mead National Recreation Area and the
Coulee Dam National Recreation 'Area."' Use of waters of
national parks for recreational purposes is permitted subject to
prescribed regulations." Appropriations are also expressly
authorized for the: 0
investigation and establishment of water rights in ac-
cordance with local custom, laws, and decisions of courts,
including the acquisition of water rights or of lands or
interests in lands or interests in rights-of-way for use
and protection of water rights necessary or beneficial in
the administration and public use of the national parks
Recreational uses also find some recognition in legislation
concerning national forests. For example, the Secretary of
Agriculture has authority to rent or lease to "responsible" per-
sons or corporations, "suitable spaces and portions of ground
near, or adjacent to, mineral, medicinal, or other springs, within
any national forest reserves," for the purpose of erecting sani-
tariums or hotels open to the public."- He is similarly author-
ized to permit, for periods not exceeding 30 years, occupancy
of national forests "for the construction of summer homes,
hotels, stores, or other structures needed for recreation or pub-
lie convenience, not exceeding five acres to any one person or
association." Reference should also be made to the so-called
"0 and'C lands" under the jurisdiction of the Secretary of the
Interior." Here, Congress provided for sustained-yield man-
agement of timberlands for express purposes, including pro-
"Unpublished Memorandum of Agreement, Bureau of Reclamation and
National Park Service, August 29, 1936; Unpublished Memorandum of
Agreement, Bureau of Reclamation, National Park Service, 'and Office of
Indian Affairs, December 18, 1946.
"86. F. 1.4, i1., 1.7.
"Act of August 7,1946, 0 Stat. 885,16 U. S. C. 17j-2(g).
SAct of February 28, 1899; 5 1, 30 Stat. 908, as amended, 16 U. S. C. 495.
SAct of March 4, 1915, 8 Stat. 1086, 1101, 16 U. 0. 497.
SSee infra, pp. 358-859.
testing watersheds, regulating stream flow, and "providing
recreational facilities." "
Moreover, in operations under the Bankhead-Jones Farm
Tenant Act, submarginal lands retired as not suitable for cul-
tivation may be made available for recreational purposes."
The foregoing statutory provisions for recreation in con-
nection with federal activities, as we have seen, vary consider-
ably with respect to the recovery of costs of providing such
Functionally, laws concerning protection of shores may be
related to those concerning navigation, or flood control, or
related uses of land, all considered in other chapters. We
shall consider shore-protection legislation separately, however,
since it especially seeks to avoid damage by water to coastal
shorelands which often serve recreational purposes.
In 1930, Congress authorized and directed the Chief of Engi-
neers under the direction of the Secretary of the Army to
cause investigations and studies to be made in cooperation with
the appropriate agencies of various coastal and Great Lakes
States, and theiTerritories, with a view to devising effective
means of preventing "erosion of the shores of coastal and lake
waters by waves and currents." Under this Act, no money
may be expended in any state which does not provide for
cooperation with the agents of the United States and con-
tribute to the project, funds or services, or both, as the Secre-
tary of the Army may deem appropriate and require. Con-
gress also established a Beach Erosion Board consisting of
seven members, four of whom must be officers of the Corps of
Engineers and three engineers to be selected with regard to
their special fitness by the Chief of Engineers from among the
"Act of August 28,1987, 1 1, 50 Stat. 874. For definition of "sustained-
yield management," see infra, n. 41, p. 359.
SAct of July 22, 1937, 31, 50 Stat. 522, 525, as amended, 7 U. S. 1010-
1012; 7 0. B. 600*8.
"Act of July 3, 1930, 2, 46 Stat. 918, 945, 83 U. 5. 0.426. In this con-
nection see Act of August 30, 1935, S 5, 49 Stat. 1028, 1048, 833 U. S. 0. 546a.
