Under § 4(e) of Part I of the Federal Power Act, the Federal
Power Commission (FPC) is authorized to issue licenses to
individuals, corporations, or governmental units organized for the
purpose of constructing
"project works necessary or convenient . . . 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 . . or for the purpose of utilizing the
surplus water or water power from any Government dam. . . ."
Section 23(b) prohibits the unlicensed construction of such
works on any navigable stream, as well as the unlicensed
utilization of such surplus water for the purposes of developing
electric power.
Held: These provisions of Part I of the Act giving the
FPC licensing jurisdiction over hydroelectric facilities do not
also confer such jurisdiction over thermal electric power plants.
Pp.
420 U. S.
400-422.
(a) The structures constituting thermal electric power plants
are not "project works" within the meaning of § 4(e), as is clear
from the language of that provision when read together with the
rest of the Act (none of whose provisions refers to the development
or conservation of steam power), the Act's legislative history
(which manifests a congressional intent to regulate only
hydroelectric generating facilities), the FPC's consistent
interpretation of its authority as not including jurisdiction over
thermal electric power plants, and this Court's decision in
FPC
v. Union Electric Co., 381 U. S. 90. Pp.
420 U. S.
400-412.
(b) The surplus water clause of § 4(e) does not authorize FPC
licensing of water used for cooling purposes in thermal electric
power plants, nothing in the Act's language or legislative history
disclosing any congressional intent that that clause should serve
any broader interests than the project works clause. And,
contrary
Page 420 U. S. 396
to the Court of Appeals' holding, the Act does not vest the FPC
with all the responsibilities that, prior legislation had given to
the Waterways Commission, responsibilities that, in any case did
not include licensing the use of surplus water by steam plants. Pp.
420 U. S.
412-422.
160 U.S.App.D.C. 83, 489 F.2d 1207, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which all
other Members joined except DOUGLAS, J., who took no part in the
consideration or decision of the cases.
MR. JUSTICE STEWART delivered the opinion of the Court.
In these three cases, we review a single judgment of the Court
of Appeals for the District of Columbia Circuit to
Page 420 U. S. 397
determine whether thermal electric power generating plants that
draw cooling water from navigable streams are subject to the
licensing jurisdiction of the Federal Power Commission under Part I
of the Federal Power Act, c. 285, 41 Stat. 1063, as amended, 16
U.S.C. §§ 791a-823.
I
On September 20, 1971, two Indian tribes, five individual
Indians, and two environmental groups [
Footnote 1] (hereinafter the complainants) filed a
complaint with the Commission requesting it to require 10 public
utility companies located in the Southwestern United States
[
Footnote 2] to obtain licenses
for six fossil-fueled thermal electric generating plants being
constructed by the companies along the Colorado River and its
tributaries. [
Footnote 3] The
plants are part of a projected vast electric power complex, and the
energy generated within this new Southwestern
Page 420 U. S. 398
power pool will be transmitted in interstate commerce to load
centers as far as 600 miles from the sites of the plants.
The six plants involved in these cases, like all thermal
electric power plants, will require large amounts of water to cool
and condense the steam utilized in the process of generating
electricity.
See generally 1 FPC, The 1970 National Power
Survey I-10-1 to I-10-20. The water needed for cooling purposes
will be obtained by withdrawing substantial quantities of water
from the Colorado River system. The complaint filed with the
Commission asserted that it had licensing jurisdiction over the
plants pursuant to § 4(e) of Part I of the Federal Power Act, 16
U.S.C. § 797(e), because all six plants are "project works" for the
development, transmission, and utilization of power across and
along navigable waters, and because two of the plants will use
"surplus water" impounded by a Government dam. [
Footnote 4]
The Commission, on November 4, 1971, issued an order dismissing
the complaint for lack of jurisdiction. The
Page 420 U. S. 399
Commission stated that
"the legislative history [of the original Federal Water Power
Act] shows that it was not intended that the licensing of thermal
stations be included. This construction of the Commission's
licensing jurisdiction under Part I of the Federal Power Act has
been the longstanding interpretation of the Commission, [and] has
been recognized favorably by the Supreme Court."
46 F.P.C. 1126, 1127 (citations omitted).
Following denial by the Commission of an application for a
rehearing, 46 F.P.C. 1307, the complainants filed a petition in the
Court of Appeals for the District of Columbia Circuit to review the
Commission's order. The Court of Appeals undertook a scholarly and
comprehensive review of the executive and legislative antecedents
of the Federal Water Power Act of 1920, and traced in detail the
Act's legislative history and the administrative and judicial
interpretations of the Act since its passage. 160 U.S.App.D.C. 83,
489 F.2d 1207. Based on this voluminous material, the Court of
Appeals affirmed the Commission's conclusion that thermal electric
plants are not "project works" under § 4(e), and that the
Commission's licensing jurisdiction under the clause extends only
to hydroelectric generating plants. "Steam plants," the court held,
"were purposely omitted from the congressional scheme." 160
U.S.App.D.C. at 107, 489 F.2d at 1231. The Court of Appeals also
held, however, that the Commission's licensing authority under the
"surplus water" clause of § 4(e) is not similarly limited. The use
of "surplus water" for cooling purposes by thermal electric
generating plants is sufficient, the court concluded, to bring
those plants within the Commission's licensing jurisdiction. 160
U.S.App.D.C. at 111-117, 489 F.2d at 1235-1241. Accordingly, the
court remanded the case to the Commission to determine in the first
instance whether any of the six plants involved in this case
fall
Page 420 U. S. 400
under that branch of its licensing authority.
Id. at
118, 489 F.2d at 1242. We granted the parties' petitions for writs
of certiorari to consider the important questions of statutory
construction presented by this litigation. 417 U.S. 944.
II
The question whether thermal electric generating plants are
subject to the licensing jurisdiction of the Commission involves no
issue as to the extent of congressional power under the Commerce
Clause. It is well established that the interstate transmission of
electric energy is fully subject to the commerce power of Congress.
FPC v. Union Electric Co., 381 U. S.
90,
381 U. S. 94;
Public Utilities Comm'n v. Attleboro Steam & Elec.
Co., 273 U. S. 83,
273 U. S. 86;
Electric Bond & Share Co. v. SEC, 303 U.
S. 419,
303 U. S.
432-433. And it is equally clear that projects
generating energy for interstate transmission, such as the six
plants involved in this case, affect commerce among the States and
are therefore within the purview of the federal commerce power,
regardless of whether the plants generate electricity by steam or
hydroelectric power.
