Thermal electric power plants, or “steam plants,” whether fossil-fueled or nuclear-fired, require large amounts of water to cool and thereby condense the steam after it passes through turbine rotors. In this appeal, we must decide whether fossil-fueled steam plants that obtain their cooling waters from a major river system of the United States in a manner affecting its navigability are subject to the licensing jurisdiction of the Federal Power Commission (FPC) under Part I of the Federal Power Act, 16 U.S.C. §§ 79la-823' (1970).
Petitioners contend that the FPC has authority to license these plants; the Commission asserts, as it has since 1921, that it does not.
Petitioners
1
filed with the FPC on
The complaint asserted that the Commission has licensing authority over the Four Corners plants under § 4(e) of the Federal Power Act, 16 U.S.C. § 797(e) (1970),
6
because the utilities are constructing and operating “project works,”
see
16 U.S.C. §§ 796(11), (12) (1970),
7
for the development, transmission, and utilization of electric power across and along “navigable waters,”
see
16 U.S.C. § 796(8) (1970);
8
that the above-described withdrawals of water from the Colorado River system by the six power plants will affect the navigability of these navigable waters; that the Navajo and Kaiparowitz plants will use “surplus water,”
see
16 U.S.C. § 797(e) (1970),
9
impounded by a “government dam,”
see
16 U.S.C. § 796(10) (1970) ;
10
and that some of the six plants are or will be located on public lands or reservations of the United States,
see
16 U.S.C. §§ 796(1), (2).
11
After alleging that the
On their request, the utilities, were given until November 9, 1971, to file answers to the complaint. On October 18, 1971, the Utah Power & Light Company filed an answer denying most of the allegations of the complaint and moved to dismiss the complaint for failure to state a claim upon which relief could be granted, for lack of subject matter jurisdiction, and for laches with respect to the Huntington Canyon Plant. Before any other answers were filed, however, the Commission on November 4, 1971, sua, sponte issued an order dismissing the complaint for lack of jurisdiction.
In its order, the Commission stated that its licensing authority under Part I of the Federal Power Act extended to the licensing of “project works” and that thermal electric generating plants are not “properly classifiable” as project works within the meaning of 16 U.S.C. §§ 796(11), (12) (1970). This conclusion was based on brief references to the preamble of the Act as originally enacted in 1920, to the legislative history of the Act, to the long-standing FPC interpretation of its powers under the Act, and to the decision of the Supreme Court in Federal Power Commission v. Union Electric Company,
On November 10, 1971, complainants filed an application for rehearing, pursuant to 16 U.S.C. § 8251(a) (1970). The application asserted that the structures and operations of the six plants came within the literal language of 16 U.S.C. § 797(e) (1970), because
[t]he facts in this case demonstrate clearly that water conduits, power houses and transmission lines have been and are being constructed for the purpose of generating and transmitting electricity in interstate commerce; that surplus water from behind the Bureau of Reclamation’s Glen Canyon Dam will be utilized for this purpose; and that much of the facilities in question will be and are located on public lands and reservations of the United States.
In addition, the application contended that consistent administrative failure to regulate was not conclusive of the jurisdictional issue because “consistent error is still error,” Phillips Petroleum Company v. Wisconsin,
Ón December 10, 1971, the FPC issued an order denying the application for rehearing. Complainants then filed a petition in this court on December 14, 1971, to review the Commission’s orders. See 16 U.S.C. § 825Z(b) (1970). 12 By order dated February 4, 1972, the utilities named in the complaint were allowed to intervene in these proceedings.
I
At the outset, it is important to consider briefly the factual background of the problems presented by the issues in this case.
Although estimates of the precise rate of growth vary, it is undisputed that the demand for electric power — as well, of course, as that for other kinds of energy —is increasing at a staggering rate. According to one source,
13
consumption of electric power is growing by 9% per year, and demand for it is expected to double during each of the next two or three decades. The expected 250% increase in the demand for electric energy between 1970 and 1990 will require at least 255 new thermal-electric plants of 500,000 kilowatts to 2,000 megawatts capacity.
14
Ninety-one of these plants
The manner in which thermal-electric plants generate electricity has been simply described as follows:
Steam electric plants generate electricity by the thermo-dynamic process known as the Rankine Cycle. Heat produced by burning fossil fuel or nuclear materials turns water into steam. The steam passes through a turbine at high pressure and temperature, turning the turbine which in turn drives a generator to produce electricity. After leaving the turbine, the steam goes into a condenser, where the steam gives off its excess heat to the cooling water circulating in the condenser, is condensed to water and returned to the boiler or reactor to repeat the cycle. 17
About two-thirds of the heat generated by burning the fuel source becomes waste heat that is absorbed by the cooling waters in the condenser, 18 and this results in a considerable elevation of the temperature of these waters. The heated water is then ordinarily returned directly to the water body from where it had been pumped into the condenser. This “once-through” cooling process for thermal-electric plants accounts for over 80% of the total cooling-water used nationally and almost one-third of the total water used for all purposes. 19 The tremendous projected growth in the production of thermal-electric power is expected to increase cooling requirements from 120 billion gallons a day in 1971, about 10% of the average daily runoff in the continental United States, to 200 billion gallons a day by 1980 and to 600 billion gallons a day by 2000, an amount equivalent to 50% of the average daily runoff in the United States. 20
When the cooling waters are discharged directly into receiving water without having passed through cooling towers, 21 they may be 10 to 20 degrees (Fahrenheit) warmer than the receiving water 22 Thermal discharges can cause severe damage to the aquatic ecosystems of the receiving waters. 23 If evapora-tive cooling towers are used to cool the waters leaving the condensers, the immediate environment may be adversely affected and large quantities of water may be permanently lost to the water source from which the cooling waters were obtained 24
We are told by petitioners that the six plants involved in this appeal have already had a significant detrimental impact in the Four Corners region and that this impact can be expected to become much more pervasive as all six plants become operational and plant capacity is increased. The environmental impact statement prepared by the Federal Bureau of Reclamation for the Navajo Project, 26 petitioners say, indicates that the six plants will evaporate most of the water they withdraw for cooling purposes. Thus, up to a quarter million acre feet of water would annually be withdrawn permanently from the Colorado River system, or over 2% of the 10-year average flow of the Colorado River at Lee Ferry, Arizona, of 12.1 million acre feet of water per year for the period 1958-67. 27 Petitioners claim that the projected increase in electric-power generation in the Colorado River basin will increase the permanent withdrawal to 5% by 1990. Petitioners also contend that studies and hearings by various state and federal officials have confirmed the assertions of area residents that the Four Corners plants are heavily polluting the air of the region in violation of state and federal standards and that other activities harmful to the environment including strip mining are being undertaken in conjunction with operating the plants. 28
It is thus in the context of an increasing competition between the need for power and the importance of preserving public resources, between virtually unregulated growth and constraints required by concern for present-day and long-term environmental consequences, that we construe a statute that was enacted in an age in which the magnitude of these conflicts could not have been foreseen.
II
Petitioners contend that FPC jurisdiction is properly invoked under § 4(e) of the Federal Power Act for two reasons: either because the six plants identified in the complaint are “project works” necessary for the development of power along navigable waters or because the plants will utilize “surplus water” from Government dams. We will consider these contentions in turn.
A.
It is true, as petitioners point out, that the literal language of § 4(e) appears to include steam plants. “Project,” as defined in 16 U.S.C. § 796(11), means the complete unit of development of a power plant, including reservoirs and dams, and is not by its terms limited to hydroelectric plants. Under § 4(e), the Commission is empowered to license “project works” — the physical structures of a project — necessary or convenient
In answering a similar argument, the Second Circuit has said:
We reject this line of maxims of statutory construction in favor of Judge Learned Hand’s more practical instruction that “[w]ords are not pebbles in alien juxtaposition,” [NLRB v. Federbush Co., Inc.,121 F.2d 954 , 957 (2d Cir. 1941)] and therefore turn first to [the Act's] legislative history. 31
Our role is to give effect to the intention of Congress as it may be discerned by reference to the historial background of the legislation as well as to the particular words chosen by the Congress to express its purpose. 32 The use of extrinsic aids such as legislative history to determine congressional purpose is appropriate not only when the words of the statute are ambiguous but also “when the literal words would bring about an end completely at variance with the purpose of the statute.” 33 In our case, the history of the Federal Power Act, other provisions of the Act, developments occurring after its enactment, and the uniform (with one notable exception) expression of judicial and scholarly commentators compel the conclusion that the structures comprising thermal-electric plants are not “project works” required to be licensed by the FPC under § 4(e).
Part I of the Federal Power Act .was enacted originally as the Federal Water Power Act in 1920. 34 It was the first federal legislation to provide for comprehensive management of the nation’s waterways, and it was also the first federal attempt to regulate significantly the production of power.
The earliest federal efforts, which culminated in the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401, 403 (1970),
35
It should be observed at this point that hydroelectric power became a major power source in the United States about the turn of the 20th century because of the development of technology for the long-distance transmission of electricity. Before that time, steam power had become the chief source of power in the
Following the transfer of responsibility for the national forests to the Forest Service of the Department of Agriculture in 1905, 45 the Secretary of Agriculture began to issue permits for 50-year periods for rights of way in the forests for the generation and transmission of water power. A fee system was also established, 46 although the charges at first were hardly more than nominal. Nevertheless, permits were still granted as a matter of course, and power sites were still routinely awarded by Congress to private power interests. And no efforts were made to coordinate the many different uses of public lands and navigable waters for the purpose of promoting the comprehensive development of the major river systems in the public interest.
