Petitioners Brief — California v. Sierra Club

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Ie Supreme Court, U.S.

[as FILED |

No. 79-1252 NOW 17 1980

In the Supreme Court of the Wnited Begeek “O° *. ose

OcToBeR TERM, 1980

STATE OF CALIFORNIA, ef ai.,

Petitioners,

VS.

SIERRA CLUB, ef al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Brief for Petitioners

State of California, et al.

GEORGE DEUKMEJIAN

Attorney General of the

State of California

R. H. CONNETT

Assistant Attorney General

RODERICK WALSTON

GREGORY K. WILKINSON

Deputy Attorneys General

Attorneys for Petitioners

Counsel of Record:

RODERICK WALSTON

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Tel: (415) 557-3920

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

LteTS

QUESTIONS PRESENTED

This case raises the following questions:

(1) Does the Rivers and Harbors Act of 1899, which prohibits

obstructions to navigable capacity subject to approval of the Army

Corps of Engineers, apply to state water allocations adopted under

the water rights laws of the western states, even where the alloca-

tions have no substantial effect on actual navigation?

(2) Does the Rivers and Harbors Act of 1899, which applies

to-diversion works built by a “person” or “corporation,” apply

to diversion works owned and operated by a state?

(3) Does the Rivers and Harbors Act of 1899 apply to federal

reclamation projects built and operated under the Reclamation

Act of 1902?

(4) Does the Army Corps of Engineers have authority, under

the Rivers and Harbors Act of 1899, to prohibit structures and

activities that do not affect the navigable capacity of the nation’s

navigable waterways?

PARTIES

The respondents, plaintiffs below, are the Sierra Club, a non-

profit California corporation; Friends of the Earth, a non-profit

New York corporation; Hank Schramm, a commercial fisherman;

and William Dixon, a landowner. See Pet. App. 3 n. 1.

The State petitioners, defendants below, are the State of Cali-

fornia; Huey D. Johnson, present Secretary of Resources of the

State of California; and Ronald B. Robie, present Director of the

State Department of Water Resources. See Pet. App. 4 n. 3.

The federal defendants, who have not filed a petition for writ

of certiorari, are Cecil Andrus, present Secretary of the Interior;

R. Keith Higginson, present Commissioner of the U. S. Water and

Power Resources Service, formerly the U. S$. Bureau of Reclama-

tion; Clifford L. Alexander, present Secretary of the Army; Lt.

Gen. Joseph K. Bratton, present Chief of Engineers, U. S. Army

Corps of Engineers; Col. Paul F. Kavanaugh, present District

Engineer of the U. S. Army Corps of Engineers, Sacramento Dis-

trict; and Col. Paul Bazilwich, Jr., present District Engineer of the

Army Corps of Engineers, San Francisco district. See Pet. App.

4 n. 2.

The intervenors are the Kern County Water Agency; the Metro-

politan Water District of Southern California; the Tulare Lake

Basin Water Storage District; and the Santa Clara Valley Water

District. See Pet. App. 4 n. 3.

TABLE OF CONTENTS

Page

Questions Presented i

IN ili cnilinitlichtitislcnenisuncicceien i

Table of Contents ... iii

RT RCT Vv

Cpinions Below ... 1

Jurisdiction 2

Federal Laws Involved 2

Statement of the Case .. 3

1. Facts of the Case ...................- 3

2, Legal lesucs Raised ...............-....---- 7

3. The Case Below ................-...--- 8

Summary of Argument ..... 10

Argument 13

a ici eins bnecntonineehaianiebereh aidan 13

I. In Light of the Historic Congressional Policy of

Deferring to State Water Rights Laws Governing

Water Allocations in the Western States, Sections 9

and 10 of the Rivers and Harbors Act of 1899

Should Be Construed as Not Affecting Such Alloca-

tions, or Alternatively as Affecting Such Allocations

Only to the Extent That They Substantially Interfere

with Federal Navigation Interests -...........------------------ 14

A. Sections 9 and 10 of the Rivers and Harbors Act.

of 1899 .. 14

B. Congressional Delegation of Authority to the

States to Control Water Allocations ............-.------ 19

1. Development of State Water Rights Laws... 20

2. The “Severance” and “Equal Footing” Doc-

3. Federal Reclamation Laws .............--------------- 26

4. Miscellaneous Federal Laws .........-.-.------------- 33

II.

If.

IV.

TABLE OF CONTENTS

Page

C. The Court Should Conclude Either That (1) the

Rivers and Harbors Act of 1899 Is Not “>nli-

cable to Water Allocations Adopted Under state

Water Rights Laws or (2) the Act, if Appli-

cable, Applies Only Where Important Federal

Navigation Interests Are Substantially Impaired

1. Inapplicability of 1899 Act to State Water

Allocations Adopted Under State Water

Rights Laws ............-------sscscseesesssssssenennanenenses

2. Inapplicability of 1899 Act Except Where

Federal Navigation Interests Are Substan-

tially Impaired -...2.......-----------se-ecseeesseesnesnsnsoees

3. Traditional Roles of States and Army Corps

Of Emgineets ........-..-.n--nscn-csccscesonenseoseereesecensnnes

The Rivers and Harbors Act of 1899 Does Not Apply

Fully, If At All, to Diversion Works Owned and

Operated by the States -.......------------------ssesssosseesseene

The Rivers and Harbors Act of 1899 Is Not Appli-

cable to Water Allocations from Federal Reclamation

Projects Built and Operated Under the Reclamation

Bact OF 1902 .n.--ccorencrccosenssessenntsnnnenrncnennenisensnestvocnasounen

Sections 9 and 10 of the Rivers and Harbors Act of

1899 Are Not Applicable to Structures or Activities

that Do Not Obstruct Navigable Capacity ..........-.---

A. Statutory Analysis of Sections 9 and 10 ............--

B. Constitutional Analysis of Sections 9 and 10 ........

COMCHISION .occocveccenscavscecccossoesencevenecovencoccenensenesnecsencecescnnnencssscesases

TABLE OF AUTHORITIES

CASES Pages

Arizona v. California, 373 U.S. 546 (1963) ..----------0--+----" 25

Broder v. Water Co., 101 U.S. 274 (1879) ---.- ~~ 2

California v. United States, 438 U.S. 645 (1978) -..-------- In passim

California Oregon Power Co. v. Beaver Portland Cement Co.,

295 U.S. 142 (1935) neoee-eeee seessssceee 20, 23, 24, 25, 37, 41

Cantor v. Detroit Edison, 428 U.S. 579 (1976) ...--------- 40, 49, 50

Cappaert v. United States, 426 U.S. 128 (1976) 25

Cardwell v. American Bridge Co., 113 U.S. 205 (1885) -..---- 16, 38

Chow v. City of Santa Barbara, 217 Cal. 673 (1933) ----------- 22

City of Beatrice v. Edminson, 117 Fed. 427 (8th Cir.1902). 4

City of Fresno v. California, 372 U.S. 627 (1963) .--..--------- 52

Covington & Cincinnati Bridge Co. v. Kentucky, 154 U.S.

204 (1894) m 17

Cox v. Roth, 348 U.S. 207 (1955) --- 36

Dean Milk Co. v. Madison, 340 U.S. 349 (1951) -...------------ 49

Edelman v. Jordan, 415 U.S. 651 (1975) ----- 40

Employees v. Department of Public Health & Welfare, 411

US. 279 40

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 '

(1963) 49

Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713 (1886) ...... 16, 38

Hall v. DeCuir, 95 U.S. 485 (1978) -------------------20----- 17

Hamilton v. Vicksburg, Shreveport & Pac. R.R., 119 US.

