Petitioner applied to the Federal Power Commission for a license
for a power project in Iowa involving the construction of a dam on
a navigable stream and the diversion of water from two navigable
streams into another. Section 9(b) of the Federal Power Act
requires an applicant to submit satisfactory evidence of compliance
with requirements of state laws
"with respect to bed and banks and to the appropriation,
diversion, and use of water for power purposes and with respect to
the right to engage in the business of developing, transmitting,
and distributing power, and in any other business necessary to
effect the purposes of a license under this Act."
Petitioner showed no attempt to comply with Iowa Code, 1939, ch.
363, which forbids the construction of dams and the diversion of
water for industrial purposes without a permit from the State
Executive Council and authorizes the issuance of such a permit upon
a finding,
inter alia, that "any water taken from the
stream . . . is returned thereto at the nearest practicable place."
The State intervened and urged that the application be denied
because petitioner did not submit evidence of its compliance with
the requirements of the Iowa Code for a permit from the State
Executive Council. The Commission found that a federal license for
the project was required under the Federal Power Act, and that the
project called for a practical and reasonably adequate water power
development, with certain recreational advantages, all at a cost
not appearing to be unreasonable, but it dismissed the application
without prejudice, on the ground of petitioner's failure to present
satisfactory evidence, pursuant to § 9(b), of compliance with
requirements of laws of Iowa requiring a state permit.
Held:
1. Compliance with requirements for a state permit under Iowa
Code, 1939, ch. 363, is not a condition precedent to, or an
administrative procedure that must be exhausted before, securing a
federal license. Pp.
328 U. S. 163,
328 U. S. 170,
328 U. S.
182.
Page 328 U. S. 153
(a) To require petitioner to secure a state permit as a
condition precedent to securing a federal license would vest in the
State Executive Council a veto power over the federal project which
easily could destroy the effectiveness of the Federal Act and
subordinate to state control the "comprehensive" planning which the
Federal Power Act entrusts to the judgment of the Commission or
other representatives of the Federal Government. P.
328 U. S.
164.
(b) The action of the Commission in requiring petitioner to
present satisfactory evidence of compliance with the requirements
for a state permit, while not requiring it actually to secure a
state permit, avoided vesting a veto power in the State Executive
Council, but it did not meet the substance of petitioner's
objection, because it subjected to state control the very
requirements of the project which Congress placed in the discretion
of the Commission. P.
328 U. S.
165.
(c) The Act leaves to the States their traditional jurisdiction
over property rights to the beds and banks of streams and the use
of water, subject to the superior right of the Federal Government
to regulate interstate and foreign commerce, administer public
lands and reservations of the United States, and exercise authority
under treaties. Pp.
328 U. S.
171-176.
(d) The intention of Congress was to secure a comprehensive
development of national resources, and not merely to prevent
obstructions to navigation. Pp.
328 U. S.
180-181.
(e) The Act establishes a dual system of control by separating
those subjects which remain under the jurisdiction of the States
from those which the Constitution delegates to the United States
and over which Congress vests the Commission with authority to act.
P.
328 U. S.
167.
(f) Where the Federal Government supersedes the State
Government, there is no suggestion that both agencies shall have
final authority. P.
328 U. S.
168.
(g) A contrary policy is indicated in §§ 4(e), 10(a), (b), and
(c) and 23(b), which sections place responsibility squarely upon
federal officials, and usually upon the Federal Power Commission.
P.
328 U. S.
168.
(h) The express provision of § 27 requiring that the Act be not
construed as affecting the laws of the States relating to the
control, appropriation, use, or distribution of water used in
irrigation or for municipal or other uses, or any vested right
acquired therein, indicates that § 9(b) should not be given a like
effect in the absence of a similar provision. Pp.
328 U. S.
175-178.
Page 328 U. S. 154
(i) Section 27, protecting state laws from supersedure, is
limited to laws as to the control, appropriation, use, or
distribution of water in irrigation or for municipal or other uses
of the same nature, and has primary, if not exclusive, reference to
such proprietary rights. Pp.
328 U. S.
175-176.
(j) Section 9 is devoted to securing adequate information for
the Commission as to pending applications for licenses, and does
not itself require compliance with any state laws. Pp.
328 U. S. 168,
328 U. S.
177-178.
(k) The detailed provisions of the Act providing a comprehensive
plan for the development and regulation of the water resources of
the Nation leave no room or need for conflicting state controls. P.
328 U. S.
181.
(l) It is the Federal Power Commission, rather than the Iowa
Executive Council, that, under our constitutional Government, must
pass upon issues affecting the use of navigable waters -- on behalf
of the people of Iowa as well as on behalf of all others. P.
328 U. S.
182.
2. The action of the Commission was erroneous in dismissing the
application on the ground of petitioner's failure to present
satisfactory evidence, pursuant to § 9(b), of compliance with
requirements of laws of Iowa requiring a state permit. Pp.
328 U. S.
161-167.
(a) The project is clearly within the jurisdiction of the
Commission under the Federal Power Act. P.
328 U. S.
163.
(b) Believing the Iowa law to be inapplicable or to have been
superseded by the Federal Power Act, the Commission would have been
justified in following its own interpretation of the Federal Power
Act and proceeding with the merits of the application thereunder
without requiring petitioner to submit evidence of compliance with
such laws of Iowa. Pp.
328 U. S.
160-162.
(c) The Commission's action in dismissing the application
without prejudice did not avoid passing on the issue as to the need
for evidence of petitioner's compliance with the state law, but
constituted a ruling that such evidence was essential. Pp.
161-162.
(d) A state permit not being required, there was no
justification for requiring petitioner, as a condition of securing
a federal permit, to present evidence of its compliance with the
requirements of the state law for that state permit. P.
328 U. S.
166.
(e) There is ample opportunity and authority for the Commission
to require by regulation the presentation of evidence satisfactory
to it of petitioner's compliance with any of the requirements for a
state permit that the Commission considers appropriate to effect
the purposes of a federal license. P.
328 U. S.
167.
Page 328 U. S. 155
3. Upon the remand of this application to the Commission, it
will not act as a substitute for the local authorities having
jurisdiction over such questions as the sufficiency of applicant's
legal title to riparian rights or the validity of its local
franchises relating to proposed intrastate public utility service.
P.
328 U. S.
178.
(a) The references in § 9(b) to beds and banks of streams, to
proprietary rights to divert or use water, or to legal rights to
engage locally in the business of developing, transmitting, and
distributing power neither add anything to nor detract anything
from the force of local laws, if any, on those subjects. P.
328 U. S.
178.
(b) Insofar as those laws have not been superseded by the
Federal Power Act, they remain as applicable and effective as they
were before its passage. P.
328 U. S.
178.
151 F.2d 20, reversed.
Petitioner applied to the Federal Power Commission for a license
to construct, operate, and maintain a power project on navigable
waters in Iowa. The State intervened and urged that the application
be denied because petitioner had not presented satisfactory
evidence of its compliance with the requirements of Iowa Code,
1939, ch. 363, as to the issuance of a permit by the State
Executive Council. The Commission dismissed the application
"without prejudice to renewal within one year upon satisfying the
requirements of Section 9(b) of the Federal Power Act." 52
P.U.R.(N.S) 82. The Court of Appeals for the District of Columbia
affirmed. 151 F.2d 20. This Court granted certiorari. 3265 U.S.
715.
Reversed, p.
328 U. S. 183.
Page 328 U. S. 156
MR. JUSTICE BURTON delivered the opinion of the Court.
This case illustrates the integration of federal and state
jurisdictions in licensing water power projects under the Federal
Power Act. [
Footnote 1] The
petitioner is the First Iowa Hydro-Electric Cooperative, a
cooperative association organized under the laws of Iowa with power
to generate, distribute, and sell electric energy. On January 29,
1940, pursuant to § 23(b) [
Footnote
2] of the Federal Power Act, it
Page 328 U. S. 157
filed with the Federal Power Commission a declaration of
intention to construct and operate a dam, reservoir, and
hydroelectric power plant on the Cedar River, near Moscow, Iowa.
