Water-Resource Activities Other Than
The preceding part of the summary has dealt primarily with
development, construction, and operation of water-resource
projects. But other governmental functions significantly re-
lated to water resources are performed in the management of
federal public lands, in activities aiding state and private de-
velopment, and in the regulation of nonfederal development.
FEDERrA PuiUC LANDs.--Comprising more than 400,000,000
acres in the continental United States, federal lands are admin-
istered by a number of agencies-the Forest Service and the
Soil Conservation Service in the Department of Agriculture;
the Bureau of Land Management, the National Park Service,
and the Fish and Wildlife Service in the Department of the
Interior; and also in the latter Department, the Bureau of
Indian Affairs with respect to large areas included in Indian
reservations." We shall summarize here the principal stat-
utes recognizing the relationship between land-use practices
and water resources, including particularly the role of land use
in controlling the quantity and quality of the water in down-
8oil Conservation and Domestic Allotment Act.-All
federal lands may be developed under this statute authoriz-
ing measures to prevent soil erosion, including but not limited
to, engineering operations, methods of cultivation, growing of
vegetation, and changes in the use of land-to further'the pur-
poses of preserving natural resources, controlling floods, pre-
venting the impairment of reservoirs, maintaining the navi-
gability of rivers and harbors, protecting public health, public
lands, and relieving unemployment."9
These measures are carried out by the Secretary of the In-
terior with respect to soil and moisture-conservation opera-
See supra, pp. 851-882. See also REPORT OF THE COMMISsION ON OGAMI-
ZATiON OF THE EXECUTIVE BRANCH OF THE GOVENMNT, App. Ir, p. 184
miAct of April 27, 1965, 1, 2, 49 Stat. 16, 16 U. S. C. 590a, 590b. See
also espra, pp. 866-872.
tions conducted on any lands under the jurisdiction of that
Department." Otherwise by the Secretary of Agriculture
"with the cooperation of the agency having jurisdiction" of
Taylor Grazing Act.-This legislation authorizes the estab-
lishment of grazing districts from unappropriated and un-
reserved public lands chiefly valuable for grazing and raising
forage crops." The Secretary of the Interior is directed to
make provision for the protection, administration, regulation,
and improvement of these grazing districts, and to do any and
all things necessary to preserve and provide for the orderly
development and improvement of the range.6 He is further
authorized "to continue the study of erosion and flood control"
and to perform such works as may be necessary to protect and
rehabilitate the areas involved."
Bankhead-Jones Farm Tenant Act.-Under Title III of this
statute, the Secretary of Agriculture is directed to develop
a program of land utilization and conservation, including re-
tirement of submarginal lands."" Ie is authorized to protect,
improve, develop, and administer such property and to con-
struct such structures thereon as may be necessary to adapt it
to its most beneficial use.0 The express purpose of the pro-
gram is to assist in controlling soil erosion, reforestation, pre-
serving natural resources, mitigating floods, preventing im-
pairment of dams and reservoirs, conserving surface and sub-
surface moisture, protecting the watersheds of navigable
streams, and protecting the public lands, health, safety, and
Reorganization Plan No. IV, 6, effective June 80, 1940, 54 Stat. 1284,
1235, 5 U. S. C. 138t note following.
SAct of April 27, 1985, 2, 49 Stat. 168, 16 U. S. C. 590b.
Act of June 28, 1984, 48 Stat. 1269, as amended, 43 U. S. 0. 315 et eeq.
See also supra, pp. 364-866.
12, 48 Stat. 1270, 48 0. 8 15a.
SAct of July 22, 1937, 181, 50 Stat. 522, 525, 7 U. 8. C. 1010. See also
supra, pp. 372-374.
g 82, 50 Stat. 525, as amended, 7 U. S. C. 1011.
81, 50 Stat. 525, 7 U. S. C. 1010.
National Forests.-"Securing favorable conditions of water
flows" is one of the limited purposes for which national
forests may be established, and Congress has directed .hat
national forest areas be administered for that purpose.": .Ad-
ministration is vestedin the Secretary of Agriculture."-
Further recognition has been accorded the use of land for
stream regulation through authority for the acquisition of land
for management as a partof national forests. TheSecretary of
Agriculture is authorized to acquire such "forested, eut-over, or
ddeded lands within the watersheds of navigable streams as in
his judgment may be necessary to the regulation of the flow.of
navigable streams after an examination by. the SecretaryBof
Agriculture, in cooperation with the Director.of the Geological
Survey, has shown that the>control of such lands will promote
or protect the navigability of streams.7"
Other Forests and Woodlands.-Some forests and wood-
lands are also administered by the Bureau of Land Manage-
ment in the Department of the Interior.? These include the,
revested Oregon and California Railroad and reconveyed Cooas
Bay wagon road grant lands, which Congress has provided shall
be managed for permanent forest production, on the principle
of sustained yield, for thepurposes, among others, of protecting
watersheds, regulating stream flows, and providing recreational
National Parks and Wildlife Refuges.-The foregoing
statutes are express measures for the conservation of land in
aid of water-resource development. The same object may be
aided though not expressly recognized by the purposes for
which the national parks and the wildlife refuges are estab-
lished and administered. National parks are established to
conserve the scenery and the natural and historic objects and
Aet of June 4,1897, 1, 30 Stat. 11, 85,16 U. 8. 475. See also supri,
Act of February 1, 1905, 1, 88 Stat. 628, 16 U. S 0. 472.
Act of March 1, 1911, 86 Stat. 961, as amended, 16 U. S. C. 15, 516.
Acquisition for production of timber is also permissible. See supra, p. 356.