See also supra, pp. 93-94.
cooperating state agencies. This Boad is -iigned the duty
of furnishing technical assistance in the conduct of studies and
of rvieming reports ofinvestigatitions. i
Federal participation was broadened WI 1W946 legislation
assigning to the.Beaqh Erosion Boad the duty of m ingen-
eral investigations with a view to preventing "erosion of .the
shores 6f th6 initedStatesb waves and currents" and deter-
mining the most suitable methods for the "protection, restora-
tion, and development Of beaches." i Also added was the
duty of publishing such useful data and information concern-
ing the erosion and protection of beahes and shoe liies as
the Board may deem to be of "value to the people of the United
States." The costs of these general investigations are borne
wholly by the United States" Provisions of existing law
relating to examintione and surveys and to worksiof improve-
ment of. rivers and harbors are made applicable, "insofar as
practicable," to exaintions and surveys and to works of
improvement relating to shore protection, except forreference
for consideration and recommendation to the Beach Erosion
Board instead of to the Board of Engineers for Rivers and
The 945 and subsequent River and Harbor Acts have re-
quired that reports of surveys on beach erosion and 'hore pro-
tectiot specially authorized by Congies shall include an: o
estimate of tie' public interests volved, and such plan
of improvement as is found justified, together with the
equitable distribution of costs in each case.
Correspondingly, in reporting on cooperative investigations
and istdies authise.d under the,1130 Act, the Beach Erosion
Board it required by the 1945 legislation to state iti opinion
(a) the adiabiity ofadopting the project;
Act of July 81, 195, 11, 59 Stat. 508,8 U. S. C. 426a.
2,59 Stat. 08, 88U S. 0. 426b.
M See e. ., Act of March 2,194, 1 6,59 Stat. 10, 25.
i" 8, 59 tat. 08, 83 U. S. 0. 42c.
S (b) whbat;pjHbli. interest, if any, is involved in the
proposed improvement; and
(c) what share of theexppense, if any, should be
borne by theiUnited States.. ;i : ;i :
One difference between the 1930 and 194 Acts merits note.
Inauthorizing investigations, the aftter Act specifies that they
le made with a view not only t preventing erosion, but also
to determining tli most suitable methods fpr the "protection,
restoration and dfevylpent of beaes." S r, the 194
Act gave the, lordi the added duty of publishing information
concerning the "erosion and protection of beaches."
.Morepver, ,Cpangress i 1946 enacted legislation directed spe-
cifically, war~ federal participation jinthe construction of
works for prPteetion of publicly~rowned shores and the encor-
agement of recreation, with this declaration of policy: k0:
with the purpose of prevent~ damage to public prop-
erty and promoting and encouraging tle healthful
recreation of the people, it is hereby addled to be the
policy of the united States to assist in te construction,
but not the maintenance, of works for the improvement
and proeio against erosion by waves and currents
of the soresof the United States that are owned by
States, municipalities, or other political subdivisions:
Provided, That the Federal tribution toward the
construction of protective works shall not in any case
exceed one-third f the total cost.
This law requires that the plan of proteth be ithori
by Qngreas.1, jo, when the- ,ief f Enginers sha, find
that a shore-protection project has been constructed by a locql
governmental unit in accordance with authorized plans, he
shall cause to be paid to such unit t"e amount auitDrized by
1' Act of August 13, 1946, 1, 60 Stat. 1056, 33 U. S. C. 426e.
'" 2, 60 Stat.1056, STI.S.C 8.,426 .
Sediment and Salinity Control
Legislative recognition of these aspects of development, uti-
lization, and conservation of water resources has been infre-
quent and usually indirect.