[
Footnote 3]
On April 2, 1941, it also filed with the Commission an
application for a license, under the Federal Power Act, to
construct an enlarged project essentially like the one it now
wishes to build. The cost of the enlarged project is estimated at
$14,600,000. It calls for an 8,300-foot earthen dam on the Cedar
River near Moscow, an 11,000-acre reservoir at that point, and an
eight-mile diversion canal to a power plant to be built near
Muscatine on the Mississippi. The canal will create two other
reservoirs totaling 2,000 acres. It is alleged that the three
reservoirs incidentally will provide needed recreational
facilities. The power plant will have four turbo-generating units
with a total capacity of 50,000 kw., operating with an average head
of 101 feet of water provided by the fall from the canal to the
Mississippi. Water will be pumped from the Mississippi up to the
head bays of the power intake dam at the plant to meet possible
shortages in supply. The tailrace will extend for a mile along the
shore of the Mississippi to a point below Dam 16 on that River.
Transmission lines will connect the project with a source of steam
standby electric current at Davenport, Iowa, 24 miles up the
Mississippi. The plant is expected to produce 200,000,000 kwh. of
marketable power per year, of which 151,000,000 kwh. will be firm
energy in an average year. Interchange of energy is proposed with
the Moline-Rock Island Manufacturing Company near Davenport, and
the project is suggested as an alternative to the addition
Page 328 U. S. 158
of a 50,000 kw. unit to the plant of that company. The power
will be available especially to nonprofit rural electrification
cooperative associations and to cities and towns in 35 or more
nearby counties.
The Cedar River rises in Minnesota and flows 270 miles
southeasterly through Iowa to Moscow, which is 10 miles west of the
Mississippi. From there, it flows south-westerly 29 miles to
Columbus Junction, where it joins the Iowa River and returns
southeasterly 28 miles to the Mississippi. The proposed diversion
will take all but about 25 c.f.s. of water from the Cedar River at
Moscow. This will correspondingly reduce the flow in the Iowa
River, while the diverted water will enter the Mississippi at
Muscatine, about 20 miles above its present point of entry at the
mouth of the Iowa River. There are no cities or towns on the Cedar
River between Moscow and Columbus Junction, and the record
indicates that the petitioner has options upon 98% of the riparian
rights on the Cedar River in that area. At petitioner's request,
this application was treated as a supplement to its then pending
declaration of intention to construct the smaller project.
On June 3, 1941, the Commission made the following findings:
"(1) That the Cedar and Iowa Rivers are navigable waters of the
United States;"
"(2) That the diversion of water from the Cedar River by means
of the diversion canal as set forth above would have a direct and
substantial effect upon the flow and stage of the Iowa River, and
hence would affect the navigable capacity of that river;"
"(3) That the alternate withholding of water in the reservoir
and canal during periods of shut-down of the power plant and the
release of water at substantial rates of flow during periods of
operation of the power plant, as set forth above, would cause
extreme fluctuations in the flow of the Mississippi River at
Page 328 U. S. 159
Muscatine, Iowa, and would substantially affect the navigable
capacity of that river;"
"(4) That the interests of interstate commerce would be affected
by construction of the project as described in the declaration of
intention as supplemented;"
"(5) That the two small islands . . . [in the Cedar River] are
public lands of the United States, and will be partly or wholly
flooded by the reservoir of the proposed project, and will be
occupied by the project."
"(6) That a license for the construction proposed above is
required under the provisions of the Federal Power Act."
2 Fed. Power Comm'n Rep. 958. [
Footnote 4]
On August 11, 1941, the petitioner, pursuant to that finding,
filed with the Commission an application for a license to construct
the project above described. On November 4, 1941, the Commission
granted the Iowa's petition to intervene, and, since then, the
State has opposed actively the granting of the federal license.
Page 328 U. S. 160
On January 29, 1944, after extended hearings, the Commission
rendered an opinion including the following statements:
"As first presented, the plans of the applicant for developing
the water resources of the Cedar river were neither desirable nor
adequate, but many important changes in design have been made. [The
opinion here quoted in a footnote § 10(a) of the Federal Power
Act.] [
Footnote 5] The
applicant has also agreed to certain modifications proposed by the
Chief of Engineers of the War Department. The present plans call
for a practical and reasonably adequate development to utilize the
head and water available, create a large storage reservoir, and
make available for recreational purposes a considerable area now
unsuitable for such use, all at a cost which does not appear to be
unreasonable."
"Further changes in design may be desirable, but they are minor
in character, and can be effected if the applicant is able to meet
the other requirements of the act."
In re First Iowa Hydro-Electric Cooperative, 52 P.U.R.,
(N.S.), 82, 84.
We believe that the Commission would have been justified in
proceeding further at that time with its consideration of the
petitioner's application upon all the material facts. Such
consideration would have included evidence submitted by the
petitioner pursuant to § 9(b)
Page 328 U. S. 161
of the Federal Power Act [
Footnote 6] as to the petitioner's compliance with the
requirements of the laws of Iowa with respect to the petitioner's
property rights to make its proposed use of the affected river beds
and banks and to divert and use river water for the proposed power
purposes, as well as the petitioner's right, within the Iowa, to
engage in the business of developing, transmitting, and
distributing power, and in any other business necessary to effect
the purposes of the license. The Commission, however, was
confronted at that point with a claim by the Iowa that the
petitioner must not only meet the requirements for a federal
license for the project under the Federal Power Act, but should
also present satisfactory evidence of its compliance with the
requirements of Chapter 363 of the Code of Iowa, 1939, hereinafter
discussed, for a permit from the State Executive Council of Iowa
for the same project.
While it now appears from its brief and the argument in this
Court that it is the opinion of the Federal Power Commission that
the requirements of Chapter 363 of the Code of Iowa as to this
project have been superseded by those of the Federal Power Act,
yet, at the time of the original hearing, the Commission felt that
the courts were the appropriate place for the decision on Iowa's
contention as to the applicability and effectiveness of Chapter
363
Page 328 U. S. 162
of its Code in relation to this project. The Commission decided,
therefore, to proceed no further until that question had been
decided by the courts, and dismissed the petitioner's application,
without prejudice, in accordance with the following explanation
stated in its opinion:
"The appropriate place for a determination of the validity of
such state laws is in the courts, and, if we dismiss the
application for license on the basis of failure to comply with the
requirements of § 9(b), applicant may seek review of our action and
its contentions under § 313(b) of the Federal Power Act."
52 P.U.R.(N.S.) 82, 85.
The Commission also expressly found that --
"The applicant has not presented satisfactory evidence, pursuant
to § 9(b) of the Federal Power Act, of compliance with the
requirements of applicable laws of the state of Iowa requiring a
permit from the State Executive Council to effect the purposes of a
license under the Federal Power Act, and the pending application,
as supplemented, should be dismissed without prejudice."
Id. at 85.
This action, after all, did not save the Commission from passing
on the issue, for the order of dismissal was a ruling upon it,
adverse both to the petitioner's contentions and to its own views
on the law. The Commission would have been justified in following
its own interpretation of the Federal Power Act and proceeding with
the merits of the application without requiring the petitioner to
submit evidence of its compliance with the terms of Chapter 363, or
of any other laws of the Iowa, which the Commission held to be
inapplicable or to have been superseded by the Federal Power
Act.
On the applicant's petition for review of the dismissal, it was
affirmed by the United States Court of Appeals for the District of
Columbia. 151 F.2d 20. We then granted certiorari under § 240(a) of
the Judicial Code, 28 U.S.C. § 347(a), and § 313(b) of the Federal
Power Act,
Page 328 U. S. 163
49 Stat. 860, 16 U.S.C. § 825
l, because of the
importance of the case in applying the Federal Power Act.
The findings made by the Commission on June 3, 1941, in response
to the petitioner's declaration of intention are not in question.