SSee supra, pp. 388-58.
i Act of August 28, 197, 50 Stat. 874; see 8upr, n. 42, p. 85.
the wildlife therein so as to leave them unimpaired for the
enjoyment of future generations.7l ; Wildlife refuges are ac-
quired to return such areas to their natural conditions under
the Migratory Bird .Conservation Act, which authorizes the
acquisition of land and water areas to implement the Migratory
Bird Treaty Act..0 Other refuges have been established by
SContructii bof Water Faciitieas-To a large extent, the
character of the land Which leads to its reservation or acquisi-
tion for national forests, national parks, grazing districts, and
similar uses, may limit its water-resource use.
The national- forests are established from "public lands
wholly or in part covered with timber. or undergrowth," or
acquired out of "forested, cut-over, or denuded lands." "0 The
Taylor Grazing Act concerns lands "chiefly valuable for grazing
and raising forage crops"-but not Apart of the national forests,
national parks and monuments, Indian reservations, and cer-
tain other lands." The purpose of establishing national parks
and wildlife refuges is primarily to maintain or return natural
objects to their natural condition.'
Thus, the primary purposes for which all these lands are to be
used do notnecessitate extensive works for the direct develop-
ment of water resources.
Multiple-Purpose Land Use.-While lands may be ac-
quired, administered, and used for specified primary purposes,
all or parts of these areas and their water resources may also
be adaptable to multiple uses for other purposes, such as graz-
ingj recreation, and the protection of wildlife.
"Act of August 25, 196i1 1, 39 Stat. 5, 16 U. S. C. 1. See also supra,
Act of February 18,1929,45 Stat. 1222, as amended, 16U; S. C. 715-715r;
Act of July 8, 1918, 40 Stat. 755, as amended, 16 U. S. C. 703-711.
"Act of June 7, 2924,148 Stat. 650, as amended, 16 U. S. 0. 721-731; Act
of April 23, 1928, 45 Stat. 448, 16 U. S. C. 690; Act of June 12,1930, 46 Stat.
579, 16 U. S. C. 691; Act of May 18, 1948,62 Stat. 238,16 U C. 695-695c
SAct of March 3, 1891, 24, 26 Stat. 10995 1108, as amended, 16 U. S. C.
471; Act of March 1,1911, 6, 86 Stat. 961, 962, as amended, 16 U. S. 0. 515.
Act of June 28,194, 1, 48 Stat. 1269, as amended, 48 U. S. C. 815.
See sura, p. 361.
For lands acquired under Title III of the Bankhead-Jones
Farm Tenant Act, the Secretary of Agriculture has the author-
ity to permit the use of such lands for "any public purpose."
Specific authority exists to protect improve, develop, and
administer any property so acquired and to construct such
structures thereon as may be necessary to adapt it to its most
Lands included in the national forests are "to be adminis-
teredby the Secretary of Agriculture under such rules andreg-
ulations and in accordance with such general plans as may be
jointly approved by the Secretary of Agriculture and the Sec-
retary formerly administering the area, for the use and occu-
pation of such lands and for sale of such products therefrom." '
Further indication of the permissible uses to which such lands
may be put is inherent in the provision for the disposition of
moneys received on account of permits for hunting, fishing, or
camping on certain forest lands.'"
The Secretary of Agriculture may permit the use of national
forest areas adjacent to mineral, medicinal, or other springs, for
the purpose of erecting upon such leased grounds sanatoriums
or hotels to be opened for the reception of the public." He is
further authorized to permit the use 6f national forest lands
for the construction of summer homes, hotels, stores, or othfe
structures needed for recreation or public convenience, not ex-
ceeding five acres to any one person or association.1*'
'The Taylor Grazing Act applies to land chiefly valuable for
grazing and the raising of forage crops;. However, the Secre-
tary of the Interior is directed to provide fot suitable rules and
regulations, for cooperation with local associations of stockmen,
state land officials, andofficial state agencies engaged ia con-
servation or propagation of wildlife, or interested in the use of
-Act of July 22, 1937,i 3V(d), 82(f), 50 Stat 522, 526, 7 U. 8.. 1011(d),
8 32 (b), 50 Stat 526, 7 U.. C. 1011 (b).
Act of June 7,92, i9,9,48 stat. 58, 655,160 S. C.471(b).
SAct of March 4, 1917, 3 'Stat. 1134, 149, as amended, 16 U. S. 0. 499.
"Act of February 28, 1899, 1 1, 80 Stat. 908, as amended, 16 U. S. 4C 495.
nAct of March 4, 1915, 38 Stat. 1086, 1101, 16 U. S. C. 497.
SAct of June 28, 1934, 1, 48 Stat. 1269, as amended, 48 '. S. d. 815.
See also supra, pp. 864-866.
grazing districts."* Hunting and fishing may also be permitted
within the grazing district, in accordance with federal or state
The authority of the Secretary of the Interior with respect
to the so-called "0 and C" lands is somewhat broader. He is
authorized to perform any and all acts and to make such rules
and regulations as may be necessary and proper for the purpose
of carrying the provisions of the Act into full force and
effect."8 The express purposes for which such lands shall be
managed include contributing to the economic stability of local
communities and industries, and providing recreational
SThe multiple-purpose development of national park lands
is, of course, limited by the requirement for keeping such areas
in their natural state '
FEDERAL Aiw STATE p AND PRIVATE DVELOPMENT.-As we
have seen, authorized water-resource activities by the Federal
Government relate to both projects in streams and the
management of federally owned lands. Statutes also pro-
vide for nonfederal development in areas under federal juris-
diction. Within this area, statutory provisions exist for as-
sistance to the states and private persons in their water-de-
velopmental activities. Such assistance may take the form of
grants of land and rights-of-way, financial assistance, and tech-
nical study and information.
