Federal Power Commission v. Union Electric Co.

v. UNION FEDERAL COMMISSION POWER CO. ELECTRIC 2, 1965. Argued March No. 123. May 3, 1965.

Decided argued petitioner. the cause for Ralph Spritzer S. Cox, General him on the brief were Solicitor With Goodman, Howard E. Frank Richard A. Solomon and Wahrenbrock. argued respondent.

Robert J. the cause for With Keefe him on F. Schlafly. the brief was Robert

Mr. opinion Justice White delivered the of the Court. 1 (b) Section 23 Power Act2 requires Federal person desiring to a on a construct dam other stream, but one over which jurisdiction under to authority regulate commerce, its a file declaration of intention with the Federal Power Commission. If the Commission finds that inter- “the ests of foreign interstate or affected would be by such proposed construction,” not declarant construct or operate the project a without license. The issue here is whether the construction of a stor- pumped age hydroelectric project generating energy for interstate transmission is one which would affect the “interests of interstate or foreign commerce” within the intendment of the- Act. 838, 846, 49 Stat. (1958 ed.). 16 U. S. C. 817§

[2] The Federal Power Act was originally enacted in 1920 as the Federal Act, Water Power original Stat. 1063. The Act was by amended Title II of Utility Public Act of 49 Stat. (1958 U. S. C. ed.), 791-823 §§ and made Part I of the Federal III, Power Act. dealing Parts II regulation with of electric utility companies, distinguish were added. original To Federal Ac-t, Water kept Power largely intact, from Parts II III, Part I will opinion be referred to in this original under its title.

I. operating (Union), Electric Co. Respondent Union transmission and an interconnected plants generating Iowa, filed Missouri, Illinois, system in distribution con- (b) §to pursuant of intention a declaration the Taum facility, hydroelectric storage pumped struct system. interstate of Union’s installation, part Sauk innovation engineering an storage plant, pumped by energy produced use, is supplement growing During during peak demands. plants periods other through hydroelec- energy use of generates it periods such reser- falling from an elevated tric units driven it uses During off-peak periods into a lower pool.3 voir the lower pump water from from other sources to energy capable project The pool.4 to the headwater pool back storage pumped facility may large bat storage A he likened ato sources, ter}-’,taking energy usually from steam-electric electric other day, supplying energy to an plants, during of some hours and system upper pool integrated during in hours. The water other energy. regarded equivalent as the of stored electric thus be Pumped categories, storage fall into two those in installations hydro pumped storage installa facilities are added a conventional tion, storage, generating pumped and those which are exclusive!}' power solely higher by circulating reser water between a lower and categories storage van- pumped installations voir. Within these C., widely operation. F. design of P. 1964 National and mode pumped storage Survey, I, Existing Power 120-124. combined Part hydroelectric Rocky River, (1929); Buchanan, Conn. include (1956); (1954); Hiwassee, N. and (1950); Flatiron, Tex. Colo. C. Lewiston, (1961). pure pumped storage arc N. Y. The installations planned recently vintage, following projects of more recent with the Muddy Run, Creek, Creek, Colo.; J.; constructed: Yards N. Cabin Pa.; Ludington, Mich.; Cornwall, project. Y.;N. the Taum Sauk and id., See at 122-123. pool upper Taum a At Sauk the reservoir is 32-acre constructed atop mountain, 1,500 level, a at about feet above sea and the lower reservoir, impounded dam, 60-foot covers about 370 acres and a storage capacity 4,350 has a of of water. The two usable acre-feet energy of to 350 and the created creating up megawatts will Iowa. Missouri, Illinois, possibly be utilized Taum to be the East Fork the Black Sauk is located on River, about four miles above the confluence these tributary waters.5 East The Fork is a River, navigable along the Black a with the itself stream White River into which it flows.

The found the East Fork was a stream “over FPC which Congress authority under its regulate a a commerce,” since it is headwater of river system. The would affect the interests of require license, held, the FPC also both it contemplated because utilization power for the electricity interstate transmission because it would affect navigability, downstream F. P. C. Appeals reversed, Court of 326 F. 2d (C. Cir.) A. holding “commerce” which is relevant to the FPC’s determination under (b) § 23 is commerce on the downstream waterway and that question would have no significant impact on water commerce.6 Absent an by pressure are conduit, connected pumping tunnel and with a generating open running pool. station on an channel to the lower 5During operations project, normal stream flows and normal there stage would be no increase or decrease of the natural or flow of waters below dam. In the event malfunction or abnormal flows, might project the affect level of the both the East Fork and Black River. 6The trial project examiner found the that Taum Sauk navigable capacity affect the Although of the Black River. the Commission opinion directed most of its to the of whether issue the part affected the interests of commerce because a substantial power of its commerce, is transmitted interstate it concurred in finding the project may, conditions, examiner’s that the under certain navigability affect the of Appeals the River. of Black The Court holding ground reversed the latter on finding the that the was not supported by question presented substantial evidence. The in the petition generation energy for certiorari was of for inter- whether devel- irrigation or on navigability,

effect on downstream of utilization planned projects control flood opment, affect the interests might matters resources, located on commerce, a water of water activity river is a “local” aof headwaters regulatory consequent and beyond licensing power an is unre- question of Because controls the FPC. of important class an jurisdiction over solved one of S. certiorari, 379 granted we U. hydroelectric projects, Ap- judgment Court 812, and now reverse limitation of its peals. We have determined affecting on commerce licensing power projects FPC’s reading an erroneous waters is founded design purposes language (b) § of 23 Act. the Federal Water Power

II. not it is To focus the is well to state what inquiry, no that the inter- question involved this case. There is energy fully to the subject state transmission of electric is Comm’n powers Congress. commerce Public Utilities Co., 83, 86; v. Attleboro Elec. S. Electric Steam & U. Exchange Comm’n, Bond & Co. v. & Share Securities today there doubt U. S. 432-433. Nor is generating energy transmission, for such such Sauk, among Taum affect commerce the States there- fore within the purview power, quite are regard tributary streams without the federal control navigation. Laughlin & See Labor Board v. Jones Steel Corp., 301 Labor Board v. 1, 40-41; U. S. Fruehauf license, requiring state was transmission a sufficient basis for argue although right reserved in a footnote the Commission holding. the correctness of the alternative We do not determine properly whether this is or decide there sub- issue here whether support finding navigability; on our stantial evidence to effect proceeds Appeals assumption discussion the Court of determining correct that there was not.