For the purposes of this application, it is settled that the
project will affect the navigability of the Cedar, Iowa, and
Mississippi Rivers, each of which has been determined to be a part
of the navigable waters of the United States; will affect the
interests of interstate commerce; will flood certain public lands
of the United States, and will require for its construction a
license from the Commission. [
Footnote 7] The project is clearly within the jurisdiction
of the Commission under the Federal Power Act. The question at
issue is the need, if any, for the presentation of satisfactory
evidence of the petitioner's compliance
Page 328 U. S. 164
with the terms of Chapter 363 of the Code of Iowa. This question
is put in issue by the petition for review of the order of the
Commission which dismissed the application solely on the ground of
the failure of the petitioner to present such evidence. The laws of
Iowa, which that State contends are applicable and require a permit
from its Executive Council to effect the purposes of the federal
license, are all in §§ 7767-7796.1 of the Code of Iowa, 1939,
constituting Chapter 363, entitled "Mill Dams and Races." Section
7767 of that chapter is alleged to require the issuance of a permit
by the Executive Council of the State, and is the one on which the
Commission's order must depend. It provides:
"7767 Prohibition -- permit. No dam shall be constructed,
maintained, or operated in this state in any navigable or meandered
stream for any purpose, or in any other stream for manufacturing or
power purposes, nor shall any water be taken from such streams for
industrial purposes, unless a permit has been granted by the
executive council to the person, firm, corporation, or municipality
constructing, maintaining, or operating the same. [
Footnote 8]"
To require the petitioner to secure the actual grant to it of a
State permit under § 7767 as a condition precedent to securing a
federal license for the same project under the Federal Power Act
would vest in the Executive Council of Iowa a veto power over the
federal project. Such a veto power easily could destroy the
effectiveness of the federal act. It would subordinate to the
control of the State the "comprehensive" planning which the Act
provides shall depend upon the judgment of the Federal Power
Commission or other representatives of the Federal Government.
[
Footnote 9]
Page 328 U. S. 165
The Commission's order of dismissal avoids this extreme result
because, instead of charging the petitioner with failure to present
satisfactory evidence of the actual grant to it of a State permit,
the order charges the petitioner with failure to present
satisfactory evidence merely of its "compliance with the
requirements of applicable laws of the Iowa requiring a permit from
the State Executive Council." While this avoids subjecting the
petitioner to an arbitrary and capricious refusal of the permit, it
does not meet the substance of the objection to the order. For
example, § 7776 of the State Code requires that
"the method of construction, operation, maintenance, and
equipment of any and all dams in such waters shall be subject to
the approval of the executive council."
This would subject to State control the very requirements of the
project that Congress has placed in the discretion of the Federal
Power Commission. [
Footnote
10] A still greater difficulty is illustrated by § 7771. This
states the requirements for a State permit as follows:
"7771 When permit granted. If it shall appear to the council
that the construction, operation, or
Page 328 U. S. 166
maintenance of the dam will not materially obstruct existing
navigation, or materially affect other public rights, will not
endanger life or public health, and
any water taken from the
stream in connection with the project is returned thereto at the
nearest practicable place without being materially diminished
in quantity or polluted or rendered deleterious to fish life, it
shall grant the permit, upon such terms and conditions as it may
prescribe."
(Italics supplied.)
This strikes at the heart of the present project. The feature of
the project which especially commended it to the Federal Power
Commission was its diversion of substantially all of the waters of
the Cedar River near Moscow, to the Mississippi River near
Muscatine. Such a diversion long has been recognized as an
engineering possibility, and as constituting the largest power
development foreseeable on either the Cedar or Iowa Rivers.
[
Footnote 11] It is this
diversion that makes possible the increase in the head of water for
power development from a maximum of 35 feet to an average of 101
feet, the increase in the capacity of the plant from 15,000 kw. to
50,000 kw., and its output from 47,000,000 kwh. to 200,000,000 kwh.
per year. It is this diversion that led the Federal Power
Commission, on January 29, 1944, to make its favorable appraisal of
the enlarged project, in contrast to its unfavorable appraisal, and
to the State's rejection, of the smaller project. It is this
feature that brings this project squarely under the Federal Power
Act, and at the same time gives the project its greatest economic
justification.
If a State permit is not required, there is no justification for
requiring the petitioner, as a condition of securing its federal
permit, to present evidence of the petitioner's compliance
Page 328 U. S. 167
with the requirements of the State Code for a State permit.
Compliance with State requirements that are in conflict with
federal requirements may well block the federal license. For
example, compliance with the State requirement, discussed above,
that the water of the Cedar River all be returned to it at the
nearest practicable place would reduce the project to the small one
which is classified by the Federal Power Commission as "neither
desirable nor adequate." Similarly, compliance with the engineering
requirements of the State Executive Council, if additional to or
different from the federal requirements, may well result in
duplications of expenditures that would handicap the financial
success of the project. Compliance with requirements for a permit
that is not to be issued is a procedure so futile that it cannot be
imputed to Congress in the absence of an express provision for it.
On the other hand, there is ample opportunity for the Federal Power
Commission, under the authority expressly given to it by Congress,
to require by regulation the presentation of evidence satisfactory
to it of the petitioner's compliance with any of the requirements
for a State permit on the state waters of Iowa that the Commission
considers appropriate to effect the purposes of a federal license
on the navigable waters of the United States. This evidence can be
required of the petitioner upon the remanding of this application
to the Commission.
In the Federal Power Act, there is a separation of those
subjects which remain under the jurisdiction of the states from
those subjects which the Constitution delegates to the United
States and over which Congress vests the Federal Power Commission
with authority to act. To the extent of this separation, the Act
establishes a dual system of control. The duality of control
consists merely of the division of the common enterprise between
two cooperating agencies of Government, each with final authority
in its own jurisdiction. The duality does not require two
Page 328 U. S. 168
agencies to share in the final decision of the same issue. Where
the Federal Government supersedes the state government, there is no
suggestion that the two agencies both shall have final authority.
In fact, a contrary policy is indicated in §§ 4(e), 10(a)(b) and
(c), and 23(b). [
Footnote
12] In those sections, the Act places the responsibility
squarely upon federal officials, and usually upon the Federal Power
Commission. A dual final authority, with a duplicate system of
state permits and federal licenses required for each project, would
be unworkable. "Compliance with the requirements" of such a
duplicated system of licensing would be nearly as bad. Conformity
to both standards would be impossible in some cases, and probably
difficult in most of them. [
Footnote 13] The solution adopted by Congress, as to what
evidence an applicant for a federal license should submit to the
Federal Power Commission, appears in § 9 of its Act. It contains
not only subsection (b), [
Footnote 14] but also subsections (a) and (c). [
Footnote 15] Section 9(c)
permits
Page 328 U. S. 169
the Commission to secure from the applicant "[s]uch additional
information as the commission may require." This enables it to
secure, insofar as it deems it material, such parts or all of the
information that the respective states may have prescribed in state
statutes as a basis for state action. The entire administrative
procedure required as to the present application for a license is
described in § 9 and in the Rules of Practice and Regulations of
the Commission. [
Footnote
16]
Page 328 U. S. 170
The securing of an Iowa state permit is not in any sense a
condition precedent or an administrative procedure that must be
exhausted before securing a federal license. It is a procedure
required by the Iowa in dealing with its local streams and also
with the waters of the United States within that State in the
absence of an assumption of jurisdiction by the United States over
the navigability of its waters. Now that the Federal Government has
taken jurisdiction of such waters under the Federal Power Act, it
has not, by statute or regulation, added the state requirements to
its federal requirements.
The State of Iowa, in its petition to intervene in the
proceedings before the Commission, stated in relation to the
proposed diversion of water from the Cedar River to the
Mississippi: "said diversion would be in direct violation of the
provisions of section 7771, Code of Iowa 1939." Also, in the
State's motion to intervene in the proceedings before the Court of
Appeals, it alleged that,
"By reason of said provisions of law [§§ 7767 and 7771, Code of
Iowa, 1939] and the diversion of water involved in the proposed
project of petitioner, the executive council of the state of Iowa
could not lawfully grant a permit for the erection of the dam
proposed."