Beginning in 1906, the first halting steps in that direction were taken. The General Dam Act 47 of that year provided that, when Government permission was granted to construct a dam for water power or any other purpose in any navigable waters, the plans and specifications for the dam and “all accessory works” had to be submitted to the Secretary of War and the Chief of Engineers for approval. These two officials were expressly authorized to impose conditions on construction that were deemed necessary to protect the present and future interests of the United States, including the condition that the permittees construct structures “necessary in the interests of navigation.” The Act was intended by its framers to permit the development of water power while facilitating the improvement of stream navigability by the Government through the utilization pf private capital. 48
In 1910, the Act was amended
49
to provide that in acting on the plans sub
Despite these initiatives, however, the focus of federal efforts over the next few years remained on improving and maintaining the navigability of the major rivers. Thus, for example, the Weeks Act of 1911 50 authorized the Secretary of Agriculture to acquire, upon recommendation of the National Forest Reservation Commission, denuded lands in the watersheds of headwaters of navigable waters to protect the navigability of those waters by making the lands available for reforestation. 51 The Government also engaged in sporadic efforts to impose the permit requirements of the 1901 legislation on power companies that had appropriated public lands for the building of hydroelectric facilities without seeking a federal license, 52 and to require the payment of fees as a condition to retaining licenses previously issued. 53
A congressional battle between private power interests and conservationists was touched off by the attempt of the former in July, 1912, to secure House of Representatives’ approval of an Omnibus Water Bill that would have authorized the construction of seventeen major dam projects with no provision for a charge or other regulation by the Government.
54
It was this view, of course, that eventually prevailed.
Over the next few years, several bills were introduced in Congress by the respective factions but none was able to pass both houses.
61
However, in 1920, a Wilson administration bill regulating the construction of water power projects on navigable waters, public lands, and forest reserves was introduced.
62
The
Thus was born the Federal Water Power Act of 1920, which “established firmly the principle of federal regulation of water power projects [and] . ’ . established a national policy in the use and development of water power on public lands and navigable streams.”
65
The history of the Act shows beyond any doubt that the only segment of
An Act to create a Federal Power Commission; to provide for the improvement of navigation; the development of water power; the use of the public lands in relation thereto, and to repeal section 18 of the River and Harbor Appropriation Act, approved August 8, 1917, and for other
purposes 68
It is true, as petitioners point out, that statutory headings of complicated acts can provide no more than a very general guide and cannot limit the plain meaning of the statutory text. 69 But it does not follow that the regulation of steam plants can be subsumed under the words “and for other purposes” in the preface, which explicitly recites the broad, fundamental purposes of the Act. 70 We agree with iñtervenors that it is unlikely that, if Congress had intended to include the regulation of thermal-electric generation as a basic purpose of the Act, it would have limited reference in the preface to hydroelectric power — the lesser utilized of the two sources of electric power generation. The explicit reference to only hydroelectric power is consistent with the legislative history of concern with promoting the “comprehensive development of water power.” 71
Other provisions of the Act bear this out. For example, § 4(a), 16 U.S.C. § 797(a), authorizes the Commission to make investigations concerning the utilization of water resources of regions to be developed, concerning “the waterpower industry and its relation to other industries and to interstate and foreign commence,” and concerning the location, capacity, development costs, and relation to markets of power sites — again, only water power is singled out for study. Section 10(a), as amended, 16 U.S.C. § 803(a), provided that licenses issued under the Act be issued on the condition that the projects adopted “shall be such as in the judgment of the Commission will be best adapted to a comprehensive scheme of improvement and utilization for the purposes of navigation, of water-power development, and of other beneficial public uses . . . .” (Emphasis added.) The proviso to § 24, as amended, 16 U.S.C. § 818, accorded retroactive application to that section’s provision for the protection of licenses in their utilization of public lands for which application had been made for use in constructing “water power” facilities.
“On neither the public lands and reservations nor on the waters of the United States is the jurisdiction of the Federal Power Commission as broad as the jurisdiction of Congress. The latter has authority over all forms of use; the Commission is limited to the consideration of projects designed to produce water power. Structures or diversions having any other purpose, unless incidental to works constructed for power purposes or a necessary part of a comprehensive scheme of development, are not within the jurisdiction of the Commission.” 73
The Commission has adhered to this position consistently since 1921. 74
We are told by petitioners, however, that this administrative interpretation of the Commission’s jurisdiction is entitled to no weight because “consistent error is still error.” 75 We are told that “the unadorned language of the Act” 76 is more significant than Commission interpretation ; that administrative construction must yield to the “plain language and overall scheme” of the Act; 77 and that the jurisdictional judgment in this case does not require the kind of analysis of technical facts that would require us to defer to administrative expertise.
We have already indicated our disagreement with petitioners’ argument that we need look no further than the language of §§ 3 and 4 of the Act to hold that the FPC has licensing jurisdiction over steam plants, and we discuss infra their contention that the purpose of the Act requires that we so hold even if the language does not. 78
Because the “unadorned language” of the Act, moreover, does not compel the interpretation for which petitioners contend, consistent administrative construction to the contrary commands our respect; indeed, it is entitled to “great weight.” 79 “Particularly is this respect due when the administrative practice at stake ‘involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.’ ” 80
Consistent judicial interpretation also requires us to reject petitioners’ argument that the Act extends the Commission’s licensing jurisdiction to steam plants.
The Supreme Court’s first significant discussion
88
of the history and purpose of the Federal Water Power Act occurred in 1946 in First Iowa HydroElectric Cooperative v. Federal Power Commission,
It was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so, instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted.
It was a major undertaking involving a major change of national policy. That it was the intention of Congress to secure a comprehensive development of national resources and not merely to prevent obstructions to navigation is apparent from the provisions of the Act . . . , 94
Six years later, the Court held that the Commission’s duty of conserving water power resources and of developing comprehensive plans for waterways justified the Commission’s imposition of the condition that a licensee permit the United States to interconnect its transmission lines with those of the licensee for the transfer of power generated in plants owned by the Government. 95 That same Term the Court held that congressional approval of a general plan for development of a river system did not deprive the Commission of jurisdiction under the Federal Power Act to decide whether private construction might be preferable to public development of water power sites within the system. 96 In describing the scope of the Commission’s authority, the Court said:
Extensive review of the need for integration of federal activities affecting waterways . . . and of the breadth of authority granted to the Commission by Congress in response to the need is hardly necessary to establish the role of the Commission in hydroelectric power development.
See, e. g.,
First Iowa Coop. v. Power Comm’n,
In 1965, the most important, for our purposes, Supreme Court discussion of the language, history, and purpose of the Federal Water Power Act occurred in FPC v. Union Electric Company,
The respondent asserts that an anomalous consequence flows from the Commission’s construction of the Act and its view that steam plants generating large amounts of energy for interstate transmission are not within the scope of § 23(b), although located along a stream over which Congress has jurisdiction. Since the Commission’s jurisdiction here rests solely on the interstate transmission of energy, there can be no basis for distinguishing between a steam plant and a hydroelectric facility both generating energy for interstate use. The Court of Appeals, after noting that the generation of electric energy is a local or intrastate activity, concluded from this argument that "[t]he Commission’s jurisdiction . . . must logically rest upon its delegated congressional jurisdiction over the interests of commerce on navigable waters.”
The three dissenting Justices, disagreeing with the Court’s broad reading of the commerce interests intended to be protected by the licensing provisions of the Act, did not believe that the “anomaly” created by exemption of steam
However, even in terms of the “power potential in water,” I fail to find a relevant distinction between a plant which artificially pumps water to an elevated reservoir in off-peak periods allowing it to fall and generate electricity at peak periods and a plant which heats water to create steam which generates electricity. I see no purpose of the Act that justifies producing this anomaly in the regulatory scheme. Under my view, of course, when interstate or foreign commerce is affected, Congress can constitutionally require licenses of both steam and hydroelectric projects, of either steam or hydroelectric projects, or of neither. The legislative history here, however, establishes to my satisfaction that it has required licenses of neither steam plants nor the type of hydroelectric plant here involved, and in light of this legislative history I agree with the Court of Appeals that Congress intended that a license be required only where the interests of commerce on navigable waters are affected. 101
Thus, all nine Justices agreed that the FPC had no licensing jurisdiction over steam plants; they disagreed about the inference to be drawn from this for purposes of determining Commission jurisdiction over water power plants on non-navigable waters. 102 It may well be, as petitioners contend, that this obiter dictum in the Taum Sauk case constituted an unsupported assumption for purposes of argument, that nonadversary determinations do not have the force of law, 103 and that the Court did not have before it the figures cited supra 104 indicating the tremendous impact modern steam plants have on the flow and thereby the power potential in the waterways on which they are located. It is significant, however, that the entire Court was in agreement that neither the language nor the history of the Act required the conclusion that the Act was intended to afford the FPC jurisdiction over steam plants. At the least, the dictum in the majority opinion and the statement 'in the dissent emphasize the weakness of petitioners’ argument that the “unadorned language” of § 4(e) is alone sufficient to preclude resort to extrinsic aids and to require reversal of the dismissal order of the FPC.
The lower federal courts, with the exception of the Eighth Circuit in the
Taum Sauk
case
105
have not squarely faced the question presented by this case. Moreover, we have found no case in which a court, by dictum or otherwise, has suggested that the Federal Water Act contemplated the licensing of steam plants. Those courts (including this court) that have touched on the question at all appear to have assumed that the Act applied to only hydroelectric facilities.