Siltation of reservoirs may drastically curtail the useful life
of adam, and interfere with the navigability of waterways.1"
This has been indirectly recognized in extensive legislation for
the protection and improvement of navigable waters by the
Army Engineers,1" and more recently and more directly in
legislation for erosion control.'"1 But sediment's direct impact
on developmental programs has otherwise received infrequent
attention in statutes of general application. In a number of
inst~pce, Copgress hpa authorized particular river-develop-
ment works in,accordance with plans of the. Army Engineers
and of the Bureau of Reclamation, which take heed of the
effect of sedimentation and the need for itseontroL" "
Significant also is the duty of the California Debiris Com-
mission to adopt spch plans as will improve the navigability
of the rivers of the Sacramento and San Joaquin systems,
eepen their channels, and protect their banks.' The plans
must be matured with a view to making them effective as
against the encroachment of. and damage from debriss result-
ing from mining ope-Atibhs, nattual erosion, or other
In this connection, see A SMtTD or METHODS USED UI MJ.AURsMbUT AND
AxALTrI on SDIMENIW LoAmI IN ST&IBm, F A BC, Interdepartmental (Co-
mittee, p. 11 (1948). See also INVENTOBT OK PUBLIsHED AND UNPMUBLIED
SEDIMENT-LoAD DATA In T1m Unrm STATES, FIARBO, Sedimentation Bullet
tti No. 1 (199) ; Pbsoe aBes or m~ Fsaa. Els-Aes~ao 85 )AIMTAa I
CoN~ mweE United States Department of the Interior (January 1948).
See supra, pp. 87-112.
See infra, pp. 366-372.
See, e. g., Fort Peck Project (Act of May 18, 1938, 52 Stat. 408, as
aaended, 16 U. S. C. 88-383p; Sen. Doe. No. 191, 78th Cong., 2d sess., p.
107, 1944); Boulder Canyon Project (Act of December 21, 1928, 45 Stat.
1057, as amended, 43 U. 8. 0. 617-617t; Sen. Rep. No. 592, 70th Cong., 1st
sess., p. 18, 1928). See also proposed Central Arizona Project (Sen. Rep.
No. 832, 81st Cong., 1st sess, pp. 14-15, 1949).
Act of March 1, 1893, 1 4, 27 Stat. 507, 33 U. S. C. 664.
Further, the Commission is authorized to make surveys to de-
termine the utility and practicability of storage sites for the
storage of debris or water, or as settling reservoirs, with the
object of using them to aid in the improvement and protection
of the rivers by preventing deposits theein of "debris resulting
from mining operations, natural erosion, or other causes."
Legislative attention has also been directed to the need
for salinity control. One example is afforded by the authoriza-
tion of the California Central Valley Project, which includes
measures to prevent damage from salt water intrusioti.h A
iore recent instance is the proposed Central Arizona Project,
approved by the Senate but not by th~j House during thi second
session of the Eighty-first Congress." A significant asset of
the proposal concerned the irrigation measures claimed to be
necessary for preventing destruction of soil productivity
through deposition of salts.n '
Finally, the 1950 Flood Control Act authorizes a compre-
hensive study of' the Akansas, White, and Red River Basins
with a view to beneficial development and utilization of water
resources, including consideration of "recreation uses, salinity
and sediment control and pollution abatement."
Until recently, the general desire for clean waters has re-
ceived specific recognition in federal legislation only so far
as pollution might interfere with navigation. The earlier
legislative enactments dealing with refuse matter and de-
signed to protect navigation have already been set forth in
i 5,27 Stat. 507, 8 U. S. C. 5.
m Act of August 26, 1987, 2, 50 Stat. 844, 850.
S. 75, 81st Oong., 1st SeZs. (1949).
u, H. Doe. No. 186, 81st ong., 1st ses., p. 149 (1949). See also, concerning
prevention of intrusion of sea waters Mermentan BRver and Tributaries,
and Gulf Intracoastal Waterway (Sen. Doe. No. 231, 79th Oong., 1st sees.,
PP. 6, 23, 1945); Sacramento River (Sen. Do. No. 142, 79th Cong., 2d sess.,
pp. 31-82, 1946); Inland Waterway in Vicinity of Fairfield, N. O. (H. Doc.
No. 728, 80th Cong., 2d ses., pp. 22, 33-4, 1948).
Act of May 17, 1950, 205 64 Stat. 168, -
some detail"* Likewise, we have referred to the more recent
autiorization for the Fish and Wildlife Service and the Bureau
of Mines to investigate pollution in relation to wildlife.' .In
the main, those statutes skirt the fringes of the real pollution
problem as it is commonly understood- in association -with
sewage and industrial waste.