280 (1886) ........ ve 17

Ickes v. Fox, 300 U.S. 82 (1937) -------------- 23

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) -..----------0-- 17, 37

In re Debs, 158 U.S. 564 (1895) -...--------------- 17, 38

Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275 (1958) ....-- 5, 52

TABLE OF AUTHORITIES

Pages

Jennison v. Kirk, 98 U.S. 453 (1878) .........----- . 20

Kaiser Aetna v. United States, 100 S.Ct. 383 (1979) ......-.---- 25

Kansas v. Colorado, 206 U.S. (1907) -.....---..------scscsseseecseses 25, 31

Maine Water Co. v. Knickerbocker Steam Towage Co., 99

en a0a, 99 AU. 953 (1905) _______..... 54, 56

National League of Cities v. Usery, 426 U.S. 833 (1976) .... 40

National Wildlife Federation v. Alexander, 613 F.2d 1054

Re PO .... 38

Nebraska v. Wyoming, 325 US. ng) ee 17

New Jersey v. New York, 283 U.S. 336 (1931) ........---------- 17, 38

New York State Dept. of Social Services v. Dublino, 413

ETRE A ETO 40

Parker v. Brown, 317 U.S. 341 (1943) -....-----------0-+- 40, 48, 49, 50

Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S.

ETO Ee 17, 38

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845)

- ee Eee SOR Se RC 17, 24, 57

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .......... 40, 41

Rockville & W. Turnpike Rd. v. Andrews, 20 F.Cas. 1079

EE EID issn annonce cnsnenevocannnnessnctioentirniernsensansannesvanses 4

Sanitary District v. United States, 266 U.S. 405 (1925) ........ 43

Shively v. Bowlby, 142 U.S. 1 (1894) .......-----------scecseeeeeeeeeees 24, 57

Textile Workers v. Lincoln Mills, 353 U.S, 448 (1957) ........ 40

United States v. Gerlach Live Stock Co., 339 U.S. 725

ER 5, 20

United States v. New Mexico, 438 U.S. 696 (1978) ........---. 25, 41

United States v. Oregon, 295 U.S. 1 (1935) -.-.-----------sc-0-eeee++ 24, 57

United States v. Republic Steel Corp., 362 U.S. 482 (1960)

ET ee ee oe 15, 16, 35, 45, 50, 56

TABLE OF AUTHORITIES Vii

Pages

United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690

(1899) 23, 24, 42

United States v. San Jacinto Tin Co., 125 U.S. 273 (1888) ..... 17

United States v. Texas, 339 U.S. 716 (1950) 24, 57

Washington, et al. v. Confederated Tribes, 100 S.Ct. 2069

I scincaticratrasmacmmanucnon 40

Williamette Iron Bridge Co. v. Hatch, 125 U.S, 1 (1888)

ied chedigaaeiianiabeseeeupehehinipibidenenbontyuieliniepennrttianial 16, 17, 19, 37, 38, 44

Wisconsin v. Illinois, 278 U.S. 367 (1929) -...16, 43, 44, 54, 55, 56

Wyandotte Transportation Co. v. United States, 389 USS.

191 (1967) “ 45, 50

Zabel v. Tabb, 430 F.2d 199 (Sth Cir. 1970), cert. denied

401 U.S. 910 (1971) ........-.- 46, 58

CONSTITUTION, STATUTES AND REGULATIONS

UNITED STATES CONSTITUTION

Amendment X, U.S. Const. ....... 40

Amendment XI, U.S. Const. ... 40

UNITED STATES STATUTES

Act of March 3, 1891, 26 Stat. 1101, as amended, 43 U.S.C.

GG acs ininnnccnsnnckoccentnscensecatectasenasiasssbensacoeansinassceusmmeoesonones 26, 27, 28

Act of October 2, 1888, 25 Stat. 527 .......-...----.----cscseoseseeeesceeses 26

Act of August 30, 1890, 26 Stat. 391 -....----.--------------sereeseeeeees 26, 27

Act of February 26, 1897, 29 Stat. 599 ......-...-----------s-eeeesesoees 27, 28

Act of June 4, 1897, § 1, 30 Stat. 36, 16 is tom & ) Sewn 33

Act of February 1, 1905, § 4, 33 Stat. 623, 18 USC. 3324... 33

Act of July 28, 1954, § 3(c), 68 Stat. 577 ...---------------+-esse--0- 33

Act of August 4, 1954, § (4), 68 Stat. 667 -......-------------------+ 33

Act of July 23, 1955, § 4(b), 69 Stat. 368, 30 U.S.C. §612(b) 33

Act of July 22, 1965, 79 Stat. 244, 42 U. 7 oe + SER 33

Viii TABLE OF AUTHORITIES

Pages

Act of September 2, 1965, §4, 79 Stat. 618, 43 U.S.C.

§ 616dd4d ........-.. 33

Act of December 31, 1970, g 111, 84 Stat. 1821, 33 U.S.C.

§ 595a ... i ; 33

Boulder Canyon Project Act, § 18, 45 Stat. 1063 (1928),

43 US.C. §617q -. 33

Boulder Canyon Project Adjustment Act, 54 Stat. 779

(1940), 43 U.S.C. § 618 .. nee 33

Clean Water Act, 33 U.S.C. §§ 1251-1376 -.....-- - 35

Colorado River Storage Project Act, §7, 70 Stat. 109, 43

Bes BOOP tin : © 33

Desert Land Act of 1877, 19 Stat. 377 -.. 23, 24, 42

Federal Power Act, §§9(b), 27, 41 Stat. 1068, 1077, 16

USC G20), 42) 33

Federal Water Supply Act of 1958, 43 U.S.C. §§ 390(b)....24, 34

Fish and Wildlife Coordination Act, 16 U.S.C. §8§ 661-

Cy (cc as 58

Flood Control Act of 1944, 58 Stat. 887 -.........-----.--------------+--+ 33

Homestead Act of 1862, 12 Stat. 392 .......--------------s-sees-es-000* 26

McCarran Amendment, 43 U.S.C. § 666(a) --...-----------------+-- 34

Mining Act of 1866, 14 Stat. 251, 253, as amended, 16

Stat. 217, 218 (1870) cinhandnbhneupsoneethonnstinacntianwamicsinense 22, 23, 24, 42

National Environmental Policy Act of 1969, 42 U.S.C.

so inspeianinnentcncainreeeet 8, 47, 58

National Parks Act, 60 Stat. 885 (1946), 16 U.S.C. §17)-2

(1952) eceneecenmnn ma anneneentnnreoenennernennenneemnnnrncentene 33

Reclamation Act of 1902, 32 Stat. 388 (1902), as amended,

43, U.S.C. §§ 371 et 56g. --------s-s-cesn-eensnseseseseretetenenens 12, 29, 51, 52

Section 2 .......---.-c----.-.c-nsoecsecoccecnenncnnseraqeccreccscnseenenesecsoocs 51

Section 8 .......--....-----ccccececerenseeccceenesnenneneenneonses 24, 41, 51, 52

TABLE OF AUTHORITIES ix

Pages

ieee DD cnet ae

Sections 371 ef seq. -..-- a 4, 29, 51

Section 3°72 ..-.-c--c-2c-------c--c--e--c-cceceseneneeoncnnsnssenensnoncennenses 51

Section 373 -..--c-c-c-c--cens-nsesen-oeneecseeneeenenesnsesenenscnsossnrwonen 51

Section 383 ......----------------------eneeeneneee2- arity a

Section 411. ..........-.--:-----cec-r---c+s-ceneeerenenenenennceneserosnsnonens 51

Reclamation Project Act of 1939, § 4, 70 Stat. 483, 43 U.S.C.

§ 485h-4 ..... ala 33

Rivers and Harbors Act of 1890,

26 Stat. 454 q...--..-.-..---.-----ennneeenccenenenennees 16, 18, 19, 28, 43, 54, 55

AG Fa cacecnnecicsanenenes ono eintergeniitannreensennneanmannnsennnatons 55

Rivers and Harbors Act of 1899, 33 US.C.