Furthermore, the Executive Council, which includes the Governor
of the State, on July 5,
Page 328 U. S. 171
1944, adopted a resolution directing the Attorney General of
Iowa to intervene in this case before that court, and "thereby take
steps to sustain the said order of the Federal Power Commission
[dismissing the petitioner's application for a federal license]"
because "it is vital to the interests of the Iowa that the said
order of the Commission be sustained." This demonstrates that the
State of Iowa not only is opposed to the granting of a State
permit, but is opposed also to the granting of a federal license
for the project. This opposition is based at least in part on the
ground that the State statute, as interpreted by the State
officials, expresses a policy opposed to the diversion of water
from one stream to another in Iowa under such circumstances as the
present.
Accepting this as the meaning of Section 7771 of the Iowa Code
brings us to consideration of the effect of the Federal Power Act
upon it and the related State statutes. We find that, when that Act
is read in the light of its long and colorful legislative history,
it discloses both a vigorous determination of Congress to make
progress with the development of the long idle water power
resources of the nation and a determination to avoid
unconstitutional invasion of the jurisdiction of the states. The
solution reached is to apply the principle of the division of
constitutional powers between the state and Federal Governments.
This has resulted in a dual system involving the close integration
of these powers, rather than a dual system of futile duplication of
two authorities over the same subject matter.
The Act leaves to the states their traditional jurisdiction
subject to the admittedly superior right of the Federal Government,
through Congress, to regulate interstate and foreign commerce,
administer the public lands and reservations of the United States
and, in certain cases, exercise authority under the treaties of the
United States. These sources of constitutional authority are all
applied in
Page 328 U. S. 172
the Federal Power Act to the development of the navigable waters
of the United States. [
Footnote
17]
The closeness of the relationship of the Federal Government to
these projects and its obvious concern in maintaining control over
their engineering, economic, and financial soundness is emphasized
by such provisions as those of § 14 authorizing the Federal
Government, at the
Page 328 U. S. 173
expiration of a license, to take over the licensed project by
payment of "the net investment of the licensee in the project or
projects taken, not to exceed the fair value of the property
taken," plus an allowance for severance damages. The scope of the
whole program has been further aided, in 1940, by the definition
given to navigable waters of the United States in
United States
v. Appalachian Electric Power Co., 311 U.
S. 377.
"Students of our legal evolution know how this Court interpreted
the commerce clause of the Constitution to lift navigable waters of
the United States out of local controls and into the domain of
federal control.
Gibbons v. Ogden, 9 Wheat. 1,
to
United States v. Appalachian Electric Power Co.,
311 U. S.
377."
Northwest Airlines v. Minnesota, 322 U.
S. 292,
322 U. S.
303.
It was in the light of these developments that this petitioner,
in April, 1941, made application for a federal license for this
enlarged project. This project thus illustrates the kind of a
development, in relation to interstate commerce and to the
navigable waters of the United States, that is brought forth by the
new recognition of its value when viewed from the comprehensive
viewpoint of the Federal Power Commission. Until 1941, this
enlarged project had remained dormant at least from the time when
its value was recognized in the report to Congress filed by the War
Department in 1929. [
Footnote
18]
Further light is thrown upon the meaning of the Federal Power
Act by the statement, made by Representative William L. LaFollette
of Washington, a member of the Special Committee on Water Power,
which reported the bill which later became the Federal Water Power
Act of 1920. In the debate which led to the insertion in § 9(b)
Page 328 U. S. 174
of the reference to state laws as to the bed and banks of
streams, he said:
"The property rights are within the State. It can dispose of the
beds, or parts of them, regardless of the riparian ownership of the
banks, if it desires to, and that has been done in some States. If
we put in this language, which is practically taken from that
Supreme Court decision [
United States v. Cress,
243 U. S.
316] as to the property rights of the States as to the
bed and the banks and to the diversion of the water, then it is
sure that we have not infringed any of the rights of the States in
that respect, or any of their rules of property, and
we are
trying in this bill above everything else to overcome a divided
authority and pass a bill that will make it possible to get
development. We are earnestly trying not to infringe the
rights of the States. If possible, we want a bill that cannot be
defeated in the Supreme Court because of omissions, because of the
lack of some provision that we should have put in the bill to
safeguard the States."
56 Cong.Rec. 9810. (Italics supplied.)
As indicated by Representative LaFollette, Congress was
concerned with overcoming the danger of divided authority so as to
bring about the needed development of water power, and also with
the recognition of the constitutional rights of the states so as to
sustain the validity of the Act. The resulting integration of the
respective jurisdictions of the state and Federal Governments is
illustrated by the careful preservation of the separate interests
of the states throughout the Act, without setting up a divided
authority over any one subject. [
Footnote 19]
Page 328 U. S. 175
Sections 27 and 9 are especially significant in this regard.
Section 27 expressly "saves" certain state laws relating to
property rights as to the use of water, so that these are not
superseded by the terms of the Federal Power Act. It provides:
"SEC. 27. That nothing herein contained shall be construed as
affecting or intending to affect or in any way to interfere with
the laws of the respective States relating to the control,
appropriation, use, or distribution of water used in irrigation or
for municipal or other uses, or any vested right acquired
therein."
41 Stat. 1077, 16 U.S.C. § 821.
Section 27 thus evidences the recognition by Congress of the
need for an express "saving" clause in the Federal Power Act if the
usual rules of supersedure are to be overcome. Sections 27 and 9(b)
were both included in the original Federal Water Power Act of 1920
in their present form. The directness and clarity of § 27 as a
"saving" clause, and its location near the end of the Act
emphasizes the distinction between its purpose and that of § 9(b),
which is included in § 9, in the early part of the Act, which deals
with the marshalling of information for the consideration of a new
federal license. In view of the use by Congress of such an adequate
"saving" clause in § 27, its failure to use similar language in §
9(b) is persuasive that § 9(b) should not be given the same effect
as is given to § 27.
The effect of § 27 in protecting state laws from supersedure is
limited to laws as to the control, appropriation,
Page 328 U. S. 176
use or distribution of water in irrigation or for municipal or
other uses of the same nature. It therefore has primary, if not
exclusive, reference to such proprietary rights. The phrase "any
vested right acquired therein" further emphasizes the application
of the section to property rights. There is nothing in the
paragraph to suggest a broader scope, unless it be the words "other
uses." Those words, however, are confined to rights of the same
nature as those relating to the use of water in irrigation or for
municipal purposes. This was so held in an early decision by a
District Court relating to § 27 and upholding the constitutionality
of the Act, where it was stated that "a proper construction of the
act requires that the words
other uses' shall be construed
ejusdem generis with the words `irrigation' and
`municipal.'" Alabama Power Co. v. Gulf Power Co., 283 F.
606, 619.
This section, therefore, is thoroughly consistent with the
integration, rather than the duplication, of federal and state
jurisdictions under the Federal Power Act. It strengthens the
argument that, in those fields where rights are not thus "saved" to
the states, Congress is willing to let the supersedure of the state
laws by federal legislation take its natural course. [
Footnote 20]
Page 328 U. S. 177
Section 9(b) [
Footnote
21] does not resemble § 27. It must be read with § 9(a) and
(c). [
Footnote 22] The
entire section is devoted to securing adequate information for the
Commission as to pending applications for licenses. Where § 9(a)
calls for engineering and financial information, § 9(b) calls for
legal information. This makes § 9(b) a natural place in which to
describe the evidence which the Commission shall require in order
to pass upon applications for federal licenses. This makes it a
correspondingly unnatural place to establish by implication such a
substantive policy as that contained in § 27 and which, in
accordance with the contentions of the State of Iowa, would enable
Chapter 363 of the Code of Iowa, 1939, to remain in effect although
in conflict with the requirements of the Federal Power Act. There
is nothing in the express language of § 9(b) that requires such a
conclusion.
It does not itself require compliance with any state laws. Its
reference to state laws is by way of suggestion to the
Page 328 U. S. 178
Federal Power Commission of subjects as to which the Commission
may wish some proof submitted to it of the applicant's progress.
The evidence required is described merely as that which shall be
"satisfactory" to the Commission. The need for compliance with
applicable state laws, if any, arises not from this federal
statute, but from the effectiveness of the state statutes
themselves.