Rights-of-Way: Power.-Nonfederal development of the
navigable streams has been confined largely to the production
of electric power. The Federal Government has authorized
the use of public lands and the water resources thereon for
power under a variety of statutes.
Public lands valuable for water power sites, irrigation, and
other public purposes may be withdrawn from disposition."m
Under statute, the Director of the Geological Survey has cer-
1 9, 48 Stat. 128, as amended, 48 U. S. C.81h.
1, 48 Stat. 1269, as amended, 43 U.S Q.815.
SAct of August 28, 1987, 5, 50 Stat. 874, 75.
1, 50 Stat. 84.
See supra, pp. 860-362.
Act of June 25,1, 1910, 1,6 Stat. 847, 48 U. S. 0. 141.
tain authority with respect to the public lands.' This authori-
sation is implemented by theorder of the Secretary of the In-
terior authorizing the Director of the Geological Survey, with-
out prior approval, to classify as power nits, Jands valuable for
power purposes and to modify or revoke such classifications.
Thisclaasii ati0n operates as a withdrawal of such sites from all
forzpof entry under the public-land laws and reserves them for
dispositio -by the Federal Power Commnis~on
Aswe earlier noted, Congress in 1866 legislation concerning
public lands provided for the recognition of water rights vest-
ing and aeruing before or after that time ander local customs,
laws, and decisions of the courts for mining, agricultural, manu-
facturing,-or other purposes, and acknowledged a right-of-
way for the construction of ditches and canals for the purposes
specified."4 This provision has been construed to permitthe
use of water transported off the public domain for power-
production purposes,". .
In 1896, the Secretary of the Interior, was authorized 40 per-
mit, under general regulations to be fixed byhim, the ue of a
right-of-way to the extent of 25 feet, together with the use of
necessary ground not exceeding 40 acres, upon the public lands
and national forests of the United States for the purposes of
generating, manufacturing, or distributing electric power.'"
This Act superseded the Act of 1866 so far as it was applicable
to such rights-of-way, inasmuch as the prior enactment was
primitive and -poorly adapted to electric power purposes,
limited as it was to ditches, canals, and reservoirs, not covering
power houses, transmission lines, or necessary subsidiary struc-
tures, and since the latter Act dealt specifically with the su44
ject, covered it fully, and evidently was designed to be complete
"Act of March 8,1879, i 1, 20 Stat. 377, 394, 43 U. S. 0. 31.
m Order of the Secretary of the Interior No. 233, 43 F. B. 4.628 (197
B. S. 2889, from Act of July 26, 1866, 9, 14 Stat. 251, 258, 43 U. S. .
661. For the text of this provision, see supra, p. 86..
m Paoific Gas & Electric Co. v. United States, 45 F. 2d 708 (0. A. 9, 1930).
m Act of May 14, 1896, 29 Stat. 120, as amended, 43 U. S. C. 957.
m Utah Power & Light Oo. v. United States, 248 U. S. 389, 405. 406 (1917).
Then in 1901 the Secretary of the Interior was authorized to
issue, also under general regulations to be fixed by him, a
revocable permit for the use of rights-of-way through the pub-
lie lands, forest, and other reservations of the United States
for electric plants, poles, and lines for the generation and dis-
tribution of electric power, to the extent of the ground occu-
pied by such facilities and not to exceed 50 feet on each side of
the marginal limits thereof or each side of the center line of
power line.7" Although this Act did iot expressly repeal the
1896 provision for rights-of-way, the Supreme Court has stated
that the Act of February 15, 1901 "obviously superseded and
took the place of the law of May 14, 1896." '" And in 1908,
applications for permission to use rights-of-way for this pur-
pose were required to be submitted under the terms of the
latter Act, inasmuch as it was for the same purpose and both
contemplated mere permission.7"
In 1905, the responsibility for executing the laws affecting
the national forests was transferred to the Secretary of Agri-
culture, but excepted therefrom were such laws as affect the
surveying, prospecting, locating, appropriating, entering, re-
linquishing, reconveying, certifying, or patenting of any such
lands.'" This:transferred to the Secretary of Agriculture the
authority granted by the 1901 statute and presumably the au-
thority granted by the 1896 Act as well, inasmuch as rights-
of-way under the 1896 and 1901 statutes were revocable and
therefore did not affect the fee or cloud the title; the latter
matters remained within the jurisdiction of the Secretary of
the Interior.7" The Department of Agriculture has no regula-
tion expressly purporting to implement either Act.
However, a permit revocable at will proved to be inadequate
'Act of February 15, 1901, 31 Stat. 790, as amended, 43 U. S. C. 959.
Utahl Power & Light Co. v. United States, 243 U. S. 389, 407 (1917).
n* Regulations of June 6, 1908, 36 L. D. 567, 580. For current provisions,
see 43 C. F. R. 245.
SAct of February 1, 1905, 1, 33 Stat. 28, 16 U. S. C. 472.
See 33 L. D. 609 (1905); 29 OPa. ATT'Y GEN. 308 (1912); 43 0. F. R.
245.4; 32 C. F. R. 552.7.
for the purposes of private developments Later, the "head
of the department having jurisdiction" over public lands,
national forests, and other reservations of the United States
was authorized in 1911 to grant easements for: rights-of-way,
for a period not exceeding 50 years, for electric poles, and lines
for the transmission and distribution of electric power; and the
extent of the easement permissible is 2; feet on ea h ide! of
their entie lineiof the right-of-way rather than 50, and it is
limited to poles and lines, not including works for electric
power production.*, As to national forests, this authority was
vested in the Secretary of Agriculture as "head of the depart-
ment having jurisdiction."