FPC v. Union Electric Co., supra, at
381 U. S. 94-95;
see NLRB v. Jones & Laughlin Steel Corp., 301 U. S.
1,
301 U. S. 40-41;
Katzenbach v. McClung, 379 U. S. 294,
379 U. S.
301-304. The only question before us is whether Congress
has exercised that power in Part I of the Federal Power Act by
requiring a license for the construction and operation of thermal
electric power generating plants that withdraw large quantities of
water from navigable waters for cooling and other plant
purposes.
A
Consideration of the Commission's statutory licensing authority
under Part I of the Federal Power Act must, of course, begin with
the language of the Act itself. Section 4(e), 16 U.S.C. § 797(e),
authorizes the Commission
Page 420 U. S. 401
to issue licenses to individuals, corporations, or governmental
units organized for the purpose of constructing
"project works necessary or convenient . . . 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 . . . or for the purpose of utilizing the
surplus water or water power from any Government dam. . . ."
Section 23(b) of the Act, 16 U.S.C. § 817, in turn, prohibits
the unlicensed construction of such works on any navigable stream
as well as the unlicensed utilization of the surplus water from a
Government dam for the purpose of developing electric power.
[
Footnote 5] "Project" is
defined as the complete unit of development of a power plant, 16
U.S.C. § 796(11); and "project works" means the physical structure
of a project. § 796(12).
Emphasizing that these provisions do not require that the
project works be used to generate "hydroelectric power," but rather
merely "power," the complainants assert that the six thermal
electric power plants in this case fall squarely within the
statutory language defining the Commission's licensing
jurisdiction. Each of the thermal electric facilities undoubtedly
qualifies as a "complete unit of development of a power plant." The
physical structure of each "project" therefore must be
Page 420 U. S. 402
"project works." All concede that the plants are located on
navigable waters and are engaged in the development of electric
power. Furthermore, water is an integral part of the generation of
electricity at the plants, being used to condense the steam which
turns the turbines. The complainants assert that it is "equally
indisputable" that the six plants are using "surplus water . . .
from [a] Government dam" for the purpose of developing electric
power. [
Footnote 6]
So long as adherence to the literal terms of a statute does not
bring about a result completely at variance with the purpose of the
statute, the complainants argue, there is no justification for
resorting to extrinsic aids such as legislative history to
determine congressional intent. And since modern methods of
operating thermal electric power generating plants present an even
greater threat to the conservation and orderly development of the
power potential in navigable streams than do the operations of
hydroelectric projects, [
Footnote
7] they argue that recognition of the Commission's licensing
jurisdiction over thermal
Page 420 U. S. 403
electric plants will actually advance the principal purposes of
the Act.
The complainants' reliance on the literal language of § 4(e) and
on the so-called "plain meaning" rule of statutory construction is
not entirely unpersuasive. But their assertion that thermal
electric power plants drawing cooling water from navigable streams
are unambiguously included within the Commission's licensing
jurisdiction is refuted when § 4(e) is read together with the rest
of the Act, as, of course, it must be.
See, e.g., Chemical
Workers v. Pittsburgh Glass, 404 U. S. 157,
404 U. S. 185;
United States v. Boisdore's
Heirs, 8 How. 113,
49 U. S.
122.
Section 4(e) itself refers to "dams, water conduits, reservoirs,
power houses, transmission lines, or other project works." The
terms that precede "other project works," and which therefore
indicate a congressional intent to limit the breadth of that
general phrase,
see Gooch v. United States, 297 U.
S. 124,
297 U. S. 128,
refer to features ordinarily associated with hydroelectric
facilities. The definition of "project" in 16 U.S.C. § 796(11)
similarly refers to structures normally found in hydroelectric
power complexes: a "project" is the
"complete unit of improvement or development, consisting of a
power house, all water conduits all dams and appurtenant works and
structures (including navigation structures) which are a part of
said unit, and all storage, diverting or forebay reservoirs
directly connected therewith. . . ."
Although the complainants note that a power development
utilizing steam as a generating force could have many of the same
structures, that possibility only serves to emphasize the ambiguity
latent in the seemingly clear language chosen by Congress to define
the extent of the Commission's licensing authority.
Other provisions of the Act make more apparent the limitations
intended by Congress upon the reach of
Page 420 U. S. 404
§ 4(e). The Act itself was originally entitled the Federal
Water Power Act, 41 Stat. 1077 (emphasis added); [
Footnote 8] and the preamble to the Act
specified that one of its primary purposes was the development of
water power.
Id. at 1063. In addition, § 4(a) of the Act,
16 U.S.C. § 797(a), authorizes the Commission to conduct
investigations concerning "the
water power industry and
its relation to other industries and to interstate or foreign
commerce" (emphasis added); § 4(g), 16 U.S.C. § 797(g), authorizes
the Commission to investigate the proposed occupancy of public
lands for the development of electric power and to issue such
orders as are necessary "to conserve and utilize the navigation and
water power resources of the region" (emphasis added).
Similarly, § 10(a) of the Act, 16 U.S.C. § 803(a), provides that
all licenses issued under the Act shall be on the condition that
the project adopted will be best adapted to a comprehensive plan
"for the improvement and utilization of
water power
development" (emphasis added).
In none of these statutory provisions is there any reference to
the development or conservation of steam power, despite the fact
that, in 1920, as today, thermal electric generating plants
produced the greatest portion of this
Page 420 U. S. 405
Nation's electric energy. [
Footnote 9] The explicit references to hydroelectric
power, and the absence of any such references to steam power,
manifest the limited scope of the Act's underlying purpose: "the
comprehensive development of water power."
FPC v. Union
Electric Co., 381 U.S. at 101.
B
Although the language of § 4(e) itself could nonetheless be
interpreted as extending the Commission's licensing jurisdiction to
include thermal electric power plants located on navigable streams,
the legislative history of the Act conclusively demonstrates that
Congress intended to subject to regulation only the construction
and operation of hydroelectric generating facilities.
In 1918, [
Footnote 10] an
administration bill prepared by the Secretaries of War, Interior,
and Agriculture, containing most of the provisions eventually
included in the Federal Water Power Act of 1920, was introduced in
Congress.
Page 420 U. S. 406
H.R. 8716, 65th Cong., 2d Sess. In a letter to Representative T.