106
The same can be said
B.
Similarly, we reject petitioners’ contention that technological advances in the 53 years since the Act was passed have wrought such dramatic changes in the operation of steam plants that we should hold that the licensing of such plants by the FPC is consistent with, and indeed essential to, the purpose of the Act.
It is true, as petitioners point out, that recent developments in the technology of thermal-electric power generation have made possible the construction of generating units that dwarf the plants in use as recently as thirteen years ago.
109
An example is the Four Corners plants involved in this litigation. The tremendous growth in the demand for electricity has resulted in an enormous expansion of the installed thermal-electric capacity
110
and a corresponding increase in the amount of water needed for cooling
111
Giant complexes such as the
In view of these developments, petitioners argue, FPC licensing jurisdiction should be expanded to effectuate the regulatory scheme envisioned by Congress when it enacted the Federal Water Power Act. The Act was intended to close the regulatory gap 113 created by piecemeal legislation that had served very narrow interests in the comprehensive management of water resources. Accordingly, it must be read to comprehend the regulation of steam plants so that the congressional purpose of promoting orderly development will not be frustrated.
Finally, petitioners argue that an “independent federal agency responsible for regulating a particular industry is given a broad mandate to do all things necessary to implement its mandate.” 114 This implied “necessary and proper” power encompasses the power of an agency to take account of technological developments that render existing regulatory practices obsolete, 115 and to adjust its operations to govern specific evils not named within its enabling act but clearly anticipated by a flexible statutory command. 116 The Federal Water Power Act, as amended, has given the FPC a “flexible mandate ... to regulate the interstate electric power industry” and “to institute comprehensive planning for the nation’s waterways,” 117 and to this end it is necessary that the Commission license and regulate modern-day steam plants, which “threaten to resurrect the evil that regulation' was supposed to thwart.” 118
The argument, despite its undeniable appeal, nevertheless, fails. Our natural reluctance to reject explicit language of the Supreme Court — language which, albeit obiter dictum, commanded unanimous agreement of the Justices — is reinforced by several factors. First, of course, the FPC does not have a broad, abstract mandate either to regulate the electric power industry or to engage in comprehensive planning for the utilization of our major waterways. In contrast, the Federal Communications Commission has “broad responsibilities for the orderly development of an appropriate system of local television broadcasting,”
119
responsibilities derived from the “unified and comprehensive regulatory system for the [broadcasting] industry” established by the Communications Act of 1934, 47 U.S.C. § 151 et seq. (1970).
120
The Federal Water Power Act of 1920
Second, we agree that modern steam plants are of a size and efficiency unknown at the time of the passage of the Federal Water Power Act, that they use correspondingly more water for cooling purposes, and that the earlier plants returned most of their cooling waters to the water source instead of evaporating it. Still most of the electric power produced in this country at the time the Act was passed was generated by water-cooled steam plants. 124 Thus, any legislation intended to regulate comprehensively the interrelationship between the production of power and the efficient management of water resources would surely have taken account of the existence of these water-using steam plants. Congress’ failure to do so refutes the argument that the FPC should regard steam plants as an unspecified or unanticipated method of operation whose regulation should now be undertaken as an obvious part of the congressional scheme. Steam plants were purposely omitted from the congressional scheme, and we cannot rewrite the statute to correct what may have been legislative shortsightedness.
The limits of this part of petitioners’ argument may well have been reached in the
Taum Sauk
case and other cases
125
We are not unsympathetic to petitioners’ position. It is somewhat anomalous that the FPC exercises stringent controls over the construction and operation of the great majority of the nation’s hydroelectric installations,
129
not operated by federal agencies, but at the same time has no comparable authority with respect to non-hydroelectric installations which in 1971 generated over 80% of the electricity produced in the United States,
130
and utilized large quantities of water in doing so. In this age of pervasive federal regulation and of heightened awareness of environmental considerations, it is difficult to comprehend that there should be no federal agency or policy governing the siting and operation of fossil-fueled steam plants. One looks in vain through an array of state and federal legislation for a unified, comprehensive regulatory scheme governing power plant siting.
131
Apart from the Federal Power Act and the Atomic Energy Act, 42 U.S.C. §§
It may be, as petitioners argue, that the FPC is the logical agency to design and implement a national siting policy. The Commission has had over 50 years of experience licensing hydroelectric facilities, and since 1935 has engaged in extensive supervision of bulk power suppliers. The Commission is developing an expertise, accelerated by several im
Notwithstanding the foregoing, and quite apart from the practical problems of implementation and administration of the extensive licensing authority that petitioners would have us bestow upon the FPC,
141
adoption of the position they assert would accomplish by-judicial fiat what Congress has refused or neglected to accomplish when it enacted and later amended the Federal Water Power Act. We are restricted to the statute as written by the Congress, illuminated by legislative history, and construed by the Supreme Court. It is not our function either “to rewrite a statute so that it will authorize what [we think] should be authorized”
142
or to “write into an act of Congress a provision
III.
In addition to the nonfederal construction and operation of hydroelectric project works, § 4(e) empowers the FPC to issue licenses “for the purpose of utilizing the surplus water or water power from any Government dam .” Petitioners contend that two of the Four Corners plants — Navajo and Kaiparowitz — will withdraw water directly from impoundments created by a Government dam, and that the other four plants are downstream from Government dams and will have water available on a dependable basis only because of the “stream regimen imposed by upstream government dams.” 144 According to petitioners, these are usages of “surplus water” that invoke Commission jurisdiction under § 4(e) and require the Commission to regulate the operations of the Four Corners plants. We agree that § 4(e) empowers the FPC to license the use of surplus water by steam plants, and accordingly we remand to the Commission for consideration of petitioners’ “surplus water” claim. 145
As they do with respect to their broader claim under § 4(e), petitioners rely on the literal language of the Act to support their contention that the FPC is empowered to license the operations of the Four Corners plants. Quite simply, they contend, the plants utilize “surplus water” from Government dams for purposes of generating power. 146 Petitioners accept the following definition of “surplus water” offered by the Commission in a case involving a hydroelectric project downstream from the Government dam:
Where there is available stored water not to be used in irrigation, which represents storage over and above that needed for irrigation, and which would otherwise flow unused down the main channel of the stream, that water is “surplus water,” and, if used for power development, would require a license from this Commission 147
It appears immaterial to the Commission’s licensing authority under the “surplus water” clause of section 4(e), whether hydroelectric developments utilizing the surplus water from a Government dam are constructed at, or in the immediate vicinity, or several miles downstream from the Government dam. On the other hand, the Commission’s licensing authority with respect to hydroelectric development utilizing “water power” from Government dams is limited by natural laws to those developments at or in the vicinity of such dams. The natural laws relating to the use of “water power” are such that its utilization may only be at the dam when the power house is integral therewith, or at the downstream end of a pressure conduit leading from the intake to the turbines in the power house. Thus, the “water power” utilized at or in the vicinity of a dam is the result of the head and flow there available.
[W]e have found nothing in the language of the act, or in its legislative history, which leads us to believe that the Commission’s licensing authority under the “surplus water” clause of section 4(e) is limited to hydroelectric power projects located at or in the immediate vicinity of a Government dam. 148
Accordingly, petitioners argue, giving the language of the “surplus water” clause its ordinary meaning, reading it disjunctively to the “constructing, operating, and maintaining” clause of § 4(e), and following the Commission’s own definitions, all six Four Corners plants are utilizing “surplus water” within the intendment of the Federal Power Act.
Respondent Commission argues that Congress intended the Federal Water Power Act to apply only to water power projects, as indicated by the Act’s legislative history, and that steam plants are not “project works” within the Commission’s licensing authority. Intervenors contend that the “surplus water” provision applies only to hydroelectric plants utilizing surplus water or water power from Government dams.
We think that the Commission and in-tervenors construe the “surplus water” clause too narrowly. Initially, it should be observed that the “surplus water” clause does not refer to the licensing of “project works” as does the “constructing, operating, and maintaining” clause. The words “project works” in the latter clause follow the words “for the purpose of,” and they are not found at all in the “surplus water” clause even though that clause is introduced by a second “for the purpose of.” By their terms, then, the two licensing provisions of § 4(e) encompass different activities, and it does not follow that the- limitation of the reach of the “constructing, operating, and maintaining” clause' of hydroelectric projects requires reading a similar limitation into the language of the “surplus water” clause.