$§ 401, 403, 406, 407 -....------------------nseeserseceseetetette In passim

Section 9 .....---.------a---c-c-e-nen-nensnensnnenesnnsnenenenenenenenencs In passim

Bection 10 ....--------c--------e-c-o-cense-nenenenenensnenesosnsernsnannns In passim

Section: 12 ..-c-~----«e--weo---n-noneeneceneeernsnsnensnseanenenacensmananes 48

Section 13. ..-.---------c-cece---n-nsconesennsnenposnenarasecnonacnmnmanacene 35

Rivers and Harbors Act of 1935, 49 Stat. 1028 -......--.---------- 4

Rivers and Harbors Act of 1937, 50 Stat. OE... ania 4

Sherman Antitrust Act, 15 U.S.C. $82. 2, 4 7 + 49, 50

Small Reclamation Projects Act of 1956, §4(b), 70 Stat.

1044, 43 U.S.C. § 422d(b) --n-e-----nnneeeeeeeeneeeeceeetn 33

Submerged Lands Act, § 3(¢), 87 Stat. 30 (1933), 43 US.C.

$1311(e-) 33

Taylor Grazing Act, 43 Stat. 1270 (1934), as amended, 43

TSC, © BUS naam encnn en nannnanenamsninnseesannsnennennnvonencewsannenennonremnne 33

Warren Act of February 21, 1911, §2, 36 Stat. 928, 43

TOC 0926 ann 33

Water Conservation Act, 53 Stat. 1419 (1939), as amended,

16 U.S.C. § 5902-1 (b) (2) .-----------0--o---sesersessesesecensentenensesentes 33

28 US.C. § 12541) -.-------nn-+--n-eennsesensseennseconessensesnnasennaenonaaennns 2

TABLE OF AUTHORITIES

CODE OF FEDERAL REGULATIONS Pages

33 CFR. § 320.4(a), 40 Fed.Reg. 31326-31327 (1975)... 46

CONGRESSIONAL

20 Comg. Rec. 1952 (1897) -v--ssscccsscssssecseceeseensterseeendneeseneniit 28

21 Cong. Rec. 8603-8604, 8606 (1890) ........ 5 18

29 Cong. Rec. 1948-1949 (1897) eononiameionne nae . 28

35 Cong. Rec. 6676, 6679, 6770 (1902) -...-------------seesseee0= 30

CALIFORNIA CONSTITUTION, STATUTES, REGULATIONS AND

ADMINISTRATIVE DECISIONS

Cal. Gonst., Art. X,, $2: 2.---.-n.-.-----.-c-coecorecesevconcnsousnnnesseerenosence 6

California Environmental Quality Act, Cal. Public Resources

Code §§ 2100-21174 ...........-.----:-----cee-eeeeeceesenseeecnnneeeetseeetees 47

Cal. Wat. Code

§§ 275, 1201, 1225, 1250-1258, ee 6

S§ 1000-5975 .......----cc---ccceeeeceensneeenneenensnnecesnnenntsneensnnenes 21, 44

S§ 12930-12942 .......----c--nceeecceeneneennteneneeesnneseeteneneneneeses 3

EE SELENE NOE NOT 44

23 Cal. Admin. Code §§ 733 (h) -...--------------+---+-+esessrerereeeeteneee= 44

State Department of Water Resources, Bulletin 76 (July

1978) ----eovesssonnseecnsseconsseeonsssssnnsesensseronaserenssananasenanaaesenasesonseste 4

State Water Resources Control Board, Decision 1485 (Aug.

1978) ceseneeevevnssesocescsesneceesneeneennecvsneeennnneeeennreetnnneee 4, 6,7, 45

State Water Resources Control Board, Environmental Impact

Report (Aug. 1978) ...---------------se-scesseenssseesscerstenntrnnnnanensis 6

State Water Resources Control Board, Water Quality Control

Plan (Aug. 1978) ...--------o--sco-sscssseossscnssenssseessteneeenaeenatenaees 6

CALIFORNIA STATUTES

1980 Cal. Stats., ch. 632 .....------------e-s-cseseseseenenetesenenenesesnennneses 7

TABLE OF AUTHORITIES

MISCELLANEOUS

Delta Water Cases, Judicial Council Coordination Proceed-

ing No, 548, Superior Court, City and County of San

Francisco

Holmes, The Common Law (1881)

1 Hutchins, Water Rights Laws in the Nineteen Western

States (1971) eaeaesssaaccceceoee

1 Kenney, Irrigation and Water Rights (2d ed. 1912) ..........

Note, “Delta Water Rights Decision,” 2 Ecol. L. Quar. 733

(1973) ..

Note, ‘The Preemption Doctrine: Shifting Perspectives on

Federalism and the Burger Court,” 75 Colum. L. Rev. 623

(1975)

Note, “Substantive and Remedial Problems in Preventing

Interferences with Navigation:. The Republic Steel Case,”

TPT, Fe. TV NOGS CI) sic

2A Sutherland, Statutory Construction § 53.01,

gg || RES RGIS ove RON ae

Wisdom, ‘Obstructions in Rivers,” 119 Just. P. 846 (1955)

No. 79-1252

Jn the Supreme Court of the Wnited States

OCTOBER TERM, 1980

STATE OF CALIFORNIA, é¢ al.,

Petitioners,

vs.

SIERRA CLuB, ef al.,

Res pondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Brief for Petitioners

State of California, et al.

OPINIONS BELOW

The decision of the U. S. Court of Appeals is officially reported

at 610 F.2d 581 (9th Cir. 1979), and is reprinted as an appendix

to our petition for writ of certiorari. See Pet. App. 2-65." The

decision of the district court is officially reported at 400 F.Supp.

610 (N.D. Cal. 1975), and is reprinted as a supplemental appen-

dix to our petition for writ of certiorari. See Pet. Supp. App. 1-69.

1. “Pet. App.” and “Pet. Supp. App.” are references to the appendix

and supplemental appendix, respectively, attached to the petition for writ

of certiorari filed by the State of California et al. in No. 79-1252.

JURISDICTION

The decision of the U. S. Court of Appeals was rendered on

October 31, 1979. A petition for rehearing was filed by the plain-

tiffs on November 21, 1979, and was denied on January 17, 1980.

Our petition for writ of certiorari was filed on February 13, 1980,

and was granted on October 6, 1980. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

FEDERAL LAWS INVOLVED

This case involves an interpretation of sections 9 and 10 of the

Rivers and Harbors Act of 1899, 33 U.S.C. 8§ 401, 403. Section

10 provides:

“Obstruction of navigable waters generally; wharves; piers;

etc.; excavations and filling in.

“The creation of any obstruction not affirmatively author-

ized 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, or 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 the

beginning of the same.” 33 U.S.C. § 403.

Section 9 provides:

“Construction of bridges, causeways, dams or dikes generally.

“It shal! not be lawful to construct or commence the con-

struction 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 con-

sent 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 struc-

tures may be built under authority of the legislature of a

State across rivers and other waterways the navigable por-

tions of which lie wholly within the limits of a single State,

provided the location and plans thereof are submitted to and

approved by the Chief of Engineers and by the Secretary of

the Army before construction is commenced: And provided

further, That when plans for any bridge or other structure

have been approved by the Chief of Engineers and by the

Secretary of the Army, it shall not be lawful to deviate from

such plans either before or after completion of the structure

unless the modification of said plans has previously been

submitted to and received the approval of the Chief of

Engineers and of the Secretary of the Army.” 33 U.S.C. § 401.