When this application has been remanded to the Commission, that
Commission will not act as a substitute for the local authorities
having jurisdiction over such questions as the sufficiency of the
legal title of the applicant to its riparian rights, or as to the
validity of its local franchises, if any, relating to proposed
intrastate public utility service. Section 9(b) says that the
Commission may wish to have "satisfactory evidence" of the progress
made by the applicant toward meeting local requirements, but it
does not say that the Commission is to assume responsibility for
the legal sufficiency of the steps taken. The references made in §
9(b) to beds and banks of streams, to proprietary rights to divert
or use water, or to legal rights to engage locally in the business
of developing, transmitting, and distributing power neither add
anything to nor detract anything from the force of the local laws,
if any, on those subjects. Insofar as those laws have not been
superseded by the Federal Power Act, they remain as applicable and
effective as they were before its passage. The State of Iowa,
however, has sought to sustain the applicability and validity of
Chapter 363 of the Code of Iowa in this connection on the ground
that the Federal Power Act, by the implications of § 9(b), has
recognized this chapter of Iowa law as part of a system of dual
control of power project permits, cumbersome and complicated though
it be. If it had been the wish of Congress to make the applicant
obtain consent of state, as well as federal authorities, to each
project, the simple thing would
Page 328 U. S. 179
have been to so provide. In the course of the long debate on the
legislation, it was proposed at one time to provide for some such a
consent in § 9(b).
For example, in the Shields Bill, S. No. 1419, 65th Cong., 2d
Sess., in 1917, a proviso was proposed:
"That, before the Permit shall be granted under this Act, the
permittee must first obtain, in such manner as may be required by
the laws of the States,
the consent of the State or States
in which the dam or other structure for the development of the
water power is proposed to be constructed."
(Italics supplied.)
This proviso was not enacted into law, but it illustrates the
concreteness with which the proposal was before Congress. In 1918,
when Representative Mondell, of Wyoming, successfully defended the
present language against amendment, he stated the purposes of §
9(b) as follows:
"There are two controlling reasons for the insertion of this
paragraph. The first, from the standpoint of water power
legislation, is that
the water power commission shall have the
benefit of all of the information which the States possess
relative to the condition of water supply at the point of proposed
diversion. That is a very important reason for a provision of this
kind. . . . The second reason is so that the bill shall carry with
it
notice to the commission that they must proceed in
accordance with the State laws, which they must do in any event,
whether the provision were in the bill or not."
56 Cong.Rec. 9813-9814. (Italics supplied.)
The purpose of this section, as thus explained, is consistent
with the contention of the Commission in this case. It provides for
presentation of information to the federal commission, and protects
the constitutional rights of the States. This explanation does not
support the contention of the State of Iowa that § 9(b) amounts to
the subjection of the federal license to requirements of the state
law on the same subject. The inappropriateness of such
Page 328 U. S. 180
an interpretation is apparent in the light of the circumstances
which culminated in the passage of the Federal Water Power Act in
1920. The purposes of the Act were then so generally known as to
have made such a restrictive interpretation impossible, and a
denial of it unnecessary. It was the outgrowth of a widely
supported effort of the conservationists to secure enactment of a
complete scheme of national regulation which would promote the
comprehensive development of the water resources of the Nation,
insofar as it was within the reach of the federal power to do so,
instead of the piecemeal, restrictive, negative approach of the
River and Harbor Acts and other federal laws previously
enacted.
It was a major undertaking involving a major change of national
policy. [
Footnote 23] That
it was the intention of Congress
Page 328 U. S. 181
to secure a comprehensive development of national resources, and
not merely to prevent obstructions to navigation, is apparent from
the provisions of the Act, the statutory scheme of which has been
several times reviewed and approved by the courts. [
Footnote 24]
The detailed provisions of the Act providing for the federal
plan of regulation leave no room or need for conflicting state
controls. [
Footnote 25] The
contention of the State of
Page 328 U. S. 182
Iowa is comparable to that which was presented on behalf of 41
States and rejected by this Court in
United States v.
Appalachian Electric Power Co., 311 U.
S. 377,
311 U. S.
404-405,
311 U. S.
426-427, where this Court said:
"The states possess control of the waters within their borders,
'subject to the acknowledged jurisdiction of the United States
under the Constitution in regard to commerce and the navigation of
the waters of rivers.' It is this subordinate local control that,
even as to navigable rivers, creates between the respective
governments a contrariety of interests relating to the regulation
and protection of waters through licenses, the operation of
structures, and the acquisition of projects at the end of the
license term. But there is no doubt that the United States
possesses the power to control the erection of structures in
navigable waters."
"
* * * *"
"The point is that navigable waters are subject to national
planning and control in the broad regulation of commerce granted
the Federal Government. The license conditions to which objection
is made have an obvious relationship to the exercise of the
commerce power. Even if there were no such relationship, the
plenary power of Congress over navigable waters would empower it to
deny the privilege of constructing an obstruction in those waters.
It may likewise grant the privilege on terms. It is no objection to
the terms and to the exertion of the power that 'its exercise is
attended by the same incidents which attend the exercise of the
police power of the states.' The Congressional authority under the
commerce clause is complete unless limited by the Fifth
Amendment."
It is the Federal Power Commission, rather than the Iowa
Executive Council, that, under our constitutional Government, must
pass upon these issues on behalf of the people of Iowa, as well as
on behalf of all others.
Page 328 U. S. 183
We accordingly reverse the judgment of the court below with
directions to remand the case to the Federal Power Commission for
further proceedings in conformity with this opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
41 Stat. 1063, as amended, 49 Stat. 838, 16 U.S.C. §§
791a-825r.
[
Footnote 2]
"SEC. 23. . . . "
"
* * * *"
"(b) It shall be unlawful for any person, State, or
municipality, for the purpose of developing electric power, to
construct, operate, or maintain any dam, water conduit, reservoir,
power house, or other works incidental thereto across, along, or in
any of the navigable waters of the United States, or upon any part
of the public lands . . . of the United States . . . except under
and in accordance with the terms of . . . a license granted
pursuant to this Act. Any person, association, corporation, State,
or municipality intending to construct a dam or other project works
across, along, over, or in any stream or part thereof, other than
those defined herein as navigable waters, and over which Congress
has jurisdiction under its authority to regulate commerce with
foreign nations and among the several States shall before such
construction file declaration of such intention with the
Commission, whereupon the Commission shall cause immediate
investigation of such proposed construction to be made, and if upon
investigation it shall find that the interests of interstate or
foreign commerce would be affected by such proposed construction,
such person, association, corporation, State, or municipality shall
not construct, maintain, or operate such dam or other project works
until it shall have applied for and shall have received a license
under the provisions of this Act. If the Commission shall not so
find, and if no public lands . . . are affected, permission is
hereby granted to construct such dam or other project works in such
stream upon compliance with State laws."
49 Stat. 846, 16 U.S.C. § 817.
[
Footnote 3]
This described a project including an 8,500 foot earthen dam,
and a power plant of three 5,000 kw. hydraulic turbine generators
operating under a maximum head of 35 feet, with an estimated output
of 47,000,000 kwh. per year. The water was to be returned to the
Cedar River immediately below the dam.
[
Footnote 4]
On February 7, 1940, the Commission had sent notice to the
Governor of Iowa of the filing of the original declaration of
intention, and invited him to present information and comments
relative thereto. The State, however, took no part in the
proceedings. The record also indicates that, twice in the three
years before the present proceeding, the Executive Council of the
Iowa rejected applications of the petitioner requesting state
permits to construct a dam near Moscow comparable to that proposed
in all of these proceedings, but not including a diversion of water
from the Cedar to the Mississippi River. The last application of
the petitioner to the Council for such a permit was filed August
12, 1940, and rejected June 25, 1941. No application has been made
by the petitioner to the Executive Council for a state permit for
construction of the project including the canal diverting most of
the flow of the Cedar River to the Mississippi and providing for a
plant and tailrace on the bank of the Mississippi. In its petition
to intervene in the present proceeding for a federal license, the
State alleged that such a diversion would violate § 7771 (in
Chapter 363) of the Code of Iowa, 1939. That allegation touches the
principal question in this case.