At the sanmetime, it is generally accepted-that pollution does
or may interfere with use of water resources for purposes of
water supply, irrigation, recreation, and fish and wildlife. Re-
peated attempts to obtain federal legislation for control or
abatement of pollution nevertheless met failure. Although
sine 1,44 the Surgion General has been empowered to con-
duct research relating to water purification, sewage treatment,
and pollution of lakes and steams,1" not until 1948 did Con-
gres enact general legislation moving in the direction of con-
trol and abatement -
Enacting the Water Pollution Control Act in that year, Con-
in connection witth the exercise of jurisdiction over the
waterways of the Nation and in consequence of the
benefits resulting to the public health and welfare by
the abatement of stream pollution, it is hereby declared
to be the policy of Congress to recognize, preserve, and
protect the primary responsibilities and rights of the
States in controlling water pollution, to support and
Said technical research, to devise and perfect methods of
treatment of industrial wastes which are not susceptible
Sto known effective methods of treatment, and to provide
Federal technical services to State and interstate
agencies and to ii duties, and financial aid to State and
interstate agencies and to municipalities, in the formu-
lation and execution of their stream pollution abatement
.Sweeaupr., p. 118-119.
s See spra, p. 3a8.
Act of July l, 1944, 1801, 58 Stat. 682, 691, as amended, 42 U. S. 0. 241.
"Act of June 80, 1948, 5 1, 2 Stat. 115, as amended, 88 U. S. C. 466
Responsibility for administration of the program rests with
the Surgeon General of the Public Health Service, Inncoopera-
tion with federal agencies, state agencies, interstate agencies,
and with the municipalities and industries involved, he must
Prepare comprehensive programs "for eliminating or reducing
the pollution of interstate watersand tributaries thereof and
improving the sanitary condition of surface and underground
waters ."i Due regard must be given to improvements neces-
sary to conserve waters for "public water supplies, propagation
of fish and aquatic life, recreational purposes, and agricultural,
industrial, and other legitimate uses." ln
The Surgeon General is directed to collect and disseminate
information relatingito water pollution and its prevention and
abatement, to support and aid certain technical research, and
to make available the results of specified work conducted by
him and cooperating agencies. Moreover, he must encourage
cooperative state action, enactment of uniform state laws, and
compacts between states." Blanket consent of Congress is
given for negotiation of interstate compacts for prevention and
abatement of pollution, and for establishment of agencies to
make such compacts elective. m To this date there has been
no approval of such a compact by Congress, a concluding step
required under the Act.1t
2(a), 62 Stat. 1155, 3U. S.. C.466a(`) (Supp. III).
"2(b), 62 Stat. 116, 8 U. S.. C. 466a(b) (SuMp. III). In this con-
nection, It should be noted that the Public Health Service has recently pre-
pared a suggested site law for water-pollution control: whfl the Council
of State Governments endorsed and r9ommended to the tatest or favorable
consideration. A SuaeBo mean STAT WAz& POLLUTIou CoNraoL ACT, and ac-
companying Exipiaatory Statement, prepared in the Federal Security
Administration by the Public Health Service, October 1950.
2(c), f2 Btat. Ip 5. 0. 406&(:4B6) (Suxm. HII)?.
"Apart fron the Act, It should be noted, however, that several compacts
for the control and abatement of pollution have been negotiated. See Tri-
State Compact (Connecticut, New Jersey, and New York, Act of August 27,
1985, 49 Stat. 932); Red River of the North Compact (Minnesota, North
Dakota, and South Dakota, Act of April 2, 1988,52 Stat. 150); Ohio River
Valley Water Sanitation Compact (Illinois, Indiana, Kentucky,.New Y(rk,
Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia, Act of July 11,
1940, 54 Stat. 752) ; Potomac River Compact (District of Columbia, Mary-
land, Pennsylvania, Virginia, and West Virginia, Act of July 11, 190, 6
. Elaborate provisions are prescribed -or administatri sand
legal action."!. The pollution.of interstate twters endangering
the healthror welfare of persons in a state "other than Mt
in which the dischargew diginates"idbelae edby the statute
to be a public ntisanoarii. Whenever the Surgeon General
finds such a nuisahde occurring, he must give notice to the
pollutor and inform the water-pollution agency of the state
where the discharge originates. aSuch notice may ob iut
'recommended" remedial measures. If action"',,alulated to.