In 1920, Congress authorized the Federal Power Commis-
sion: to issue 50-year licenses for dams, water conduits, reser-
voirs, power houses, transmission lines, or other project works
necessary or convenient for the development and improvement
-ef navigation and for the development,; transmission, and
itilisation of power across, along, from, or in any stream or
other body of water subject to the jurisdiction, of Congress
under the Commerce Clause, ror upon any part of the public
lands and reservations, except national monuments and nia-
tional paris, of tAhe United fStates; and to issue licenses for
the development of power at federal dames.' : i
,Any lands of the United States included in any-propoed
project or for which a license is sought from the Commission
are, by the terms of the Act, reserved from disposal until-othei-
wise directed by the Commission or by Congress.T -,
It has been observed elsewhere, in connection with revocablep aits
for dam sites, that revocablepermits proved to be inadequate for the purpose
of private development. See aspra, pp. 273, 205-27.
Aet of March 4, 1911, 6 Stat. 12p8, 16 U. S. 0. 5 (National Parks);
see also the same Act codified .n 43 U.S C 961 (Public hands 16 U. C.
400 (National Military Parks), and 16lU. S. C. 523 (National Foreestk.
"*292)Ps. AYr'Y GiN. 8-0`T912) 1
Act of June 10, 1920, 14,41 Stat. 108, 1066, as amended, 16 U.,8. .
797(e). "Reservations" are defined to exclude national parks and monu-
ments. 8, 41 Stat. 1063, as amended, 16 U. &. 0- W76(2).
m Act of June 10, 1920, 24,41 Stat. 1068, 1075, as amended, 16 U. S. C0 818
The Federal Power Act has been construed as revoking the
authority of the respective Secretaries to issue permits to the
extent of the authority granted the Federal Power Commis-
sion, and to revoke as well the authority of the Secretaries
to approve the transfer of permits issued prior to the passage
of the Act"la It should also be noted that the Commission
in 1941"held that transmission lines which are not "primary
lines transmitting power from the power house or appurtenant
works of a project to a point of junction with the distribution
system or with the interconnected primary transmission sys-
tem as set forth in section 3 (11) of the Act are not within
the licensing authority of the Commission," but within the
authority of the respective department heads.&
The authority of the Commission extends to all hydroelec-
tric plants on the public lands, and thus the use of hydro-
electric power sites cannot be obtained from the respective
departments, leaving certain lines and the use of land for non-
hydro plants under the jurisdiction of the departments."
This distinction in law between the jurisdiction of the Fed-
eral Power Commission and that of the departments does not,
however, always make for a realistic distinction in fact-for in
some situations the details of a proposed transmission line may
be altered alternatively to permit application to be made to the
Secretary of the Interior or the Federal Power Commission,
whichever a proposed applicant feels may suit his purposes
S32 Ors. ATr'r GzN. 525 (1921) ; 43 C. F. R. 245.2.
"18 0. F. I. 2.2; $3(11) is set forth as 16 U. S. C. 796(11); of. 18
C, IL .4.75.
'See 43 0. F. R. 24.2. See also supra, n. 01, p. 277.
See, e. g., Application of the Idaho Power Company for amendment to
its authorization for a license for the Bliss Project to include two trans-
mission lines in lieu of prior application for permits to the Secretary of
the Interior. Be Idaho Power Company, Project No. 1975, October f1, 1949,
Order superseding order authorizing issuance of license (major). Be Idaho
Power Company, Project No. 1975, January 18, 1950, Order modifying order
of October 13, 1949, authorizing issuance of license (major). IdMaho Power
Co. v. Federal Power Commatsson, Case No. 10,530 (C. A. D. C., 1950).
It should also be noted that the Secretary of the Army has authority
to grant easements for rights-of-way in acquired lands under his control
and in public lands permanently withdrawn or reserved for uses of the
Rights-of-Way: Irrigation.-A number of acts have made
certain irrigation resources of the public domain available for
private and state development.
The Act of 1866 expressly applied to the use of water for agri-
cultural purposes, and under that Act whenever a right to wa-
ter had vested and accrued, the right-of-way for ditches and ca-
nals was also acknowledged.1 Later, Congress provided for
the disposition of desert lands in California, Colorado, Oregon,
Nevada, Washington, Idaho, Montana, Utah, Wyoming, Ari-
zona, New Mexico, and North and South Dakota by those indi-
viduals intending to reclaim such lands by conducting water
thereon, stipulating: 's
That the right to the use of water by the person so con-
ducting the same, on or to any tract of desert land of
three hundred and twenty acres shall depend upon bona
fide prior appropriation; and such right shall not exceed
the amount of water actually appropriated, and neces-
sarily used for the purpose of irrigation and relaniation;
and all surplus water over and above such actual appro-
priation and use, together with the water of all lakes,
rivers, and other sources of water supply upon the public
lands and not navigable, shall remain and be held free
for the appropriation and use of the public for irrigation,
mining, and manufacturing purposes subject to existing
Subsequently, the 1894 Carey Act made desert lands avail-
able free of charge to the states for reclamation, such grant
being conditioned upon actual reclamation.'"
In addition, rights-of-way through the public lands and res-
ervations for private reclamation works have been the subject
Department of the Army for, among other purposes, substations for electric
power tralsuiseon lines, and for any other purpose he deems advisable.
Act ofJy 241948, 7, 60 Stat. 641, 4, 48 U. S.C. 981b.
"a R. 2839, from Act of July 26, 1866, 9, 14 Stat 251, 253, as amended,
48 U. s. C. 661.
4 Act of March 8, 1877, 19 Stat. 377, as amended, 43 U. 8. C. 321 et seq.
See also supra, pp. 87-38.