W. Sims, Chairman of the special House Committee on Water Power,
which had held hearings on the bill, the Secretaries made it plain
that only hydroelectric projects were intended to be covered by the
legislation:
"It is understood your committee will take action at an early
date upon various proposals which have been made concerning water
power legislation. On account of the conditions now affecting the
power industry and the need of maintaining our entire industrial
machinery at its highest efficiency, a satisfactory solution of the
water power problem is, in our judgment, one of the most important
steps for the consideration of this Congress and one which should
receive attention at the earliest practicable date."
"
* * * *"
"While the form of bill which has been presented for your
consideration is directly concerned with water power development
only, an adequate solution of this problem will have a favorable
and stabilizing effect upon the whole power industry. Probably no
considerable increase in new water power development can be
expected immediately, but legislation is urgently needed in order
to put existing water power developments, which have been made
under inadequate law, into a position of security which will enable
them to make extensions and to meet maturing obligations upon
favorable terms."
"
* * * *"
"Water power legislation should have in view not only the
maintenance of the rights of the public in the national resources,
but also the adequate protection of private capital by which such
resources are developed. The bill before you aims to do
Page 420 U. S. 407
both."
H.R.Rep. No. 715, 65th Cong., 2d Sess., 29.
The committee report on H.R. 8716 reflected the administration's
theory that the legislation was designed "to provide for the
development of hydroelectric power by private capital." H.R.Rep.
No. 715,
supra, at 15. [
Footnote 11] Despite the committee's recommendation, the
bill failed to pass the 65th Congress because of a Senate
filibuster.
See FPC v. Union Electric Co., 381 U.S. at
381 U. S. 102
n. 18.
The administration bill was reintroduced in the 66th Congress.
The House Committee on Water Power again recommended approval to
meet "the need for legislation for the development of hydroelectric
power. . . ." H.R.Rep. No. 61, 66th Cong., 1st Sess., 4. [
Footnote 12] The Senate
Page 420 U. S. 408
Committee on Commerce also recommended adoption of the bill in
view of "the need for or the beneficent results to come from water
power development." S.Rep. No. 180, 66th Cong., 1st Sess., 2. After
compromise between the House and Senate on matters unrelated to the
issue before us,
see H.R.Conf.Rep. No. 910, 66th Cong., 2d
Sess., this bill was enacted as the Federal Water Power Act of
1920.
Although the legislative history of the Act reveals an ambitious
attempt by Congress to provide for comprehensive control over a
large number of uses of the Nation's water resources, there is
simply no suggestion in any of the legislative materials that the
bill would authorize the new Commission to license the construction
or maintenance of thermal electric power plants. "The principal use
to be developed and regulated in the Act," this Court explained in
FPC v. Union Electric Co., supra, at
381 U. S. 99,
"was that of
hydroelectric power to meet the needs of an
expanding economy." (Emphasis added; footnote omitted.)
See
also 381 U.S. at
381 U. S. 115
(Goldberg, J., dissenting).
C
The limited scope of the § 4(e) licensing authority, reflected
in both the text of the Act and its legislative history, is
reinforced by the Commission's consistent interpretation of that
authority as not including jurisdiction over the construction and
operation of thermal electric power plants. In its First Annual
Report to Congress, the Commission concluded that Congress intended
only to give it licensing authority with respect to hydroelectric
projects:
"On neither the public lands and reservations nor on the waters
of the United States is the jurisdiction of the Federal Power
Commission as broad as the jurisdiction of Congress. The latter has
authority
Page 420 U. S. 409
over all forms of use;
the Commission is limited to the
consideration of projects designed to produce water power.
Structures or diversions having any other purpose, unless
incidental to works constructed for power purposes or a necessary
part of a comprehensive scheme of development, are not within the
jurisdiction of the Commission."
FPC, First Annual Report 51-52 (emphasis added). [
Footnote 13]
Ever since that first report in 1921, the Commission has
consistently maintained the position that its licensing authority
extends only to hydroelectric projects. [
Footnote 14] Such a longstanding, uniform construction
by the agency charged with administration of the Federal Power Act,
particularly when it involves a contemporaneous construction of the
Act by the officials charged with the responsibility
Page 420 U. S. 410
of setting its machinery in motion, is entitled to great
respect.
Trafficante v. Metropolitan Life Ins. Co.,
409 U. S. 205,
409 U. S. 210;
Udall v. Tallman, 380 U. S. 1,
380 U. S. 16;
Power Reactor Development Co. v. Electrical Workers,
367 U. S. 396,
367 U. S.
408.
The deference due this longstanding administrative construction
is enhanced by the fact that Congress gave no indication of its
dissatisfaction with the agency's interpretation of the scope of
its licensing jurisdiction when it amended the Act in 1930, c. 572,
46 Stat. 797, [
Footnote 15]
or when it reenacted the Federal Water Power Act as Part I of the
Federal Power Act in 1935. [
Footnote 16]
See Saxbe v. Bustos, 419 U. S.
65;
Carmmarano v. United States, 358 U.
S. 498,
358 U. S.
510-511;
Massachusetts Mutual Life Ins. Co. v.
United States, 288 U. S. 269,
288 U. S. 273.
Indeed, on several occasions, the Commission has supported
legislative proposals to expand its jurisdiction to encompass
licensing authority over the construction and operation of thermal
electric generating plants, but has been unable to persuade
Congress to act favorably on these proposed amendments to the Act.
See 1962 Annual Report 12-13; 1964 Annual Report In 11;
1966 Annual Report 8-9.
D
The conclusion that Congress did not intend to give the
Commission licensing jurisdiction with respect to
Page 420 U. S. 411
thermal electric power plants is also supported by this Court's
decision in
FPC v. Union Electric Co., 381 U. S.
90. The Court there sustained the Commission's position
that a license was required under the Act to construct a pumped
storage hydroelectric plant to be located on a nonnavigable stream.
Although the plant did not affect commerce on navigable waters, its
generation of electricity for interstate transmission would affect
"the interests of interstate or foreign commerce" within the
meaning of § 23(b) of the Act, 16 U.S.C. § 817, the Court held, and
therefore a license was required. The Union Electric Co., arguing
that the Commission lacked licensing authority, asserted that there
was no difference between the generation of energy by a thermal
electric power plant and by a hydroelectric project in terms of
impact on interstate commerce that could justify a distinction in
jurisdictional treatment. Accordingly, if impact on commerce in
general, rather than on commerce on navigable waters, was the
criterion for Commission jurisdiction, argued Union Electric, steam
plants as well as its pumped storage hydroelectric plant should be
subject to licensing under Part I of the Federal Power Act.