Second, unlike the situation with respect to the “constructing, operating, and maintaining” clause, there is little in the way of extrinsic illumination of the congressional purpose in enacting the “surplus water” clause. There is no judicial decision on its scope; the FPC decisions quoted above interpret the clause in the context of proposed hydroelectric developments;
149
and there ap
In a line of cases extending back almost thirty years before the passage of the Federal Water Power Act, the Supreme Court confirmed the power of Congress to dispose of the water power inherent in waters over which Congress had jurisdiction, either by generating and selling the power itself or by permitting others to do so. The basic principle was established in the first
Green Bay
case, Kaukauna Water Power Company v. Green Bay and Mississippi Canal Company,
if, in the erection of a public dam for a recognized public purpose, there is necessarily produced a surplus of water, which may properly be used for manufacturing purposes, there is no sound reason why the State may not retain to itself the power of controlling or disposing of such water as an incident of its right to make such improvement. Indeed, it might become very necessary to retain the disposition of it in its own hands, in order to preserve at all times a sufficient supply for the purposes of navigation. As there is no need of the surplus running to waste, there was nothing objectionable in permitting the State to let out the use of it to private parties, and thus reimburse itself for the expenses of the improvement. 150
Seven years later, the Court applied this principle in the second
Green Bay
case, Green Bay and Mississippi Canal Company v. Patten Paper Company,
. [I]t is . . plain that the mode and extent of the use and enjoyment of [the water power and appurtenant property] by the Canal Company fall within the sole control of the United States. At what points in the dam and canal the water for power may be withdrawn, and the quantity which can be treated as surplus with due regard to navigation, must be determined by the authority which owns and controls that navigation. In such matters there can be no divided empire. 152
It was but a short step to the decision in United States v. Chandler-Dunbar Water Power Company,
However, the “development of our rivers by no means kept pace with the scope of congressional power as defined by the Supreme Court decisions.” 154 Congress was slow to appreciate the value of multiple-purpose waterway projects, in particular the tremendous value, from both a pecuniary and a functional standpoint, of the water power within its control. There were a few exceptions. An early act allowed the Secretary of War to lease the water power at a federal arsenal to a private water power company on condition that the company complete the development of the power and maintain it at its own expense. 155 Another early act authorized projects combining irrigation and flood control. 156 In addition, several appropriations bills contained provisions permitting the leasing of the use of the water power of certain navigable waterways, limited to the use of surplus water not required for navigation, with the stipulation that the interests of navigation remain paramount. 157 But, in the Reclamation Act of 1902, 158 under which the Government became involved in the large-scale construction of irrigation works on the public lands in the West, no provision was made for the disposition of water power created by the reclamation dams.
During Theodore Roosevelt’s administration, however, a number of significant developments occurred. In 1906, the Reclamation Act was amended to allow the Secretary of the Interior to lease surplus water power:
Whenever a development of power is necessary for the irrigation of lands . . . or an opportunity is afforded for the development of power under any [reclamation] project, the Secretary of the Interior is authorized to lease for a period not exceeding ten years, giving preference to municipal purposes, any surplus power or power privilege .... Provided, That no lease shall be made of such surplus power or power privileges as will impair the efficiency of the irrigation project . . . . 159
After this amendment, the Government became involved in the business of generating hydroelectric power, primarily because of the works constructed for pumping purposes at reclamation projects,
160
and the principle of sale of surplus water power was introduced to Government projects bearing no necessary relation to navigation. President Roosevelt, in his several vetoes of power site bills and his appointments of commissions such as the Inland Waterways Commission,
161
made clear that the development of water power should be used by the Government to defray the cost of waterway improvement, and that efficient water resource management re
In the second decade of this century, the soundness of President Roosevelt’s position on water resource development became increasingly recognized. Legislative developments included the 1910 amendment to the General Dam Act, 163 and another amendment to the Reclamation Act, which provided that surplus storage and carrying capacity developed in a particular reclamation project could be utilized on a contractual basis by other distributors of irrigation waters. 164 A Senate subcommittee report issued in 1912 declared:
If, for the purpose of improving the navigability of a stream carrying interstate commerce, the Federal Government constructs and maintains a dam, with locks and gates, the Government has the undoubted right to establish and maintain, in connection with such dam, an electric-power plant for the purpose of furnishing motive power to operate such locks and gates. And the Federal Government has the right to sell, lease, or rent, for compensation, any surplus power that may arise from and be an incident to such an improvement of navigation. 165
In 1917, a rivers and harbors appropriation act created a Waterways Commission to coordinate the various bureaus and commissions of the United States with responsibility for water resources, to investigate questions relating to the improvement and control of navigation with respect to all watersheds in the United States, and to include
therein the related questions of irrigation, drainage, forestry, arid and swamp land reclamation, clarification of streams, regulation of flow, control of floods, utilization of water power, prevention of soil erosion and waste, storage, and conservation of water for agricultural, industrial, municipal, and domestic uses, cooperation of railways and waterways, and promotion of terminal and transfer facilities, to secure the necessary data, and to formulate and report to Congress, as early as practicable, a comprehensive plan or plans for the development of waterways and the water resources of the United States for the purpose of navigation and for every useful purpose. 166
The Act of 1917 was explicitly repealed by the Act of 1920,
167
and the newly created Federal Power Commission took over the planning and coordi-' nation responsibilities of the Waterways Commission,
168
which included eonsider-
The Federal Water Power Act of 1920 thus represents the culmination of many-different pressures. Technological advances made it imperative that huge waterworks be designed to perform several functions. 169 The federal government was becoming more involved in the construction of major water projects, and American entry into World War I precipitated projects such as the provision of water power for the munitions complex built during World War I on the Tennessee River near Muscle Shoals, Alabama. 170 The water resources, including the inherent water power, controlled by the Government were increasingly seen as a valuable asset to be exploited in a way that would benefit the public by insuring the self-sufficiency of projects and maximum use of public resources.
Accordingly,the Federal Water Power Act undertook to regulate the nonfederal exploitation of the nation’s water power resources and the disposition of excess federally controlled water or water power. Section 4(e) assures maximum utilization of water resources for navigation, water power, and other beneficial uses by providing for the licensing, in accordance with § 10(a), 16 U.S.C. § 803(a), 171 of nonfederal construction and operation of water power projects on navigable waters, public lands, or res-erations, and for the licensing of the nonfederal use either of water impounded by a Government dam in excess of the amount needed to accomplish the purpose of the dam or of actual hydroelectricity generated by a Government dam and not required for governmental purposes.
We are persuaded that the “surplus water” provision was intended to serve broader interests than the “constructing, operating, and maintaining” clause, which was intended only to regulate nonfederal hydroelectric projects. It reflects an explicit concern with utilizing water resources to defray the cost of waterway improvements as well as a concern with comprehensive water resource management. It empowers the FPC to license the use of either “surplus water” or “water power” from
any
Government dam, and thus is not limited to the mere leasing of excess Government water power. It is interesting to observe that three months before the Act was finally passed, Congress amended the Reclamation Act to authorize the Secretary of Interior “to enter into contract to supply water from any project irrigation system for other purposes than irrigation, upon such conditions of delivery, use, and payment as he may deem proper . . . . ”
172
Since Congress was obviously concerned with maximizing the public benefit from Government waterworks, the inference arises that the addition of the words “surplus water” in § 4(d) of the Federal Water Power Act was intended to afford the FPC a broad licensing authority over federally controlled waters comparable
This interpretation, which gives effect to the literal language of § 4(e), is strengthened, somewhat paradoxically, by developments subsequent to the passage of the Federal Water Power Act that diluted Commission authority. In 1928, Congress passed the Boulder Canyon Project Act, 43 U.S.C. §§ 617-17u (1970), which authorized the first federal large-scale multiple-purpose project on a major waterway. The Act authorized the construction of what ultimately became Hoover Dam and other works, for purposes of flood control, navigation, and reclamation, and for generating electricity to make the project self-sufficient financially. 173 The Secretary of the Interior was empowered to contract for the storage and delivery of water “for irrigation and domestic uses, and generation of electrical energy and delivery at the switchboard to States, municipal corporations, political subdivisions, and private corporations of electrical energy generated at said dam, upon charges that will provide revenue which . will in his judgment cover all expenses of operation and maintenance incurred by the United States on account of works constructed under” the Act. 174 Under 43 U.S.C. § 617e, the Secretary of the Interior is authorized to lease units of any Government power plant of the project, with the right to generate electricity, and to lease “the use of water for the generation of electrical energy,” in conformity with the requirements of the Federal Power Act and the rules and regulations of the Federal Power Commission. These provisions, although seemingly ousting the FPC of direct authority over the surplus water and water power of what would be a “Government dam” under the Federal Power Act, indicate the breadth of congressional concern with federal management of federal property to promote efficient water resource utilization. In 1933, the Tennessee Valley Authority was created to undertake duties in the Tennessee River Basin comparable to those of the Secretary of Interior under the Boulder Canyon Project Act. 175 Under 16 U.S.C. § 831i, the T.V.A. is given the authority to sell the surplus power generated by it and not needed in its own operations. 176 Under the 1936 and 1944 Flood Control Acts, the Department of the Army is empowered to build and control dams and other improvements for purposes of flood control and navigation. 33 U.S.C. § 701 et seq. (1970). The Secretary of .the Army is empowered to contract with states, municipalities, private concerns, and individuals “for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the Department of the Army . . . ,” 177
Acts such as these obviously cut into FPC authority to regulate the utilization of surplus water or power, and it is apparent that in every case involving a contention of the applicability of the “surplus water” clause, the FPC will have to consider the interrelationship of its enabling act and the scope of the au
Accordingly, we hold that the Commission erred in dismissing petitioners’ complaint, and we remand to the Commission to consider the surplus water claim. We do not decide whether the FPC does have jurisdiction over the four plants alleged to be the beneficiaries of Government surplus water by virtue of their being downstream from Government dams because we have no record on which to base such a determination. 180 We hold only that the Commission does have jurisdiction to license the utilization of surplus water by thermal-electric generating plants, and we leave to the Commission to determine in the first instance whether the plants involved in this appeal fall within the category asserted by petitioners. In determining this question, the Commission should also consider whether any jurisdiction it might have under the Federal Power Act is affected in any way by the jurisdiction of any other federal agency.
Remanded to the Federal Power Commission for further proceedings not inconsistent with this opinion.
Notes
. Complainants Chemehuevi Tribe and Coco-pah Tribe of Indians live on reservations along the Colorado River and assert an interest in the quality and 'quantity of the river waters. The Chemehuevi Tribe also claims it is threatened by air pollution from some of the plants in question. Complainant Sierra Club is a national organization interested in the conservation of unspoiled, wild,
. See 18 C.F.R. §§ 1.6(a), (d) (1972).
