*1 COOPERATIVE HYDRO-ELECTRIC FIRST IOWA v. POWER COMMISSION. FEDERAL IOWA, OF
STATE Intervenor. April 29, 1946. Argued No. 603. March 1946.Decided *4 Robinson, David argued W. Jr. petitioner. the cause for With him Porter, on the brief were B. George Andrew G. Haley Connolly, and John Jr.
Howard argued E. Wahrenbrock the cause for the Fed- eral Power Commission, respondent. him With on the brief were Solicitor General McGrath and Louis W. McKernan. Iowa, the State cause for argued Garrett
Neill Rankin, M. John the brief were him on With intervenor. Lohnes and C. L. Horace Iowa, General of Attorney Harris. Walter of the Court. opinion delivered the Burton
Mr. Justice integration federal and This case illustrates projects un- licensing power water jurisdictions state the First is Act.1 The petitioner the Federal Power der associa- cooperative Cooperative, a Hydro-Electric Iowa gen- power the laws of Iowa organized under tion 29, energy. January On sell electric erate, distribute and it Power Act,2 of the Federal 1940, pursuant (b) to 23§ 838,16 amended, 49 Stat. S. C. 791a-825r. 1 41Stat. as U. §§ any person, State, or be unlawful for 23. . . . It shall “Sec. developing power, municipality, purpose electric to con any dam, conduit, reservoir, struct, operate, or maintain water along, any house, across, thereto or or other works incidental navigable upon any part States, waters United or public except lands ... States . under United . . granted pursuant with the accordance terms of ... a license to this Any person, association, corporation, State, municipality Act. or intending project across, along, or other construct a dam works thereof, over, part inor stream or other than those defined herein navigable waters, Congress jurisdiction which and over under regulate authority foreign among its commerce with nations and States shall such the several before construction file declaration of Commission, whereupon intention with such the Commission shall investigation proposed cause immediate of such construction to be upon made, investigation if shall find that the interests of foreign or be proposed interstate commerce would such affected construction, person, association, corporation, State, municipal such or ity maintain, operate construct, project shall not or such dam or other applied it shall works until have for and shall have received a license provisions If under the this Act. find, Commission shall not so public affected, permission if hereby granted no lands ... are to construct such dam other works in upon such stream compliance with State laws.” Stat. 16 U. S. C. 817. *5 filed with the Federal Power Commission a declaration dam, to operate intention construct and a reservoir hydro-electric Mos- power plant River, on the Cedar near cow, Iowa.3
On with an April also filed the Commission license, application Act, for a under the Federal Power enlarged an project construct like the one it essentially enlarged now project wishes to build. The cost of the is $14,600,000. at 8,300 estimated It calls for an foot Moscow, 11,000 earthen dam on the Cedar an River near point acre at an eight-mile reservoir that diversion power plant canal to a to be built near Muscatine on Mississippi. The canal will create other two reservoirs It totaling 2,000 alleged acres. is reser- three incidentally provide voirs will facili- needed recreational power ties. The will plant turbo-generating have four 50,000 units with a total with capacity kw., operating an average head of feet water fall provided by from will the canal to the be Mississippi. pumped Water up from the Mississippi to the head bays possible shortages intake dam at the plant sup- meet ply. along The tailrace will extend for a mile the shore of Mississippi point below Dam on that River. Transmission lines will connect the with a source of steam standby Iowa, electric at Davenport, current Mississippi. plant miles up expected pro- is 200,000,000 duce kwh. of power per marketable year, which 151,000,000 kwh. will firm energy average be an year. Interchange energy proposed is with the Moline- Rock Manufacturing Island Company Davenport near and the project suggested as an alternative to the addi- project including 8,500 dam, This described a an earthen foot power plant 5,000 hydraulic generators of three kw. operat turbine ing feet, under a maximum head of 35 output an estimated 47,000,000 per year. kwh. The water was to be returned to the Cedar immediately River below the dam. *6 company. plant kw. unit to 50,000
tion of rural non-profit especially will be available The cities and cooperative associations electrification counties. nearby more 35 or towns miles and flows in Minnesota River rises The Cedar 10 miles which is Moscow, through Iowa to southeasterly southwesterly there it flows From Mississippi. west of the Iowa joins where Columbus Junction 29 miles to the Missis- miles to southeasterly 28 returns River and all but about will take diversion proposed sippi. This Moscow. River at from the Cedar c. f. s. of water River in the Iowa the flow reduce correspondingly will Mus- Mississippi at will enter the diverted water while the entry at point its present miles above catine, about 20 no cities or There are Iowa River. the mouth of the Columbus Moscow and River between on the Cedar towns petitioner that the indicates and the record Junction the Cedar rights on riparian upon options 98% request, applica- At petitioner’s in that area. River then pending to its supplement as tion was treated project. construct smaller of intention to declaration following made the 3, 1941, the Commission On June findings: navi- Rivers are the Cedar and Iowa
“(1) That States; gable of the United waters from the Cedar (2) That the diversion of water set forth the diversion canal as River means of upon effect and substantial would have a direct above stage River and hence would the flow and of the Iowa navigable capacity ; of that river affect withholding water in the (3) the alternate That during periods and canal of shut-down reservoir power plant and the release of water at substan- during periods of operation tial rates of flow above, as set forth would power plant, cause extreme of the Mississippi the flow River at fluctuations substantially affect Iowa, and would Muscatine, ; river of that navigable capacity commerce of interstate (4) That the interests be affected construction would supple- intention as in the declaration of described ; mented Cedar islands ...