Act of August 18, 1894, i 4, 28 Stat. 372, 422, as amended, 48 U. S. C.
641 et seq. See also supra, pp. 180-181.
of other acts of Congress. An amended 1891 act grants rights-
of-way to canal ditch companies or to districts formed for the
purpose of irrigation or drainage to the extent of the ground
occupied by waters of reservoirs and.eanals and 50 feet oi each
side of the marginal limits thereof, and such additional rights-
of-way as may be necessary for operation and maintenance, as
well as the right to use materials on the adjacent lands for con-
struction of such canals and ditches.7 The right contemplated
by this act is neither amere easement nor a fee simple absolute,
but a limited fee on an implied condition of reverter in the
event the grantee ceases to use or retain the land for the pr-
pose indicated in the act.7'
Originally, the purposes for which such a right-of-way could
be used were expressly limited to the canal or ditch for irriga-
tion and drainage,"7 but it was subsequently provided that such
rights-of-way might be used:
for purposes of a public nature; and said rights-of-way
may be used for purposes of water transportation, for
domestic prpoe, .or for the development of power, as
subsidiary to the main purpose of irrigation or drainage.
This subsidiary nature of other uses extends to the term "pur-
poses of a publicnatue" as well as others enumerated.!" Sub-
seqently, the granting of permits or Jsements for caretakers'
quarters was authorized, except in national forests."
With an exception for national forests, parks, and military or
Indian reservations, the Secretary of the Interior was author-
ised in 1895 to permit the use of rights-of-way on public land
for tramroads, canals, or reservoirs by anyone engaged in min-
Act of March 8, 1891, 18, 26 Stat. 105, 1101, as amended, 48 U. S. C.
948; 430. P. 244.14.-
'Kern River Co. v. United Statep, 2571.U. 147, 152 (1921), citing Rio
Grande Western R. Co. v. Stringham, 289 U. S. 44, 47 (1915);. Of 43 0. F, R.
244.19, describing the right as in the nature of.an easement, a right of use
only, the fee title remaining in the Unieditates.' -
Act of March 8, 1891, 21, 26 Stat. 1095, 1102, 48 U. 8. 0. 949..
'1Act of May 11, 1898, 12, 80 Stat. 44,.as, amended, 48 U. 9. 51.
'Kerm River Co. v. United States, 257 U. S. 147, 152153 (1921).
"'Act of March 1, 921, 41 Stat. 1194, 48 S. C. 950.
ing, quarrying, or lumbering.- This authorization was later
amended to include canals and reservoirs for the purposes of
.furnishing water for domestic, public, and other beneficial
uses."7 On top of that, the Act of February 15, 1901, describes
the purposes for which revocable permits may be granted there-
under, to include all the purposes mentioned in the amended
Act of 1895, except tramroads.75
Right-of- Way: General.-As we have seen, a confusing va-
riety exists under statutes providing for rights-of-way over
federal lands in connection with water use, beginning with the,
1866 Act. It was necessary, for example, that the matter of
the present applicability of the 1866 statute be considered .by
the Solicitor of the Department of the Interior who determined,
for action within the Department:7
In my opinion, therefore, the right-of-way clause in
section 2339 of the Revised Statutes has been entirely
Superseded by subsequent statutes as follows:
1. For purposes of irrigation and purposes subsidiary
thereto. RBy the act of March ), 189t (t 18k21, 26
Stat. 1095, 1101), as amended.
2. For purposes of mining, quarrying r cutting timber
and manufacturing lumber. By the act of January 21,
1895 (28 Stat. 635). This act in turn was superseded
by the 1901 act.
3. For purposes of generating, manufacturing or dis-
tributing electric power. By the act of May14, 1896 (29
Stat. 120). This act in turn was superseded by the
4. For purposes of furnishing water for domestic,
public, and other beneficial uses. By section 1 of the
act of May11, 1898 (30 Stat. 404). This act in turn was
superseded by the 1901 act.
m Act of January 21, 1895, 1, 28 Stat. 635, as amended, 43 U. S. C. 956.
SAct of May 11, 1898, 1; 80 Stat. 404, see 43 U. S. C. 986.
S"Act of February 15,1901, 31 Stat. 790, as amended, 48 U. S. 0 959.
"58 I. D. 29, 40 (1942). And see Unites States v. Oklaohio a a.s qan
Blectp 0Co., 318 U, s, 206 (1942).
5. For all purposes except .irrigation and purposes:
subsidiary thereto. By the act of February 15, 1901
(31 Stat. 790).
The confusion as to the right-of-way statutes was further
compounded by the nature of the licensing authority granted
to the Federal Power Commission by the Federal Power Act.
For although outstanding power permits were left expressly
unaffected, the departments could no longer approve the
transfer of such permits; indeed, the scope of departmental
authority here appears otherwise doubtful."
Financial and Technical Assistance.-In addition to making
the public lands and reservations and the water resources
thereon available for nonfederal development, Congress has of-
fered certain aids to nonfederal action in developing, utilizing,
and conserving water resources. These may consist of loans,
financial contributions, furnishing technical assistance and
services, or providing for cooperative federal-state programs.
Outright financial contributions to nonfederal activity is the
least prevalent form of assistance. We shall mention some of
the more significant of the relevant statutes. But particular
mention should first be made of the Soil Conservation and Do-
mestic Allotment Act, which authorizes the Secretary of Agri-
culture "to furnish financial or other aid to, any agency, govern-
mental or otherwise, or any person" for the purposes of the
Act." It further directs that states shall be entitled to grants,
and the Secretary shall make grants to the states when state
plans conform to the specified standards."' Provision is also
made for grants to individual farmers measured, among other
"32 Ops. ATr'Y GN. 525, 528-531 (1925); Re The Montana Power Come-
pany, FPC Opinion No. 170, February 4, 1949; The Montana Power Co. v.