The Court found the answer to this argument in the fact that,
even though not located on a navigable stream, Union Electric's
generating plant produced electricity by harnessing water power:
Unlike Parts II and III o the Federal Power Act,
"under which the Commission regulates various aspects of the
sale and transmission of energy in interstate commerce, Part I, the
original Federal
Page 420 U. S. 412
Water Power Act, is concerned with the utilization of water
resources and particularly the power potential in water. In
relation to this central concern of the Act, the distinction
between a hydroelectric project and a steam plant is obvious and
meaningful, although both produce energy for interstate
transmission."
381 U.S. at
381 U. S. 110
(footnotes omitted).
See also id. at
381 U. S. 115
(Goldberg, J., dissenting):
"The legislative history here, however, establishes to my
satisfaction that [Congress] has required licenses of neither steam
plants nor the type of hydroelectric plant here involved, and in
light of this legislative history, I agree with the Court of
Appeals that Congress intended that a license be required only
where the interests of commerce on navigable waters are
affected."
(Footnote omitted.)
III
For the above reasons, we agree with the conclusion of the Court
of Appeals that the structures composing thermal electric power
plants are not "project works" required to be licensed by the
Commission. The Court of Appeals went on to hold, however, that the
surplus water clause of § 4(e) authorizes the Commission to license
the use of such water not only for the development of hydroelectric
energy, but also for cooling purposes in thermal electric power
plants, finding that the surplus water provision was intended to
serve broader interests than the project works clause of the same
subsection of the Act.
"It reflects an explicit concern with utilizing water resources
to defray the cost of waterway improvements as well as a concern
with comprehensive water resource management. It empowers the FPC
to license the use of either 'surplus water' or 'water power' from
any Government dam, and thus is not limited to the mere leasing of
excess Government water power. . . . [T]he addition of the words
'surplus water' in [§ 4(e)]
Page 420 U. S. 413
was intended to afford the FPC a broad licensing authority over
federally controlled waters. . . . The FPC could license either the
use of 'water power' --
i.e., electricity actually
generated by the Government -- or the use of 'surplus water' for
the private generation of water power or other purposes."
160 U.S.App.D.C. at 116-117, 489 F.2d at 1240-1241. We cannot
agree with this conclusion of the Court of Appeals with respect to
the "surplus water" clause of § 4(e), because we can find no
support for it in the text, in the legislative history, or in the
administrative interpretation of Part I of the Federal Power
Act.
The original title, preamble and text of Part I of the Federal
Power Act provide strong evidence that Congress intended to
restrict the Commission's licensing jurisdiction with respect to
the power industry to the construction and maintenance of
hydroelectric facilities.
See supra at
420 U. S.
403-404. Nothing in the language of the Act suggests
that the surplus water clause was designed to be an exception to
the Act's limited scope and purpose. [
Footnote 17] Similarly, from 1921 to the present, the
Commission has consistently interpreted its licensing authority as
being "limited to the consideration of projects designed to produce
water power." FPC First Annual Report 51.
See supra at
420 U. S.
408-409. No exception has ever been recognized
Page 420 U. S. 414
by the Commission for thermal electric power plants using
surplus water from Government dams.
The Court of Appeals' own extensive analysis of the general
background and legislative history of the Federal Water Power Act
conclusively demonstrates that Congress intended the Act as a
whole, not merely the project works clause, to subject to
regulation only that segment of the power industry involving the
construction and operation of hydroelectric generating facilities.
See 160 U.S.App.D.C. at 91-109, 489 F.2d at 1211233;
cf. supra at
420 U. S.
405-408. More importantly, the legislative history
pertaining to the surplus water clause itself indicates that that
clause, like the rest of the Act, relates to the conservation and
development of only hydroelectric power.
The phrase "surplus water or water power from any Government
dam" had its origins in legislation enacted during the late 19th
and early 20th centuries, conferring on the Secretary of War the
authority to lease at individual dam sites excess water for power
development. [
Footnote 18]
The term "surplus water" in those statutes always referred to its
use for the development of water power. [
Footnote 19]
Page 420 U. S. 415
In 1914, the Adamson bill, H.R. 16053, 63d Cong., 2d Sess., was
introduced to amend the Dam Act, 34 Stat. 386, by providing for the
comprehensive regulation of water power development on navigable
streams. Section 14 of the bill, the antecedent of § 4(e)'s surplus
water clause, authorized the Secretary of War to lease
"the right to develop power from the surplus water over and
above that required for navigation at any navigation dam now or
hereafter constructed . . . and owned by the United States. . .
."
51 Cong.Rec. 11415. The report of the House Committee on
Interstate and Foreign Commerce [
Footnote 20] and congressional debate on § 14 plainly
indicate that only water power uses of surplus water were to be
regulated. [
Footnote 21]
Steam power was mentioned only as a competing
Page 420 U. S. 416
source of electric energy, with no consideration given to its
regulation. [
Footnote
22]
Section 14 was amended on the floor of the House to limit the
duration of the leases authorized to 50 years. The amendment also
changed the surplus water language of the section so that it
closely resembled the language later adopted in the Federal Water
Power Act: amended § 14 authorized
"leases for the use of
surplus water and water power
generated at dams and works constructed wholly or in part by the
United States in the interest of navigation. . . ."
51 Cong.Rec. 1325 (emphasis added). The change in language was
not intended to broaden the scope of the surplus water clause.
See id. at 13257.
The Senate Commerce Committee reported out a substitute bill, S.
6413, 63d Cong., 2d Sess., rather than the amended Adamson bill.
Like the House bill, S. 6413, containing another version of a
surplus water clause, [
Footnote
23] was directed only to
"[t]he question of
water power development by the
construction of dams across navigable streams and the improvement
of navigation in connection with water power development."
S.Rep. No. 846, 63d Cong., 3d Sess., 1 (emphasis added). Neither
bill, however, was enacted during the 63d Congress.
Similar bills were introduced in the 64th and 65th Congresses.
Again, nothing in the language or reports on any of that proposed
legislation indicated that the licensing authority to be created
would extend to the
Page 420 U. S. 417
use of "surplus water" by steam plants. Section 10 of the
Shields bill, S. 3331, 64th Cong., 1st Sess., for example,
authorized the Secretary of War to ease "the right to utilize the
surplus water power over and above that required for navigation at
any navigation dam now or hereafter constructed. . . ." 53
Cong.Rec. 2198. The House Committee on Interstate and Foreign
Commerce struck S. 3331 in its entirety and substituted a new bill.
Section 19 of that bill, identical to § 14 of the amended Adamson
bill that had been passed by the House in 1914, authorized the
Secretary of War
"to enter into leases for the use of surplus water and water
power generated at dams and works constructed wholly or in part by
the United States in the interests of navigation. . . ."