(5) That the two small [in will of the United States and public are lands River] be proposed *7 the by the reservoir of partly wholly flooded occupied by project; will be project and proposed license for the construction (6) That a required provisions under the of the Federal above Rep., Act.” Fed. Power Comm. 958.4 Power to that August 11, 1941, petitioner, pursuant On application for a finding, filed with the Commission an described. On license to construct above 4, granted November the Commission the State of 1941, Iowa’s the State petition and, then, to intervene since opposed granting has of the federal license. actively February 1940, notice to the On the Commission had sent filing original intention Governor of Iowa of the of the declaration of present him thereto. and invited information and comments relative State, however, part proceedings. The took record no The also years present proceeding, indicates that twice in the three before the rejected applications the Executive Council of the State of Iowa requesting petitioner permits state to construct a dam near Mos comparable proposed proceedings, cow to that in all of these but not including Mississippi a diversion of water from the Cedar to the application petitioner River. The last to the Council for such permit August 12, 1940, rejected was filed June 1941. No petitioner application made has been the Executive Council permit project including for a state for construction of the the canal diverting Mississippi most of the flow of the Cedar River to the providing plant Mississippi. and tailrace on the bank of the In for petition present proceeding license, its to intervene for a federal alleged (in Chap the State that such a diversion violate 7771 would 363) Iowa, allegation ter the Code That touches the principal question in this case. January
On 29,1944, hearings, after extended the Com- mission opinion including rendered an following statements:
“As first presented, plans applicant developing the water resources of the Cedar River were neither desirable nor adequate, many but impor- changes tant in design have been made. opin- [The ion quoted here (a) a footnote 10§ of the Federal Power applicant The agreed also to cer- Act.]5 tain proposed modifications Engineers the Chief of Department. War present plans call for a practical and reasonably adequate development utilize the head and water available, large create a storage reservoir, and make available for recreational purposes a considerable area now unsuitable for use, such all at a cost which does appear not to be unreasonable. changes
“Further in design may be desirable, but they are minor character and can be effected if the applicant is able to meet the other requirements of the act.” Re First Iowa Hydro-Electric Coopera- *8 tive, 52 PUR (NS) 82, 84.
We believe that the Commission would have been justified in proceeding further at that time with its con- sideration of the petitioner’s application upon all the material facts. Such consideration would have included evidence submitted by petitioner the pursuant 9 (b) §to
5 “Sec. 10. All licenses issued under this Part shall be on the follow ing conditions: “(a) project That the adopted, including maps, plans, the and specifications, shall be such judgment as the of the Commission
will be adapted best comprehensive to a plan improving for or devel- oping waterway waterways for the use or benefit of interstate or foreign commerce, improvement for the and utilization of water- power development, and for other public beneficial uses, including purposes; recreational necessary and if in order plan to secure such the Commission authority shall have require the modification of any project plans and specifications project works approval.” before (a). Stat. U. S. C. 803 842,16 compliance petitioner’s of the Federal Power Act6 as requirements respect with the of the laws of Iowa with petitioner’s rights proposed the to make its use property of the affected river beds and and to divert and use banks well as proposed power purposes, river water for the Iowa, engage the within the petitioner’s right, State transmitting, the business and distribut- developing, ing necessary other business to effect power, purposes Commission, however, the of the license. The with point was confronted at that a claim the State petitioner only require- of Iowa that the must not meet the project ments for a federal license for the under the Fed- Act, present satisfactory eral Power but should also evi- of its with compliance requirements Chapter dence Iowa, 1939, 363 of the Code of hereinafter discussed, for permit from the State Executive Council of Iowa project. same argument
While it now brief appears, from its Court, opinion that it is the of the Federal Power that requirements Commission 363 of the Chapter superseded Code Iowa as to this have been those of the Federal Act, yet, Power at time original hearing, Commission felt that the were courts the appropriate place for the decision on Iowa’s contention as to the applicability and effectiveness of Chapter 363 applicant That each for a license hereunder shall submit “Sec. commission—
"(b) Satisfactory applicant evidence complied of the laws of the State or States within which the *9 proposed project respect be is to located with to bed and banks and appropriation, diversion, and use purposes of water for respect right and with engage developing, business of transmitting, distributing power, and in other business neces- sary purposes to effect the of a license under this Act.” 41 Stat. 1068,16 (b). C. U. S. 802§ project. The Commission to this
of its Code relation ques- no further until that decided, therefore, proceed courts, and dismissed the had decided tion been petitioner’s prejudice, without accordance application, following explanation opinion: with stated its for of the appropriate place “The a determination if and, is in the we validity of such state laws courts dismiss the for license the basis of application on with the comply requirements (b), failure to of § may seek review of and its con- applicant our action (b) tentions under of the Federal Power Act.” § (NS) 52 PUR
The Commission expressly also found that— applicant presented
“The satisfactory not evi- dence, pursuant (b) to 9 Act, Federal Power compliance of applicable requiring laws state Iowa permit from the State Executive Council to effect the purposes license under Act, the Federal Power pending and the application, as supplemented, should be dismissed prejudice; without . . .” Id. at 85. action,
This after all, did not save the from Commission passing on issue, for the order of ruling dismissal was a upon it, petitioner’s adverse both to contentions and to its own views on the law. The Commission would have justified been in following its own interpretation of the Federal Power Act proceeding with the merits of the application without requiring petitioner to submit evi- dence its compliance with the terms of Chapter 363, or of any other laws of the State of Iowa, which the Com- mission held to be inapplicable or to have superseded been by the Federal Power Act.
On the applicant’s petition for review of the dismissal,
it was
affirmed
the United States Court of Appeals the District of Columbia.