STATEMENT OF THE CASE

1. Facts of the Case.

In 1960, the California electorate approved an initiative that

authorized funding for the State Water Project (SWP), a massive

reclamation project that delivers water from rural mountainous

areas in northern California to metropolitan and agricultural areas

in central and southern California. See Cal. Water Code 88 12930-

12942. This project is owned by the State, and operated by the

State Department of Water Resources (SDWR). The SDWR has

entered into 31 water supply contracts with irrigation and munici-

pal water districts in central and southern California. The contracts

provide for ultimate delivery of approximately 4.2 million acre-

feet of water annually from the SWP. Many contracting water

districts have entered into other contracts with local agricultural,

industrial and domestic users, and have built water distribution

works, on the assumption that SWP water would be available

for local needs. The SWP has been in operation since the late

1960's. Pet. App. 7-9; Pet. Supp. App. 4-5, 8-9.°

The main component of the SWP is a large dam and reservoir

near Oroville on the Feather River, a tributary of the Sacramento

River. The dam releases water that eventually reaches the Sacra-

mento-San Joaquin Delta, a maze of interlocking channels which

form the ccnfluence of the Sacramento and San Joaquin Rivers.

The Delta drains into San Francisco Bay, which in turn drains

into the Pacific Ocean. SWP water is exported from the Delta by

a State pumping facility located at the south end of the Delta.

The exported water flows through a State aqueduct to the con-

tracting water districts in central and southern California. The

Sacramento and San Joaquin Rivers, and the Delta which forms

their confluence, arise and flow solely in California. Pet. App.

7-8; Pet. Supp. App. 8-9.

Pursuant to the Reclamation Act of 1902, 32 Stat. 388, as

amended, 43 U.S.C. §§ 371 et seq., the federal government built

its own reclamation project in California, known as the Central

Valley Project (CVP). The CVP, which is the largest reclama-

tion project in the nation, was initially authorized by the Rivers

and Harbors Act of 1935, 49 Stat. 1028, and the Rivers and Har-

bors Act of 1937, 50 Stat. 844, 850. The CVP includes several -

dams and reservoirs on the upper Sacramento and San Joaquin

Rivers. The dams release water that flows downstream to the

Delta, where CVP water is commingled with SWP water. The

CVP is operated by the U.S. Water and Power Resources Service

—

2. The SWP presently provides a water supply for approximately

14 million people and serves approximately 500,000 acres o prime agri-

cultural land. See Decision 1485, at p. 2, State Water Resources Cont.

Bd. (Aug. 1978), cited at n. 3, infra.

A more complete description of the SWP is found at pages 22-28 of

SDWR’s Bulletin 76 (July 1978), a certified copy of which has been

lodged with the Clerk of this Court. The Court can take judicial notice

of this document as an official governmental publication. See, e.g., City of

Beatrice v. Edminson, 117 Fed. 427 (8th Cir. 1902); Rockville & W.

Turnpike Rd. v. Andrews, 20 F. Cas. 1079 (CC. Ind. 1844).

(WPRS), formerly the U.S. Bureau of Reclamation. The WPRS

has also signed water delivery contracts with many agricultural

and municipal water districts in central California. CVP waters

are exported from the Delta by a federal pumping facility located

at the south end of the Delta, and flow through a federal aqueduct

to the contracting water districts in central California. Pet. App.

6-7; Pet. Supp. App. 3-4, 8. See generally United States v. Gerlach

Live Stock Co., 339 U.S. 725, 727-735 (1950); Ivanhoe Irrig.

Dist. v. McCracken, 357 US. 275, 280-284 (1958).

A major problem of California’s water supply system is that

the Delta’s waters are perennially threatened by the intrusion of

ocean salt waters. The intruding salt waters pose a threat to

valuable economic and environmental interests in the Delta; the

Delta sustains a rich agricultural economy, and is the source of

unusual species of fish and waterfowl. The intruding salt waters

also threatén to degrade the quality of SWP and CVP waters

exported from the Delta to the contracting water districts in

central and southern California. An effective way to pre

vent such salinity intrusion is to flush out the salt waters by

release of vast quantities of fresh waters from the upstream dams

and reservoirs\of the SWP and CVP. The more water that is used

for flushing iain, however, the less water is available for

expoit to the contracting water districts. A conflict thus exists

between Delta water needs and the water needs of users in cen-

tral and southern California. The allocation of water between

these needs requires a careful balancing of many statewide inter-

ests, and will thus have a major impact upon California’s eco-

nomic growth and environmental quality. See n. 3, infra; Note,

“Delta Water Rights Decision,” 2 Ecol. L. Quar. 733 (1973).

Under California law, the authority to allocate water among

competing needs rests with the State Water Resources Control

Board (‘State Board”). The State Board has authority to grant

appropriative water rights to the extent that such rights are con-

sistent with the “reasonable and beneficial use” of water and in

the “public interest.” Cal. Const., Art. X, §2; Cal. Water Code

8§ 275, 1201, 1225, 1250-1258, 1375-1415. The SDWR and

WPRS have applied to the State Board for permits to appropriate

water for use in the SWP and CVP, respectively. After lengthy

hearings, the State Board granted appropriative permits subject

to conditions that the projects release water from upstream stor-

age or discontinue water exports from the Delta to the extent

necessary to meet Delta water quality standards set by the State

Board. The State Board has periodically modified its Delta water

quality standards on the basis of new information concerning

economic, domestic and environmental needs of both Delta and

non-Delta interests. The State Board recently issued a landmark

administrative decision, Decision 1485, which generally provides

that, as a condition of SWP and CVP water exports from the

Delta, (1) Delta consumptive uses must receive at least the same

water quality which would have been received if the SWP and

CVP had not been built, and (2) Delta environmental interests,

such as fish and wildlife, must receive a high level of water qual-

ity that will ultimately achieve historical levels of protection.

Under this decision, the SWP and CVP can export waters from

the Delta to the extent these conditions are met. The decision, by

defining the conditions for water exports from the Delta, effec-

tively results in an allocation of water among economic, domestic

and environmental interests in northern, central and southern

California.*

3. The contents of the last two paragraphs are based on findings in

Decision 1485, and also on the findings in the water quality control plan

and environmental impact report that were issued in conjunction with

Decision 1485. See Decision 1485, at pp. 1-19, State Water Resources

Cont. Bd. (Aug. 1978); Water Quality Control Plan, at pp. 1-1 through

I-10, State Water Resources Cont. Bd. (Aug. 1978); Environmental

Impact Report, at I-1 through I-10, III-3 through III-30, State Water Re-

sources Cont. Bd. (Aug. 1978). These documents were issued after the

The plaintiff in this case, the Sierra Club, participated in the

hearings before the State Board that led to the issuance of Deci-

sion 1485, but did not file a lawsuit challenging the State Board’s

allocation of water under Decision 1485. Therefore, to the extent

that the plaintiffs seek to protect Delta environmental interests

in the allocation of water between Delta and non-Delta interests,

they have a remedy under State law which they have failed to

pursue.

To improve the quality of waters exported from the Delta, the

State has proposed for several years to build a 42-mile canal

around the eastern margin of the Delta that will carry fresh

water from the Sacramento River to the SWP and CVP pumping

plants in the south Delta. Pet. App. 8; Pet. Supp. App. 10. The

canal, known as the Peripheral Canal, would release fresh water

into the Delta at selected intervals. Id. After years of statewide

political controversy surrounding the canal, the California Legis-

lature recently enacted legislation authorizing construction of the

canal. See 1980 Cal. Stats., ch. 632.

2. Legal Issues Raised.

Prior to issuance of Decision 1485 and legislative authorization

of the Peripheral Canal, the plaintiffs initiated this action against

the federal officials who operate the CVP, the State officials who

operate the SWP, and the State of California. Various water

districts which have contracted for the delivery of SWP water

intervened on the side of the defendants.

In the case below, the plaintiffs alleged that (1) sections 9

conclusion of the trial below, and thus are not part of the official record.

The Court, however, can take judicial notice of these documents as official

governmental publications. See n. 2, supra.