95 Co., Edison v. Labor 49; Trailer 301 S. Consolidated U. Board, McClung, 379 U. S. 197; 305 U. S. Katzenbach v. Appalachian But see United States v. 294, 301-304. Co., 769, grounds, Power 107 F. 2d rev’d on other Thus, U. S. 377.7 there are no constitutional doubts or interpretation. barriers to the FPC’s The question Congress whether has a license for a required water power project utilizing navigable the headwaters of a generate river to energy system. for an interstate power We think an affirmative answer is required by both the language purposes of the Act. language Act, view, plainly our a requires

license in the (b)8 circumstances of case. Section 23 Light Utah Power Pfost, by & Co. v. 286 U. S. cited Appeals, opposed. Court of is not The Court there held that a State power impose had company generating energy tax on a electric for This, distribution in course, interstate commerce. does not powers Congress. control the commerce Cf. Edison Labor Co. v. Board, 197; Board, U. S. Polish Alliance v. Labor 322 U. S. regulation 649: preclude does not “[F]ederal state taxation and state preclude taxation regulation.” does not federal (b) Section 23 reads: any “It shall be person unlawful for purpose ... of devel- oping power, electric construct, operate, any dam, or maintain conduit, water reservoir, power house, or other works incidental across, along, thereto any or of the waters the United States, upon any part or public lands or reservations of (including United States Territories), surplus or utilize the any or water from except dam, Government under and in accordance granted pursuant with ... Any license to this Act. person intending ... to construct across, a dam or other works along, over, part thereof, stream or other than those defined herein waters, over which authority under regulate its foreign commerce with nations and among the several States shall before such construction file declaration of such intention Commission, whereupon with the the Commission shall investigation cause proposed immediate of such construction to made, be and if investigation it shall find that the interests foreign interstate or proposed commerce would be affected such proj- hydroelectric of nonlicensed prohibits construction detri- any effect, streams, regardless ects on water by or commerce navigation on beneficial, or mental aon project a proposing those requires come and to of intention to a file declaration stream of whether for a determination before the Commission would be foreign or commerce “interests of interstate speak not obviously does a which affected,” determination or water commerce. navigation in terms of the interests only license where Plainly require does not provision foreign on navi- or commerce “the interests interstate Although transporta- gable waters be affected.” would commerce, the waterways interstate is tion on interstate its face of commerce” on phrase the interests “affect regu- to Congress sought hardly any claim supports implies strongly it only Rather, transportation. late such authority its the Com- Congress full under upon drew its Clause, including power but to over merce limited not enactments, a dozen other commerce. “[H]alf to Act, are sufficient than the Labor Relations National [Congress] bring aspects to that when wants illustrate sweep full of its constitutional within the not by regulating its authority, purpose it manifests ‘interrupt,’ or ‘affect,’ but also matters which ‘commerce’ ‘promote’ describing In so interstate commerce. ... range control, indulging stylistic of its is Congress not Board, preferences.” Alliance v. Labor Polish National S. 647. U. language of this is not restricted scope (b) limiting filing § earlier in 23 requirements clause operate construction, person construct, maintain, such . . . shall not or applied or it such dam other works until shall have for and provisions have If shall received license under this Act. find, public if no the Commission shall not so or reserva- lands hereby granted affected, permission are tions construct such compliance stream dam or other works such with State laws.” “over nonnavigable streams authority commerce” regulate under its necessitating super- systems of river tributaries is, naviga- downstream preserve improve

visory power to United States generally. See bility or water commerce Phil- Co., 690; Irrigation Dam 174 U. S. v. Rio Grande & Co., language S. This Guy F. Atkinson lips v. U. designates who must file a declaration merely those who locate a water intention- —all those jurisdiction on a within the project nonnavigable stream of Congress required are to declare their intention so that necessity Commission for a license. determine Congress proceeds authority then to full invoke its over commerce, without to qualification, define what projects nonnavigable on required streams are to be Respondent licensed. asserts that commerce must mean the same thing both the filing licensing require- ments of (b); § 23 because of the allusion to water commerce in the filing provision, the Commission’s in- quiry into the effect of the on project commerce must be to limited the source of Congress’ power over the stream. Nothing in the or syntax structure of 23 (b) compels § this conclusion. Indeed, describing in distinct terms the standard for who file must and what must be licensed,9 the more compelling inference is Congress in- requirement To be sure the on be a stream over which delimits cases in which the Com inquire mission need project’s commerce, into the effect leaving on possibility theoretical projects affecting that some commerce need not they be licensed because beyond are on cognizance located waters under Commerce Clause. But it has not been shown that this possibility anything is more than theoretical. To extent there are projects, such nothing there inconsistent between a narrow exemption projects for located on intrastate waters any navigable do not flow into streams and an intent to reach all affecting generally commerce when located on the more typical stream. on effect project’s into the inquiry

tended the on downstream to, limited effect but not be include, navigability.10 Power Water of the Federal

Turning purposes to the nothing which casts serious we find enacted in Act, indicates (b) or which reading of § our doubt under its considerations restrict the Commission is much navigability. There on (b) § 23 to effect contrary. indicate Power Act Water Federal purpose

The central those control over comprehensive was to provide the Federal in which Nation’s water resources uses of the included these uses legitimate interest; Government had very control, and, promi navigation, irrigation, flood unregu which, while nently, hydroelectric —uses harmon contradictory rather than well be lated, might and Har legislation in 1890 and the Rivers ious.11 Prior statutory requiring Respondent directive also underscores the “proposed construction” the dam determination of whether the urges that the use of affect commerce and works would navigation. provision term refers to effect indicates the inquiry or to matters be limited to such effects extend Whether intelligible affecting generally, determi of commerce an interests project, perforce of nature of the nation entails consideration only operation of the mode and not its use and its of intended physical Further, provides find the statute construction. commerce, ing oñ the declarant that the will have an effect maintain, operate construct, such dam or other “shall not works” without a license. 11 1932, Rep. Cong., Cong. 61, Sess.; H. 58 Rec. R. No. 66th 1st 1039-1042, 42 1936-1940; Cong. 241, 1173-1174. See also 59 Rec. 32S, Sess., Cong., Cong. 6968; 1st Rec. S. Doc. No. may of Act in 1920 be The toward the enactment movement keynote of from President veto said to have taken its Roosevelt’s private important bill which have turned over to interests would power Rainy He on the River. said: sites power. beginning great development now of in water