H.R.Rep. No. 404, 64th Cong., 1st Sess., 6. The committee report
explained that
"[s]ection 19 regulates the method to be pursued by the War
Department in leasing the power at dams erected in whole or in part
by the Government itself."
Id. at 11. The section, stated the committee,
"continues the method existing as to Government dams for many
years, under which the War Department has satisfactorily regulated
and leased surplus water at a number of such structures."
Ibid. The "method existing," of course, provided for
the lease of surplus water at individual dams for the purpose of
water power development.
The administration bill considered initially by the 65th
Congress, H.R. 8716, 65th Cong., 2d Sess., which as amended by that
Congress and the 66th Congress, became the Federal Water Power Act
of 1920, contained a surplus water clause that paralleled the
provisions of the earlier bills. Section 4(d) of that bill, now §
4(e) of the Federal Power Act, authorized the Federal Power
Commission to issue licenses
"for the purpose of utilizing the surplus water or water power
over and above that
Page 420 U. S. 418
required for navigation at any navigation dam now or hereafter
constructed . . . and owned by the United States. . . ."
H.R.Rep. No. 715, 65th Cong., 2d Sess., 23. No explanation was
given for substitution of the disjunctive "or" for the conjunctive
"and" in the phrase "surplus water or water power," but there is
nothing to indicate that the change was designed to expand the
scope of surplus water licensing authority beyond that contemplated
by the earlier proposed legislation. To the contrary, testimony
given during the extensive hearings conducted by the special House
Committee on Water Power reflected the general understanding that
the Commission's licensing jurisdiction would be limited to
hydroelectric facilities. [
Footnote 24]
The administration bill, as already noted,
see supra at
420 U. S. 407,
was reintroduced in the 66th Congress, and was enacted without any
material changes in the surplus water clause as the Federal Water
Power Act of 1920. As the Court of Appeals observed,
see
160 U.S.App.D.C. at 112-113, 489 F.2d at 1236-1237, little relevant
legislative history concerning the meaning of the surplus water
clause was generated during the 66th Congress.
Page 420 U. S. 419
Nevertheless, the general history of the Act demonstrates that
the legislators viewed the bill as primarily regulating the
development of hydroelectric power. Nothing in the record of the
debates indicates that Congress intended the surplus water clause
to create an exception to the limited scope and purpose of the Act
or that it viewed that clause as embodying a meaning different from
that of the virtually identical surplus water provisions contained
in earlier legislative proposals.
The Court of Appeals based its contrary conclusion in large part
on the fact that the Federal Water Power Act repealed the statutory
authority for the Waterways Commission, created by the Rivers and
Harbors Act of 1917. 40 Stat. 269. The court stated that
"the newly created Federal Power Commission took over the
planning and coordinating responsibilities of the Waterways
Commission, which included consideration of a spectrum of water
uses not related to water power."
160 U.S.App.D.C. at 115-116, 489 F.2d at 1239-1240 (footnote
omitted). The court concluded from this transfer of
responsibilities that the Federal Water Power Act reflected a
concern with comprehensive water resource management and that the
surplus water clause was intended to provide a basis for expanding
governmental supervision of general water resource development and
use.
Id. at 116-117, 489 F.2d at 1240-1241.
Although it is true that § 29 of the Federal Water Power Act, 41
Stat. 1077, did expressly repeal the statutory authority for the
Waterways Commission, it seems evident that that repeal was not
intended to transfer all of that Commission's functions to the new
Federal Power Commission. The House debates clearly indicate that
the Waterways Commission authority was repealed largely because
that Commission was not, in fact, a functioning agency, and in
order to prevent any possible conflict between
Page 420 U. S. 420
it and the new FPC. There is no indication of any purpose to
transfer the Waterways Commission's jurisdiction to the FPC.
E.g., 58 Cong.Rec. 2250-2251 (remarks of Rep. Anderson).
In fact, a proposed amendment that would have provided for such a
transfer of authority was never actually introduced in the Senate.
See 59 Cong.Rec. 1173-1176 (remarks of Sens. Ashurst,
Fletcher, and Ransdell). Those functions of the Waterways
Commission not expressly given to the new FPC or transferred to
other agencies were thus simply eliminated by § 29. [
Footnote 25]
Moreover, the responsibilities which the Waterways Commission
did possess from 1917 to 1920, although quite broad, were
investigatory, not regulatory. The Commission was authorized
"to secure the necessary data, and to formulate and report to
Congress . . . a comprehensive plan or plans for the development of
waterways and the water resources of the United States for the
purposes of navigation and for every useful purpose, and
recommendations for the modification or discontinuance of any
project herein or heretofore adopted."
Rivers and Harbors Act of 1917, § 18, 40 Stat. 269. Accordingly,
even if it could be concluded that the Waterways Commission's
powers had been inherited by the FPC, that conclusion would not
support recognition of Commission
licensing jurisdiction
over thermal electric power plants using "surplus water" for
cooling purposes. [
Footnote
26]
Page 420 U. S. 421
Contrary to the suggestion of the complainants, a reading of the
surplus water provision as referring only to hydroelectric plants
utilizing surplus water or water power from Government dams does
not render that clause nugatory. First, a license to construct and
operate project works does not automatically authorize use of
surplus water from a Government dam. Where a project will use
surplus water, the Commission may properly require a second
license, which may impose additional charges or operational
conditions on the licensee.
Cf. Alabama Power Co., 34
F.P.C. 1108;
California Oregon Power Co., 13 F.P.C. 1,
12-13,
supplemental opinion, 15 F.P.C. 14, 18-21,
petition for review dismissed, 99 U.S.App.D.C. 263, 239
F.2d 426. Second, facilities constructed under a congressional
grant issued prior to enactment of the Federal Water Power Act are
exempted by § 23(b) of the Act, 16 U.S.C. § 817, from the
requirement of
Page 420 U. S. 422
securing a "project works" license from the Commission during
the life of the original works.
See Northwest Paper Co. v.
FPC, 344 F.2d 47. However, if such a project should seek to
utilize surplus water from a Government dam built subsequent to
June 10, 1920, a surplus water clause license would be required.
Finally, it is by no means irrational for Congress to provide the
Commission with alternative, albeit sometimes coextensive, bases of
jurisdiction, so that it can proceed on the strength of one where
the existence of the other may be unclear.