Federal Power Commission, Case No. 10,200, C. A. D. C., decided October 4,
"Act of April 27, 1935, 1, 49 Stat. 163, 16 U. S. C. 590a(3). See also
supra, pp. 866-872.
Act of February 29, 1986, 1 7, 49 Stat. 1148, as amended, 16 U. S. C.
590g; the purposes of the act are "(1) preservation and improvement of soil
fertility; (2) promotion of the economic use and conservation of land; (8)
diminution of exploitation and wasteful and unscientific use of national soil
resources; (4) the protection of rivers and harbors against the results of
things, by their treatment or use of land.'" It further specifies
that, in arid or semiarid sections, payments may be measured
by water-conservation measures on individual farms, including
measures to prevent run-off, the building of check dams and
ponds, and facilities for applying water to the land."
In the 1948 Water Pollution Control Act, Congress author-
ized limited appropriations for grants to states and interstate
agencies foi investigations, research, surveys, and studies of
industrial waste pollution, and also authorized limited appro-
priations for limited grants to such agencies to aid in financing
the cost of project planning and design."" Loans are also
authorized to any state, municipality, or interstate agency for
the design or construction of treatment works to prevent raw
waste discharge into navigable streams."
The Rural Electrification Administration may make loans at
low interest rates in aid of rural electrification."
As to additional measures of federal assistance, reference is
made to the more detailed discussion elsewhere of the several
statutes making the following provisions for financial and tech-
Federal cooperation with the states in the production arnd
distribution of forest-tree seeds and plants for reforestation;"
Investigations, experiments, and tests for forestry pur-
Cooperative arrangements between the Federal Government
and private owners for sustained-yield forest management;'"
Cooperative arrangements with state governments for the
provision of technical services respecting forest management
soil erosion *;" and (5) the reestablishment of farm purchasing
power. 7(a), 49 Stat. 1148, 16U. S. 590g(a).
8(b), 49 Stat. 1149, as amended, 16 U. S.. 50h(b).
Act of June 30,1948, 1 8,62 Stat. 1155,1159, as amended, 33 U. S. C. 466g
i 5-6, 62 Stat. 1158, as amended, 33 U. S. C. 466d-466e.
m Act of May 20, 1936, 49 Stat. 1363, as amended, 7 U. S. C. 901 et seq.
See also supra, p. 289.
See eupra, p. 358.
See supra, p. 358.
See supra, p. 359.
* And the harvesting, marketing, and processing of forest prod-
Forest pest control measures;"
Experimental laboratories for, and the production and prac-
tical demonstration of fertilizer use and the distribution of fer-
tilizer by the Tennessee Valley Authority; "
Credit assistance in the acquisition, repair, or improvement
of farms and purchases of lands in reclamation projects;79
Research and education-agricultural experiment sta-
tions; 7o cooperative agricultural extension work with state
agricultural colleges; ".
Financial aid to states constructing wildlife refuges, and
federal development of specific land and water areas as wild-
life refuges; "
Financial aid to states for fish restoration and manage-
ment projects; *' "
Cooperation with the states in devising means of prevent-
ing erosion of the shores of coastal and lake waters by waves
and currents; 77'and
Financial assistance to states and local agencies in the con-
struction of sewage-treatment works to prevent pollution, and
in the conduct of pollution-control studies.77'
Here, as in other federal water-resource activities, there is
evidenced some measure of duplication and lack of coordina-
tion. An example of duplication is the availability, at least un-
der statute, of soil-conservation services and assistance in the
Tennessee Valley through both the Tennessee Valley Author-
ity and the Department of Agriculture.7"7
See supra, pp. 359-60.
See supra, p. 360.
"See supra, pp. 362-464.
See aupra, p. 380.
See supra, p. 380,
See supra, p. 381.
m See supra, p. 327.
m See supra, p. 30.
See supra, pp. 34-336.
I" See supra, pp. 341-342.
m See supra, pp. 362-,34, 366-72.
: And there is the possibility of conflict of purposes between
the affirmative legislative provision for soil conservation and
the price-support legislation, previously noted."l
RiGULATianN o F NONFEDERAL ACPi'rvr'i.-In addition to
federal construction and operation of water-resource projects
and the direct conduct bf other resource activities, projects are
constructed and activities affecting'water-resource development
are conducted by nonfederal entities. It is obviously to be
desired that such activities be coordinated with those ofthe
Federal Governiment. This is an objective of several statutory
provisions which are regulatory in their nature and sum-
Hydroelectric Power.-Nonfederal hydroelectric, power
dams in waters under the commerce jurisdiction of Congress or
upon certain federal lands must be licensed by the Federal
Power Comnmission."8 In issuing licenses, the Commission
must select the project "best adapted to a comprehensive plan
for improving or developing" the waterway."' It may im-
pose conditions upon licenses, and the statute specifically
refers to some *hich'Way be imposed, these dealing nota-
bly with the protection od navigation .' The relationship
between any licensed structure and other structures, of either
the Federal Goernment or nonfederal entities, is recognized
by a provision which permits the Commission to determine the
payments which should be made by license for benefits re-
ceived froi a storage reservoir or other headwater improve-
idt~i' The same provision is equally applicable to the deter-
iniation of payments which may be required from owners ot
unlieiied power project for benefits they receive from con-
struction work by th 'United States oi its licensees.'