We are lodging copies of these three documents with the Clerk of

this Court concurrently with the filing of our brief. We will supply

additional copies to the Court upon request. és

Several lawsuits have been filed against the State Board by Delta and

non-Delta interests, including the United States on behalf of the WPRS,

each claiming that Decision 1485 allocates insufficient water to each’s own

needs. These cases are now pending in the California courts. See Delta

Water Cases, Judicial Council Coordination Proceeding No. 548, Superior

Ct., City and County of San Francisco.

and 10 of the Rivers and Harbors Act of 1899 require that the

Army Corps of Engineers (“Corps”) issue a permit as a pre-

requisite to SWP and CVP water exports from the Delta to the

contracting water districts, and as a prerequisite to construction

of the Peripheral Canal, and (2) the Corps cannot issue such a

permit until it has prepared and issued an environmental impact

statement pursuant to the Nationai Environmental Policy Act of

1969, 42 U.S.C. §§ 4321-4347. Pet. App. 5-6.

The defendants alleged that (1) the Rivers and Harbors Act

of 1899 does not authorize a private right of action, (2) the

plaintiffs lack standing to maintain their action, (3) sections 9

and 10 of the 1899 Act are not applicable to SWP and CVP water

exports from the Delta or to construction of the Peripheral Canal,

and (4) the requirements of the sections have been met if they

are applicable here. In addition, the federal defendants alleged

that section 10 is not applicable to CVP water diversions because

the diversion works have been expressly authorized by Congress.

3. The Case Below.

The district court rejected the defendants’ main arguments,

ruling that (1) the Rivers and Harbors Act of 1899 provides

for a private right of action, (2) the plaintiffs have standing to

maintain their action, (3) sections 9 and 10 of the 1899 Act are

applicable to SWP and CVP water exports from the Delta and

to construction of the Peripheral Canal, and (4) the requirements

of the sections have not been met here. Pet. Supp. App. 1-69.

4. The State defendants raise no issue at this time concerning the

plaintiffs’ standing, or whether the 1899 Act authorizes a private right of

action. These issues, however, have been raised in the petition for writ

of certiorari filed by the intervenors, which has been granted by the

Court. See Kern County Water Agency et al. v. Sierra Club et al., No.

79-1502. In our view, the Court should reach the merits of the action

regardless of its disposition of these rocedural issues because, even if

the plaintiffs are procedurally disqualified from maintaining their action,

the United States would still be free to assert the rights of the Corps

as upheld by the lower court.

The district court, in holding that sections 9 and 10 are ap

plicable here, ruled that SWP and CVP water exports affect

“navigable capacity” within the meaning of section 10, because

the exports reduce Delta water levels and cause reversal of flows

in the Delta. Pet. Supp. App. 29-30. According to its findings,

the exports from the SWP pumping plants reduce water levels

by approximately 6/10 feet in the vicinity of the plants, but the

combined exports from both the SWP and CVP plants reduce

water levels by less than 1/10 feet, i.e. about an inch, in the

area of the Delta where commerce is actually carried out.* We

concede that the exports affect “navigable capacity” in the sense

that they reduce Delta water levels, but argue that, since the

levels are reduced by only an inch in the area where commerce

is actually carried out, the exports do not have any substantial

effect on actual navigation or otherwise render the waters un-

usable for commerce. The district court made no findings on this

question.

The Court of Appeals essentially affirmed the decision of the

district court. Pet. App. 3-60. The appellate court ruled, however,

that section 10 is not applicable tc CVP water diversions from the

Delta because the diversions have been specifically authorized by

Congress. Pet. App. 41-53. /

The Court of Appeals, affirming the district court, enjoined

the State defendants from exporting water from the Delta or

5. Specifically, the State pumping ~ diverts water from a 2-mile

inlet channel which is connected to Italian Slough, which in turn is con-

nected to Clifton Court Forebay. Pet. Supp. App. 8-9. The forebay is

connected to a canal that leads to Old River, a tributary of the San Joaquin

River. Id. The district court found that, although there is “some question

as to the accuracy” of the figures, id. at 30, the State pumpin plant

apparently reduces water levels in Italian Slough by approximately 6/10

feet in the vicinity of the plant, and the combined operation of the State

and federal plants reduces water levels in the vicinity of Clifton Court

Forebay by approximately 1-11/, feet, id. at 29. The district court also

found, however, that the combined operations of both plants reduce water

levels by less than 1/10 feet in the San Joaquin River, where commerce is

actually carried out. Id.; Pet. App. 8 n. 5. The tide alone causes Delta water

levels to vaty by 3-31/ feet per day. J.A. 121a (R. 423).

commencing construction of the Peripheral Canal prior to obtain-

ing a permit from the Corps. Pet. App. 58-59. The appellate

court stayed the injunction with respect to water exports until the

Corps issues a permit, but did not stay the injunction with respect

to construction of the Peripheral Canal. Pet. App. 58-59.°

SUMMARY OF ARGUMENT

The Rivers and Harbors Act of 1899 prohibits any “obstruc-

tion” to “navigable capacity” of the nation’s navigable waterways

in the absence of congressional approval. The Act provides, how-

ever, that the Army Corps of Engineers (“Corps”) has authority

to approve certain such obstructions. The primary question in this

case is whether the Act applies to water allocations authorized

under the water rights laws of the western states.

The purpose of the 1899 Act was to fill a federal regulatory

void caused by the absence of any federal common law relating

to navigation obstructions. With respect to water allocations

authorized under state water rights laws, however, there is no

federal regulatory void. Instead, Congress has enacted several

laws, primarily in the areas of mining, desert lands and reclama-

tion, that delegate broad authority to the western states to allocate

their sparse water supply among competing regional and local

needs. These congressional laws establish an historic policy, often

upheld by this Court, of deferring to state water rights laws.

This historic policy is undermined if the 1899 Act is construed

as authorizing the Corps to veto State water allocations.

6. The appellate court remanded the case to the district court for

determination of whether the State pumping plant is exempt from the

permit requirements of the 1899 Act because of a “grandfather clause”

rovision in the Corps’ regulations. Pet. App. 56-57. The case would not

fe moot even if the district court finds that the State pumping plant is

thus exempt from the Act. First, the oS if it exists, would apply

only to existing pumps, not tc pumps which have not yet been built.

The State plans to build additional pumps that will enlarge the plant’s

capacity by 60% in 1980. Pet. App. 8. Second, the exemption would not

apply to the Peripheral Canal, which has not yet been built.

In our view, the 1899 Act should be accommodated and harmo-

nized with the historic congressional policy of deferring to state

water rights laws. Under our view, the 1899 Act should be con-

strued as either (1) not applicable to water allocations adopted

under state water rights laws, subject to Congress’ power to over-

ride such allocations if they impair federal navigation interests,

or (2) applicable to state water allocations only to the extent

that such allocations substantially interfere with actual navigation

or otherwise render the waters unusable for commerce. This

result, we believe, results in an accommodation of Congress’

disparate laws and policies on the related subjects of navigation

and reclamation.

Our suggested alternative approaches are supported by the

historic role played by the western states and the Corps over

control of the West’s sparse water resources. The states, acting

pursuant to the congressional delegation of authority, have tradi-

tionally allocated water under their water rights laws, and have

thus reclaimed much of their arid lands and achieved a large

measure of economic growth and prosperity. The Corps, acting

under the 1899 Act, has not traditionally controlled water alloca-

tions in the West. Under the Court of Appeals’ decision, however,

the Corps would have virtually plenary authority to override state

water allocations, and thus determine the priority of water among

competing economic and environmental needs.

The Rivers and Harbors Act of 1899 provides for penal sanc-

tions and injunctive relief only against a “person” or ‘‘corpora-

tion,” and thus apparently applies only to a “person” or “corpo-

ration.”” There is no indication in the Act or its legislative history

that these terms were meant to include the sovereign states. There-

fore, the Act does not apply to diversion works owned and

operated by the states.