“We are at the entering through more transmission is more and Its use electrical Already daily people. largely every life of the into element

99 obstruc 1899,12prohibiting bors Act of the erection including tion to those navigation, Irrigation v. Rio Grande Dam & feeders, United States Co., the consent of 690, requiring 174 U. S. approval Secretary constructing before War

a bridge, along navigable waters, or dike or in dam, thought for it the federal inadequate, accommodated navigation. interest in As this Court has had occasion to note before, the 1920 Federal Water Power Act “was outgrowth of a widely supported effort the conser vationists to secure enactment a complete scheme of national regulation which promote compre hensive development of the water resources of the Nation, so far as it was within the reach of the federal power to do so . Hydro-Electric . . .” First Iowa Coop. v. Federal Comm’n, Power 328 S. 152, prin U. 180. The cipal use to be developed regulated Act, as its title indicates, was that of hydroelectric power to meet the needs of an expanding economy.13 monopoly the evils of becoming are manifest; already experience past of the necessity shows the making of caution in unrestricted grants great power. “It duty should also be the designated of some official to see to it that in approving plans development the maximum of the navi- gation assured, or at least making plans these developed not be so ultimately to interfere with the better utilization complete of the water or development power.” of the Cong. Rec. 4698. history The objectives movement and its are well recounted in Kerwin, Federal Legislation Water-Power (hereafter 105-293 Kerwin); Pinchot, Long Struggle for Effective Federal Water Power Legislation, 14 (1945). Geo. Wash. L. Rev. 9 Stat. 454; 1151; Stat. §§401, U. S. C. (1958 ed.). 13 increasing “The power, need resulting of through participa our tion in the war growing and shortage in certain sections of our coal supply, and oil compelled attention urgency to the of immediate 100 The objectives. reflect these of the Act provisions of creation and navigation the besides

preface states that . . the . for provide Act “to Commission, lands public of the power; use water development of 41 purposes.” for other . . . and thereto in relation aas amended, requires (a), 10 1063. Section Stat. proposed that the obtaining a license for condition will be Commission judgment “be as in the such or for improving plan a adapted comprehensive best or bene- for the use waterway waterways or developing the improvement for foreign commerce, fit or of interstate for and other development, of water-power and utilization regu- provisions . .”14 public beneficial uses . . Other operations, services, charges, and duration late hydroelectric . . not essential to plants,15 “provisions . water-power legislation. comprehensive need for . . . [T]he legislation hydroelectric power present development at clearly by Secretary report.” time is forth Houston a recent set Rep. H. 61, Cong., Sess., No. 66th R. 1st years enacting ago, “If 10 which have instead of restrictive laws prohibited Congress development powers, had invited our development through beginning terms, their fair and reasonable 20,000,000 of the War would found the States with World have United hydroelectric developed power 5,000,000. instead . . . necessity para- development “The for the of our water is of importance people States, mount United Cong. delay should enact law without further ...” Ree. bill). 241, (remarks introducing Jones Senator Cong. 1222-1224, 1039, 1042, 1048; Rep. 180, See also 59 Rec. No. S. Cong., 1st Sess. (a) (1958 ed.). 842, 49 Stat. 16 U. S. C. § require These conditions shall maintained be good repair operated navigation, in the interests of amortiza year operation tion reserves shall be after maintained the twentieth investment, charges out of shall excess return net annual be paid States, profits, unregulated to the United state excessive authority, expropriated States, shall be to the United 49 Stat. § (b), (d), (e) (1958 (c), ed.), 16 U. S. C. rates and §§803

101 such,” but “have navigation as. with even concerned of the commerce relationship to the exercise an obvious Co., Power 311 power.” Appalachian v. United States comprehensive In to insure order 377, 424, U. S. waterways, control of the Nation's over the utilization broadly was defined include “navigable stream” waterways rapids and interrupting falls, shallows, Congress improve- for authorized or recommended 16 ment; recognized of federal author- and other sources ity public were such as over lands invoked, and national forests.17

If comprehensive development power, “in so far as it within was the federal reach of to do so,” Hydro-Electric First Iowa Coop. v. Federal Power Comm’n, 328 S., 180, U. at the central thrust of the Act, there obviously argument is little merit to the that (b) 23 requires § license when the interests of water commerce are but dispenses affected with the license when other commerce interests are vitally pur- involved. The poses of the if fully Act are more the Commission served must, as it this case, impact held in of the consider project on spectrum the full of commerce interests.

III. Union’s position, earnest however, legisla- is tive history of Act reveals a purpose more limited requires a narrower construction 23 (b). The core § argument is that the constitutional basis for the Act generally for 23 (b) § in particular was the services energy; for absent state regulation, shall be reasonable and adequate, §19, 1073, (1958 41 ed.). Stat. 16 S. IT. C. Under §812 §14, 844, (1958 49 Stat. ed.), 16 U. S. C. the United States §807 may recapture any project expiration after license, upon pay- ment of the net property. investment in the 16 (8), 3 (8) (1958 ed.). 49 Stat. § U. S. C. 796§ (e), (1958 (e) ed.). 49 Stat. § U. S. C. 797§ in- navigation, Congress over authority (b) 23 § other, no power, and only this voked over greater no control accordingly provides necessary protect than nonnavigable streams said, matters, it is these navigability. On downstream agreed. Act opponents and both conservationists of limited reach continues, argument Moreover, navi- to repeated references (b) by confined § 23 of it in the course congressional over gation power to and on 1935 amendments hearings reports committee and to the Act. long from the