But the Federal Power Commission is not the only agency
See supra, pp. 66-872, 872.
m Act of June 10,1920, 28,41 Stat. 1068,1075, as amended, 16 U. S. C817.
See also supra, ppT 272-289. .
I 10(a), 41 Stat. 1068, as amended, 16 U. S. C.803(a).
oi r 10, 41 Stat. 1068, as amended, 16 U. S. C. 808. See also spria, pp.
m 10(f), 41 Stat. 1070, as amended, 16 U. S. C. 808(f).
regulating nonfederal hydroelectric dams. The Secretary of
the Army exercise regulatory functions in several ways. For
example, before'an FPC license .nay be issued affecting the
navigable capacity of navigable waters, the plans must be ap-
proved by the Chie of Engineers and the Secretary of the
Army.tm Furthermore, the Secretary of the Army maydirect
the inclusion of navigation lights and signals and may pre-
scribe rules in the interest of navigation governing the operation
of project navigation facilities.'"
Similarly, the Fish and Wildlife Service is authorized to ree-
ommend, as to the construction and operation of licensed ion-
federal dams as well as federal dams, adequate provision of the
protection of fish and wildlife."
In addition to, the foregoing provisions, several statutes
providing for the withdrawal of public lands suitable for certain
public purposes are relevant to potential power development.7
The Federal Power Commission maycause the withdrawal of
lands for power purposes under these acts. Furthermore, the
Federal Power Act automatically withdraws lands,,included
within any aplication for a preliminary permit or license,
and authorizes the' Commission to release power withdrawals
inappropriate cases.7' And FPC licenses must contain con-
ditions to protect any reservations of the United States.78
The Federal Power Commission also exercises regulatory
functions as to rates, services, and the like which have a less
direct significance for purposes of this discussion, and which are
outlined elsewhere."9 In this connection, however, oneduty
of t4e, Commissipn is particularly.pertinent to the integrating
role of federal elation: its duty to promote and encourage
the voluntary interconnection and coordination of electric
,' 1 4(d), 41 Stat. 106, aM amended, 16 U. S.0. 797(e).
18, 41 Stat. 1073, as amended, 16 U. S. C. 811.
t Act of August 14,1946, 2,60 Stat. 1080,10 U. S. C. 662.
*"Act of Februay 15, 1901,81 Stat. 20,: Act:df June 25, 1910,' 1, 36 Stat.
847,43 U. S. C. 141; Act of March 4,1911, 86 Stat. 1285, 123 .
SAct of June 10, 1980, 24, 41 Stat. 10S, 1075, as amended, 16 U. S. C.
818 (Supp. III).
*Act of August 26, 195, $ 4(e), 49 Stat. 838, 840, as amended, 16 U. S. C.
See supra, pp.287-289.
facilities within and between regional power districts which it
was directed to establish, but which have not yet been created."
Relative Spheres of Federal and Nonfederal Development.-
In the matter of regulation, even more significant is the possi-
bility of a conflict between a proposal to license a nonfederal
project and another proposal for federal construction of a sim-
ilar or conflicting project. This difficulty is well illustrated by
reference to an example previously set forth.m The origin of
the difficulty lies in the failure of statutes in specific instances
to define clearly when a particular development may be under-
taken only by the United States or by others under license from
the United States. Thus, much of the controversy in the ex-
ample centers around the meaning of the word "approved." t
NAapotoer River Structures.-Nonpower structures in navi-
gable streams and other obstructions to navigation are subject
to the regulatory jurisdiction of the Chief of Engineers and
the Secretary of the Army and also, as to some structures, to
the consent of Congress." As to bridges, dams, dikes, and
causeways, an 1899 Act requires generally both the consent
of Congress and the approval of plans by the Chief of En-
gineers and the Secretary of the Army prior to construction"
But bridges, dams, dikes, and causeways may be built under
state authority in'waterways, the navigable portiins of which
lie wholly within a single state, if the location and plans are
first approved by the Chief of Engineers and the Secretary of
Furthermore, under the 1946 General Bridge Act, Congress
granted blanket consent for the construction, maintenance,
and operation of bridges over navigable waters of the United
States, subject to stipulated conditions." The location and
plans must still be approved, under the 1946 Act, by the Chief
202(a), as added by Act of August 26,198, 49 Stat. 88, 848, 16 U. S. 0.
824a (a). See also supra, p. 287.
I See supra, pp. 440-441.
m See aupra, pp. 440-441.
See supra, pp. 113-118.
"See aupra, pp. 113, 116.
See supra, pp. 118, 116.
SSee supra, pp. 113-114.
of Engineers and the Secretary of the Army and also, in the
case of privately owned highway tqll bridges, by the highway
departments of the state or states in which the bridge is situ-
ated," Or if two or more state highway departments involved
are unable to agree, by the Public Roads Administration."~
Also, the Chief of Engineers and the Secretary of the Army
may impose such conditions relating to bridge maintenance
and operation as they deem necessary "in the interest of
In addition to control prior to construction, the Secretary of
the Army has certain continuing authority with respect to
river structures: in the regulation of tolls, the regulation of
drawbridge operation, the maintenance of lights and signals,
and the prescription of alterations to obstructive bridges.97
As to the latter item, it has traditionally been required that
such alterations be made at the expense of the bridge owners.s
But two statutes withL respect to certain bridges over the Co-
iumbia River and in the Tennessee Valley provided that the
cost be borne by the United States. In addition, a 1940 stat-
ute with respect to railroad bridges provides for the sharing of
costs by the bridge owner and the United States.8
Through review by the Chief of Engineers and the Secretary
of the Army, sad through the conditions which may be im-
posed upon the approval of those ofBcers, the construction of
individual nonpower river structures can be better harmonized
with river use by all persons for all purposes. In large measure,
however, the statutes themselves and; many responsibilities of
the administering agency under other statutes place primary
emphasis on protection and improvement of navigation,8
m See upra, pp. 113-114.