. The utilities are the Arizona Public Service Company, Southern California Edison Company, Public Service Company of New Mexico, Salt River Project, Tucson Gas & Electric Company, El Paso Electric Company, Los Angeles Department of Water & Power, Nevada Power Company, Utah Power & Light Company, and San Diego Gas & Electric Company.
. The sources of these figures are the complaint and the intervenor brief, in this court, of eight of the named utilities.
. An acre foot of water is the amount required to cover one acre of land with one foot of water.
. 16 U.S.C. § 797(e) (1970) provides, in pertinent part:
The commission is authorized and empowered—
(e) To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam, except as herein provided ....
. 16 U.S.C. §§ 796(11), (12) (1970) provide :
(11) “project” means complete unit of improvement or development, consisting of a power house, all water conduits, all dam and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit;
(12) “Project works” means the physical structures as a project ....
. 16 U.S.C. § 796(8) (1970) provides:
(8) “navigable waters” means those parts of streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, and which either in their natural or improved condition notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein all such interrupting falls, shallows, or rapids, together with such other parts of streams as shall have been authorized by Congress for improvement by the United States or shall have been recommended to Congress for such improvement after investigation under its authority
. See note 6 supra.
. 16 U.S.C. § 796(10) (1970) provides:
(10) “Government dam” means a dam or other work constructed or owned by the United States for Government purposes with or without contribution from others.
. 16 U.S.C. §§ 796(1), (2) (1970) provide :
(1) “public lands” means such lands and interest in lands owned by the United States as are subject to private appropriation and disposal under public land laws. It shall include “reservations”, as hereinafter defined;
(2) “reservations” means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, re
. Under 16 U.S.C. § 825l(b) (1970), “[a]ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the . . . United States Court of Appeals for the District of Columbia . . . . ” Although it makes no practical difference in the result in this case, we observe that complainant Sierra Club does not have standing to seek review of the Commission’s orders in this court because it has not satisfied the “injury in fact” test enunciated in Sierra Club v. Morton,
failed to allege that it or its members would be affected in any of their activities or pastimes by the [Four Corners] development. Nowhere in the pleadings . . . did the Club state that its members use [the Colorado River system and the surrounding area] for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents.
It is interesting to observe that 18 C.F.R. § 1.6(a) (1972) allows the filing of a complaint with the FPC by “[a]ny person . . . complaining of anything done or omitted to be done by any . . . public utility ... in contravention of an act . . . administered” by the Commission. Thus, the Sierra Club had standing to initiate the licensing proceeding before the Commission, and it can be argued that this made it a “party” that was aggrieved when the FPC dismissed the complaint. However, the fact that a person is a party in agency proceedings does not require that he be allowed to seek judicial review of the agency’s action; he must still satisfy judicial standing requirements.
See
Pittsburgh & West Virginia Ry. Co. v. United States,
. N. Fabricant & R. Hallman, Toward a Rational Power Policy: Energy, Politics, and Pollution 5 (1971). See also Ramey & Murray, Delays and Bottlenecks in the Licensing Process Affecting Utilities: The Role of Improved Procedures and Advance Planning, 1970 Duke L.J. 25, 31-32; Tar-lock, Tippy & Francis, Environmental Regulation of Power Plant Siting; Existing and Proposed Institutions, 45 S.Cal.L.Rev. 502 (1972); Comment, Thermal Electric Power and Water Pollution: A Siting Approach, 46 Ind.L.J. 61, 63 (1970).
.
See
Ramey & Murray,
supra
note 13, at 32 n. 31, citing Energy Policy Staff, Office
. See Ramey & Murray, supra note 13, at 34.
. Id. at 32; see FPC, National Power Survey 93 (1964).
. N. Fabricant & R. Hallman, supra note 13, at 73; see Comment, supra note 13, at 65.
. N. Fabrícant & R. Hallman, supra note 13, at 52.
. Id.
. Id. at 52-53. Apart from the increase in the number of plants, much of this dramatic rise in cooling water requirements can be explained by the anticipated proliferation of nuelear-fired plants, which under present technology produce about 50% more heat than do fossil-fueled plants. See id. at 6, 53; Tarlock, Tippy & Francis, supra note 13, at 508; Comment, supra note 13, at 63-64.
. For a description of the operations of cooling towers, see Comment, supra note 13, at 71 n. 25. Alternatives to direct heat discharge are discussed in id. at 71-72 n. 25, and Tarlock, Tippy & Francis, supra note 13, at 509-10.
. N. Fabricant & R. Hallman, supra note 13, at 52.
. See id. at 53-55; Tarlock, Tippy & Francis, supra note 13, at 508-09; Comment, supra note 13, at 65-70.
. See Comment, supra note 13, at 71. n. 25.
. See N. Fabricant & R. Hallman, supra note 13, at 15; Tarlock, Tippy & Francis, supra note 13, at 510-12.
. See 42 U.S.C. § 4332(2) (C) (1970).
. See H.R.Rep.No.1312, 90th Cong., 2d Sess. (1968), in 3 U.S.Code Cong. & Admin. News pp. 3666, 3683-84 (1968). The average flow from 1891 to 1967 was 11 million acre feet, with a high of 24 million acre feet in 1917 and a low af 5.6 million acre feet in 1934. Id. By 1967 the Colorado River was already “over-committed” by contract, compact, and judicial decree, according to the House Committee on Interior and Insular Affairs. Id. at pp. 3669-70.
. See, e. g., Sen. Comm, on Interior & Insular Affairs, 92d Cong., 1st Sess., Problems of Electrical Power Production in the Southwest (Comm. Print 1971) ; Comment, The Four Corners Power Complex: Pollution on the Reservation, 47 Ind.L.J. 704, 705-08 (1972).
.
See, e. g.,
Malat v. Riddell,
.
See, e. g.,
United States v. Oregon,
. Colligan v. Activities Club of New York, Ltd.,
.
See, e. g.,
FPC v. Tuscarora Indian Nation,
. United States v. Public Utilities Comm’n of Calif.,
. A colorful and detailed account of the events preceding its passage is contained in J. Ker-win, Federal Water-Power Legislation (1926). See also Fly, The Role of the Federal Government in the Conservation and Utilization of Water Resources, 86 U.Pa.L.Rev. 274 (1938); Pinchot, The Long Struggle for Effective Federal Water Power Legislation, 14 Geo.Wash.L.Rev. 9 (1945); Comment, 39 Mich.L.Rev. 976 (1941).
. 33 U.S.C. §§ 401, 403 (1970) provide:
§ 401. Construction of bridges, causeways, dams or dikes generally
It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army:
Provided,
That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by
§ 403. Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
. Earlier legislation included the Rivers and Harbors Acts of 1880 (21 Stat. 197), 1884 (23 Stat. 133), 1888 (25 Stat. 424-25), 1890 (26 Stat. 426, 454), and 1892 (27 Stat. 110).
See
Starr, Navigable Waters of the United States — State and National Control, 35 Harv.L.Rev. 154, 171 (1921); Kerwin,
supra
note 34, at 105-08;
See
FPC v. Union Electric Co.,
. Act of March 3, 1891, ch. 561, § 18, 26 Stat. 1101, as amended, 43 U.S.C. § 946 (1970); Act of May 14, 1896, ch. 179, 29 Stat. 120, as amended, 43 U.S.C. § 957 (1970). See generally Kerwin, supra note 34, at 105-08.
. Act of Feb. 15, 1901, ch. 372, 31 Stat. 790, as amended, 43 U.S.C. § 959 (1970). This legislation superseded the legislation of 1896
(see
note 37 and accompanying text). Utah Power
&
Light Co. v. United States,
. Pinchot, supra note 34, at 11.
. See 36 Cong.Rec. 3071 (1903).
. See Pinchot, supra note 34, at 11; see generally Kerwin, supra note 34, at 58-110.
. See Kerwin, supra note 34 at 13-57; Pin-chot, supra note 34, at 9; see also note 124 infra.
. In Udall v. FPC,
. See Kerwin, supra note 34, ch. 1; 1 FPC, National Power Survey chs. 1, 2, 4, & 6 (1964).
. Act of Feb. 1, 1905, ch. 288, 33 Stat. 628, codified in 16 U.S.C. § 472 (1970).
.
See
United States v. Colorado Power Co.,
. Act of June 21, 1906, ch. 3508, 34 Stat. 386.
. See Kerwin, supra note 34, at 113.
. Act of June 23, 1910, ch. 360, 36 Stat. 593. The Act in its amended form can be found in 33 U.S.C.A. at pp. 25-27. The amendment was inspired by President Roosevelt’s vetoes of the Rainy River bill in 1908 (42 Cong.Rec. 4698 (1909)) and the James River bill in 1909 (43 Cong.Rec. 978 (1909)) for the stated reasons,
inter alia,
that no charges or time limits had been set for these awards of permits for water power development in the named rivers.
See
Kerwin,
supra
note 34, at 115-30; Pinchot,
supra
note 34, at 16-17. In FPC v. Union Electric Co.,
“We are now at the beginning of great development in water power. Its use through electrical transmission is entering more and more largely into every element of the daily life of the people. Already the evils of monopoly are becoming manifest ; already the experience of the past shows the necessity of caution in making unrestricted grants of this great power.