163 825Í, importance because of the 860,16 U. S. C. § Stat. Power Act. applying of the case the Federal 3, 1941, the on June findings The made Commission are the declaration of intention response petitioner’s it is application of this question. purposes not For navigability settled that will affect the of project which has Cedar, Mississippi Rivers, Iowa and each of navigable waters of part been determined to be a will interests of interstate States; the United affect the commerce; public will flood certain lands of the United license from States; require and will for its construction a clearly juris- The within the project Commission.7 is Act. diction of the Commission under the Federal Power if question need, any, presenta- at is the for the issue satisfactory petitioner’s compli- tion of evidence of the hereby empowered— “Sec. 4. The authorized and Commission “(e) any corporation organized under To issue licenses ... thereof, pur- any the laws of the ... United States or State pose constructing, operating, maintaining dams, conduits, water reservoirs, power houses, lines, or other transmission works necessary development improvement or convenient for the navigation development, transmission, and for the and utilization of power across, along, from, or in of the streams or other bodies Congress jurisdiction authority of water over which under its regulate foreign among States, commerce with nations and the several upon any part or public lands ... . . United States .: further, affecting navigable capacity Provided That no license any navigable waters of United States shall be issued until the plans affecting navigation of the dam or other structures have been approved by Engineers Secretary the Chief of and the of War. contemplated improvement is, judgment Whenever the Commission, justified public pur- desirable and in the interest for the pose improving developing waterway waterways or for the foreign commerce, finding use or benefit of interstate or to that part effect shall be made the Commission and shall become a the records of the Commission: . . .” 49 Stat. 16 U. S. C. (e). also, (b), 2, supra. See note of Iowa. 363 of Code Chapter anee with the terms of *11 of in for review question petition is issue put This applica- which dismissed the order the Commission of petitioner the failure of the solely ground tion on the which that The laws of Iowa present to such evidence. from permit a applicable require are and State contends federal purposes effect the its Executive Council to Iowa, license are all 7767-7796.1 of the Code §§ “Mill and 363, entitled Dams constituting Chapter alleged require chapter is Races.” Section 7767 of by the Executive Council of permit the issuance of a which the Commission’s order must State and is one on It depend. provides: dam shall be permit. “7767 No Prohibition — state
constructed, maintained, operated or in any navigable any pur- for or meandered stream manufacturing or pose, any or other stream for power such be taken from purposes, any nor shall water permit a purposes,
streams industrial unless granted by has been per- the executive council to the son, firm, corporation, municipality or constructing, maintaining, operating the same.” require To the petitioner grant to secure the actual it permit of a state under § as a condition precedent to securing a federal license for the same under the Federal Power Act would vest in the Executive Coun- cil of Iowa a veto power over the project. federal Such a veto easily could destroy the effectiveness of the Federal Act. It would subordinate to the control of the State the “comprehensive” planning which pro- the Act vides shall depend upon judgment of the Federal Power Commission or representatives other of the Federal Government.9 Sections 7776, 7792 and Chapter 7796 of 363 have a less direct relation to the issue but superseded would be the Federal Power Act if 7767 superseded by it. § (a), 9 See 10 5, supra; note (b), 2, supra; note (e), §23 §4 7, supra.
note extreme order of dismissal avoids this The Commission’s with fail- because, charging result instead of the petitioner present grant evidence the actual satisfactory ure with permit, charges petitioner state the order present satisfactory failure to of its merely evidence “compliance applicable laws of permit the state of Iowa requiring from the State Execu- Council.” subjecting petitioner tive While this avoids arbitrary capricious permit to an refusal of the it does objection meet the not substance of the For order. example, requires Code that “the meth- State of construction, operation, maintenance, od equip- subject ment of and all dams such waters shall be *12 approval of the Executive Council.” This would subject very requirements to state control the of the project Congress placed in the of the discretion A Federal Power greater Commission.10 still difficulty is illustrated 7771. by § This states the for permit state as follows: granted.
“7771 When If permit it appear shall to the council that the construction, operation, or (a), 5, supra; See 10 note and also: All licenses issued under this Part shall be on the "Sec. following conditions: . . . “(b) except emergency require pro- That when the shall for navigation, health, tection life, property, or no substantial conformity approved plans alteration or addition not with the shall project be made to or other dam works constructed prior approval Commission; . . hereunder . without the the any emergency and be or alteration addition so made shall thereafter subject change to such modification and as the Commission may direct. “(c) the project That licensee shall maintain works in a repair adequate condition purposes navigation for the and operation for the development efficient of said works power, necessary and shall transmission make all renewals and replacements, adequate shall establish and maintain depreciation purposes, reserves for such works as shall operate so maintain and said impair navigation, not and shall to such conform regulations may rules and prescribe as the Commission time to time from protection life, health, property. . . .” 842,16 (c). (Italics 49 Stat. supplied.) U. S. C. 803 materially obstruct will not dam of the maintenance public materially affect other navigation, or existing health, public endanger life or will not rights, in connection taken stream any water from prac- at the nearest thereto project is returned diminished materially being place ticable without deleterious or rendered polluted quantity terms upon such grant permit, it life, fish shall (Italics may prescribe.” conditions as and supplied.) present project. heart of the This strikes at the it to commended especially which feature was its diversion of sub- Power Commission the Federal near Mos- the Cedar River stantially all of the waters of near Muscatine. Such Mississippi River cow, to engineering recognized pos- as an long diversion has been largest development constituting sibility and It is or Iowa Rivers.11 foreseeable on either the Cedar in the head possible that makes increase this diversion from a maximum of power development of water for capacity the increase average feet, feet an of 101 15,000 50,000 output kw. to kw. and its plant from It is 200,000,000 per year. kwh. to kwh. 47,000,000 from Commission, Power on that led the Federal diversion appraisal its January 29, 1944, to make favorable *13 appraisal, its enlarged project in contrast to unfavorable rejection, project. It is the State’s of the smaller and to the brings project squarely under this feature the gives project Act and at the same time Federal Power greatest justification. its economic justification
If there is no permit required, a state is not securing of its requiring petitioner, the a condition evidence the com- permit, present petitioner’s federal to of Engineers Report its from the Chief of on the Iowa River and covering control, navigation, tributaries made flood development irrigation. Cong., 2d H. R. Doc. No. 71st Sess., 86,87, 90. Code for a state requirements of the State
pliance with the that are requirements with state permit. Compliance may well the requirements conflict with block federal For with the state example, compliance federal license. above, water of the Cedar requirement, discussed that the practicable place River be returned to it the nearest all at would one which classi- reduce the small fied by the Federal Power Commission as “neither desir- adequate.” Similarly, engi- able the compliance nor with neering requirements Council, State Executive if the additional to or different the federal requirements, from duplications well result in may expenditures that would the handicap Compliance financial success of project. with for a requirements permit that is not to be issued is procedure imputed Congress so futile that it cannot be express for it. provision absence an On other hand, there is Power ample opportunity for Federal Commission, authority to it expressly given under Congress, require by presentation regulation satisfactory petitioner’s compliance evidence to it of the with permit for a state on the state waters of Iowa that the appro- Commission considers priate effect purposes of a federal license on the navigable waters United States. This evidence can required petitioner be upon remanding this application to the Commission.