We cannot distill as much Union does a de- to what was legislative struggle and intense enact unquestion- in Act policy. cided innovation The federal ably congressional power an of involved invocation re- Clause, since it navigation over under Commerce on a quired any power project to water license build regardless of stream, broadly defined,18 was, actual on navigation. consequently, effect There extent scope considerable debate about and navigation, federal over about the definition power river of “navigable authority waters” about the and impose having to controls conditions little relevance and 18 ed.). (8), 838, (1958 (8) 3 49 Stat. 16 U. S. 796 § C.;§ “navigable Earlier versions of Act would have waters” defined ordinary only parts to include such streams or thereof which in their transportation persons prop- natural condition are used for the erty improvements through in or which interstate commerce shall Cong., Sess.; 1419, become usable in such commerce. S. 1st 65th Cong., H. 3184, R. 66th 1st Sess. conservationists noted thought falls, rapids, excluded definition shallows be rather hydroelectric projects. Cong. valuable A sites for 57 Rec. 4638. closing prevented filibuster in the hours of the session in enact- 1419, 253-254, Kerwin navigation ment S. and the definition H. R. 3184 was amended the Senate Commerce Committee interrupting rapids include falls shallows and as well as streams Rep. improvement. 180, Cong., cited for S. No. 1st 66th Sess. thought protection navigation.19 to the Some anything but Commerce Clause did not extend for the itself, pur- mainstream and then pose of water preserving improving transportation. This broad objection expression to the Act found re- marks directed at 23 (b) power § assertions that the over navigation licensing was not sufficient to require the of projects nonnavigable streams, save where perhaps navigability substantially downstream affected.20 19See, g., Cong. 1041-1042, 1430-1432, 1472, 6529-6531, e. Rec. 6536, 7723-7729. objections may

These be found in the debates on the earlier versions legislation, notwithstanding “navigable waters” in narrowly permission these bills was more defined and to construct granted. on a in- stream was Earlier bills 1419, Cong., Sess.; clude S. Cong., 65th H. 1st R. 1st Sess. Cong. See 56 9038; Cong. 4638; Cong. Rec. Rec. Rec. following representative: The are “Stripped covering, proposal of its the relates not to commerce between foreign nations, the States or with but it authorizes a com- mission to corporations issue licenses to to and to individuals build power dams and generation electricity to erect for houses the of for purposes. purpose may industrial expla- And in this be found the nation of the enlarge 'navigable strained effort to the definition of beyond proper proponents waters’ its legislation limits. The of this are not navigation concerned with navigable and so with waters in fact. power development Theirs is a scheme of for the demands and profits industry the They of recognize under Federal control. the impracticability developments upon of such streams in fact except law, and in exceptional under unusual and conditions. . . . 'navigable Limit this may definition of waters’ as we and bill the go very even then will verge to the of I constitutional inhibition. authority know of by no licensing our fundamental law for the Congress corporations of dams, and building individuals for the of power the houses, erection of generation electricity and the of purposes. industrial and commercial profess There are those who to may upon navigable believe that this be done streams as an incident improvement navigation. to the of Whether this view be sound or not, my it powers is clear in mind that such can not be exercised attack a major Act mounted the opponents the Since awas navigation, power over the federal the authority, Clause of Commerce well-recognized basis Navigation ground. on this defended proponents debates, and the permeated hence over it federal disagree- understandings and the reflecting statements upon streams limits of our States Federal Government within the Congress jurisdic- no not and over which which are White). Representative (remarks of Cong. . . .” 59 Rec. 6531 tion. purposes navigation, the use law, aside from “As matter belongs States several in the different streams Government. people not to the Federal to the of those States and Gov- That the Federal argument amounts to this: The insisted belong charge not for water that does ernment sell and to make a is to Cong. belongs Rec. it, people of the States.” but which to to (remarks Nelson). of Senator contention, the Obviously, then, “Mr. KING. under the Senator’s line, and, jurisdiction snow have over the Federal Government would says, it voce sotto the Senator from Colorado Thomas] ns [Mr. produce which snow jurisdiction which would have clouds tributary flowing produces spring produces the melts navigable. So the Federal Government into the river which is grasp omnipotent it powerful hand until can out its stretch that.’ say, have over snow in the mountains and ‘We “Mr. NELSON. is a forced construction. That position to "Mr. I leads that. KING. think that the Senator’s my that, is not “Mr. It lead and that NELSON. does not position. ago Rio Grande few moments referred Senator a incidentally opinion in that case. The court intimated stream, when but extended to the feeders control principles case applying it of law the facts each comes to they by not mean to facts. The court did must be measured navigable. to were What the court meant decide that feeders jurisdiction'over say was Government has sufficient Federal destroyed supply be to it that the of water shall not the feeders to see prevent to the main stream from or so diminished in feeders as being navigable. . . . a a cer- of the certain feeder of

"... Does the diversion quantity irrigation purposes of the water diminish the tain stream destroy navigability to main such an extent as to stream? navigability If not diminish the the diversion of water did understandably constitute con- over these issues merits the context in which the Act was enacted. part siderable meet, history fairly But none of this can be said That determine, question presented much less here. Congress authority is not exercised its question whether in it navigation Act, over the Federal Water Power assuredly enacting (b) it did, § most but whether authority also invoked its full Commerce Clause over hydroelectric subject located on waters fed- eral fact over jurisdiction. The there were debates navigation, the extent of federal over or over navi- power gable streams, light or sheds little whether did, not, rely intend to on other did aspects of its over commerce when it directed a Commission proposed determination of the effects of a project on the “interests of commerce.” It is true the debates on 23 (b), taking they did, § the course that express contain no references to interstate commerce electrical energy, perhaps authority regu- because the late the production goods ship- destined for interstate ment far less time, defined and understood at that see Dagenhart, Hammer v. S. U. decided perhaps because no one was inject inclined to other con- stitutional ongoing issues into the debates.21 But stream, main the Government would no have control whatever. Furthermore, supply it would have control to the extent of the purposes of water navigation. needed to subserve the of real seeking present situation, “We are not to interfere with the put bill, no matter what we into if this the Senator from Maine will longer, excuse change me moment we can not the decisions of the Supreme ‘navigable Court as to their determination of the words stream.’ legislation, We could not undo if we should make effort, they attempt.” what have decided. Wo have made no such Cong. Rec. 7730. Cong. 1041-1042, 1472, See also 59 Cong. Rec. 7723-7730. Cf. 57 4636-4638, Cong. Rec. Rec. 9038. 21Especially largely an issue that was theoretical at the time. pumped hydroelectric Prior to storage technique, the use 106 in (b) § 23 debates, these emerged from