[
Footnote 5]
"SEC. 10. All licenses issued under this Part shall be on the
following conditions:"
"(a) That the project adopted, including the maps, plans, and
specifications, shall be such as, in the judgment of the
Commission, will be best adapted to a comprehensive plan for
improving or developing a waterway or waterways for the use or
benefit of interstate or foreign commerce, for the improvement and
utilization of waterpower development, and for other beneficial
public uses, including recreational purposes, and if necessary in
order to secure such plan the Commission shall have authority to
require the modification of any project and of the plans and
specifications of the project works before approval."
49 Stat. 842, 16 U.S.C. § 803(a).
[
Footnote 6]
"SEC. 9. That each applicant for a license hereunder shall
submit to the commission --"
"
* * * *"
"(b) Satisfactory evidence that the applicant has complied with
the requirements of the laws of the State or States within which
the proposed project is to be located with respect to bed and banks
and to the appropriation, diversion, and use of water for power
purposes and with respect to the right to engage in the business of
developing, transmitting, and distributing power, and in any other
business necessary to effect the purposes of a license under this
Act."
41 Stat. 1068, 16 U.S.C. § 802(b).
[
Footnote 7]
"SEC. 4. The commission is hereby authorized and empowered
--"
"
* * * *"
"(e) To issue licenses . . . to any corporation organized under
the laws of the United States or any State thereof . . . for the
purpose of constructing, operating, and maintaining dams, water
conduits, reservoirs, power houses, transmission lines, or other
project works necessary or convenient for the development and
improvement of navigation and for the development, transmission,
and utilization of power across, along, from, or in any of the
streams or other bodies of water over which Congress has
jurisdiction under its authority to regulate commerce with foreign
nations and among the several States, or upon any part of the
public lands . . . of the United States . . . :
Provided,
further, That no license affecting navigable capacity of any
navigable waters of the United States shall be issued until the
plans of the dam or other structures affecting navigation have been
approved by the Chief of Engineers and the Secretary of War.
Whenever the contemplated improvement is, in the judgment of the
commission, desirable and justified in the public interest for the
purpose of improving or developing a waterway or waterways for the
use or benefit of interstate or foreign commerce, a finding to that
effect shall be made by the commission and shall become a part of
the records of the Commission. . . ."
49 Stat. 840, 16 U.S.C. § 797(a).
See also § 23(b),
note 2 supra.
[
Footnote 8]
Sections 7771, 7776, 7792 and 7796 of Chapter 363 have a less
direct relation to the issue, but would be superseded by the
Federal Power Act if § 7767 is superseded by it.
[
Footnote 9]
See § 10(a),
note 5
supra; § 23(b), note 2
supra; and § 4(e),
note 7
supra.
[
Footnote 10]
See § 10(a),
note 5
supra, and also:
"SEC. 10. All licenses issued under this Part shall be on the
following conditions:"
"
* * * *"
"(b) That, except when emergency shall require for the
protection of navigation, life, health, or property, no substantial
alteration or addition not in conformity with the approved plans
shall be made to any dam or other project works constructed
hereunder . . . without the prior approval of the Commission, and
any emergency alteration or addition so made shall thereafter be
subject to such modification and change as the Commission may
direct."
"(c) That the licensee shall maintain the project works in a
condition of repair adequate for the purpose of navigation and for
the efficient operation of said works in the development and
transmission of power, shall make all necessary renewals and
replacements, shall establish and maintain adequate depreciation
reserves for such purposes, shall so maintain and operate said
works as not to impair navigation, and shall conform to such rules
and regulations
as the Commission may from time to time
prescribe for the protection of life, health, and property. .
. ."
49 Stat. 842, 16 U.S.C. § 803(b) and (c). (Italics
supplied.)
[
Footnote 11]
Report from the Chief of Engineers on the Iowa River and its
tributaries made in 1929 covering navigation, flood control, power
development, and irrigation. H.R.Doc. No. 134, 71st Cong., 2d
Sess., 86, 87, 90.
[
Footnote 12]
See notes
7
5 10 and
2
supra.
[
Footnote 13]
In addition to those given in the text, another example of
conflict between the project requirements of the Iowa statutes and
those of the Federal Power Act appears in § 7792 of the Iowa Code.
That section requires the beginning of construction of the project
dam or raceway within one year, and the completion of the plant
within three years, after the granting of the permit. This
conflicts with § 13 of the Federal Power Act, which makes this
largely discretionary with the Federal Power Commission, but
generally contemplates that the construction be commenced within
two years from the date of the license. So, in § 7793 of the Iowa
Code, the life of a permit conflicts with the term of a license
under § 6 of the Federal Power Act.
[
Footnote 14]
See note 6
supra.
[
Footnote 15]
"SEC. 9. That each applicant for a license hereunder shall
submit to the commission --"
"(a) Such maps, plans, specifications, and estimates of cost as
may be required for a full understanding of the proposed project.
Such maps, plans, and specifications, when approved by the
commission, shall be made a part of the license, and thereafter no
change shall be made in said maps, plans, or specifications until
such changes shall have been approved and made a part of such
license by the commission."
"
* * * *"
"(c) Such additional information as the commission may
require."
41 Stat. 1068, 16 U.S.C. § 802(a) and (c).
[
Footnote 16]
These rules and regulations are issued pursuant to §§ 303, 308
and 309, 49 Stat. 855, 859, 16 U.S.C. §§ 825b, 825g and 825h,
interpreting §§ 4 and 9 of the Federal Power Act. Federal Power
Commission Rules of Practices and Regulations, 1938, §§ 4.40-4.51,
18 C.F.R. §§ 4.40-4.51. They cover the field so fully as to leave
no purpose to be served by filing comparable information required
in some alternative form under state laws as a basis for a state
permit. Exhibits D and E, required by § 4.41 of the regulations,
are to satisfy § 9(b) of the Federal Power Act and have to do
especially with property rights in the use of water under the state
laws and do not alter the legal situation presented by the Act
itself. These exhibits are described as follows:
"
Exhibit D. -- Evidence that the applicant has complied
with the requirements of the laws of the State or States within
which the project is to be located with respect to bed and banks
and to the appropriation, diversion, and use of water for power
purposes and with respect to the right to engage in the business of
developing, transmitting, and distributing power, and in any other
business, necessary to effect the purposes of the license applied
for, including a certificate of convenience and necessity, if
required. This evidence shall be accompanied by a statement of the
steps that have been taken and the steps that remain to be taken to
acquire franchise or other rights from States, counties, and
municipalities before the project can be completed and put into
operation."
"
Exhibit E. -- The nature, extent, and ownership of
water rights which the applicant proposes to use in the development
of the project covered by application, together with satisfactory
evidence that the applicant has proceeded as far as practicable in
perfecting its rights to use sufficient water for proper operation
of the project works. A certificate from the proper State agency
setting forth the extent and validity of the applicant's water
rights shall be appended, if practicable. In case the approval or
permission of one or more State agencies is required by State law
as a condition precedent to the applicant's right to take or use
water for the operation of the project works, duly certified
evidence of such approval or permission, or a showing of cause why
such evidence cannot be reasonably submitted, shall also be filed.
When a State certificate is involved, one certified copy and three
uncertified copies shall be submitted."
Federal Power Commission Rules of Practice and Regulations,
effective June 1, 1938, pp. 21, 22.
[
Footnote 17]
The Federal Government took its greatest step toward exercising
its jurisdiction in this field by authorizing federal licenses,
under the Federal Water Power Act of 1920 (41 Stat. 1063), for
terms of 50 years for the development of water power in the
navigable waters of the United States. That Act was limited in 1921
by the exclusion from it of water power projects in national parks
or national monuments. 41 Stat. 1353. The Commission was
reorganized so as to improve its administrative capacity in 1930.
46 Stat. 797. The Act was generally revised and perfected on August
26, 1935, 49 Stat. 803, when it received the name of the Federal
Power Act. It was then made Part I of Title II of the Public
Utility Act of 1935.
This last step was shortly after the decision of this Court in
United States v. West Virginia, 295 U.
S. 463, and it has served to clarify the law as it
existed prior to that decision. Among other things, this last step
amended § 23 so as expressly to require a federal license for every
water power project in the navigable waters of the United States.