sectire -abatement" is net' commenced within the prescribed
time, this failure must be bought to-:he attention 'ft the
polluter anduthe state agency. Thi second notice to the state
agency "'may" be Ieaccompanied by reco mandes itii ~tt it
initiate suit to abite the pollution. < ; :'
c t polhuli6n continues and the state fails to act, the Fed
eral Seeurity Ad6hnistrator may initiate a hearing before a
board of fieror nopemrsons appointed by him to hear evie~tce
and make recommendations. After reasonable opportunity -6
tihepAlkt~ fbr c6mpikimee ihh'the board's reeemmendations,
tha~rAdmiia trad1 ay, with'the consentt" of the water-pol-
hiam ai eienb "df the tate or states in *hich'the matter causing
or -contributing -tothe' pollitin is discharged," request the
Attorney Geneiil ~ t6 initiate suit to s ecdr Ati temeht 'of `ie
pollution. In which event, it is provided that the court, "giving
due consideration to ihe praeticability and tothe physical and
economic feasibility of securing abatement of any pollution
proved," may enter such judgment and orders "as the public
interest and equities of the case may require."
The Act make4snd provision for enforcement action if con-
sent is- ot forthcmiiAg from the state where the pollution
originates, irrespective of the damage or danger to othef stAtes.
In addition to the foregoing, a pr 'am f financial assist-
ance is provided. :~ai may be made by the Federal Security
Administrator to any state, muniipality; or interstate agency
Stat. 748) ; New England Interstate Water Pollutio3Control Compact (Con-
necticut, Massachusetts, New York, Rhode Island, and:Vermont, Act of July
31, 1947,61 Stat. 682),
"i ,2(4), 62 Stat. 11B6, 58 U. S. 0. 4686a(d) (Supp. III).
for te construction of treatment woriksot prevent the' dis-
ehasg byr sug 4 state or municipality of uitreated or nade
lately treated sewage or other waste into interstate waters
or tributaries.m`, For this purpose, the statute authorizes ap-
propriation of $22,500,000 annutillyin the 1948-1953 period.?
But no fund l~eh yet been appropriated for this purpose.
.A similar autrization of $1,000,000 per year is included
ferpayments to states for conducting investigations, research,
surveys and studiesrelated to the prevention and control of
water pollution caused by "industrial wastes." w And a like
authorization for a fem of $1,0004000 i provided for grants to
states, municipalities, or interstate agencies to finance eiigi-
neering, architectural, and economic investigations and other
actions preliminary to construction of projects approved by
the state agency and the Surgeon Generalh. Noteworthy also
is an authorization of appropriations for the erection of re-
searOh facilities at Cincinnati, Ohioiofr the use of the Public
Health Service. .,
becausee of its importance both to the subject of poT ution
and thepossibility of its control through interstate compact,
reference is made here to the recent decision by -the Supreme
Court of Appeal]in West Virginia, n the case of State exhreL
Dyer v. Sims, already discussed in, some detail".
Collection of Basic Data
Successful and efficient water-r9source development pro-
grams depend in part upon adequate and reliable data. This
includes general information such as that relating to popula-
tion, housing, farming, manufacturing, foreign trade, and com-
merce collected by the Bureau of the Census and the Bureau
of Foreign and Domestic Commerce, as well as data more
S 82 Stat. 1158, as'amended, 83 ty. S. C. 486d (supp. IIn), leorganisa-
tion Plan No. 16 efeCtifte WMa 24, 1950.
S7,62 Stat. 1159, 8 U. S. 466f (Supp. III).
m"' 8(a), 62 Stat. 1159 is amended, 33 U. S. C. 466g(a) (Sapp. III).
I 8(c), 62 Stat. 1189, as amended, 83 U. S. C. 466g(c) (Supp III).
S8(b), 62 Stat. 1159, a@ amended, 33 U. S. C. 466g(b) (Supp. III).
l 1n3 W. Va. -, 58 8. IL a 768, decided April 4, 19M; see *spro, pp. 68-70.
directly pertinent to water-remeetroe a s. To enable col-
lection of dabt, Cogree has legislated extensively. .