Act which beyond reached in terms couched particular, for support no forms navigation control of equate to intended proposition navigation.22 with those commerce” “interests of dif Congress was history indicates Indeed, The House version the two. ferentiating between non- on a a dam to construct (b) granted permission 23§ if Com for a license provided navigable stream purpose for the justified the improvement mission found or “for use waterway developing or improving foreign or commerce.” in interstate navigation benefit of the expansion with the Committee, along The Senate require this to navigable waters, amended definition of investigation and to make an immediate the Commission if license the Com construction without prohibit foreign or that “the interests interstate mission found 24 Only if the Commission be commerce would affected.” granted permission not so was the declarant did find one laws. upon compliance construct with state No inclu any explanation offered substitution sive term “affect interests of interstate commerce.” sufficiently large on the to serve interstate markets were interrupting falls, shallows, rapids mainstream enough or utilized flow to affect or level portions. 22Indeed, powers Congress not invoked its over commerce (b) public powrers but also its over res drew lands and § Only public ervations. if no there is effect on commerce and “if no permission granted lands reservations are affected” is to construct without a license. 3184, 1419, Cong., Cong., H. R. 66th 1st Sess. See also S. 65th 1st Sess. 24 Rep. Sess., Cong., S. No. 66th 1st 25 Ibid., Rep. Cong., H. R. Sess. House No. 2d managers separate regard did state statement the Senate amendment: prescribe

“This amendment seeks to how a stream of navi- doubtful agree seemed opponents and conservationists But authority- Congress’ of full measure embodied the Act hydroelectric regulate Clause Commerce under sponsors that the is no evidence there And projects.26 in the its enactment securing prevailed Act, who of inter a construction intended they drafted; terms broad constitu their than narrower foreign commerce state or objections of numerous In the face counterparts. tional com find it of authority, we of federal to this exercise comprehen Congress adopted that the significance pelling limitation writing any from refrained language sive navigation (b). into 23§ or reference to do not amendments concerning the 1935 The materials con- hearings reports Here the alter our conclusion. author- and to the federal navigation tained references to The streams.27 nonnavigable ity over in- “every person example, for stated that Report, House naviga- might which affect tending project to construct to the Commission required tion would be to come States.” a determination of the interests of the United To the Sess., 26. Rep. 1318, Cong., H. R. 74th 1st No. Sess., 1st Cong., effect, Rep. 621, same see S. No. 74th law, and provisions of the be determined as within the gability provides shall ascertain whether substance it the commission permission affected; not, are if then interests Id., granted laws.” at 13. to construct in accordance with the State scope provision to do (b), But was meant whatever the 23§ obtaining navi- a determination of the more than afford a method for gability located. It of the stream on which the was to be nonnavigable applies stream over which Con- if the stream is a gress is to determine the effect and the Commission commerce, on not the nature of the stream. 26See, 241-244,1173-1174, g., Cong. 1935; Cong. e. Rec. 59 Rec. 1472, 6529-6531, 7723-7729. Hearings House Committee on Interstate See before the Sess., 383-391, Foreign 5423, Cong., at Commerce on H. R. 74th 1st Rep. 46-47; 471-490; Rep. Cong., Sess., 1st H. R. S. No. 74th Cong., 1st 25-26. Sess., No. re- filing refer to the clearly statements

46-47. Such the com- subject which was (b), § quirement constructing projects Only persons mittee amendment. need file waters feeders are statements The committee of intention. declaration not illumi- they but do respect, in this thus accurate quite from (b), distinct licensing §of provision nate the the issue they nor do resolve its filing requirement, naviga- might affect among those which projects They not, explic- do to be licensed. required tion are those exempt licensing itly implicitly, from do not navigation. reports effect on having no of water with those of commerce” equate the “interests transportation. in the re- no references express

It that there are is true of the commerce aspects to ports or debates other reports but the reflect (b), § in connection with 23 to as the deliberations secure broad intent earlier same projects involving all water power federal control over systems. of the utilization river Nation’s enabling strengthened by greatly “The act would be control all preserve projects Commission to over any valid with which Federal Government 1st 47. Rep. 621, Cong., Sess., concern.” S. No. 74th R. 1st 26. Rep. 1318, Cong., Sess., See also H. No. 74th And on floor of control objections to federal on to projects streams, over similar those voiced 1920, again rejected were with inconsistent power regulation. Cong. 79 Rec. effective there an amendment Moreover, promptly was eliminated § to 23 which a license required would have when or foreign the “interests of interstate directly would by proposed be affected such burdened construction.” proposed by adopted The amendment was Pittman and Senator Cong. without discussion. It de- Senate Rec. 9053. filing require- actual effect of ignore the can we Nor to prior provision applicable in 1935. The ment added Act, Harbors amendment, 9 of the Rivers § ade- navigation, was forbidding obstructions 1151, Stat. on effect with a substantial projects quate insure before brought would be navigability downstream a project intending Persons to construct Commission. pure such as some likely effect, which no such have to file decla- pumped storage installations, could decline impunity. ration of Thus the 1935 amend- intention with principally regard projects ment made a difference predictably navigation if on little, any, have effect significant but a effect interstate Respond- commerce. ent would have us assume this difference was not intended, although both the Committees stated that the amendment would enable “the Commission to preserve control over all with which the Federal Government has Sess., valid Rep. concern.” S. 74th Cong., No. 1st 47; Rep. H. R. Cong., No. 1st Sess., 26. In light of necessary purport of this amendment and the breadth of hydroelectric the federal interest proj- ects expressed in Act, the 1920 preoccupation Commission and the committees with navigation, while not without significance, does not overcome the clear import language and purposes of the Act. respondent

The asserts an that consequence anomalous flows from the Commission’s construction of Act and its view plants that steam generating large amounts of energy for interstate transmission are not within the scope of 23 (b), although § along located a stream over which Congress has jurisdiction. Since the Commission’s jurisdiction here solely rests on the interstate transmis- sion of energy, there can be no basis for distinguishing leted Committee, the House explanation. also Rep. without H. R. Cong., No. Sess., 1st agreed. Cong. The Senate Rec. 14473. both facility a hydroelectric plant a steam

between Ap- of The Court use. interstate energy for generating energy electric generation noting after peals, argu- this from activity, concluded local or intrastate is a . . must . Commission’s ment “[t]he congressional jurisdiction delegated its upon logically rest navigable waters.” on of commerce interests over the should, the Act reasoning either this at 551. On 2d, F. sit- plant a when a for steam license not, require but does not, or should itself, mainstream uated on the hydroelectric plant, for a license does, require but mainstream, on the storage otherwise, situated pumped aor beneficial effect, has no demonstrable but which to this conundrum navigability. The answer effect, on Utility Act II Part II of Title Public is that unlike regulates various which the Commission 1935, under energy in interstate aspects of the sale and transmission Act, original Part Federal Water Power commerce, I, is concerned with the of water resources and utilization potential In relation to particularly power water. Act,29 central concern the distinction between hydroelectric plant a steam is obvious, meaningful, although produce for energy both interstate transmission.30 Reve rsed.