It also made mandatory, instead of discretionary, the filing with
the Federal Power Commission of a declaration of intention by
anyone intending to construct a project in nonnavigable waters over
which Congress had jurisdiction under its authority to regulate
commerce. It continued its recital of permission to construct such
projects upon compliance with the state laws, rather than with the
Federal Power Act, provided the projects were not in navigable
waters of the United States, did not affect the interests of
interstate or foreign commerce, and did not affect the public lands
or reservations of the United States. These amendments sharpened
the line between the state and federal jurisdictions, and helped to
make it clear that the Federal Government was assuming
responsibility through the Federal Power Commission for the
granting of appropriate licenses for the development of water power
resources in the navigable waters of the United States.
See
also the rapid development of federal projects shown in the
Annual Reports of the Federal Power Commission 1921-1945.
[
Footnote 18]
H.R.Doc. No. 134, 71st Cong., 2d Sess., reflecting the
recommendations of the District Engineer, pp. 8-90; Division
Engineer, p. 90; Mississippi River Commission, pp. 90-93; Board of
Engineers for Rivers and Harbors, pp. 3-8, and the Chief of
Engineers, pp. 1-3.
See especially pp. 86, 87, 90.
[
Footnote 19]
Instances of such provisions are the following: § 4(a) and (c),
cooperation of the Commission with the executive departments and
other agencies of the State and National Governments is required in
the investigation of such subjects as the utilization of water
resources, water power industry, location, capacity, development
costs and the relation to markets of power sites, and the fair
value of power. § 4(f), notice of application for a preliminary
permit is to go to any State or municipality likely to be
interested. § 7(a), in issuing permits and licenses preference is
to be given to States and municipalities. § 10(e), licenses to
States and municipalities under certain circumstances shall be
issued and enjoyed without charge. § 14, a right is reserved not
only to the United States, but to any State or municipality, to
take over any licensed project at any time by condemnation and
payment of just compensation. §§ 19 and 20, regulation of service
and rates is preserved to the states.
[
Footnote 20]
The legislative history of § 27 confirms these conclusions. The
language is similar to that of § 8 of the Reclamation Act of 1902,
32 Stat. 390, 43 U.S.C. § 383, which provides,
"nothing [in several listed sections] in this Act shall be
construed as affecting or intended to affect or to in any way
interfere with the laws of any State or Territory relating to the
control, appropriation, use, or distribution of water used in
irrigation, or any vested right acquired thereunder. . . ."
This restricted clause, appeared in a modified and broader form
in the Ferris Public Lands Bill of 1916, H.R. No. 408, 64th Cong.,
1st Sess.:
"SEC. 13. That nothing in this Act shall be construed as
affecting or intended to affect or to in any way interfere with the
laws of any State relating to the control, appropriation, use, or
distribution of water."
It also had appeared as § 14 of the Ferris Bill of 1914, H.R.
No. 16673, 63d Cong., 3d Sess., as follows:
"SEC. 14. That nothing in this act shall be construed as
affecting or intended to affect or to in any way interfere with the
laws of any State relating to the control, appropriation, use, or
distribution of water used in irrigation or for municipal or other
uses, or any vested right acquired thereunder."
Discussion in Congress further emphasized the purely proprietary
sense in which this language was used. 51 Cong.Rec.
13630-13631.
The clause reappeared in the Bill which became the Federal Water
Power Act, and was there enacted into the law in its present form.
The use, in § 27 of the Federal Power Act, of language having a
limited meaning in relation to proprietary rights under the
reclamation law and in public land bills carries that established
meaning of the language into the Federal Power Act in the absence
of anything in the Act calling for a different interpretation of
the language.
[
Footnote 21]
See note 6
[
Footnote 22]
See note 15
[
Footnote 23]
The nationwide drive for the passage of this legislation dates
back at least to the administration of Theodore Roosevelt, and to
the enthusiastic support of "the conservationists" led by Gifford
Pinchot, as Chief of the Division of Forestry.
"With all its faults, the Federal Water Power Act of 1920 marked
a great advance. It established firmly the principle of federal
regulation of water power projects, limited licenses to not more
than fifty years, and provided for Government recapture of the
power at the end of the franchise."
"For the first time, the Act of 1920 established a national
policy in the use and development of water power on public lands
and navigable streams. . . . ."
Pinchot, The Long Struggle for Effective Federal Water Power
Legislation (1945), 14 Geo.Wash.L.Rev. 9, 19.
See also
Kerwin, Federal Water Power Legislation, c. VI.
The present Act was distinctly an effort to provide federal
control over, and give federal encouragement to, water power
development. It grew out of a bill prepared by the Secretaries of
War, Interior, and Agriculture. It was recommended by a Special
Committee on Water Power created in the House of Representatives at
the suggestion of President Wilson.
See Statement by
Representative Sims, Chairman of the Committee on Water Power, 56
Cong.Rec. 9797-9798. The bill was to provide
"a method by which the water powers of the country, wherever
located, can be developed by public or private agencies under
conditions which will give the necessary security to the capital
invested and, at the same time, protect and preserve every
legitimate public interest. . . . The problems are national, rather
than local; they transcend state lines, and cannot be handled
adequately except by or in conjunction with national agencies."
Statement by David F. Houston, Secretary of Agriculture, quoted
in H.R. Rep. No. 61, 66th Cong., 1st Sess., p. 5.
[
Footnote 24]
New Jersey v. Sargent, 269 U.
S. 328;
United States v. Appalachian Electric Power
Co., 311 U. S. 377;
Clarion River Power Co. v. Smith, 61 App.D.C. 186, 59 F.2d
861,
cert. denied, 287 U.S. 639;
Alabama Power Co. v.
McNinch, 68 App.D.C. 132, 94 F.2d 601;
Pennsylvania Water
& Power Co. v. Federal Power Commission, 74 App.D.C. 351,
123 F.2d 155,
cert. denied, 315 U.S. 806;
Alabama
Power Co. v. Federal Power Commission, 75 U.S.App.D.C. 315,
128 F.2d 280,
cert. denied, 317 U.S. 652;
Puget Sound
Power & Light Co. v. Federal Power Commission, 78
U.S.App.D.C. 143, 137 F.2d 701;
Wisconsin Public Service Corp.
v. Federal Power Commission, 147 F.2d 743,
cert.
denied,
325 U.S. 880;
Georgia Power Co. v. Federal Power
Commission, 152 F.2d 908.
[
Footnote 25]
Sections 4(e) and 10(a), comprehensive plans required; §§ 4(f)
and 5, preliminary permits; § 4(g), investigation of power
resources; § 6, license term of 50 years; § 7(a) development of
water resources on a national basis; § 7(b), developments by the
United States itself; § 13, prompt construction required; § 14,
recapture of projects and payment for them by the Government upon
expiration of licenses, thus giving the Government a direct
interest in and reason for control of every feature of each
licensed project; § 21, federal powers of condemnation vested in
licensee; and § 28, prohibition of amendment or repeal of
licenses.
MR. JUSTICE FRANKFURTER dissenting.
This case does not present one of those large constitutional
issues which, because they are so largely abstract, have throughout
its history so often divided the Court. The controversy, as I
understand it, is concerned with the proper administration of a law
in which Congress has recognized the interests of the States, as
well as of the United States, and has entrusted the proper
adjustment of these nation-State relations to the interrelated
functions of the Federal Power Commission and the courts.
We are all agreed that Congress has the constitutional power to
promote a comprehensive development of the nation's water
resources, and that it has exercised its authority by the Federal
Power Act. 41 Stat. 1063, 49 Stat. 838, 16 U.S.C. § 791a
et
seq. See United States v. Chandler-Dunbar Water Power
Co., 229 U. S. 53;
New Jersey v. Sargent, 269 U. S. 328;
United States v. Appalachian Electric Power Co.,
311 U. S. 377.
And, in view of Congress' power, of course, this enactment
overrides all State legislation in conflict with it. But the
national policy for water power development formulated by the
Federal Power Act explicitly recognizes regard for certain
interests of the States as part of that national policy. This does
not imply that general uncritical notions about so-called "States'
rights" are to be read into what Congress has written. It does mean
that we must adhere to the express Congressional mandate that the
public interest which
Page 328 U. S. 184
underlies the Federal Power Act involves the protection of
particular matters of intimate concern to the people of the States
in which proposed projects requiring the sanction of the Federal
Power Commission are to be located. By § 9(b) of the Act, 41 Stat.