In the Federal Power Act there separation is a of those subjects which remain jurisdiction under the of the States from subjects those which the delegates Constitution the United States and over which Congress vests Fed- eral Power Commission authority to act. To the extent this separation, the Act establishes system a dual of control. The duality of control merely consists of division of enterprise the common between cooperat- two ing agencies of government, each with final authority in jurisdiction. its own The duality does not require two
168 the same issue. final the decision agencies to share gov- the state supersedes the Federal Government Where agencies both two suggestion no that the ernment there is contrary a authority. policy In fact have final shall (b).12 and 23 (c), 10 and (e), (a), indicated in §§ responsibility squarely places Act In those sections the Federal Power usually upon the federal officials and upon authority, duplicate A final with dual Commission. required permits and federal licenses system state with “Compliance would be unworkable. project, each licensing requirements” duplicated system of such a Conformity both standards nearly be as bad. would difficult probably be in some cases and impossible would by Congress, of them.13 The adopted most solution license for a federal applicant as to what evidence an Commission, appears submit to Federal Power should (b)14 only 9 of its Act. It contains not subsection § (c)9 (a) (c).15 permits but also and Section subsections 5,10 supra. 2, See notes given text, example In another of conflict addition those project statutes and those between of the Iowa appears Act in 7792 of That Federal Power the Iowa Code. § requires beginning section of construction dam raceway year completion plant three within one and the of the within years granting permit. 13 of after the This conflicts with § largely discretionary with the Federal Power Act which makes this generally contemplates Federal Power that the Commission but years construction be commenced within two from the date of the Code, permit So in 7793 license. of the Iowa life of a conflicts the term of a under license 6 of the Federal Power Act. supra. Seenote applicant “Sec. 9. That each for a license hereunder submit shall to the commission—
“(a) maps, plans, specifications, may Such estimates cost as required understanding project. full proposed be for a Such plans, specifications maps, when approved the commission shall part license; change be made and thereafter no shall be made
169 “Such applicant secure from the addi Commission to This may require.” tional information as the commission material, in secure, as it it such enables to so deems far parts respective all of States or the information that in may prescribed state as a basis state have statutes required The as procedure action. entire administrative 9 to present for a license is described application § Regulations and of Practice of the Rules and Commission.16 maps, plans, specifications changes
in said or until such shall have part approved been and such the commission. made license “(c) may require.” additional Such information as the commission 1068,16 (a) (c). 41 Stat. U. C. 802 and S. § regulations pursuant 303, These rules and are issued to and §§ 825g 858,16 825b, 825h, interpreting 49 Stat. U. S. C. and §§ and 9 the Federal Act. Power Federal Power Commission §§ Regulations, Rules 1938, §§4.40-4.51, of Practice and 18 C. F. R. They fully purpose 4.40-4.51. cover the field so as to no leave §§ by filing comparable required to be served in some information alter native permit. form under state laws a basis as for a state Exhibits E, required by D regulations, satisfy and 4.41 of the are to especially the Federal Power Act have property and to do with rights in the use of water under the state laws and not alter the do legal presented by situation the Act itself. These exhibits are described follows: “Exhibit applicant complied D.—Evidence that the of the laws of the State States within which project be respect to located with to bed and banks and appropriation, diversion, use and of water for purposes respect right and with engage in the business developing, transmitting, distributing any power, and in business, necessary other applied for, purposes to effect the license including necessity, certificate of convenience and required. if accompanied This evidence shall be a statement steps have steps that been taken and the that remain to be acquire taken to and into rights States, counties, franchise or other from municipalities before the completed can be put operation. nature, extent, “Exhibit ownership E.—The rights of water applicant which the proposes use development in the is not permit Iowa state securing of an procedure or an administrative precedent
sense a condition license. securing a federal before must be exhausted dealing Iowa the State of required by procedure It is a with the waters and also with its local streams an in the absence of that State within United States *16 the over by the United States jurisdiction of assumption Govern- that the Federal waters. Now navigability of its Fed- waters under the of such jurisdiction has taken ment regulation added by statute or Act, it has not eral Power requirements. to its federal the state in the in to intervene Iowa, petition its The State of relation Commission, stated before the proceedings the Cedar River water from diversion of proposed the inbe direct viola- diversion would Mississippi: the “said Iowa 1939.” 7771, Code of the of section provisions tion of in the proceedings intervene in the State’s motion to Also, reason of alleged “By it that Appeals, the of before Court Iowa, 7771, Code of of law provisions said [§§ proposed in the water involved the diversion of 1939] of the state of the executive council petitioner, of project of grant permit for the erection lawfully not Iowa could Executive Coun- Furthermore, the proposed.” the dam July 5, on State, of the cil, which includes the Governor satisfactory by application, together evidence project covered perfect- applicant proceeded practicable far that the ing as as operation rights proper to use sufficient water for its agency set- proper A from the State project works. certificate rights ting validity applicant’s forth extent and water practicable. approval per- appended if In case the or shall be mission of one or more State required by agencies is law as a State applicant’s right precedent to take or use water condition works, duly operation certified evidence for the showing why approval permission, cause such or a of such of reasonably filed. evidence cannot be submitted shall also be involved, copy a State certificate is one certified and three When copies uncertified shall be submitted.” Federal Power Commis- 1938, Regulations, sion Rules of Practice and effective June pp. 21-22. General adopted directing Attorney a resolution of Iowa to intervene this case before that court “thereby steps take Federal to sustain said order [dismissing petitioner’s Power Commission applica- tion for a federal “it is because vital the inter- license]” ests State of Iowa that the Com- said order mission be sustained.” This demonstrates the State only opposed per- Iowa not is of a granting state mit but is opposed granting also to the of a federal license project. for the This opposition part based at least in ground on the that the interpreted by state statute, expresses state officials, policy opposed to the diversion water from one stream to another Iowa such under circumstances as present.
Accepting this meaning as the 7771 of §of the Iowa brings Code us to consideration of the effect the Federal Power Act upon and the related state statutes. We find *17 that when that Act in light long is read the of its color- and legislative ful history, vigorous it discloses both a deter- mination Congress of to make progress with the develop- of long ment the idle water power resources of the Nation and a to determination avoid unconstitutional invasion of jurisdiction the of the States. The solution reached is to apply principle the the of division of powers constitutional between the State and Federal This Governments. resulted in system a dual involving integration the close of powers these rather system than dual dupli- of futile cation of subject two authorities over the same matter.