29Respondent notes that if the use of water resources is at matter, why heart of explained then it be cannot the Act differ entiates precisely iquiroelectric plants between two similar a non- subject jurisdiction solely stream to federal one because energy generates transmits in interstate commerce and the other perceive difficulty. local use. failWe located The nonnavigable stream, on a any navigability without effect on water commerce and without sales, interstate have no well among effect on beyond the States and thus be under the Commerce Clause. Appeals Court noted the Commission’s novel con “represents departure struction a decided from its administrative construction of generally statute” and not “one based [the]

Ill Justice Goldberg, whom with Justice Mr. Mr. dissenting. join, Harlan and Mr. Justice Stewart no question there “is agree I with the Court that fully sub- energy is of electric the interstate transmission proj- and that Congress,” powers ject to the years.” throughout the acknowledged limits of adhered accepted this have 2d, 552. must be deemed to 326 F. at consistently held administrative view. required license for previously a that the FPC has not

It is true having markets, but hydroelectric projects generating for interstate projects in navigability, but the existence of such no effect on storage pure pumped number be doubted. The construction relatively development. on streams is a recent installations small significance to the pure pumped storage projects not of Thus were days hydroelectric early of the Act. plants in in the federal interest Appeals Further, A view here is not novel. Court FPC’s expressly rejected in this construction of the Act dealt with and (C. Appalachian Co., A. United States v. Power 107 F. 2d Cir.). on Appeals held, in a decision relied There the Court of by below, untenable construction was court that the Commission’s statutory au- “either on the basis of construction or constitutional resting part very thority,” in on narrow view this conclusion hydroelectric Congress’ authority over under the Commerce Clause Court, projects, This whether on waters. although finding question navigable, rejected this the stream in quite underpinning Appeals’ made ex- of the Court of decision and plicit hydroelectric projects. the broad nature of the federal interest expressly put posed by The the intended Court also aside the issues presented interstate sales. 311 S. 377. Thus the issue herein U. fairly can be said to have been unsettled and unresolved since decision, ruling an in 1954 that a evidenced examiner’s energy required generate interstate a license because it would Appeals’ the earlier Court of transmission. Commission followed cursory dictum, rejected ruling in decision and ground requiring a of effect on navi- license the more traditional Oregon gability. Co., 1, Power 13 F. P. C. California stating, regarded question open one, The FPC itself has as an importance reaching ease, in this that “an issue of such the issue any longer go there can be must not be allowed to unresolved since country years over- little doubt that this ahead will become 112 transmission, whether for such energy generating

ects steam, purview of within or “are they use water federal con- regard quite without power, Ante, 94. at tributary navigation.” trol of streams is one of stat- however, question presented, here The basic fully exercised Congress utory interpretation: whether of those whose licenses power, requiring its commerce affect interstate nonnavigable streams, projects, built on way, Congress any or in or whether foreign commerce whose require wished to licenses those navigable waters. foreign affect or commerce on interstate was in question From provision time the enacted 1962 the Power believed until Federal Commission not interpretation attempt to be correct and did latter a license waters require unless commerce In “ruled however, the Commission 1962, affected. con- hydroelectric project for first time be that [a] for pur- in and to utilize waters structed . . . power for use be pose developing interstate cannot an . . . because it would constructed without FPC license the power affect interests of since interstate commerce used to markets in supply would be [other States].” Policies,” Forty-second Annual Re- Regulatory “New I port (1962).1 the Federal Power Commission con- interpretation, that the Commission’s earlier believe development dependent upon whelmingly more the maximum of its 27 F. 806-807. water resources all their uses.” P. C. generally acknowledged find in We do not these circumstances a consistently jurisdictional inter- limitation or a held administrative States, pretation. Trucking American Assns. v. United 344 U. S. See statutory Moreover, in 1935 re-enacted the relevant provisions. interpretation long-standing of the administrative licensing provision both after is an im before and its re-enactment portant g., Helvering construing See, e. v. factor the statute. 678; Noel, Reynolds, 432; S. 380 U. 313 U. Commissioner v. S. (1958). Davis, Administrative Law §5.07 correctly sistently many years, reflected followed congressional intent. conclusion, supporting

The Court’s the Commission’s affects theory new that a license is if required way foreign commerce in interests interstate reading an overly seems to be based literal required statute. The a license is provides statute if the that “the interests of interstate Commission finds foreign proposed would be affected such commerce all I that deference, construction.” With do not believe interpretation the the Court Commission that Congress that intended to exer- language this establishes cise the full reach of its commerce can be main- tained, legislative history provision clearly for the of this . that of . . commerce” to which reveals “interests Congress refers are the interests of commerce on navi- gable by congressional proponents waters. Statements others, the Federal Water Power Act and when the Act was first enacted in clear an 1920, make intent licens- ing required only be when interests of commerce on navi- gable Moreover, waters are affected.2 after a considerable period during which consistently the Commission inter- preted licensing provision in accordance with this con- gressional intent, statute was re-enacted in 1935. At that time statements of the drafters of the Act3 Senate and Reports again House on the Act4 clearly indi- Appendix Cong. See 8917, ; Cong. A. See also 56 Rec. 9038 57 ; Cong. 6529-6531, 7723, Rec. 4638-4639 Rec. 7730. Appendix See B. Reports Both the Senate and House on the 1935 amendments to the Federal licensing provision Water Power Act make clear that the apply navigable was to where Report waters are affected. The Senate states: “Under this subsection with the two amendments here made every person intending might to construct a conceiv ably any navigable duty coming affect waters would be under the to Rep. Cong., Sess., Commission.” S. No. 1st Report expresses Rep. 1318,74th House similar views. H. R. No. Cong., Sess., 1st 25-26. apply licensing requirement have the to an intent

cated interests of affects a project when navigable waters. intimates, that some as the Court be, well

It constitu- believed proponents Act’s licensing only where require tionally could an history showed legislative If the are affected.5 waters extent, its full power to the commerce intent to exercise I power, as to the reach of notwithstanding doubts by the given reading of the statute accept However, an reveals ex- my view, history, Court. of the limit the application intent press congressional irrespective waters licensing provision no power. There is indication scope the commerce envisaged anyone application or desired the here involved type to the licensing provision only because the elec- interstate commerce which affects tricity produced crosses state lines.