IV
The complainants finally argue that, even though it may have
been proper 50 years ago to construe the Commission's licensing
jurisdiction as limited to hydroelectric projects, such a
construction does great violence to the policies central to the
Federal Power Act in the light of modern conditions. Although, in
1920, steam plants supplied the bulk of the Nation's electric power
and, as today, those plants were water-cooled, [
Footnote 27] the complainants point to the
tremendous growth in size and efficiency of the modern thermal
electric power complex and the concomitant increase during the past
half-century in the quantity of water used by steam plants and
change in the nature of that usage. [
Footnote 28] Because the cooling
Page 420 U. S. 423
water used by the six plants involved in this case will be
evaporated, rather than returned to the river system, [
Footnote 29] those plants will
withdraw permanently up to 250,000 acre feet of water annually from
the Colorado River system -- more water than was used by all the
steam plants in the United States in 1920. [
Footnote 30] Unless such uses are regulated by
subjecting them to the licensing jurisdiction of the Commission,
the complainants argue, private power interests will succeed in
appropriating the power potential in public waters, the very evil
the Federal Water Power Act was designed to eliminate. Whatever the
merits of the complainants' argument as a matter of policy, it is
properly addressed to Congress, not to the courts. The legislative
history of the Federal Water Power Act conclusively demonstrates
that, in 1920, Congress intended to provide for the orderly
development of the power potential of the Nation's waterways only
through the licensing of hydroelectric projects. And in
Page 420 U. S. 424
1935; when the Act was reenacted as Part I of the Federal Power
Act, Congress chose not to expand the licensing authority of the
Commission despite the fact that, in Parts II and III of the Act,
giving the Commission regulatory authority over various aspects of
the transmission and sale of electric energy in interstate
commerce, Congress treated the source of the energy and the method
of generation as immaterial.
See FPC v. Union Electric
Co., 381 U.S. at
381 U. S. 110.
Moreover, several times in recent years, the Commission has sought
an expansion of its licensing jurisdiction to include thermal
electric power generating plants, but Congress has failed to
approve any of these proposals.
It may well be that the "obvious" distinction, recognized by
Congress in 1920, in 1935, and in subsequent years of inaction, and
by this Court in the
Union Electric case, supra, at
381 U. S. 110,
between utilization of water resources by a hydroelectric project
and a thermal electric power plant is no longer viable. But until
Congress changes the licensing provisions of Part I of the Federal
Power Act, it is our duty to apply the statute as it was written
and has been construed for the past 54 years.
For the foregoing reasons, the judgment before us is vacated,
and the cases are remanded to the Court of Appeals with directions
to enter a judgment affirming the Commission's dismissal of the
complaint for lack of jurisdiction.
It is so ordered.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of these cases.
* Together with No. 73-1666,
Arizona Public Service Co. et
al. v. Chemehuevi Tribe of Indians et al., and No. 73-1667,
Federal Power Commission v. Chemehuevi Tribe of Indians et
al., also on certiorari to the same court.
[
Footnote 1]
The complainants are the Chemehuevi Tribe of Indians, the
Cocopah Tribe of Indians, Emma Yazzie, Jimmy Yazzie, Paul Begay,
Chester Hugh Benally, Bill Begay, the Sierra Club, and the
Committee to Save Black Mesa.
[
Footnote 2]
The companies are the Arizona Public Service Co., Southern
California Edison Co., Public Service Co. of New Mexico, Salt River
Project, Tucson Gas & Electric Co., El Paso Electric Co., Los
Angeles Department of Water & Power, Nevada Power Co., Utah
Power & Light Co., and San Diego Gas & Electric Co.
[
Footnote 3]
The six plants are all located in or near the Four Corners area
of New Mexico, Arizona, Utah, and Colorado. The Four Corners plant
is located on the Navajo Indian Reservation near Farmington, N.
Mex. The Mohave plant is located on patented land in Clark County,
Nev. The San Juan plant is located on patented land near
Farmington, N. Mex. The Huntington Canyon plant is located
primarily on state and patented land in Huntington Canyon, Utah.
The Navajo plant is located on the Navajo Indian Reservation near
Page, Ariz. The Kaiparowits plant will be located in southern Utah
near Lake Powell. At the time of oral argument, all of the plants
were operational except for the Kaiparowits plant, which was still
in the planning stage.
[
Footnote 4]
Section 4(e) provides in part that the Federal Power Commission
is authorized and empowered:
"To issue licenses to citizens of the United States, or to any
association of such citizens, or to any corporation organized under
the laws of the United States or any State thereof, or to any State
or municipality 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 and reservations of the United States
(including the Territories), or for the purpose of utilizing the
surplus water or water power from any Government dam, except as
herein provided. . . ."
[
Footnote 5]
Section 23(b) provides in part:
"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 or reservations of the United States (including
the Territories), or utilize the surplus water or water power from
any Government dam, except under and in accordance with the terms
of a permit or valid existing right-of-way granted prior to June
10, 1920, or a license granted pursuant to this chapter."
[
Footnote 6]
The Court of Appeals did not attempt to define "surplus water,"
and did not decide whether the six plants involved in this case are
within the Commission's licensing jurisdiction under that clause.
Instead, the court remanded the case to the Commission "to
determine in the first instance whether the plants involved in this
appeal fall within the category asserted by [the complainants]."
160 U.S.App. D. C 83, 118, 489 F.2d 1207, 1242.
[
Footnote 7]
Thermal electric generating plants used 120 billion gallons of
water per day for cooling purposes in 1971, compared to
approximately 178 million gallons of cooling water needed on a
daily basis in 1920.
See id. at 105-106, n. 111, 489 F.2d
at 1229-1230, n. 111. Largely for environmental reasons, many
modern steam plants evaporate a significant amount of the water
withdrawn for cooling purposes instead of returning it to the water
source.
Cf. N. Fabricant & R. Hallman, Toward a
Rational Power Policy: Energy, Politics, and Pollution 99-101
(1971). Permanent loss of large quantities of water can obviously
have a significant adverse effect on the "power potential" of the
Nation's waterways.
[
Footnote 8]
"The principal use to be developed and regulated in the Act, as
its title indicates, was that of hydroelectric power to meet the
needs of an expanding economy."
FPC v. Union Electric Co., 381 U. S.
90,
381 U. S. 99.
The title was changed in 1935 to the Federal Power Act to reflect
the expanded duties of the Federal Power Commission under Title II
of the Public Utility Act of 1935, 49 Stat. 838, as amended, 16
U.S.C. §§ 792-825u. The 1935 Act added Parts II and III to the
Federal Power Act to regulate the interstate transmission and sale
of electricity.