“It should also be the duty of some designated official to see to it that in approving the plans the maximum development of the navigation and power is assured, or at least that in making the plans these may not be so developed as ultimately to interfere with the better utilization of the water or complete development of the power.”
Besides the 1910 amendment to the General Dam Act, the vetoes may have also inspired passage of the Act of 1911, 36 Stat. 1253, that authorized the Secretary of Agriculture to grant 50-year easements over public lands, forests, and reservations for electrical poles and lines.
See
Kerwin,
supra
note 34, at 109.
Cf.
United States v. Oklahoma Gas & Electric Co.,
. 36 Stat. 961, codified in 16 U.S.C. §§ 480, 500, 513-19, 521, 552, 563 (1970).
.
See
Young v. Anderson,
.
See
Utah Power & Light Co. v. United States,
.
See
United States v. Colorado Power Co.,
.
See
H.R.Rep.1050, 62d Cong., 2d Sess. (1912). The conservationists, led by men such as Gifford Pinchot, head of the Forest Service under President Roosevelt and later
Experience has taught us that in the past the private monopolization of natural opportunities has not only deprived the general public of their natural right to a proper share of the benefit which should accrue from them, but such monopolization has given to those possessing it a preponderance [sic] of influence and of power in our industrial and civic life which is little short of a menace to our institutions.
We have awakened none too soon to the necessity of preserving under public control these great natural opportunities for the creation of wealth, which belong to the public and which could constitute a serious source of danger to equal liberty and fair opportunity if transferred in perpetuity to private ownership.
H.R.Rep.No.842, 63d Cong., 2d Sess. 11 (1914).
The opponents of the conservationists were those who believed that only the private development of the nation’s water power resources could exploit those resources to a degree that would benefit the public, those who were against increasing centralization of government or increasing federal intervention in what they perceived to be essentially local or private affairs, and, of course, those who saw the private, unregulated generation of hydroelectric power as a profitable enterprise. See Kerwin, supra note 34, at 153-57 passim; Fly, supra note 43, at 289-90. Both groups agreed, however, that the existing system of federal regulation was undesirable because of its piecemeal approach and its generally restrictive effect on the large-scale development of water power.
The Dam Acts of 1906 and 1910 were considered inadequate by many because, although they did provide for charges, no fees were exacted for the privilege of obstructing navigable waters; permittees were merely required to compensate the Government for the costs of restoring prior conditions of navigability and for benefits provided by Government improvements. And, investment under the Acts was seen to be a risky proposition because of uncertainty about the disposition of the properties after 50 years had expired and because Congress reserved the right to repeal or modify the Act without liability. See Kerwin, supra note 34, at 130. Although water power development on navigable streams had come to a standstill by 1912, development on the public lands, especially in the West, actually exceeded demand during this period. See id. at 39-42, 155-56.
An interesting expression of the point of view of the power interests can be found in Brown, The Conservation of Water-Powers, 26 Harv.L.Rev. 601 (1913), in which the author takes the position that the best way to “conserve” the nation’s water power resources is to encourage private water power development. See id. at 604. See also Shields, The Federal Power Act, 73 U.Pa.L. Rev. 142 (1924).
. 48 Cong.Rec. 11796 (1912); see S.Doc. No. 949, 62d Cong., 2d Sess. (1912).
. See Kerwin, supra note 34, at 130-42; Pinchot, supra note 34, at 17-18.
. See Kerwin, supra note 34, at 79-98, 171-260.
.
See
United States v. Chandler-Dunbar Water Power Co.,
. See Kerwin, supra note 34, at 95-98.
. See 52 Cong.Rec. 10450 (1916); Kerwin, supra note 34, at 199-200.
. A number of bills reflected the key philosophical differences between the power interests and the conservationists, as they differed substantially on the questions of charges, Government recapture, and the extent of Government regulation of plant operations : The Adamson Bill, which related to water power development on navigable waters, H.R. 16053, 63d Cong., 2d Sess. (1914); the Ferris Bill, which was concerned with the question of water power development on the public lands, H.R. 16673, 63d Cong., 3d Sess. (1914); H.R. 408, 64th Cong., 1st Sess. (1915); the Myers Bill, which was the response of the power interests to the original wording of the Ferris Bill, H.R. 16673, 63d Cong., 3d Sess. (1914); S. 2399, 65th Cong., 1st Sess. (1917); see Hearings before the Sen. Comm, on Public Lands on H. R. 16673, 63d Cong., 3d Sess. (1914); and the Shields Bill, S. 3331, 64th Cong., 1st Sess. (1915); S. 1419, 65th Cong., 1st Sess. (1917). For a discussion of the bills and the legislative debates, see Kerwin, supra note 34, at 172-216. The water power interests lobbied very heavily for the Shields Bill, and much of their considerable influence during this period was a consequence of their press campaign for the need of immediate development of water power for the manufacture of nitrates necessary for ammunition for the impending war. But the Shields Bill, like the others, was never passed by more than one house. See id. at 207-10.
. In 1917, President Wilson had directed his Secretaries of War, Interior, and Agriculture to prepare a similar bill. The Bill, H. R. 8716, 65th Cong., 2d Sess. (1918), that was ultimately prepared and referred to a special Housé committee on water power contained most of the provisions of the bill that was finally enacted in 1920. The letter of transmittal accompanying certain amendments to the bill offered by the Secretaries reiterates many of the arguments that had been raised in favor of extensive federal water power regulation:
Washington, February 27,1918. Hon. T. W. Sims,
House of Representatives.
Dear Mr. Sims :
It is understood your committee will take action at an early date upon various proposals which have been made concerning water-power legislation. On account of the conditions now affecting the power industry and the need of maintaining our entire industrial machinery at its highest efficiency, a satisfactory solution of the water-power problem is, in our judgment, one of the most important steps for the consideration of this Congress and one which should receive attention at the earliest possible date.
The industrial expansion which has been necessary in order to produce the materials and equipment needed in the prosecu
While the form of hill which has heen presented for your consideration is directly concerned with water-power development only, an adequate solution of this problem will have a favorable and stabilizing effect upon the whole power industry. Probably no considerable increase in new water-power development can be expected immediately, but legislation is urgently needed in order to put existing waterpower developments, which have been made under inadequate law, into a position of security which will enable them to make extensions and to meet maturing obligations upon favorable terms.
There is also need of legislation in order that time may be given to prepare for the developments that must take place after the close of the war, if the United States is to maintain its proper place in world trade, or even to supply its domestic needs. A survey of water-power resources is needed, particularly with relation to specific districts and specific industries. The various establishments of the Federal Government which have had to do with the administration of water power should be coordinated through a single agency, and as far as practicable all agencies, federal, state, and private, should he brought into cooperation. It is urgently recommended that a federal power commission be established as provided in the proposed bill and he given ample authority to undertake this work of preliminary investigations.
Beyond the need of power development as such is the need of increasing the proportion of water power in order to reduce the drain on our coal and petroleum supplies, particularly the latter. Even if the coal supply were unlimited, the reduction in the demands upon labor and transportation equipment would be sufficient reason for substituting water power for steam power whenever possible. The petroleum supply particularly in the West where the greatest proportion is used for fuel, is being rapidly depleted, consumption has exceeded production and stocks in storage are fast disappearing. With the substitution of water power for steam power in central stations and with the electrification of railroads, a large part of the use of petroleum for fuel could he eliminated.
Water-power legislation should have in view not only the maintenance of the rights of the public in the national resources, but also the adequate protection of private capital by which such resources are developed. The bill before you aims to do both.
Very truly yours,
Newton D. Baker,
Secretary of War.
Franklin K. Lane, Secretary of the Interior.
D. F. Houston,
Secretary of Agriculture.
Quoted in Kerwin,
supra
note 34, at 225-28 (emphasis added). However, after a vigorous debate over its recapture provisions and a House-oriented reconciliation of the bill with the Shields Bill in a conference committee, H.B.Rep. 1147, 65th Cong., 3d Sess. (1919), it fell victim to a Senate filibuster as the 65th Congress closed on March 5, 1919.
See
Kerwin,
supra
note 34, at 217-55;
see also
FPC v. Union Electric Co.,
The bill was reintroduced in the House at the start of the next session, and it passed the House with minor changes in July 1919.
. Secretary Houston, in his report to the House, stated:
The exigencies of war brought to light ' defects in our national utilization of power which had not been fully realized. Operating under statutes enacted when the electrical industry was in its infancy, we had permitted our vast water-power resources to remain almost untouched, turning to coal and oil as the main source of power; for steam power could be developed more quickly and easily with fewer legal restrictions and with greater security to the investment. Probably not less than 85 percent of the power used in this country for domestic, public, and industrial purposes and for the operation of railroads is produced from coal and fuel oil. Not only are water powers relatively unused, but we are yet far from accomplishing the economies which are practicable in the development of steam power. While individual steam stations have reached a high degree' of mechanical efficiency, we have failed to realize the group efficiency of many stations operating in a system and we still pursue the crude method of transporting steam power by rail in its raw state as fuel instead of transmitting it over wires in its developed state as electrical energy. The power requirements of this country will not be met until we develop our water powers, tie them in with steam plants located at the mine itself and operate all in great interstate systems. These considerations were presented before the special committee of the House of Representatives in the hearings held on the water-power bill during the last Congress. The need of adequate legislation is no less urgent now. H.R.Rep.No.61, 66th Cong., 1st Sess. 5 (1919).