The Act jurisdic- leaves to the States their traditional subject tion to the admittedly of Fed- superior right eral Government, through to Congress, regulate interstate foreign and commerce, administer the public lands and of reservations and, United States in cases, certain exercise authority under the of treaties the United States. These of sources authority constitutional all in are applied navigable development
the Federal Power Act to of the United States.17 waters the Federal Govern- of relationship The closeness in main- its concern projects and obvious ment to these engineering, their economic taining control over such as emphasized by provisions financial soundness is authorizing Government, at those of Federal exercising step greatest its Federal Government took toward jurisdiction authorizing licenses, under the by in federal its this field (41 1063), terms of 50 Power Act Stat. Federal Water years development navigable waters water in the for the Act was limited in 1921 the exclusion the United States. That parks monu- power projects in or national from it of water national reorganized as was so to ments. 41 Stat. 1353. The Commission capacity The Act improve 46 Stat. 797. its administrative 1930. 803, generally perfected August 1935, 49 was revised on Stat. It was then when it received the the Federal Power Act. name of Utility Public Act of made Part I of Title II of the step shortly was of this Court United This last after decision clarify Virginia, it has 295 U. S. served to States v. West Among things, prior the law it existed to that decision. other expressly require step last a federal license for amended 23 so as every navigable power project in the of the United water waters mandatory, discretionary, filing made States. It also instead Federal declaration of intention Power Commission of a non-navigable anyone intending waters over construct a jurisdiction authority regulate Congress which had under com- its permission proj- merce. such It continued its recital construct upon compliance laws, ects with the state rather than with the Federal navigable provided projects Act, Power were not waters of the foreign States, United did not affect the interests of interstate or public did commerce and not affect the lands reservations' of the *18 sharpened United These the line between the States. amendments jurisdictions helped state and federal to make it clear that assuming responsibility through the Federal was the Fed- Government granting appropriate eral Power Commission for the of licenses for the navigable development of water resources in the waters of rapid development projects of the United States. See also federal Reports of shown in the Annual the Federal Power Commission 1921-1945. project by license, to take over the licensed
expiration
in
net
the licensee
payment
“the
investment of
project
projects taken, not to exceed the fair value of
taken,” plus
allowance for severance dam
property
an
ages.
scope
whole
has been further
program
in
the definition
aided,
1940, by
given
navigable
waters
in
Appalachian
United States v.
Pow
United States
er
U.
377.
Co.,
legal
S.
“Students of our
evolution
interpreted
know how this
the commerce
Court
clause
navigable
Constitution to lift
waters of the United
States out
local controls and into the domain of federal
Ogden,
v.
1,
control. Gibbons
Wheat.
to United States v.
Co.,
Appalachian Power
Air
It was developments these this in petitioner, April, made 1941, application for a federal enlarged license this This project. for thus illus- trates the kind of a development, relation interstate navigable commerce and waters of the United States, brought that is forth the new its recognition of value when viewed from the comprehensive viewpoint of the Federal Power Commission. enlarged Until project had at remained dormant least from the time when its recognized value was report to Congress filed Department War 1929.18 light
Further upon is thrown meaning of the Fed- eral Power Act by statement, by Representative made William L. Washington, LaFollette of a member of the Special Committee on Power, reported Water which bill which later became the Federal Water Power Act of In the debate which led to the insertion 9§ Cong., Sess., reflecting Doc. H. R. No. 71st 2d the recom Engineer, 8-90; pp. Engineer, mendations the District Division p. 90; Mississippi Commission, 90-93; pp. River Engineers Board Harbors, pp. 3-8; Rivers Engineers, the Chief of pp. 1-3. especially pp. 86,87,90. See
174 banks of as to the bed and to state laws of the reference streams, he said: It can the State. rights are within
“The property of the them, regardless parts or of beds, of the dispose to, and if it desires banks, the ownership of riparian in this If we put in States. been done some that has that Su- taken from practically which is language, Cress, 243 States v. decision preme Court [United as rights of the States 316], property as to the U. S. and to the diversion bed the banks and infringed any that we have not then it is sure water, respect, any in that of rights of the States bill trying of and we are property, their rules authority a divided everything else to overcome above get devel- possible bill make it pass a that will trying infringe the earnestly We are not to opment. If we want a bill that rights possible of the States. because of Supreme be defeated Court can not omissions, provision safeguard because of the lack of some bill put we should have (Italics Cong. supplied.) 56 Rec. States.” Congress LaFollette, by Representative As indicated overcoming danger of was concerned with divided bring development the needed authority so as to about recognition and also with the of the constitu- water validity as to sustain the rights tional of the States so integration juris- resulting respective the Act. The and Federal Governments is illus- dictions of State preservation separate trated the careful interests throughout Act, setting without' up States any subject.19 divided over one authority (a) provisions following: (c), Instances of such are the § cooperation executive\departments of the Commission with the agencies required other of the State and National Governments is investigation subjects in the such utilization of water resources, water-power industry, location, development capacity, power sites, costs and relation to markets of and the fair value power. (f), application preliminary permit notice of go municipality likely (a), State or to be interested. *20 are in this especially significant regard. Sections and 9 relating expressly Section 27 “saves” certain state laws rights property water, as to the use of so that these are not superseded the terms by of the Federal Power Act. provides: It be nothing That herein contained shall
“Sec. 27. construed as affecting intending any to affect in or or way to interfere with the respective laws of the States relating control, use, to the appropriation, or distribu- tion of water used in irrigation municipal or for or uses, any other or right acquired vested therein.” Stat. U. C.S. 1077,16 §
Section 27 thus recognition Congress evidences the by for express need an “saving” in the clause Federal if Power Act supersedure usual rules of are to be over- come. Sections (b) 27 and 9 were both included in the original Federal Water Power present Act of 1920 their form. The directness and clarity a “saving” §of as clause and its location near the end emphasizes Act the distinction purpose between its (b) and that of 9§ which is included in 9, early part Act, § which deals with the marshalling of information for the consid- a eration of new federal license. In view of the use Congress adequate of such an “saving” 27, in § clause its language failure to use similar in 9 is persuasive § (b)9§ should given not be given same effect is as §to 27.