See 16 U.S.C. §§ 824-825u. The original
Federal Water Power Act became Part I of the Federal Power Act.
[
Footnote 9]
In 1920, approximately 70% of the electricity generated in the
United States was produced by steam power. 1 FPC, National Power
Survey 63 (1964).
[
Footnote 10]
The opinion of the Court of Appeals contains an exceedingly
thorough analysis of the attempts by the Congress and the Executive
to control the development of the power potential of the Nation's
waterways in the years prior to 1918. 160 U.S.App.D.C. at 91-96,
489 F.2d at 1215-1220.
See also J. Kerwin, Federal Water
Power Legislation (1926); Pinchot, The Long Struggle for Effective
Federal Water Power Legislation, 14 Geo.Wash.L.Rev. 9 (1945). That
analysis reveals that the only segment of the power industry
intended to be affected by those early federal regulatory
initiatives was the construction and maintenance of hydroelectric
facilities. Referring to those early legislative proposals, the
special House Committee on Water Power stated that
"[t]he subject of water power legislation with a view to the
development of
hydroelectric power has been a matter of
very great public interest for a number of years."
H.R.Rep. No. 715, 65th Cong., 2d Sess., 15 (emphasis added).
[
Footnote 11]
The House report accompanied S. 1419. The Committee on Water
Power proposed substituting the provisions of the administration
bill, H.R. 8716, for those originally contained in S. 1419. The
report of the Senate Commerce Committee to accompany the original
version of the Senate bill stated that S. 1419 provided for "the
development of hydroelectric energy produced by utilization of
water power." S.Rep. No. 179, 65th Cong., 2d Sess., 29.
[
Footnote 12]
The House report added that the need for water power legislation
"is clearly set forth by Secretary [of Agriculture] Houston in a
recent report." H.R.Rep. No. 61, 66th Cong., 1st Sess., 4. In the
report, Secretary Houston had explained to the House:
"'The exigencies of war brought to light defects in our national
utilization of power which had not been fully realized. Operating
under statutes enacted when the electrical industry was in its
infancy, we had permitted our vast water power resources to remain
almost untouched, turning to coal and oil as the main source of
power; for steam power could be developed more quickly and easily
with fewer legal restrictions and with greater security to the
investment. . . . The power requirements of this country will not
be met until we develop our water powers, tie them in with steam
plants located at the mine itself and operate all in great
interstate systems. These considerations were presented before the
special committee of the House of Representatives in the hearings
held on the water power bill during the last Congress. The need of
adequate legislation is no less urgent now.'"
Id. at 4-5.
[
Footnote 13]
The First Annual Report to Congress also contained an opinion
from the Commission's chief counsel concluding that the agency
lacked jurisdiction to approve a right of way over public lands for
a transmission line that would transmit electricity generated by a
steam plant:
"I think it is fairly to be inferred from the context, as well
as the circumstances surrounding the enactment of the legislation,
that it was the purpose of Congress to confer exclusive
jurisdiction on the Federal Power Commission, except as provided
therein, over the matter of issuing licenses for power projects, or
parts thereof, for the development of hydroelectric power, and that
it was not intended to vest the Commission with jurisdiction over
the public lands for other purposes. If this view be correct, it
follows that, where a proposed transmission line is in no way
connected with a water power project, the Commission is without
jurisdiction to license the same."
FPC, First Annual Report 156.
[
Footnote 14]
The Commission's view of the limited scope of its licensing
jurisdiction has been restated in most of its annual reports to
Congress.
See, e.g., 1935 Annual Report 1; 1940 Annual
Report 1-3; 1946 Annual Report 1-3; 1950 Annual Report 3; 1956
Annual Report 3, 5; 1959 Annual Report 4; 1962 Annual Report 8,
12-13; 1964 Annual Report 10-11, 13; 1966 Annual Report 8 9, 13;
1969 Annual Report 25; 1972 Annual Report 26-27.
[
Footnote 15]
In 1930, a Reorganization Act was enacted to improve the
functioning of the Commission by making it an independent agency
with authority to employ its own full-time staff. 46 Stat. 797,
codified, as amended, at 16 U.S.C. §§ 792, 793, 797(d).
[
Footnote 16]
Title II of the Public Utility Act of 1935, 49 Stat. 838,
expanded the functions of the Federal Power Commission by
authorizing the regulation of the interstate transmission and sale
of electricity. The Commission's new regulatory powers were
codified as Parts II and III of the new Federal Power Act.
See 16 U.S.C. §§ 824-825u. The original Federal Water
Power Act became Part I of the new Federal Power Act. Despite the
breadth of the additional powers given the Commission, its
authority under the licensing provisions of the Federal Water Power
Act remained virtually unchanged.
See H.R.Rep. No. 1318,
74th Cong., 1st Sess., 7;
cf. FPC v. Union Electric Co.,
381 U. S. 90,
381 U. S. 91 n.
2.
[
Footnote 17]
In fact, § 23(b) of the Act, 16 U.S.C. § 817, makes it unlawful
for an unlicensed party "for the purpose of developing electric
power, to . . . utilize the surplus water or water power from any
Government dam." Although the use of cooling water by thermal
electric power plants is necessary to increase the efficiency of
the generating process,
see 160 U.S.App.D.C. at 108 n.
128, 489 F.2d at 1232 n. 128, it is most natural to read § 23(b)'s
reference to using water "for the purpose of developing electric
power" to mean harnessing the power of falling water to produce
electric energy. The "plain meaning" of § 23(b), therefore, would
seem to limit the scope of the Commission's licensing jurisdiction
under the surplus water clause to hydroelectric facilities.
[
Footnote 18]
For example, the Act of Aug. 11, 1888, 25 Stat. 400, provided in
part:
"[T]he Secretary of War is hereby authorized and empowered to
grant leases or licenses for the use of the
water powers
on the Muskingum River at such rate and on such conditions and for
such periods of time as may seem to him just, equitable, and
expedient:
Provided, That the leases or licenses shall be
limited to the use of the
surplus water not required for
navigation."
Id. at 417 (emphasis added).
See also Act of
Sept.19, 1890, c. 907, 26 Stat. 426, 447; Act of June 13, 1902, 32
Stat. 331, 358, as amended, Act of June 28, 1902, 32 Stat. 408,
409; Act of Mar. 6, 1906, 34 Stat. 52; Act of Apr. 23, 1906, 34
Stat. 130; Act of May 9, 190, 34 Stat. 183, 184; Act of June 25,
1906, c . 3530, 34 Stat. 456, 457; Act of Mar. 4, 1907, 34 Stat.