See also the remarks of Senator Jones introducing the bill:
If 10 years ago, instead of enacting restrictive laws which have prohibited development of our water powers, Congress had invited their development through fair and reasonable terms, the beginning of the World War would have found the United States with 20,000,000 developed hydroelectric power instead of 5,000,000. Indeed, it is not too much to say that Germany would have hesitated before entering the conflict with probability of having to face a Nation possessing such an enormous amount of harnessed physical force wherewith to back up its armies. As it was, the beginning of the Great War found us short of coal, short of oil, short of power, and half a billion dollars was expended inside of two years in the erec- ■ tion of steam-power plants, many of which, built haphazard under war-time stress, are now useless owing to unfavorable location. Through failure of Congress to pass water-power laws under which money could be safely invested with prospect of a full return, water powers now wasting have been held back from development in at least 22 States of the Union. 59 Cong.Rec. 241 (1919)
There was also concern that the nation’s river systems had proved inadequate to maintain wartime transportation burdens. See Fly, supra note 34, at 279. And, the old arguments about the efficiency and inexhausti-bility of water power were also trotted out. See report of Secretary Houston, supra, and remarks of Senator Jones:
The report of the Geological Survey shows that our consumption of coal for all purposes during the year 1913 was about 100,000,000 short tons, of which the railroads alone used about 30 percent. This tremendous tonnage requires for mining and transportation the labor of 1,500,000 men and the use of over 1,000,000 freight cars and 40,000 locomotives. In addition to this the petroleum used in 1913 was equivalent to 24,000,000 tons of coal. Every water horsepower now going to waste which could be economically substituted for fuel power would represent approximately 5% tons of coal per year, based on an average of 12 hours per day. The labor of one man is released for other uses every time 50 hydroelectric horsepower is developed, and every 150 water horsepower developed releases one freight car for other duty.
* $ * *
The utilization of even one-third of the enormous amount of energy latent but now wasting in our falling waters would make the United States the greatest manufacturing country of the world. The development of our water powers is intimately connected with the solution of such great national problems as the national defense; extension of inland waterways; shortage of food; conservation of coal, oil, and labor; irrigation of arid lands; and railroad car shortage. In addition to conserving vast quantities of coal and labor to mine and handle it, the hydroelectric energy existing in our running waters will, when developed be utilized in the manufacture of explosives, fertilizers, wood pulp and paper, electroehemicals, copper and aluminum, and in other industrial applications.
59 Cong.Rec. 241-42 (1919).
. See H.R.Rep.910, 66th Cong., 2d Sess. (1920); Kerwin, supra note 34, at 255-63.
. Pinchot, supra note 34, at 19.
. FPC v. Union Electric Co.,
. See notes 83-86 infra and accompanying text.
. 41 Stat. 1063 (emphasis added).
.
See
Bhd. of R. Trainmen v. B. & O. Ry.,
.
See
FPC v. Union Electric Co.,
. FPC v. Union Electric Co.,
. See FPC, First Annual Report 138, 155 (1921).
. Id. at 51-52 (emphasis added).
. See, e. g., 1962 Annual Report of the FPC 12-13; 1966 id. at 8-9; 1 FPC, National Power Survey 100-01 (1964).
. Phillips Petroleum Co. v. Wisconsin,
. Nantahala Power & Light Co. v. FPC,
.
See, e. g.,
County of Marin v. United States,
. See part II. B. infra.
. Trafficante v. Metropolitan Life Ins. Co.,
. Power Reactor Dev. Co. v. Electrical Workers,
.
Cf.
Pacific Power & Light Co. v. FPC,
. 46 Stat. 797, codified in 16 U.S.C. §§ 792, 793, 797(d) (1970).
. 49 Stat. 838, as amended, 16 U.S.C. §§ 792-823 (1970). See DeVane, Highlights of Legislative History of the Federal Power Act of 1935 and the Natural Gas Act of 1938, 14 Geo.Wash.L.Rev. 30, 30-38 (1945).
. 49 Stat. 847, as amended, 16 U.S.C. §§ 824- 24h (1970).
. 49 Stat. 854, as amended, 16 U.S.C. §§ 825- 25u (1970).
. As the House report explained:
The amendments to the present Federal Water Power Act are all minor. They have been requested by the Federal Power Commission, largely for the purpose of clarifying the act in its application to situations that have arisen in its administration, and also to strengthen it in certain particulars ....
H.R.Rep.No.1318, 74th Cong., 1st Sess. 7 (1935). The major changes were made in §§ 4 and 23 of the Act, relating to Commission licensing authority over hydroelectric projects on nonnavigable waters but affecting interstate commerce.
See
FPC v. Union Electric Co.,
. Cammarano v. United States,
. The Court did consider several earlier cases involving various aspects of the Act.
See
United States v. Appalachian Power Co.,
. For application of this principle to water power projects on public lands,
see
FPC v. Oregon,
.
.
. Pinchot, supra note 34, at 19.
.
.
. FPC v. Idaho Power Co.,
. United States ex rel. Chapman v. FPC,
.
. A pumped-storage plant uses energy from other sources, usually steam plants, to pump ■water from a low pool or other water source to a higher pool during periods of low electricity demand. During peak periods, the water from the higher pool is released down into the lower pool, and the falling water generates electricity just as in conventional hydroelectric establishments.
See
FPC v. Union Electric Co.,
.
.
.
. The Eighth Circuit agreed with the dissenting Justices in the
Union Bleetrie
case that the Act was not intended to cover steam plants and therefore should not be read to include hydroelectric plants on non-navigable waters. Union Electric Co. v. FPC,
.
See, e. g.,
Fishgold v. Sullivan Dry Dock & Repair Corp.,
. See notes 19-20 & 27 supra and accompanying text.
. See note 102 supra.
.
See, e. g.,
Montana Power Co. v. FPC,
. See Kerwin, supra note 34, passim; LeBoeuf, An Industry Appraisal of Federal Regulation of Electric Utilities under the Federal Power Act, 14 Geo.Wash.L.Rev. 174, 190-93 (1945); Pinchot, supra note 34, passim; Ramey & Murray, supra note 13, at 35 & n. 47; Schwartz, Niagara Mohawk v. FPC: Have Private Water Rights Been Destroyed by the Federal Power Act?, 102 U.Pa.L.Rev. 31, 36 (1953); Shields, supra note 54, at 143, 149; Smith, supra note 14, at 173; Starr, supra note 36, at 180; Tarlock, Tippy & Francis, supra note 13, at 514; Comment, supra note 13, at 99-100.
. Gatchell, Jurisdictional Problems Under the Federal Water Power Act of 1920, 14 Geo.Wash.L.Rev. 42, 44 (1945):
Under this grant of authority, the Commission could issue a license for a steam-elec-trie power plant located on a navigable stream, which utilized the water of such stream for condensing purposes and transmitted the power so generated across, along, or from such stream. Also, a power development utilizing steam rather than water power as the generating force could well have most of the physical structures listed in Section 3(11) of the statute in the definition of “project.” Thus, there is no express limitation of the licensing authority to hydroelectric power plants as distinguished from steam-electric plants. Apparently the legislators considered the title to the Act (“ . . . to provide . . . for the development of water power . . . ”) as sufficient to exclude steam-electric plants. The Commission has justified such confidence by never claiming authority to license steam plants, stating in its First Annual Report that it was limited to consideration of projects designed to produce water power.
. In 1 FPC, National Power Survey 14 (1964), the following table appears.
Maximum Sizes of' Generating Units in the United States
(In megawatts — 1 megawatt equals 1,000 kilowatts or 1,000,000 watts)
Maximum turbine Rating — MW
1900 ...................... 1.5
1920 ...................... 60
1930 ...................... 1208
1940 ...................... 1208
1950 ...................... 1208
1956 ...................... 260
1958 ...................... 335
1960 ...................... 450
1963 ...................... 650
1965 ...................... «1,000
1. Represents a single unit. More typically, maximum prevailing sizes were 75 mw in 1930, 100 mw in 1940, and 175 mw in 1950.
2. Under construction.
. Petitioners point out that in 1920, the total generating capacity of all steam plants in the United States was 8,900 megawatts, Edison Electric Institute, Historical Statistics of the Electric Utility Industry 4 (Pub. No. 62-69, 1969) ; by 1971, total installed capacity of conventional steam plants was 298,345 megawatts, Edison Electric Institute, Statistical Year Book of the Electric Utility Industry for 1971, at 6-7 (No. 39, Pub. No. 72-25, Oct. 1972).
. The 120 billion gallons a day needed by 1971,
see
note 20
supra
and accompanying text, is an increase over an estimated 178
. See note 27 supra and accompanying text.
.
Cf.
Phillips Petroleum Co. v. Wisconsin,
. Petitioners’ brief at 42.
.
See, e. g.,
United States v. Southwestern Cable Co.,
.
See, e. g.,
American Trucking Ass’n v. United States,
. Petitioners’ brief at 44, 45.
. Petitioners’ reply brief at 24.
. United States v. Southwestern Cable Co.,
.
Id.
at 168,
. FPC v. Union Electric Co.,
. Indeed, the literal language of § 4(e) precludes such a contention. Under that-section, the Commission can license' project . works “necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power (Emphasis added.)
.
See, e. g.,
United States v. Public Utilities Comm’n of Calif.,
. In 1920, of the approximately 50 billion kilowatt hours of electricity generated in the United States, about 70% was produced by steam power. Edison Electric Institute, Statistical Year Book of the Electric Utility Industry for 1971, at 17 (No. 39, Pub.No. 72-25, Oct. 1972); 1 FPC, National Power Survey 63 (1964). Although petitioners concede that most steam plants in 1920 were water-cooled, instead of air-cooled, they point to the insignificant water use of those plants compared with the use of modern plants. See notes 110-11 supra.