The effect in protecting § state laws from super- sedure, is limited to laws toas the control, appropriation, issuing permits preference given and licenses is to be to States and municipalities. (e), municipalities licenses States and under certain circumstances shall be enjoyed charge. issued and without right is only reserved not to the any United States but municipality State or any to take over licensed at time payment just compensation. condemnation and 20, reg- 19 and §§ ulation of preserved service and rates is to the States. municipal for or irrigation of water distribution use or pri- It therefore nature. uses of same or other proprietary to such reference exclusive, if not mary, therein” right acquired vested “any rights. phrase prop- of the section application emphasizes the further suggest paragraph to nothing in the There rights. erty the words “other uses.” it be scope unless broader of the same rights confined to however, are words, Those in irrigation of water relating use nature those deci- early This so held an municipal purposes. was *21 upholding 27 relating § sion to and by Court, District it that “a Act, of where was stated constitutionality words requires the act that proper construction of ejusdem generis be with the 'other uses’ shall construed ” 'irrigation’ Co. 'municipal.’ words Alabama Power Co., 606, v. F. Power 283 Gulf thoroughly This is with the section therefore consistent integration rather duplication than of federal jurisdictions It state Federal Power Act. under strengthens argument rights in that, those fields where are- is to States, Congress willing not thus “saved” to let supersedure legislation of the state laws federal take its natural course.20
20 legislative history The 27 The confirms conclusions. these § language 1902, to 8 of Act similar that of the Reclamation § 390, 383, provides, “nothing Stat. S. C. which listed U. several § [in affecting in this Act be or to shall construed as intended sections] any way any affect or to in interfere with the laws of State or Terri tory relating control, appropriation, use, or distribution of any acquired irrigation, right used in vested water there under, . . .” appeared
This restricted clause in a modified and broader form in 1916, 408, Cong., the Ferris Bill No. Public Lands H. R. 64th 1st Sess.: nothing in “Sec. 13. That Act shall be construed as affect-
ing any way or intended to affect or to in interfere with the laws (b)21 It must Section 9 does not resemble 27. be read § (a) (c).22 § entire section is devoted to securing adequate information for as the Commission pending applications (a) for licenses. Where 9 calls for § engineering information, (b) and financial calls for § legal information. This makes 9 place § natural which to describe the evidence which the shall Commission require in order pass upon applications for federal licenses. This makes a correspondingly unnatural place establish such implication a substantive policy as that contained 27 and which, § accordance with the contentions of the Iowa, State of would enable Chap- ter 363 of the of Iowa, 1939, Code to remain in effect although in conflict with the of the Federal nothing Power Act. There is express language (b)9 requires such a conclusion. It does not itself require compliance with any state laws. Its reference to state laws is by way suggestion to the relating control, use, appropriation, State or distri- bution of water.” appeared It also had 14 of the Ferris Bill of R. No. H. Cong., Sess., 63d 2d as follows: *22 nothing “Sec. 14. in That Act any way this shall be construed as affect- ing or intended to affect or to in with interfere the laws any relating control,
of State appropriation, use, or distri- irrigation bution of water municipal uses, used in or for or other right acquired vested thereunder.” in Congress emphasized purely Discussion proprietary further language Cong. sense which this was used. 51 Rec. 13630-13631. reappeared The clause in the Bill which became the Federal Water Act present Power and was there enacted into the law its form. use, Act, in 27 language The of the having Federal Power of a limited § meaning proprietary in relation rights to under the law reclamation public bills, and in land meaning carries that established of the lan- guage into the anything Federal Power Act in the absence of in the Act calling for interpretation a different language. of the note 6. See 22See note 15. which the subjects as to Commission Power
Federal it to submitted proof some may wish Commission required is described The evidence progress. applicant’s to the Com- “satisfactory” shall be as that which merely applicable state compliance The need for mission. from statute but not from this federal laws, any, if arises statutes themselves. effectiveness of the state to the Com- been remanded application this has When for will not act as a substitute mission, that Commission jurisdiction ques- such having over the local authorities to sufficiency legal applicant title of the tions as fran- validity of its local rights, or as to riparian its public utility relating if to intrastate chises, any, proposed (b) says may that the Commission wish service. Section 9 progress made “satisfactory to have evidence” applicant meeting toward local but responsibil- that is to assume say does not the Commission legal steps taken. The ref- ity sufficiency streams, in 9 beds and banks erences made rights water, legal rights to divert or use or to proprietary engage locally developing, the business of transmit- ting distributing power anything neither add to nor anything laws, any, detract from the force of the local if In subjects. on those so far as those laws have not been superseded by the Federal Power Act, they remain as applicable they and effective as were before its passage. Iowa, however, sought State of has to sustain the applicability validity Chapter 363 of the Code of connection,-on this the ground Iowa Federal Act, by Power the implications (b), of 9 recognized chapter of Iowa law as part system of dual control power project permits, cumbersome and complicated it be. If it though had been the wish of Congress applicant make the obtain consent of state as well as fed- *23 eral project, authorities to each the simple thing would long In of debate provide. have been to so the course legislation proposed provide on the was at one time (b). for some such consent 9 § example, Bill, 1419,65th Cong.,
For in the Shields No. S. proviso 2d Sess., proposed: was granted permit “That before the shall be under Act, permittee obtain, must first manner such may States, be the con- required laws sent the State or States in which the dam or other of structure for the development of the water (Italics proposed supplied.) be constructed.” proviso This not was enacted into law but it illustrates proposal Congress. concreteness which the was before In 1918, Mondell, when Representative Wyoming, of suc- cessfully present language against defended the amend- ment, he stated the purposes of 9 as follows:
“There controlling are two reasons for the insertion of this water-power The paragraph. first, standpoint from the water-power
legislation, is that the com- mission shall have the all benefit informa- which tion the States possess relative to the condition point of water at supply proposed diversion. That is a very important reason for a provision of this kind. . . . The second reason is bill so that shall with it carry they notice to the commission that proceed laws, must in accordance with the State they any event, must which sion were in the bill do in whether provi- Cong.