Moreover, as the Court does interpret provision anomaly, generat- for steam today produces a substantial in a manner ing that affect interstate commerce plants one in- hydroelectric plants of such identical to that obtain a license from required volved here would not be have to Commission, yet hydroelectric plants away attempts this explain obtain one. The Court original in Federal by stating that anomaly, view potential Water Power Act’s concern with “the water,” hydroelectric project “the a distinction between plant meaningful, although and steam and obvious, Ante, produce energy both for interstate transmission.” However, the “power poten- at 110. even terms of tial in I fail water,” to find a relevant distinction between a plant artificially which water to an res- pumps elevated off-peak periods allowing ervoir in it to fall generate supra. n. 2, See which heats plant at electricity peak periods pur- I no electricity. see generates which to create steam anomaly in justifies producing of the Act that pose when my view, course, regulatory scheme. Under can affected, Congress commerce is foreign interstate or hydro- constitutionally licenses of both steam and require hydroelectric projects, projects, electric either steam or legislative history here, however, or of neither. The that it has licenses my required establishes to satisfaction plants type hydroelectric plant of neither steam nor the I involved, light legislative history here of this agree of Appeals with the Court intended required only a license be where the interests waters are affected.6

APPENDIX A TO OPINION OF MR. JUSTICE

GOLDBERG, DISSENTING. Excerpts May 27,1920, Cong. from Senate debate on Rec. 7730. bill,

“Mr. KING. as I interpret it, This would make every navigable, stream even to the headwaters of the smallest or stream, up line, to the snow where the way by snow melts and finds its trickles little rivulets into some other stream. For instance, this if language, pardon will Senator me- “Mr. NELSON. Let me call the attention of part Senator to the amendment, first reads:

“ 'Navigable parts waters’ means those streams other bodies of water over which Con- gress authority regu- under its case, light majority In of the decision in this I do not feel it neces sary Appeals to deal with the Court of determination that the Com hydroelectric finding mission erred that the here involved navigable affected waters. among foreign nations commerce with

late States- the several that does will see that Senator

“Mr. KING. The Govern- the Federal any limitation impose not confers itWhen may regulate. it as what ment to States, et among the commerce regulate is of what not a is definition cetera, that streams. Congress may control which the extent that understand, I held, as Supreme Court if tributaries, of other of tributaries tributaries navi- final stream tributary such part of cognizance of the Federal be gable, would under carry up to the snow line. That would Government. only goes to “Mr. The court’s decision NELSON. consid- case must be the facts this extent —and water to supply that as to the tributaries ered —that in law navi- stream, is in fact and the main necessity have sufficient gable, Congress must prevent being their jurisdiction over those feeders up thereby preventing supply dammed is into the main stream. That running water ought to extent of the decision and the Senator see inevitable, that for if all the feeders of our great Missouri, such as the rivers, Mississippi, rivers, up other could be dammed so kept away they water would from be them cease to be navigable. would I “Mr. KING. am not arguing question. NELSON. So the Government has jurisdic- “Mr. tion supply to the extent that can not be cut off from stream. Obviously, then,

“Mr. KING. under Senator’s contention, the Federal Government have jurisdiction over the snow line, and, as Senator (Mr. from Thomas) says, Colorado sotto voce it produce which of the clouds have jurisdiction spring the produces the snow which melts and which is into the river tributary flowing produces Government navigable. So that the Federal until omnipotent hand powerful stretch out its say, in ‘We grasp it can the snow the mountains have over that.’ “Mr. is a construction. NELSON. That forced position KING. I the Senator’s “Mr. think that to that. leads It not lead to and that that,

“Mr. NELSON. does my position. ago not The Senator moments a few to the Rio Grande case. The court intimated referred in the control Con- incidentally opinion that stream, gress extended to the hut when feeders of it comes to to the applying principles lawof facts they in each must he measured case facts. The court did not mean to decide that the feeders navigable. say were What the court meant jurisdic- Government Federal has sufficient supply tion over the to see to it that feeders destroyed water shall not be or so diminished being stream prevent main feeders from navigable. ought on reflection to see The Senator if the Government no control whatever of had thing possible, although the feeders —if such a were I possible can not conceive it—if it were for the States or up pre- individuals dam the feeders and drop flowing vent a of water into main navigable stream, they dry up could the main stream and navigation destroy Except on it. in those sections irrigation, where water is exhausted for the erec- tion of as a in- feeders, fact, dams matter of for stance, in the East not West, the Middle does diminish the supply water, for the water flows way over the dam in one another and enters the in the It is main stream. then feeders water en- to divert possible it is where West arid stream. the main from purposes irrigation tirely it that I take be done? can what extent “To court, the come before should that kind of if a case the of rights the both consider would the court the irrigation, for water who needed farmers, navigation, requiring interests commerce for of case. in each of fact one would be question and the feeder a certain water of of the Does the diversion diminish irrigation purposes a certain stream destroy an extent as to such of the water quantity diver- main stream? of the navigability If navigability did not diminish sion the water no stream, would have Government the main Furthermore, only have it would whatever. control water needed supply control extent to the navigation. real purposes subserve present with the seeking are not to interfere “We bill, put into this no matter what we situation, and will excuse me a moment if from Maine the Senator change the of the Su- longer, we can not decisions of the words preme Court as to their determination ‘navigable could not undo stream.’ We they legislation, effort, if we should make the what no such We attempt. have decided. We have made simply parts have said that those of streams or bodies water over which under authority regulate its foreign with na- tions among States, the several which in either their natural or improved conditions, and so forth, are navigable, shall be considered to be navi- gable streams. That is all we have said. We have simply left the matter where the courts have left it; and if we change undertook to the law as it is and to navigable are say that a certain class of streams which Court Supreme fact are not added.) us.” (Emphasis overrule APPENDIX B TO OPINION OF JUSTICE MR.