Ill

The Rivers and Harbors Act of 1899 does not apply to reclama-

tion works built and operated by the federal government under

the Reclamation Act of 1902. The latter Act provides that such

works are to be operated by the U. S. Water and Power Resources

Service (WPRS), and that state law controls federal water

uses under the Act except to the extent that such state laws are

inconsistent with “clear congressional directives.” See California

v. United States, 438 U.S. 645 (1978). Thus, the 1902 Act author-

izes the WPRS to operate the works subject to state laws that are

not in conflict with specific federal laws. There is no indication,

either in the 1902 Act or its legislative history, that Congress

meant for the Corps to control the allocation of water from these

works under the 1899 Act.

The Court of Appeals ruled that the Rivers and Harbors Act

of 1899 applies to structures and activities that have no effect

on navigable capacity. This ruling is dictum, for—although we

maintain that the diversion works in this case do not substantially

interfere with federal navigation interests—we concede that the

works affect, however insubstantially, navigable capacity.

The court’s dictum is erroneous. The 1899 Act prohibits obstruc-

tions to navigable capacity in the absence of congressional ap-

proval, except to the extent that certain such obstructions are

approved by the Corps. The purpose of this statutory scheme is

to provide a method to obtain administrative approval of certain

such obstructions without seeking redress from Congress. There-

fore, the Corps has power only to authorize that which is other-

wise prohibited by the Act, and has no jurisdiction over obstruc-

tions that do not affect ‘navigable capacity.

ARGUMENT

INTRODUCTION

The fundamental question in this case is whether the Army

Corps of Engineers (“Corps”) has authority, under the Rivers

and Harbors Act of 1899, to control water allocations author-

ized under the water rights laws of the western states, particu-

larly where the allocations have no substantial effect on actual

navigation. For many decades, it has been assumed that the

Corps’ authority under the Act is limited to structures or activi-

ties unrelated to state water allocations. The Act has been applied,

for example, to bridges, piers and other structures that impede

navigation, and to sewage discharges that cause water pollution.

In none of these cases has the Act been applied to restrain state

water allocations, particularly where, as here, the allocations have

no measurable impact on actual navigation.

As this Court has held on several occasions, Congress has dele-

gated broad authority to the western states to control water

allocations under their water rights laws. Acting under this dele-

gated authority, the western states have reclaimed much of their

arid lands, and thus achieved a large measure of economic growth

and prosperity. In this case, for exa ple, California has under-

taken a massive effort to redistribute its limited water supply

in order to serve many important public needs. Congress’ historic

tradition of deferring to state water rights laws is undermined

by the lower decision, which holds that the Corps has virtually

plenary authority to override state water allocations.

Certainly Congress has constitutional authority to override

state water allocations where federal navigation interests are

affected. Congress has exercised this power sparingly, however,

in keeping with its tradition of deferring to state water rights

laws. Nothing in the 1899 Act indicates that Congress meant to

depart from this tradition in enacting the Act.

In our view, this Court should accommodate federal navigation

interests with state reclamation interests in construing the 1899

Act, rather than wholly ignore either interest. In this brief, we

suggest two alternative approaches which would achieve such an

accommodation. Preferably, the Court should hold that the 1899

Act is not applicable to water allocations adopted under state

water rights laws, but that Congress has authority to override such

allocations to protect federal navigation interests. Alternatively,

the Court should hold that the 1899 Act restrains state water

allocations only to the extent that such allocations interfere with

important federal navigation interests, in the sense that they

substaritially interfere with actual navigation or otherwise render

the waters unusable for commerce. These suggested arguments,

we believe, result in a proper balancing of federal and state

interests with respect to control of water resources in the West,

and thus reaffirm the historic federalism which Congress has stead-

fastly pursued on this subject.

1. IN LIGHT OF THE HISTORIC CONGRESSIONAL POLICY

OF DEFERRING TO STATE WATER RIGHTS LAWS GOVERN-

ING WATER ALLOCATIONS IN THE WESTERN STATES,

SECTIONS 9 AND 10 OF THE RIVERS AND HARBORS ACT

OF 1899 SHOULD BE CONSTRUED AS NOT AFFECTING

SUCH ALLOCATIONS, OR ALTERNATIVELY AS AFFECTING

SUCH ALLOCATIONS ONLY TO THE EXTENT THAT THEY

SUBSTANTIALLY INTERFERE WITH FEDERAL NAVIGATION

INTERESTS.

A. SECTIONS 9 AND 10 OF THE RIVERS AND HARBORS ACT

OF 1899.

The first clause of section 10 of the Rivers and Harbors Act of

1899 prohibits any “obstruction” to “navigable capacity” of the

nation’s navigable waterways in the absence of congressional

approval. 33 U.S.C. § 403; see p. 2, supra. The second and third

clauses of section 10, as well as section 9, provide methods for

legitimizing certain such obstructions without congressional

approval. Specifically, section 9 legitimizes certain structures,

such as bridges and dams, if approved by the Corps and the

legislature of the affected state. 33 U.S.C. § 401; see pp. 2-3, supra.

The second clause of section 10 legitimizes certain other structures,

such as wharves and piers, if approved simply by the Corps. 33

US.C. § 403; see p. 2, supra. The third clause of section 10

legitimizes certain activities that may “alter or modify” the “‘condi-

tion” or “capacity” of navigable waters, such as excavations and

fills, if such are approved by the Corps. 33 U.S.C. § 403; see p. 2,

supra. In short, the first clause of section 10 imposes a general

prohibition against obstructions to navigable capacity without

congressional approval, and the other provisions qualify the broad

reach of the prohibition by authorizing certain such obstructions

without Congress’ consent.

Section 10, in prohibiting obstructions to “navigable capacity,”

has a very broad reach. As the district court properly held, an

obstruction to “navigable capacity” includes any structure that

affects hypothetical navigation, regardless of whether it affects

actual navigation. Pet. Supp. App. 25-27. The section thus requires

examination of the kinds of commerce that might be carried on

at a future ume, not just the kinds of commerce that are carried on

at the present. Id.; see United States v. Republic Steel Corp.,

362 U.S. 482, 487 (1960). The section applies to obstructions that

affect both potential and actual commerce.

The primary question here is whether section 10 applies to

water diversions authorized under the water rights laws of the

western states, Such diversions typically have an effect on “navi-

gable capacity,” in the sense that the diversions at least affect

hypothetical navigation. That is, most diversions from a navigable

7, The Court of Appeals held, however, that the second and third

clauses of section 10, as well as section 9, are not qualifications of the

general asoreerge against navigation obstructions contained in the first

Clause of section 10, but instead impose prohibitions that are in addition

to the general prohibition, Pet. App. 24-27. As we explain more fully

below, the lower court’s analysis is dictum, because we concede that the

diversions in this case have an effect, however minor, on navigable capacity.

See pp. 52-58, infra. Because of the broad implications of the dictum upon

western water law, however, we analyze the dictum below for the purpose

of showing that it is contrary to the meaning of sections 9 and 10. We

have deferred our discussion of this dictum because it is peripheral to our

main argument that sections 9 and 10, however construed, are not appli-

cable to water allocations authorized under state water rights laws.

stream diminish, however slightly, the flow of water in the

stream. The diminution of the flow affects, however slightly,

hypothetical if not actual navigation. In this case, for example,

water diversions by the SWP and CVP have no impact on actual

navigation, because they lower Delta water levels by about an

inch in locations where commerce is actually carried forth. See

n. 5, supra. The lowered water levels, however, may have some

impact, however nominal, on hypothetical navigation. Therefore,

if section 10 is construed as applicable to water diversions author-

ized under state water rights laws, the section would prohibit,

subject to Corps approval, most water diversions authorized under

such state laws. The Corps would thus exercise veto power over

most water allocations authorized under the laws of the western

states.

The historical circumstances that led to the enactment of the

1899 Act indicate that Congress did not contemplate that the Act

would apply to water allocations authorized under state water

rights laws. The Act originated in the Rivers and Harbors Act of

1890, 26 Stat. 454. As this Court has noted, the 1899 Act simply

rearranged the provisions of the 1890 Act, and did not substan-

tively alter their meaning. See Wisconsin v. Illinois, 278 US. 367,

412 (1929) ; United States v. Republic Steel Corp., 362 USS. 482,

486 (1960). The 1890 Act, as this Court has noted, was intended

to overcome the effect of this Court’s decision in Williamette Iron

Bridge Co. v. Hatch, 125 US. 1 (1888). See Wisconsin v. Illinois,

supra at 412; United States v. Republic Steel Corp., supra at 486.