See supra, p. 114.
See supra, pp. 115-116, 115,113,114-115.
See #upra, p. 114..
mSee supra, pp. 114-115.
See supra, p. 115.
SAn exception to this statement is the 1906 statute specifying certain
conditions which apply to the construction and maintenance of bridges
authorized by Congress, including provision as to the movement of mail,
troops and munitions of war and the use of bridges for telephone, telegraph,
Water PoUution.-This is particularly illustrated by the sev-
eral statutes authorizing the Secretary of the Army to control
theL deposit of refuse matter in navigable waters. For the
most part, such legislation has been confined to impediments to
navigation;" The act of most general application, for exam-
ple, is limited in its scope to refuse matter "other thait that
flowing from streets and sewers and passing therefrom in a
liquid state." The subject of pollution control largely re-
mains therefore one for regulation by other agencies and
through other statutes.
The Fish and Wildlife Service and the Bureau of Mines have
authority to investigate pollution in relation to wildlife."
And the Surgeon General of the Public Health Service is au-
thorized under the 1948 Water Pollution Control Act to pre-
pare a comprehensive program for eliminating or reducing
the pollution of interstate waters.8" Provision is also made
for securing the abatement of pollution, although the Act in
effect gives the state where the pollution originates a veto
power over this enforcement procedure.8
Regulation of Water Carriers.-Generally, the regulation
of water carriers is a function of the Interstate Commerce
Commission, conducted according to a pattern substantially
similar to the regulatory scheme applicable to rail and motor
carriers." The establishment and maintenance of navigation
aids, such as lighthouses, buoys, lights, radio beacons, and radio-
direction finder stations, and the prescription of rules for navi-
gating in harbors and inland waterways and at sea are responsi-
bilities of the United States Coast Guard operating under a
number of statutory provisions."0 Congress has delegated to
and railroad purposes, in addition to matters relating strictly to naviga-
tion. Bridges authorized under the 1946 General Bridge Act are not, how-
ever, subject to the mandatory conditions of the 1906 statute. See supra,
p. 113, and especially n. 220.
SSee supra, pp. 118-119.
See eupra, pp. 118-119.
See supra, p. 330.
See supra, p. 340.
See supra, p. 341.
See supra, pp. 78-83.
SSee supra, p. 76.
the Secretary of the Army, however, general authority to pre-
scribe regulations for the navigation of navigable waters "cover-
ing all matters not specifically delegated by law to some other
executive department." 8 Although the Coast Guard is recog-
nised generally as the enforcement agency for navigation rules,
the Chief of Engineers has the duty of enforcing rules concern-
ing anchorage grounds where no Coast Guard vessel is avail-
able.82- In the case of Pearl Harbor, the prescription of
anchorage rules is the duty of the Secretary of the Navy.m
The Commandant of the Coast Guard, the Secretary of the
Army, and the Interstate Commerce Commission all have au-
thority to issue certain rules respecting the transportation of
explosives by water.8"
Regulation Through Conditions Imposed Upon Federal
Benefits.-Still further means of federal regulation should be
mentioned--through conditions imposed upon permits, licenses,
easements, rights-of-way, and other benefits. As indicated
previously in the more detailed discussion of these matters,
the administrative head responsible for the issuance of per-
mits, easements, licenses, and the like also is usually au-
thorized to impose suitable conditions upon the grant.81"
Thus, conditions may be imposed upon the use and occupa-
tion of the forests,8 the national parks,"7 and watershed and
submarginal lands acquired by the Department of Agricul-
ture;m upon Taylor Grazing Act permits and leases," hunt-
ing and fishing in the national forests,8 the furnishing of. tech-
nical advice on soil conservation under the, Soil Conservation
and Domestic Allotment Act,82 the receipt of cash payments
f See supra, pp. 77-78.
See supra, p. 77.
m See supra, p. 77.
4 See sepra, p. 78.
See supra, pp. 626-33.
See supra, p. 355.
See supra, p. 862.
See supra, n. 27, p. 357, and p. 373.
See supra, p. 365.
See supra, pp. 333, 625.
m See supra, p. 368.
for proper soil-conservation practices,m and the construction
of Department of Agriculture flood-control works,- and water
Many of these conditions have been crystallized in the form
of published regulations.m Such conditions and regulations
may be employed to integrate federal and nonfederal use of
land in relation to water resources.
Passing reference may also be made to the resale rate re-
quirements of such statutes as the Bonneville Project Act and
the Tennessee Valley Authority Act, which provide further
means of federal regulation in a limited sphere.s
At different times and in different ways, law has responded
to the changing needs for development, utilization, and con-
servation of water resources, including related uses of land.
This process has -produced a number of conflicts, duplications,
and gaps. These should be eliminated along with any major
revision of policy respecting water resources.
It should be emphasized, in this connection, that time has
not permitted research sufficient to assure complete coverage
by this survey of all relevant aspects of the law. Moreover,
we have purposely omitted discussion of the vital matters
of administrative organization, as such. We have sought to
include discussion of the more significant substantive provi-
sions. Further detailed research will be required to enable
full statutory coordination.
Clearly, the benefits to be gained from a coordination of
implementing laws attract the care and precision required.
The interests of present and future generations demand it.
* See supra, pp. 371-872.
See supra, p. 876.
U See supra, p. 378.
See aupra, pp. 883, 625.
See supra, pp. 305, 07.