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1. Reclamation projects

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

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

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

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

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Interstate transmission 3 Navigable waters 2 Reclamation projects 1

1. Reclamation projects

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

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

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

2. Navigable waters

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

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

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

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

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

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

3. Interstate transmission

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

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