- In the first places is dieuaslg the operations of the ATmy
.ingiaees and the Buwreu ,f leel*matian, we noted in .mnie
detail legislative provisions whereby each mkes its own in-
vestigations and surveys in the preparation pmipjec~. fim n-
ilarly, we referred tp thebboad investigative authority mn-
ferred upon the Federal,?ower Commiqsion for the eolleetion of
data valuable in botk deal and nonfederal development, la
addition, Congress as made provision for collection of data
by a number of other4gedncies. ,
GEOLOGICAL SBVEY.-Created by Congress ihn 1879% the
Geological Survey w"a assigned responsibility for the "classi-
fiation of public' lands and examination of thq Geological
Structure, mineal resources, and produce of the national
domain." Under an 1888 act, funds were appropriated for
an investigation ly tha Survey of the ariregiQns of the United
States for "the selection of sites fo ,.reservoirs and other
hydrauliwoks peesae y for the storage qad utilization of
water .for irrigation and, the prevention of floods and over-
flows."' In aq 1894 statute, Copngre~ mae funds available
to it for "gauging the streams nd determining the water supply
of the United States, including the investigation of under-
grbund currents and artesian wells in arid and .seiaid sec-
tions." 1 Subsequent appropriation,acts Anade pIr~ ons for
the gauging of streams, determining of water supply, of the
United States, and publishing of reports.' A 1, statute
authorizes the Secretary of the Interior to acquire lands or
interests therein bor use by the Geological Survey' in gauging
Cla sifiction of public-domaip lands as sites valuable or
power purposiemm a function of the Geological Survey 'A
"Bee Araa &pw 1- 184-1e3, 187- u1-m in
t Act of March 8, 1879, 1,20 Stat 83', 84,48 U. S.C. 81. '
-mAct of October 2, 1888, 25 Stat 505, 526,"' asameded, 43 U. C. 62.
m Act of August 18 8184,28 Stat. 872, 898.
"Act t' Fne 11,186, ib Stat. 413,48; Act of May 16, I8, 82 Stat.
741, at amended, 44 U. t. .280. .
Act of December 24,1942,56 Stat. 1086,48, C. 86b.
its 1879 authorization $4 4 supplemental order of the Secre-
tary of the Interior.'"1 Such aB w ts$, ation e.jrates asa
withdrawal of the landp,from allform sof entry under the pub-
lie land laws,;su bjf ti to the provisions of Section 24 of the
Federal Power Aet. i
WEATZER BtmmAu.-Underta1ng er-tain functions previ
ously performed by the Signal orps of the United States
Ariiiy,' *th Weather Bureau was established by Corgress in
1890 within the Department of fkiAt tu1 Ihi 1940, the
Bureau Was transferred tb the-'It60i ent of Conimerce,
where the following functions are pdrfc*med under the dired-
tionofrits Chief:1" :
the forecasting of weathei the issue do storm warnings,
the display of weather and flood signals for the 'blenfit
-of agriculture, commerce, arid navigation, the gauging
and reporting of rivers, the nimi.tenance and operation
of sea-coast telegraph lines and the collection and trans-
mission of marine intelligence fbr the benefit of crm-
merce anjd naiviation, the reporting of temperature
0 and rain-fall conditions for the cotton interests, the dis-
Splay of frost; ~ad cold-wave signals, the distribution of
meteorological information in the interests of agricul-
ture and commerce, and the taking of such meteqrologi-
cal observations as may be necessary to establish and
record the clhnatic 'conditions of 'the United States,
or as are essential for the proper execution of the fore-
In; dtiqn, we have, already referred to the 1938 statutory
provision foi establishment by the Weather Bureau of a cur-
'Actb of Mlarch a S2s), io 20 Sfat. 377,, seW, D4. .0S 81; Depart-
ment of the Interlbr drder No.' 2383, June 20,i, 1 04i,'R 6' R '4
"Act of June 10, 1920, 24, 41 Stat. 1068, 1075, as amended, i ,U. S.0.