GOLDBERG, DISSENTING. A prepared by memorandum the Federal Power Com- mission Inter- and submitted to the House Committee on Foreign state and amendments explaining Commerce to the Federal Power Water Act states:

“Section 210 of the bill amends section 23 In (b) present Water Power Act.... subsection provision intending that those to undertake on a nonnavigable tributary of a stream may in their file of such inten- discretion declaration changed tion with as to the Commission is so make duty it a to such a proceeding file declaration before with construction, operation maintenance any project provi- on such waters. Furthermore, sion is expressly making inserted it unlawful to con- struct a any navigable waters without granted act. pursuant pro- license to the This latter vision in substance River is the result achieved and Harbor Act of 1899 when read with the Water thought Power Act. It bring together desirable to regulations single with in a dealing projects amended, every act. this section person Under as intending might to conceiv- construct a which ably any navigable be under waters would affect duty coming to the Commission. act would be greatly strengthened by enabling the Commission preserve to control over all with which the Federal Government valid concern.” has Hear- ings before the House Committee on Interstate Foreign Commerce, Cong., Sess., 1st 391. (Emphasis added.) Federal Power Com- for the DeVane,

Dozier Solicitor concerning the amendments follows mission, testified had prepared: Commission may be rather in it Although “Mr. Martin. me impresses the memorandum repetition, form of 3 is Mapes Mr. in section that the contention way in the of commerce standpoint broader, from 4. language section of a than power, just those you me could leave “It to occurred in the in the United States’ ‘navigable words waters section and then add as defined section to attempting we are sir; “Mr. what No, DeVane. is to it clear the Commission do make 4 in cases under section authority to issue license [a] act. under section arise The addition words defined “Mr. Martin. waters of ‘navigable the United section added however, incorporate the section States,’ navigable waters. definition of without course, “Mr. it exists DeVane. Of we think that amendment. sec- my

“Mr. to the fact that Ryan calls attention apply be considered to might tion nonnavigable waters, applies section 23 while waters as well. beyond extends

“The jurisdiction It waters waters. extends to you rivers or streams anything where do those are might navigation those the cases and affect the act. under section fall I last “Mr. that statement? Crosser. What was did not quite hear it. applies Section 23

“Mr. DeVane. ivaters, done anything is those waters where that foreign commerce. might interstate or affect your I think the committee “The Chairman. may pass on. on that. You position Mapes. arrive at its Does the Commission “Mr. as to conclusion, the same reach about conclusion, not, as license or a should obtain plant whether they do when Engineers Congress and the Board there- that, that stream is determine it, bridge across who to build fore, people desire it? consent of do get must first in- The Commission. “Mr. DeVane. of intention to these declarations stance refers the War Engineer Corps Department, War recommenda- investigation and an Department, with reference to Department, tion is made foreign commerce, interstate or upon the effect necessary if it is after investi- Commission, hearings, takes gation report made, holds evi- dence, findings. and makes its attempts according

“The Commission to act to the they facts as In very are shown. few of the cases is any controversy. there ever Mapes. expressions synony- Are these two “Mr. mous, commerce, or not: interstate effect and the navigability a stream? Mr. I Mapes, they think Do are.

“Mr. DeVane. you argument want to on the hear other side as to whether they are or not? Mapes.

“Mr. No. I you “Mr. DeVane. see have some knowl- edge at least of the fact that that question has been debated, but to me it is a question of ‘tweedledee and tweedledum.’ I my cannot take legal processes to that refinement. There be a difference; sir. yes, It is conceivable, at least in somebody’s mind, that will stream a certain a

the construction inter- upon effect any in fact have not at the time construction commerce, that the foreign or but state affecting possibility a potential has time future some commerce at foreign or interstate money to spending man from prevent will which stream. put commerce that argument runs. way is that “Now any amend- seeking by are not “Mr. DeVane. We- enlarge propose- we ment that States the waters United Commission in Congress has control. which over you were, say you I understood “Mr. Holmes. waters. other than you could control so that today. law “Mr. DeVane. That in that you I “Mr. Holmes. Then misundertoood regard. make I like to that- Well,

“Mr. DeVane. perfectly clear. are extending power.

“We not We not are any power that extends the proposing amendment States the Commission waters United over today not all. they that do have over at—not might “At I think we clear point, Mapes, Mr. I up difficulty answering question had in you Saturday. asked me on (b) will subsection of sec- “You observe under 23, persons desiring tion to construct jurisdiction, waters over which but may not be looked as waters, come to the Commission a decla- such, under ration intention and have determined advance of the construction whether not a license is necessary. than is broader in section provision

“That navi- definition 3, where in section language me asking were you one that used, waters is gable Saturday. about, on ap- waters section

“The definition navigable. in fact that are waters only to those plies in fact are not to waters applies “Section inter- where construction navigable, but affect commerce. foreign state Mapes. the court sustained Yes. Has

“Mr. jurisdiction respect, in that Commission Commission? nonnavigable waters?

“Mr. DeVane. Of Mapes. Yes. “Mr. asking jurisdic- about the You are

“Mr. DeVane. nonnavigable waters, these Congress over tion navigation? affect Mapes.

“Mr. Yes. Yes;

“Mr. DeVane. case of the upheld such streams was over Co., Irrigation Rio Dam & States v. Grande United That decided under the Rivers 690. U. S. Act of same Harbors effect as section 23 this act.” before the House Committee on Interstate

Hearings Foreign Commerce, Cong., Sess., 471-472, 1st added.) 476, 489, (Emphasis

Case Details

Case Name: Federal Power Commission v. Union Electric Co.

Court Name: Supreme Court of the United States

Date Published: Jun 7, 1965

Citation: 381 U.S. 90

Docket Number: 123

Court Abbreviation: SCOTUS