1063, 1068, 16 U.S.C. § 802(b),
* Congress
explicitly required that, before the Commission can issue a license
for the construction of a hydroelectric development such as the
proposed project of the petitioner, the Commission must have
"satisfactory evidence that the applicant has complied with the
requirements of the laws of the State" in reference to the matters
enumerated.
Whether the Commission has such "satisfactory evidence"
necessarily depends upon what the requirements of State law are. In
turn, what the requirements of State law are often depends upon the
appropriate but unsettled construction of State law. And so, the
Commission may well be confronted, as it was in this case, with the
necessity of determining what the State law requires before it can
determine whether the applicant has satisfied it, and therefore
whether the condition for exercising the Commission's power has
been fulfilled.
To safeguard the interests of the States thus protected by §
9(b), Congress has directed that notice be given to the State when
an application has been filed for a license, the granting of which
may especially affect a State. § 4(f), 49 Stat. 838, 841, 16 U.S.C.
§ 767(f). If a State does not challenge the claim of an applicant,
the evidence
Page 328 U. S. 185
submitted by the applicant, if found to be satisfactory by the
Commission, has met the demands of § 9(b), and a State cannot
thereafter challenge the Commission's determination. But a real
problem in administration is presented to the Power Commission when
a State does intervene and claims that the applicant has not
complied with its lawful requirements. For, before the Commission
can meet the duty placed on it by § 9(b), it must ascertain the
scope and meaning of the State law. Suppose the State law is not
clear or is susceptible of different constructions and has received
no construction by the only authoritative source for the
interpretation of State laws -- namely, the highest court of the
State. Must the Federal Power Commission give an independent
interpretation of the laws of the State? This is not to suggest an
unreal or hypothetical situation. The Federal Power Commission
submitted here a compilation of laws relating to State requirements
relevant under § 9(b) for not less than thirty States. Are the
lawyers of the Commission to make themselves the originating
interpreters of the laws of these States? Are they to construe, for
instance, the laws of New Jersey and Oklahoma and Arizona and
Illinois when the courts of those States have not spoken? And if
they do and the State appeals from the decision, must the Court of
Appeals for the District of Columbia become the interpreter of
these various laws? Finally, in the event of a further appellate
review, is this Court to construe State legislation without
guidance by the State courts? Time out of mind, and in a variety of
situations, this Court has admonished against the avoidable
assumption by this Court of the independent construction of State
legislation.
See, e.g., Gilchrist v. Interborough Rapid Transit
Co., 279 U. S. 159,
279 U. S.
207-209; Brandeis, J., dissenting, in
Railroad
Comm'n v. Los Angeles R. Corp.,
280 U.
S. 145,
280 U. S. 158,
280 U. S.
164-166. It is pertinent to recall the classic statement
of the reason for leaving to the controlling interpretation of
local courts the meaning
Page 328 U. S. 186
of local law:
"to one brought up within it, varying emphasis, tacit
assumptions, unwritten practices, a thousand influences gained only
from life may give to the different parts wholly new values that
logic and grammar never could have gotten from the books."
Diaz v. Gonzalez, 261 U. S. 102,
261 U. S. 106. If
it has been deemed unwise to throw upon this Court the burden of
construing local legislation when the construction could by
appropriate procedure be had from the States, it seems odd that we
should reject this as a rule of administration adopted by the Power
Commission.
That is all that the Commission has done in this case. It has
said, in effect:
"We do not know what the Iowa law demands of the applicant. Iowa
has a right to make certain demands under § 9(b), and, until they
are met, we are not empowered to grant a license to the applicant.
But we cannot tell whether they have been met, because the meaning
of the Iowa statutes has not been determined, as it easily can be
determined, by an appropriate action in the Iowa courts. Only after
such an authoritative pronouncement can we know what our obligation
under the statute may be."
The Court of Appeals for the District of Columbia thought that
such procedure made sense. It seems to have said:
"The Commission doesn't know what the Iowa law requires, and
neither do we. For we cannot tell what it requires until the Iowa
Supreme Court tells us what it requires. And an adjudication of
that issue can be readily secured if the applicant will proceed
along the easy path provided by Iowa for obtaining such an
adjudication."
151 F.2d 20. Even we cannot construe the requirements of Iowa
law in the absence of a determination by the Iowa Supreme Court.
And, in much more conventional types of litigation, we have evolved
the procedure whereby federal litigation is stayed until the State
law is authoritatively
Page 328 U. S. 187
determined by a State court.
E.g., Railroad Commission v.
Pullman Co., 312 U. S. 496;
Spector Motor Service, Inc. v. McLaughlin, 323 U.
S. 101;
A.F. of L. v. Watson, 327 U.
S. 582.
What reason of policy is there for not approving this mode of
adjusting interests that involve a regard for both federal and
State enactments? The Federal Power Commission, which devised this
procedure, has not been an unzealous guardian of the national
interests.
E.g., FPC v. Natural Gas Pipeline Co.,
315 U. S. 575;
FPC v. Hope Natural Gas Co., 320 U.
S. 591.
It is no answer to suggest that the Attorney General of Iowa, at
the bar of this Court, expressed a view of the Iowa statute which
would make obedience to it needless because of conflict with the
provisions of the Federal Power Act. The Attorney General is not
the judicial organ of the State of Iowa. This Court does not always
take the interpretation by the Attorney General of the United
States of a federal statute. It should not take the view of the
Attorney General of Iowa as authoritative on a statute not
construed by the Supreme Court of Iowa when we are called upon to
make the adjustment in federal State relations which Congress has
enjoined in § 9(b). After all, advocates, including advocates for
States, are like managers of pugilistic and election contestants in
that they have a propensity for claiming everything. Before
conflict can be found between federal and State legislation,
construction must be given the State legislation. Avoidance of
conflict is itself an important factor relevant to construction.
And so construction of State legislation relating to the matters
dealt with in the Federal Power Act is subtle business, and a
subtlety peculiarly within the duty, skill, and understanding of
State judges.
If it be said that the procedure for which the Federal Power
Commission contends may take time, there is no
Page 328 U. S. 188
assurance that a contested case like this will not take just as
much time hereafter. The Commission must pass independently on an
unconstrued State statute; its construction may then come before
the Court of Appeals for the District, and eventually before this
Court. Even then, the possibility remains that this Court's
decision will be followed by one in the State court ruling, as has
not been unknown, that this Court's interpretation was in error. In
any event, mere speed is not test of justice. Deliberate speed is.
Deliberate speed takes time. But it is time well spent.
With due respect, I have not been able to discover an adequate
answer to the position of the Federal Power Commission thus
summarized in the Solicitor-General's brief:
"Unless Section 9(b) is to be given no effect whatever, some
evidence of compliance with at least some state laws is a
prerequisite to the issuance of a federal license, and the view of
the court below, that there is no occasion in this case to
anticipate conflicts between state and federal authority and the
consequent invalidity of the state law, is not an unreasonable
one."
"To predetermine, even in the limited field of water power, the
rights of different sovereignties, pregnant with future
controversies, is beyond the judicial function,"
"
United States v. Appalachian Electric Power Co.,
311 U. S.
377,
311 U. S. 423. Here
petitioner, since the modification of its plans, has given the
State Executive Council and the Iowa courts no opportunity to
express their views on its proposed project with reference to
matters which may be peculiarly of local concern; without such an
expression, it is difficult to assess the propriety of what is only
an anticipated exercise of the State's power."
*
"SEC. 9. That each applicant for a license hereunder shall
submit to the commission . . ."
"
* * * *"
"(b) Satisfactory evidence that the applicant has complied with
the requirements of the laws of the State or States within which
the proposed project is to be located with respect to bed and banks
and to the appropriation, diversion, and use of water for power
purposes and with respect to the right to engage in the business of
developing, transmitting, and distributing power, and in any other
business necessary to effect the purposes of a license under this
Act."