818 (Supp. III).
SAct of October 1, 1890, I 1, 26 Stat. 653.
SId., see 15 U. S. C. 311-324.
1" 8, 26 Stat. 653, as amended, 15 U. S.C 813. See 1940 Reorganization
Plan No. IV, 8, effective June 30, 1940, following 5 U. S. C. 133t; see
15. C. 311 note follow.
rent information service on precipitation, flood forecasts, and
COAST :AD GEODmEIC Su~aMyr-Operating under an 1807
statute authorizing a survey of the coasts of the United States,
including islands and shoals, with roads or places of anchbrage,
within twenty leagues of any part of the shores of the United
States the Coast and Geodetic Survey is the oldest of the data-
eoQection agencies" Functioning within the Department of
Commerce, the Coast and Geodetic Survey is authorized to
conduct various hydrographic and topographic surveys of
coastal *water and land areas, as well as inland waters the
survey of which is not otherwise provided for by statute?."
Also, it may conduct tide and current observations, geodetic-
control surveys, field surveys for aeronautical charts, and
measurements, investigations, and observations for determina-
tion of variation in latitude and longitude.1" These authori-
zations Congress enacted :1.. -:
to provide charts and related information for the safe
navigatioii ofarie and air commerce, and to provide
basic data for engineering and scientific purposes and
for other commercial and industrial needs.
DEPARTMENT OF AoCm RuBE.--Se veral agencies within the
Department of Agriculture are concerned with the collection
of basic data.
Under the Soil Conservation and Domestic Allotment Act,
the Soil Conservation Service i a Athori ed:
to coindict surveys, investigations, and research relating
Wto the character of 'oil erosion and the preventive
measures .eeddd, to publish the results of any such
surveys, investigations, or research, to disseminate in-
formation concerning such methods and to conduct
14 See supra, p. 146.
Act of February 10, 1807, 2 Stat. 418.
Act of August 6, 1947, 1, 61 Stat. 787, 33 U. S. C. 883a (Supp. III).
'Act of April 27, 1985, 1, 49 Stat. 163, 16 U. S. 590a (1).
demonstrational projects in area subject to erosion by
wind or water.
The portion of that Act administered by the Production and
Marketing Administration contains additional authority rele-
vant here. For it authorizes surveys, investigations, and re-
search relating to the preservation and improvement of soil
fertility, the promotion of economic use and conservation of
land; diminution of explitation and wasteful and unscientific
use of national sol resources; and the.protection of rivers and
harbors against the results of soil erosion in aid of maintaining
the navigability of waters and water courses and in aid of flood
- Also, we have recently referred the jurisdiction of the
Department of Agriculture over federal investigations of
watersheds and measures for run-off and water-flow retarda-
tion and soil-erosion prevention on watersheds." In predom-
inantly farmland areas, these investigations and measures are
carried out by the Soil Conservatio- Service." The Forest
Service conducts similar work concerning the national
Under the Bankhead-Jones Farm Tenant Act, the Secre-
tary of Agriculture is authorized to conduct certain surveys
and investigations pertaining to soil erosion,. mitigation of
floods, impairment of reservoirs, surface and subsurface, mois-
ture, and the protection of watersheds of navigable streams."
In connection with the collection of agricultural data by
agencies within the Agricultural Research Administration, it
is pertinent to note that the Bureau o Plant Industry, Soils,
and Agricultural Engineering conducts research in plant breed-
ing and production and improvement of soils.k
"Act of February 29, 1936, 1, 49 Stat. 1148, as amended, 16 U. S. 0.
See supra, pp. 816-817.
See supra, p. 816 and infra, p. 377.
See infra, p. 377.
rAct of July 22, 1937, I 81, 47, 50 Stat. 525, 531, as amended, 7 U. S. 0.
SSee Act of March 2, 1901, 81 Stat. 922, 926; Act of May 17, 1935, 49
Stat. 247, 258; Reorganlzation Plan No. I, effective July 1, 1947; Secretary
of Agriculture Memorandum No. 1197, July 1, 1947.