1288; Act of Mar. 3, 1909, 35 Stat. 815, 819.
[
Footnote 19]
The complainants note that, in other legislation before the
beginning of the 20th century, Congress had used the term "surplus
water" in contexts that could not possibly refer solely to the
development of hydroelectric power.
E.g., 19 Stat. 377, c.
107, as amended, 43 U.S.C. § 321, reserving for public use "all
surplus water" not actually used for irrigation and reclamation on
desert land entered by private individuals. But the relevant
statutory history clearly indicates that, when the term "surplus
water" was used in conjunction with "water power" or "surplus water
power," as in § 4(e) of Part I of the federal Power Act, that term
always referred to the use of such water for the development of
hydroelectric power.
[
Footnote 20]
The House Committee reported that:
"Section 14 is a new section authorizing the Secretary of War,
with the approval of the Chief of Engineers, to lease to any
applicant who has complied with the laws of the State in which the
dam may be located, any surplus power developed by a dam that is
constructed or owned by the United States for the purposes of
navigation."
H.R.Rep. No. 592, 63d Cong., 2d Sess., 6.
[
Footnote 21]
See, e.g., 51 Cong.Rec. 11403 (remarks of Rep.
Mann):
"We have many navigation dams in the United States. At many of
them, there is surplus water which may be used for the development
of water power, and we authorize the Secretary of War to lease that
surplus water power and to make charges for it."
See also 51 Cong.Rec.App. 768 (remarks of Rep.
Brown).
[
Footnote 22]
See, e.g., id. at 12336 (remarks of Rep. Underwood);
id. at 12593 (remarks of Rep. Bryan);
id. at
12777 (remarks of Rep. Rainey).
[
Footnote 23]
Section 10 of the Senate bill authorized the Secretary of War to
lease "the right to utilize the surplus water over and above that
required for navigation at any [federal] navigation dam. . . ." S.
6413, 63d Cong., 2d Sess.
[
Footnote 24]
O. C. Merrill, Department of Agriculture engineer and one of the
principal draftsmen of the bill, testified in response to
questioning by members of the committee as to the scope of the
proposed Commission's licensing authority:
"This bill is concerned only, in such instances, in the
development of power. When that is done, the licensee may make any
other use that is available. . . . The only thing this bill is
doing is to grant a license for that particular power development
occupying the public lands. There is no assumption of any control
whatever over any other uses the licensee may make of that water
outside of that development."
Hearings on Water Power before the House Committee on Water
Power, 65th Cong., 2d Sess., 93. Similarly, Representative Edward
Taylor explained: "[T]his bill is for the purpose, as I understand
it, of giving authority to create power and utilize water for power
purposes."
Id. at 96.
[
Footnote 25]
Recognizing that the authority of the Waterways Commission "is
very much more comprehensive and covers infinitely more ground than
the water power commission created in the pending act," 59
Cong.Rec. 1176 (remarks of Sen. Ransdell), an amendment was adopted
on the Senate floor to continue the existence of the Waterways
Commission.
Id. at 1535. That amendment, however, was
eliminated in conference.
See H.R.Rep. No. 910, 66th
Cong., 2d Sess., 13-14.
[
Footnote 26]
The interpretation of the surplus water clause of § 4(e) as
limited to use of such water by hydroelectric facilities is
reinforced by legislation enacted prior and subsequent to the
Federal Water Power Act. For example, the Act of Feb. 25, 1920, 41
Stat. 451, 43 U.S.C. § 521, authorized the Secretary of the
Interior,
"in connection with the operations under the reclamation law . .
. to supply water from any project irrigation system for other
purposes than irrigation, upon such conditions of delivery, use,
and payment as he may deem proper. . . ."
Similarly, the Secretary of the Interior is authorized under the
Boulder Canyon Project Act, 45 Stat. 1060, as amended, 43 U.S.C. §
617d, "to contract for the storage of water in [the Hoover Dam]
reservoir and for the delivery thereof . . . for irrigation and
domestic uses. . . ." The Court of Appeals recognized that those
and other comparable provisions,
e.g., 58 Stat. 890, as
amended, 33 U.S.C. § 708, demonstrate that
"Congress has for a long time been concerned with the controlled
disposition of surplus federal water and power, and has often
expressed this concern by granting plenary control over such
disposition to a federal agency."
160 U.S.App.D.C. at 118, 489 F.2d at 1242. But those provisions
also tend to indicate that, when Congress has wanted to confer the
broad authority to dispose of "surplus water" for purposes other
than hydroelectric power development, it has done so explicitly and
unambiguously.
[
Footnote 27]
See id. at 107 n. 124, 489 F.2d at 1231 n. 124; 1 FPC,
National Power Survey 63 (1964);
cf. Fabricant & Hallman,
supra, n.
7 at 52.
[
Footnote 28]
The total generating capacity of all steam plants in the United
States in 1920 was under 9,000 megawatts. Edison Electric
Institute, Historical Statistics of the Electric Utility Industry
Through 1970, p. 4 (2d ed.). By 1970, total installed capacity of
conventional steam plants was more than 275,000 megawatts.
Ibid. Thermal electric plants in 1971 used 120 billion
gallons of cooling water per day, compared to 178 million gallons
per day in 1920.
See 160 U.S.App.D.C. at 105-106, n. 111,
489 F.2d at 1229-1230, n. 111. A substantial amount of the water
used for cooling purposes by many modern steam plants is
evaporated, rather than returned to the water source.
Cf.
Fabricant & Hallman,
supra, n 7, at 99-101.
[
Footnote 29]
Congress has delegated to the Secretary of the Interior the
federal authority to allocate for consumptive uses water from
Government dams in the Colorado River Basin.
See generally
Arizona v. California, 373 U. S. 546.
Because the salinity of water used for cooling purposes by thermal
electric plants is increased by reason of partial evaporation and
because the downstream Colorado River system already suffers from a
substantial salinity problem, the Secretary required the plants
involved in this case to agree to evaporate all water used, rather
than return it to the river system, as part of their contracts for
the use of Colorado River water.
[
Footnote 30]
Thermal electric power generating plants used 178 million
gallons of cooling water per day in 1920,
see n 28,
supra, which is
approximately 546 acre feet per day. (There are 325,851 gallons in
an acre foot, the amount of water needed to cover an area of one
acre to a depth of one foot.) The six plants involved in this case
will use more than 650 acre feet of water per day.
See 160
U.S.App.D.C. at 90, 489 F.2d at 1214.