.
See, e. g.,
Scenic Hudson Preservation Conf. v. FPC,
.
.
. We are aware, as petitioners point out, that the use of cooling waters is necessary to increase the efficiency of the generating process:
This cooling process is a matter not of convenience but of economic necessity. As the steam is exhausted into the condenser and cooled by the water, it condenses to liquid, thus occupying a smaller space than it did formerly and producing a partial vacuum. This vacuum at the exhaust of the turbine permits the entering high-pressure steam to undergo greater expansion, and hence deliver more energy to the turbine rotor, than if it expanded only to the pressure of the atmosphere. Roughly, the over-all efficiency of producing useful work from high-pressure steam can be in the 40 to 50 per cent range if the exhaust steam is condensed by use of cooling water, whereas it will be only 30 to 40 per cent if the turbine exhaust is directly to the atmosphere ....
P. Cootner & O. Lof, Water Demand for Steam Electric Generation 8-9 (1965).
. As of 1964, the FPC has licensed about 76% of the conventional, nonfederal hydroelectric capacity of the United States. 1 PPC, National Power Survey 101 (1964).
. Edison Electric Institute, Statistical Year Book of the Electric Utility Industry for 1971, at 2, 18-19 (No. 39, Pub.No. 72-25, Oct. 1972), gives the following figures for 1971:
Total electric power generation (kwh in millions) 1,613,936
Hydro 266,320
Conventional Steam 1,303,465
Nuclear Steam 37,899
Internal Combustion 6,252
. The siting problem is discussed in Journey, Power Plant Siting — A Road Map of the Problem, 48 Notre Dame Law. 273 (1972) ; Ramey & Murray, supra note 13; Smith, supra note 14; Tarlock, Tippy & Francis, supra note 13; Comment, supra note 13.
. For discussion of the role of the AEC in power plant construction and operation,
see
Calvert Cliffs’ Coordinating Comm., Inc. v. United States AEC,
. For discussion of these various statutes and their relationship to power plant siting, see Tarlock, Tippy & Francis, supra note 13, at 513-39; Comment, supra note 13, at 84 — 92; Comment, supra note 28, at 708-15.
.
See, e. g.,
Environmental Defense Fund v. TVA,
. The Colorado River is apportioned between the Upper and Lower Basin states by the Colorado River Compact,
see
70 Cong. Ree. 324 (1928), and among the states within the basin by the Upper Basin Compact, 63 Stat. 31 (1949), and the Boulder Canyon Project Act, 43 U.S.C. §§ 617-17u (1970).
See
Arizona v. California,
. See Comment, supra note 28.
. For discussion of state regulation of plant siting, see Tarlock, Tippy & Francis, supra note 13, at 539-53; Comment, supra note 28, at 711-17. A table of state siting laws is contained in Journey, supra note 131, app. B.
.
See
Udall v. FPC,
. See Hearings on H.R. 5277 and Related Bills Before the Subcomm. on Communications of the Senate Comm, on Interstate Commerce, 92d Cong., 1st Sess., pt. 2, at 426-27 (1971) (testimony of FPC Chairman Nassikas); Nassikas, Coordination of Electric Power and Environmental Policy, 4 Nat.Res.Law. 268 (1971).
. In its 1962 and 1966 annual reports, the Commission recommended that the Federal Power Act be amended to give it licensing jurisdiction over diversion facilities of steam plants. See 1962 Annual Report of the FPC 12-13; 1966 Annual Report of the FPC 8-9. Among the bills introduced in Congress over the past few years that the Commission has favored are H.R. 12585, 91st Cong., 1st Sess. (1969); S. 4421, 91st Cong.2d Sess. (1970); H.R. 6971, 92d Cong., 1st Sess. (1971); H.R. 5277, 92d Cong., 1st Sess. (1971). For description and analysis of the major siting proposals of recent years, see Journey, supra note 131, at 284-302; Ramey & Murray, supra note 13, at 38-43; Smith, supra note 14, at 182-95; Tarlock, Tippy & Francis, supra note 13, at 553-67.
.
Cf.
The problems encountered by the FPC in attempting to regulate the sales of natural gas by local producers to interstate pipeline companies after the decision in Phillips Petroleum Co. v. Wisconsin,
Power plant siting is an extraordinarily complex process requiring the integration of many different factors. See authorities cited in note 131 supra. FPC Chairman Nas-sikas has indicated that any effective legislative scheme for plant siting should provide for a transitional period to assure continuity of bulk power supply and the financing of projects already in the planning stages. See Hearings on Powerplant Siting and Environmental Protection Before the Subcomm. on Communications and Power of the House Comm, on Interstate and Foreign Commerce, 92d Cong., 1st Sess. 26-27 (1971).
. Story v. Snyder,
. Border Pipe Line Co. v. FPC, 84 U.S. App.D.C. 142,
. Petitioners’ brief at 9.
. Although intervenors contend otherwise, the Commission in its brief to us concedes that, with respect to the Navajo and Kaipa-rowitz plants, petitioners preserved their “surplus water” argument in their application for rehearing as required by § 313(b) of the Federal Power Act, 16 U.S.C. § 825Z(b) (1970), as a precondition to our consideration of the claim. Intervenors and respondent assert, however, that neither the complaint nor the rehearing application raised the question of the applicability of the “surplus water” clause to the four plants not withdrawing water directly from Government impoundments, and they contend that we may not consider the claim as it relates to those plants. In the posture of this case, and in view of our resolution of the “surplus water” issue, it makes little difference whether we agree with this contention; petitioners can simply file an amended complaint setting forth the downstream claim, and the FPC will consider it in the first instance just as it will consider the primary “surplus water” claim. Further, we think that intervenors’ and respondent’s position is not well taken. The policy of § 313(b) of affording an agency the opportunity to consider and determine a question,
see, e. g.,
FPC v. Colorado Interstate Gas Co.,
. Petitioners point out that the use of cooling water is a necessary part of the power generation process. See note 128 supra.
. California Oregon Power Co., 13 F.P.C. 1, 4 (1954), supplemental opinion, 15 F.P.C. 14 (1956), petition dismissed,
. California Oregon Power Co., 15 F.P.C. 14, 19 (1956), petition dismissed,
. The Commission has in the past permitted its licensees to allow waters impounded by their reservoirs to be used for cooling purposes by steam plants,
e. g.,
Arkansas Power & Light Co., 40 F.P.C. 522 (1968); Duke Power Co., 36 F.P.C. 675 (1966), but it has refused in such cases to construe its licensing authority to extend to the operations of the steam plants utilizing the waters, e.
g.,
Brazos River Authority, 34 F.P. C. 1507, 1509 (1965). Of course, these de
.
.
.
. Fly, supra note 34, at 279.
. Act of March 3, 1879, ch. 182, 20 Stat. 377, 387.
. 25 Stat. 505, 526 (1888); see Fly, supra note 34, at 287.
. Act of August 11, 1888; ch. 860, 25 Stat. 400, 417; Act of September 19, 1890, ch. 907, 26 Stat. 426, 447; Act of June 28, 1902, ch. 1299, 32 Stat. 408, 409.
. 32 Stat. 388, as amended, 43 U.S.C. § 371 et seq. (1970).
. Act of April 16, 1906, ch. 1631, § 5, 34 Stat. 117, as amended, 43 U.S.C. § 522 (1970).
.
See
Burley Irrigation Dist. v. Ickes,
. Bee note 49 supra.
. See Fly, supra note 34, at 290.
. See note 49 supra and accompanying text.
. Act of February 21, 1911, ch. 141, 36 Stat. 925, codified in 43 U.S.C. §§ 523-25 (1970).
. 48 Cong.Rec. 11,568, 11,571 (1912), subsequently published as Sen.Doc. No. 246, 64th Cong., 1st Sess. 17 (1916), quoted in Fly,
supra
note 34, at 290. One year after the decision in United States v. Chandler-Dunbar Water Power Company,
. Act of August 8, 1917, ch. 49, 40 Stat. 250, 269. See Starr, supra note 36, at 180; Walker & Cox, Jurisdiction of the Federal Power Commission over Non-Power Water Uses, 5 Land & Water L.Rev. 65, 73-74 (1970).
. Act of June 10, 1920, ch. 285, § 29, 41 Stat. 1077.
. See, e. g., 16 U.S.C. § 797(a) (1970).
. See Fly, supra note 34, at 287-288.
.
See
Ashwander v. TVA,
. 16 U.S.C. § 803(a) (1970) provides:
All licenses issued under sections 792, 793, 795-818, and 820-823 of this title shall be on the following conditions:
(a) That the project adopted, including the maps, plans, and specifications, shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval.
. Act of February 25, 1920, ch. 86, 41 Stat. 451, codified in 43 U.S.C. § 521 (1970).
. See 43 U.S.C. §§ 617, 617e (1970).
. 43 U.S.C. § 617d (1970).
. Act of May 18, 1933, ch. 32, 48 Stat. 58, as amended, 16 U.S.C. §§ 831-31dd (1970).
.
See
Ashwander v. TV A,
. 33 U.S.C. § 708.
.
Cf.
California Oregon Power Co. v. FPC,
.
Cf.
United States ex rel. Chapman v. FPC,
. It has been argued that the “surplus water” clause empowers the FPC to license nonpower uses of surplus federally controlled water. See Walker & Cox, supra note 166, at 70-75.