Other work conducted by this Bureau includes studies of
basic physical and chemical properties of soil, ad studies of
microscopic plant and animal life in the soil and their effect on
crops, methods of cultivation, irrigation, and crop rotation.
Additional authority of general importance here stems from
the Research and Marketing Act of 1946." It authorizes the
Secretary of Agriculture "to conduct and to stimulate research
under the laws and principles underlying the basic problems of
agriculture in its broadest aspects, including but not limited to:
research relating to conservation, development
and use of land, forest and water resources for agricultural
TENNESSmS VAiz Y Aumomorrr.-Exceptionally broad is
TVA's authority for the collection of basic data. The President
is authorized, by such means or methods as he may deem proper,
to make such sur eys4of and general plans for the Tennessee
River Basin and adjoining territory as may be useful in guid-
ing and controlling the extent, sequence, and nature of devel-
opment for the general purpose of fostering an orderly and
proper physical, economic, and social development of the
R.canT PaoposAs.--Two bills introduced in the Eighty-
first Congress merit notice here. First, the National Water-
Resources Basic Data Act of 1950 would: "
establish a comprehensive and adequate basic-data pro-
gram in water resources and provide for its maintenance
in order that the full potential of the Nation's water
resources may be developed for all beneficial uses and
that there may be adequate hydrologic and geologic
data for the effective control, prevention, or reduetiin
of the harmful or destructive 6ow*ka of water.
Under this bill, the activities of the Weather Bureau and the
Geological Survey would be greatly accelerated to complete
this task within three years.
m Act of August 14, 1946, 60 Stat. 1082, as amended, 7 U. S. C. 427 et seq.
Act of May 18, 1988, 22, 48 Stat. 58, 69, 16 U. S. C. 881u.
HE R. 6257, 81st Cong., 2d sess. (1950).
The second bill is the National Surveying and Mapping Act
of 190,pwhich would: ,
establish accelerated progr of topographic, geologic,
geodetic, soil, and hydrographic surveying and mapping
of the United States, its Territories and possessions and
offshore areas, and the cadastral surveying of the pub-
lic domain and other Federal public lands.
This program would be accomplished through expansion of
work already undertaken by various basic-data agencies with-
in the Departmentsof Agriculture, Commerce, and the Interior.
In the course of legislating for such primary" purposes as
navigation or irrigation, Congress has incidentally provided
for a number of additional public purposes. Still other re-
lated public purposes have received separate legislative atten-
Provision has been made for federal drainage activities as
parts of major programs for flood control, soil conservation,
and irrigation. Similarly, most enactments providing for
water supply for domestic, municipal, industrial, and stock-
watering purposes have evolved as incidents of multiple-
purpose programs of development for "primary" purposes.
Both separate and incidental attention has been paid to
protection of fish and wildlife. For this purpose, provision is
made for federal assistance to and cooperation with state and
local agencies. Procedures are also prescribed to assure con-
sideration of this purpose in development of water-resource
In the case of some but not, all federal projects, express
provision is made for recreational uses. Other provisions
enable recreational uses of areas in national parks and forests.
Still other statutes establish procuiires for federal partici-
pation in shore-protection investigations and in construction
"H. R. 6900, 81st Cong., 2d seas. (1950). In connection with H. R. 6257
and H. R. 8900, see H. Doe. No. 706, 81st Cong;, 2d:ses. (1950).
of works of improvement. An express purpose of a 1946 act
is the prevention of damage to public property and encourage-
ment of healthful recreation. Under it, federal contribution
is permitted but may not exceed one-third of total cost.
The need for sediment and salinity control has been recog-
nized in statutes providing for navigation improvement, flood
control, irrigation, and soil conservation.
Recently, Congress has enacted a separate program con-
cerning pollution. It seeks to encourage cooperative state
action and authorizes some financial assistance. Under the
act, measures to enforce abatement of pollution are contingent
upon state consent.
A number of statutes authorize collection of basic data as
continuing functions of several different federal agencies.
These authorizations are in addition to those enabling collec-
tion of basic data by the federal construction agencies in the
discharge of their statutory responsibilities.