or not.” 56 Rec. 9813- (Italics supplied.) purpose of this section as thus explained is con- sistent with the contention of the Commission this case. provides It presentation of information to the federal commission protects rights constitutional States. This explanation does support not the conten- tion State Iowa that 9 (b) amounts to the sub- jection of the federal license to of the state law on the subject. same The inappropriateness of such *24 the circum- light the of apparent is interpretation
an Federal of the passage in the culminated which stances Act were of the purposes The Act 1920. Power Water such a restric- have made known as to generally so then of it unneces- a denial impossible and interpretation tive of supported effort outgrowth widely of was the a sary. It complete of a secure enactment the conservationists to promote which would regulation national scheme of resources of of water comprehensive development the federal it was the reach of in so far as within Nation, restrictive, nega- piecemeal, do instead of the power so, to the River Harbor Acts and other approach tive of and federal enacted. previously laws major undertaking involving major change
It was a Congress policy.23 national That it was the intention legislation passage The for the dates nation-wide drive at Roosevelt back least the administration of Theodore by Pinchot, support enthusiastic of “the conservationists” led Gifford Forestry. Division of as Chief of the all its Water Act of “With faults Federal Power great firmly principle of marked a federal more of the advance. It established regulation power projects, licenses not water limited recapture fifty years, provided than Government power at end franchise. time, policy Act of national “For first 1920established a power public development in the use and of water on lands and navigable Pinchot, Struggle Long streams.” The for Effective Legislation (1945), Federal Water Power 9, 14 Geo. L. Rev. Wash. also, Kerwin, Legislation, See Federal Water-Power c. VI. present distinctly provide an Act was effort to federal control give encouragement over and federal development. to water grew by prepared War, It out of a bill the Secretaries of Interior Agriculture. Special It was recommended Committee on Water Representatives suggestion Power created in the at House by Representative Sims, President Wilson. See Statement Chairman Power, Cong. of the Committeé on Rec. Water 9797-9798. The provide was powers bill “a method which the water of national comprehensive development to secure a merely to navi- prevent resources and not obstructions gation Act, from the apparent provisions statutory which has been times reviewed scheme of several *25 approved by and the courts.24
The detailed of the Act for the provisions providing plan regulation federal of leave room or need for con- no flicting state controls.25 The contention of the State of country, located, developed by public private wherever can be agencies give necessary security which under conditions will to the capital protect preserve every invested and and at the same time public legitimate problems national, . . . interest. are rather local; they than transcend State lines and be handled cannot ade- conjunction quately except by agencies.” or in with national State- by Houston, Secretary Agriculture, quoted David ment F. of in H. R. Rep. 61, Sess., p. No. Cong., 66th 1st 5. 24 Jersey Sargent, Appa 328; New v. 269 v. U. S. United States Co., 377; Smith, lachian Power 311 S. Power U. Clarion River Co. v. denied, 861, 639; F. 2d certiorari 287 59 U. S. Alabama Power Co. v. McNinch, Pennsylvania 601; 94 F. 2d Power Co. v. Federal Water & Commission, App. 351, 155, Power 74 D. C. 2d 123 F. certiorari denied, 806; 315 U. S. Alabama Power v. Federal Power Commis Co. 315, 128 sion, App. 280, denied, 75 U. S. D. C. F. 2d certiorari 317 U. S. Puget Light 652; Commission, & Sound Power Co. v. Federal Power App. 143, 137 701; Corp. S. F. 2d 78 U. D. C. WisconsinPublic Service Commission, 147 743, denied, v. Federal Power F. 2d certiorari 325 880; Georgia Commission, Power Co. v. Federal U. S. Power 152F. 2d 25 (e) (a), comprehensive required; (f) Sections 4 plans and 10 4§§ 5, preliminary permits; (g), investigation power resources; and of § 6, years; (a) license term development of 50 of water resources § §7 basis; (b), developments itself; on a national the United States § prompt 13, required; 14, projects recapture construction and § § payment upon expiration for them the Government licenses, giving the a direct thus Government interest in reason for and control every project; 21, powers feature of each licensed federal of con licensee; 28, prohibition demnation vested in of amendment or repeal of licenses. presented on behalf that which was comparable is
Iowa States v. in United rejected by this Court States Co., 404-405, U. S. Power Appalachian 426 — Court said: where this within the waters control of possess
“The states jurisdic- acknowledged borders, ‘subject to the their the Constitution United States under tion of the the waters navigation and the regard to commerce that, control is this subordinate local of rivers.’ It the re- rivers, creates between navigable even as interests relat- governments contrariety spective through regulation of waters ing protection acquisi- licenses, operation of structures and the license term. But projects tion of at the end of the possesses there no doubt that the United States naviga- to control the erection of structures ble waters. *26 point navigable subject
“The is that waters are national planning regulation control the broad granted commerce the Federal The Government. objection license conditions to which is made have relationship an obvious to the exercise of the com- power. merce Even there if were no such relation- ship the plenary power Congress over navigable empower waters would deny privilege constructing an obstruction in those waters. It may grant likewise privilege on terms. It objec- is no tion to the terms and exertion power that ‘its exercise is attended the same incidents which attend the exercise of police power states.’ The Congressional authority under the com- merce clause is complete unless limited the Fifth Amendment.”
It is the Federal Power Commission rather than the Iowa Executive Council that under our constitutional Government must pass upon these issues on behalf of the people of Iowa as well as on behalf of all others.
183 accordingly judgment We reverse the of the court below with directions to remand the case to the Federal Power for further proceedings conformity Commission with opinion.
Reversed. Mr. Justice Jackson took part no the consideration or decision of this case.
Mr. Frankfurter, Justice dissenting.
This case does not present one large of those constitu- tional issues which, they because largely abstract, are so throughout have history its so often divided the Court. I controversy, it, understand concerned proper administration law in Congress of a which recognized the interests States as well as of the United States and proper adjustment has entrusted the of these nation-State relations to the interrelated func- tions of the Federal Power Commission and the courts. agreed
We are all Congress has the constitutional promote a comprehensive development of the nation’s water resources and that it has exercised its authority by the Federal Power Act. Stat. 838;
Stat.
791 (a)
seq.
U. S. C. §§
et
See United
Co.,
States v. Chandler-Dunbar
53;
Jersey
U. S.
New
Sargent,
v.
328;
U. S.
United
Appalachian
States v.