In the Williamette Bridge case, an action was brought to restrain

the private construction of a bridge over navigable waters in

Oregon, on grounds that the bridge constituted an obstruction to

navigation. This Court, in rejecting the action, ruled that “there

is no common law of the United States which prohibits obstruc-

tions and nuisances in navigable waters... .” 125 USS. at 8.

Although Congress has undoubted authority to prohibit such

obstructions, no federal common law bars such obstructions until

Congress acts. Id. at 10-11. See also Gilman v. Philadelphia, 70

US. (3 Wall.) 713, 724 (1886); Cardwell v. American Bridge

Co., 113 U.S. 205, 208-209 (1885); Hamilton v. Vicksburg,

Shreveport & Pac. R.R., 119 U.S. 280 (1886).°

8. The Williamette Bridge decision concluded, however, that federal

common law precludes a state from placing obstacles in navigable, inter-

state waters that impair the rights of other states in such waters, 125 US.

at 15-17. Accord, Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S.

(13 How.) 518 (1852). This Court has developed federal common law

rules governing disputes where one state diverts interstate waters to the

detriment of other states, under which the waters must be “equitably

apportioned” between the states. See, ¢.g., Nebraska v. Wyoming, 325

U.S. 589, 618 (1945); New Jersey v. New York, 283 US. 336, 342-

343 (1931). This Court has also developed a “federal common law

nuisance” doctrine governing disputes where one state pollutes inter-

state waters to the Striment of other states. See Illinois v. City of Mil-

waukee, 406 U.S. 91 (1972).

On its face, the Wiiliamette Bridge decision, in holding that the

federal common law does not bar obstructions in navigable waters where

the rights of other states are unaffected, appears to be obliquely inconsistent

with other decisions of this Court respecting federal power under the

Commerce Clause. This Court has held that, at least where navigable

waters are not involved, the federal government has inherent power to

prevent obstructions to interstate commerce even in the face of congressional

silence. See In re Debs, 158 U.S. 564 (1895); United States v. San

Jacinto Tin Co., 125 U.S. 273, 279-280, 284 (1888). Further, there is

No question that an action can be maintained under the Commerce Clause

to restrain a state from imposing an unreasonable burden on interstate

commerce, even where Congress has not authorized such an action. See,

e.g., Covington & Cincinnati Bridge Co. v. Kentucky, 154 US. 204

(1894); Hall v. DeCuir, 95 U.S. 485 (1978). Indeed, it appears that,

under the English common law, the sovereign has an inherent right to

ie obstructions and nuisances in navigable waters that prevent the

ree flow of commerce. See Note, ‘Substantive and Remedial Problems in

Preventing Interferences with Navigation: The Republic Steel Case,” 59

Colum. L. Rev. 1065, 1074-1076 (1959); Wisdom, ‘Obstructions in

Rivers,” 119 Just. P. 846 (1955).

It is submitted, however, that the Williamette Bridge decision can be

reconciled with this Court’s other decisions respecting inherent federal

powers under the Commerce Clause. In Wéilliamette Bridge, the Court

appeared to suggest that the states have broader control over theit navigable

waters than over other avenues of commerce. That is, Congress gave the

states broad control of their navigable waters under the “equal footing”

doctrine, see e.g., Pollard’s Lessee v. Hagan, 44 US. (3 How.) 212

(1845), and this control includes the right to create obstacles to com-

merce unless Congress affirmatively revokes the power. Congress did not,

however, grant the states the same control over other avenues of com-

merce, aa thus the federal government has inherent power to prevent

obstructions of these other avenues.

The 1899 Act thus originated in the 1890 Act, the purpose of

which was to overcome the absence of a federal common law

applicable to obstructions in navigable waters. The 1890 and 1899

Acts, by prohibiting such obstructions except where approved by

the Corps, filled the void created by the absence of any federal

regulatory laws on the subject. With respect to water allocations

authorized under state water rights laws, however, there is no

federal regulatory void. Instead, as we shall see in the next part

of this brief, Congress has legislated extensively in this area.

Under its legislative scheme, Congress has delegated broad

authority to the western states to control such allocations under

their water rights laws. Nothing in the 1890 or 1899 Acts indicates

that Congress meant to withdraw or limit its delegation of

authority to the states to control water allocations. Since the pur-

pose of the 1890 and 1899 Acts was to fill a void created by con-

gressional inattention, and since no such void exists with respect

to state control of water allocations, it is clear that the 1890 and

1899 Acts were not intended to limit such state control.

This conclusion is supported by the legislative history of the

1890 and 1899 Acts. In the congressional debates relating to the

1890 Act, on which the 1899 Act was based, the only example of

the kind of structure regulated by the Act that was cited during

the debates was the construction of a “bridge” by a “railroad

company” or other “corporation” over navigable water.® A bridge

9. For example, Senator Vest stated on several occasions that the Act

would apply to “railroads” which built “bridges” over navigable waters.

21 Cong. Rec. 8603-8604, 8606 (1890). He also mentioned on several

occasions that the Act would apply to “bridges” built by “corporations.”

Id. at 8603-8604, 8690. Senator Gray stated the Act would prevent a

state from authorizing construction of a “bridge” over navigable waters,

even though the bridge might be part of a road system authorized by the

state. Id. at 8604. Senator Dolph stated that, under the Act, ‘whenever

a State authorizes a bridge over a navigable stream the plan shall be

submitted to the Secretary of War and approved by him before the

bridge shall be built;” it is “wise,” he stated, ‘to require that all bridges

authorized under State laws shall also be approved by the Secretary of

War,” and that “where the States authorize the construction of bridges,

—which is the same kind of structure involved in the Willamette

Bridge case—is not the kind of structure that is related to water

allocations authorized under state water rights laws. Further, no

mention was made during the debates of the various federal laws

which, as we shall see in the next part of this brief, delegate

authority to the western states to control the allocation of their

waters. This congressional silence is significant because many of

these federal laws had been enacted shortly before the passage of

the 1890 and 1899 Acts. It is thus evident that Congress, in enact-

ing the 1890 and 1899 Acts, had in mind the kinds of obstacles,

such as bridges, that had never received congressional attention.

It did not have in mind the state water allocation systems that

Congress had recognized and upheld on several prior occasions.

B. CONGRESSIONAL DELEGATION OF AUTHORITY TO THE

STATES TO CONTROL WATER ALLOCATIONS.

We now examine the congressional laws that authorize the

western states to control water allocations under their water rights

laws. As we shall see, Congress delegated broad authority to the

states in this area, so that the states could reclaim the “howling

wilderness” depicted earlier by Daniel Webster. See 1 Kinney, |

Irrigation and Water Rights 8 (2d ed. 1912). Congress thus

.. . the plans should be approved by the Secretary of War as plans are

required to be approved of bridges authorized by Congress.” Id. at 8605.

(Emphasis added.) Senator Carlisle stated that the Act establishes the

“policy . . . of authorizing the Secretary of War through the Corps of

Engineers to superintend the construction of bridges across navigable

streams,” and further “proposes to authorize the Secretary of War to

cause the removal or alteration of bridges heretofore unlawfully constructed

under statutes passed by the State legislatures, which they had a right to

pass.” Id. at 8990. (Emphasis added. )

Significantly, the above statements indicate that the congressional focus

was not only limited to bridges and other such structures, but was also

limited to structures that were built by private entities rather than states.

This conclusion appears from other parts of the congressional debates.