Co.,
Power
184 the protection Act involves the Federal Power underlies people intimate concern to the matters of particular requiring the sanc- proposed projects in which the States be located. Power Commission are to of the Federal tion §9 1063, 1068; 16 U. S. C. Act, Stat. By that before (b),1 Congress explicitly required 802§ of a a license for the construction Commission can issue project development, proposed such as hydro-electric “satisfactory must have petitioner, the Commission complied require- has with the applicant evidence that the the matters ments of the laws of the State” reference to enumerated. “satisfactory evi-
Whether the Commission has such necessarily upon requirements dence” what the depends turn, requirements In of State of State law are. what depends upon appropriate law are often but unsettled so, may construction of State law. And the Commission confronted, case, necessity well be as it was with the determining requires what the State law before it can it, and, applicant determine whether has satisfied exercising whether condition therefore, the Com- mission’s has been fulfilled. safeguard protected the interests of the thus
To States (b), Congress given has directed that notice be § application license, the State when an has been filed for a granting may especially which affect a State. 4 (f), 841; (f). Stat. U. S. C. 797 If a State challenge does not applicant, claim of an the evidence applicant “Sec. 9. That each license for a hereunder shall submit to the commission . . .
(b) Satisfactory applicant complied evidence that of the laws of the State or States within which the proposed respect is to be located with to bed and banks appropriation, diversion, to the power purposes and use of water for respect right and with engage developing, the business of transmitting, distributing power, and in other business necessary purposes to effect the of a license under this Act.” *28 satisfactory to be if found applicant, submitted (b), of demands has met the Commission, deter the Commission’s challenge thereafter cannot State pre is in administration problem real But a mination. inter does when a State Commission to the Power sented complied not applicant that the claims vene and can Commission For, before requirements. its lawful ascertain it must (b), by § on duty placed meet the Suppose law. meaning of the State scope con of different susceptible is is not clear or law State only by the construction received no and has structions laws, of State interpretation for the source authoritative Federal Must the highest court of State. namely, interpretation give independent an Power Commission an unreal suggest This is not to the laws of the State? The Federal Power Commission situation. hypothetical relating of laws to State compilation here a submitted than (b)9 for not less relevant under to make lawyers Are the of the Commission thirty States. these of the laws of originating interpreters themselves the laws of they construe, instance, Are States? and Arizona and Illinois when Jersey New and Oklahoma they And if spoken? have not the courts of those States the, decision, from must the Court appeals do and the State the inter Appeals for the District of Columbia become preter Finally, of these laws? in the event of a various further review is this Court to construe State appellate legislation without Time guidance by the State courts? mind, out and in a variety situations, this Court has against admonished assumption by avoidable independent Court of the legislation. construction of State 207-209; Co., g., e. Gilchrist v. See, Interborough U. S. andeis, J., dissenting, Railroad Comm’n v. Los Br Angeles Co., R. 280 U. 145, 158, S. 164-66. It pertinent to recall the classic statement of the reason for leaving to the controlling interpretation of local courts the mean- *29 brought up it, vary of local law: “to one within
ing emphasis, assumptions, practices, tacit unwritten ing gained only life, may give thousand influences from parts wholly logic grammar different new values that Gonzalez, got never could have from the Diaz v. books.” 102, 106. 261 U. S. If been it has deemed unwise to throw upon construing legislation this Court the burden local by when the construction appropriate procedure could be had from States, reject it seems odd that we should as a adopted this rule administration by the Power Commission.
That
is all that
the Commission has done in this case.
said,
It has
in effect: “We do not
what
know
the Iowa law
applicant.
demands of the
right
Iowa has a
make
cer-
tain demands under
they
until
met we
are
are
empowered
grant
not
a license to the applicant. But
we cannot
they
tell whether
met,
have been
because the
meaning of the Iowa statutes has
determined,
not been
easily
determined,
can be
by
appropriate
an
action
Iowa
courts. Only after such
pro-
an authoritative
nouncement
obligation
can we know what our
under the
may
statute
be.” The Court of Appeals for the District
thought
of Columbia
procedure
that such
made sense.
It
seems to have said: “The
know
Commission doesn’t
what
the Iowa law requires, and neither
we.
do
For we cannot
tell what it requires until the
Supreme
Iowa
Court tells
us
it requires.
what
an adjudication
And
of that
issue
can be readily secured if the
will
applicant
proceed along
easy path
by
provided
Iowa
obtaining
for
such an
adjudication.”
151 F. 2d
Laws,
20.
Iowa
1943,
See
c.
Lloyd
Ramsay,
v.
192 Iowa
116-17,
It is no answer to that the expressed at the bar of a view of the Iowa Iowa this Court statute which would make obedience to it needless because the Federal Power Act. provisions of conflict with the judicial organ is not the Attorney-General always take the inter- State of Iowa. This Court does not of the United States pretation by Attorney-General of a federal statute. It should not take the view of statute Attorney-General of Iowa as authoritative on a when are Supreme not construed Court of Iowa we adjustment in rela- upon called to make the federal-State in Congress enjoined (b). all, which After tions like man- advocates, including States, advocates for are they that agers pugilistic and election contestants claiming everything. have a for Before con- propensity legislation, State flict can be found between federal and legislation. given construction must be the State Avoid- is itself an factor relevant important ance conflict so, legislation And construction of State construction. relating to the matters dealt with the Federal Power Act subtlety peculiarly is subtle business and a within the understanding judges. duty, skill, State If it procedure be said that which the Federal for may time, Power Commission contends take there is no just case like this will not take assurance that a contested pass inde- as much time hereafter. The Commission must statute; an its construc- pendently on unconstrued State may Appeals tion then come before the Court of eventually District and before this Even then the Court. possibility that this decision will be fol- remains Court’s ruling, lowed one in the State court as has not been In unknown, interpretation this Court’s was in error. any event, justice. mere not a speed is test of Deliberate speed is. speed Deliberate takes time. But it is time well spent. respect,
With due I have not been able to discover an adequate position answer to the of the Federal Power Commission, thus summarized the Solicitor-General’s brief:
“Unless Section given is to be no effect what- ever, some evidence of compliance with at least some state laws prerequisite is a to the issuance of a federal license, and the view of the court below, that there occasion, no case, anticipate conflicts be- tween state and federal authority and the consequent invalidity of the law, state is not an unreasonable one. *31 ‘To predetermine, even in the limited field of water power, rights of different sovereignties, pregnant with future controversies, beyond judicial func- tion.’ Appalachian United States v. Electric Power Co., 311 U. S. 423. Here petitioner, since the modification of its plans, given the State Execu- tive Council and the Iowa courts no opportunity to express their views on its proposed project with ref- erence to matters which may be peculiarly of local concern; without such an expression, it is difficult to assess the propriety of what is only an anticipated exercise of the State’s power.” I Accordingly, think that judgment should be af- firmed.