For instance, Senator Hoar stated that the Act would apply to a “corpora-

tion,” id. at 8606, Senator Edmunds stated that the Act would apply to a

“railroad company,” id. at 8607, and Senator Gray also stated that the

Act would apply to “‘railroad companies,” /d. at 8606.

expressed its will on the effect of state water rights laws by a

series of enactments passed shortly before the 1899 Act. If, in

enacting the 1899 Act, Congress had meant to radically depart

from a course chartered shortly before, it would have spoken with

reasonable clarity. The absence of such clarity in the 1899 Act

is a clear indication that no such departure was intended.

1. Development of State Water Rights Laws.

Before turning to the congressional laws that delegate author-

ity to the western states to control the allocation of water re-

sources, it is necessary to first understand the historical forces

that led to the enactment of these laws. Because of the unique

circumstances of the West, where water is in short supply, a

unique doctrine of water rights law has been developed to pro-

vide for maximum utilization of the West’s water resources. In

the early West, water rights law was based on the riparian doc-

trine, a common law doctrine which is traceable to the Institutes

of the Roman Emperor Justinian. Under this doctrine, a land-

owner has the right to use water on lands that are appurtenant

to the waterway. The discovery of gold in California in 1848,

however, produced a migratory surge that placed increasing de-

mands on the West's limited water resources. In response td

these demands, a new doctrine of water law emerged as a custom

among the early miners and farmers, and was soon recognized

by the early courts and legislatures. Under this new doctrine,

known as the doctrine of prior appropriation, a water user has

the right to “appropriate,” or divert and use, water that is not

appurtenant to his lands, as long as he puts the water to reason-

able and beneficial use. The state has authority to determine

whether he is putting water to reasonable and beneficial use, and

can limit his right to the extent that he fails to do so. See gener-

ally United States v. Gerlach Live Stock Co., 339 US. 725, 742-

750 (1950); California Oregon Power Co. v. Beaver Portland

Cement Co., 295 U.S. 142, 153-157 (1935); Jennison v. Kirk,

98 U.S. 453, 456-459 (1878).

—

With the growth and development of the West, the western

states developed administrative and jucicial systems as a means

to determine whether a proposed water use results in reasonable

and beneficial use, and thus whether the water user should

have the right to divert and use the water. See, e.g., I Hutchins,

Water Rights Laws in the Nineteen Western States 302

(1971).2° Under the administrative systems, a water user who

seeks to appropriate water must apply for, and obtain, an ap-

propriative permit from the state in which the water is located. Id.

The state issues the permit only if the applicant shows that he

will put water to reasonable and beneficial use, and can impose

conditions to the extent necessary to ensure that water is put to

such use. Id. These administrative water rights systems are the

functional basis of modern western water law. California adopted

such an administrative system in 1914. See Cal. Water Code

§§ 1000-5975.

The western states, in granting water rights under their ad-

ministrative and judicial systems, effectively allocate water among

competing regional and local needs. These allocations provide

water for drinking and sanitation purposes for people who reside

in communities located far from the water source. They provide

irrigation water to farms that grow foods for sale and consump-

tion in local, national, and international markets. They provide

cooling water for industrial plants that manufacture foods or

goods. They provide the power behind hydroelectric dams that

generate electricity for homes and industries. They provide a

habitat for fish and wildlife. These various needs are served by

the SWP and CVP water exports in this case. See pp. 3-5, supra.

The exports are part of a monumental effort to obtain the widest

possible benefit from the State's limited water supply.

10. Of the eighteen western continental states, all but two require an

appropriator of surface water to obtain an appropriative — from the

state. Id. The exceptions are Colorado and Montana. Ibid. Colorado pro-

vides a system of statutory adjudication for the acquisition of appropriative

rights, rather than an administrative system. Ibid. Montana provides for the

acquisition of appropriative rights by either statutory adjudication or by

posting of notice and filing of records. Ibid.

The allocation of water under state water rights laws is thus

the key to the West’s economic growth and environmental qual-

ity. Unlike other regions in the nation, the atid West lacks sufh-

cient water to make its lands habitable and productive unless

water is diverted from its natural channel to other areas where

it is needed for human consumption. As the California Supreme

Court has stated:

“The conservation of other natural resources is of impor-

tance, but the conservation of the waters of the State is of

transcendent importance. Its waters are the very life blood

of its existence.” Chow v. City of Santa Barbara, 217 Cal.

673, 702 (1933).

The allocation of water under state water rights laws thus results

in the maximum utilization of the West's limited water supply.

It has played a major role in converting the great western desert

into a modern situs of bustling cities and thriving farms.

2. The "Severance" and "Equal Footing" Doctrines.

Having examined the historical forces that led to the adoption

of the water rights laws of the western states, we now turn to

the congressional laws that recognize and uphold such state laws.

In the late nineteenth century, doubts were raised concerning the

validity of the appropriation doctrine adopted by the western

states, as applied to waters traversing the public domain lands

owned by the federal government. To resolve these doubts, Con-

gress enacted several laws that effectively “sever” the waters from

the public domain lands, and provide that state water rights laws

control the appropriation of water in the West, whether or not

the water traverses the public domain lands.

The Mining Act of 1866, 14 Stat. 251, 253, as amended, 16

Stat. 217, 218 (1870), which authorized miners to occupy and use

the public domain lands for mining purposes, provided that the

right to use water on the lands was subject to ‘local customs,

laws and the decisions of the courts.” 14 Stat. at 253. This Act

constituted the first congressional recognition of the appropriation

doctrine which had become the basis of western water law. This

Court, commenting on the Act’s effect, noted that the appropria-

tion doctrine developed by the western states was an “absolute

necessity” in view of the sparseness of the West's water supply.

Broder v. Water Co., 101 U.S. 274, 276 (1879). See California v.

United States, 438 US. 645, 656 (1978); United States v. Rio

Grande Dam & Irrig. Co., 174 US. 690, 705 (1899) ; California

Oregon Power Co. v. Beaver Portland Cement Co., 295 US. 142,

153-157 (1935); Ickes v. Fox, 300 USS. 82, 95 (1937).

A few years later, Congress, seeking to encourage settlement

of the western lands, enacted the Desert Land Act of 1877, 19

Stat. 377. This Act granted lands to those who settled on the arid

western lands. It further provided that the settlers’ rights to water

“shall depend on bona fide prior appropriation,” and that unap-

propriated, non-navigable waters not acquired by the settlers were

“free for the appropriation and use of the public for irrigation,

mining and manufacturing purposes.” 19 Stat. 377. In California

Oregon Power Co. v. Beaver Portland Cement Co., supra, this

Court held that the 1877 Act, in conjunction with the earlier

mining acts, effected a “severance of all waters upon the public

domain, not theretofore appropriated, from the land itself.” 295

US. at 153-157. Under this severance, the western states have

broad control of their unappropriated waters, whether or not the

waters flow across federally-owned lands. As a result of the

severance, the states have the right to adopt the riparian or appro-

ptiation doctrine, or a combination of the two; the federal govern-

ment cannot force any rule upon the state. Id. at 163-164. See

California v. United States, supra at 657-658; Ickes v. Fox, supra

at 95.

Independently of the “severance” doctrine, the states also have

broad authority to control their navigable waters under the “equal

footing” doctrine. When the original thirteen states formed a

new Union to replace the outworn confederacy, they retained con-

trol of their navigable waters, including the fisheries therein and

the underlying beds. See, ¢.g., Pollard’s Lessee v. Hagan, 44 US.

(3 How.) 212, 224-229 (1845); Shively v. Bowlby, 142 US. 1,

49-50 (1894); United States v. Oregon, 295 US. 1, 14 (1935) ;

United States v. Texas, 339 US. 716-717 (1950). When new

states joined the Union, they were admitted on an “equal footing”

with the original thirteen states, and thus also acquired control

of their navigable waters. Id. Therefore, the western states enjoy

the same control of their navigable waters that is enjoyed by the

original thirteen states. The “equal footing” doctrine thus provides

another basis, in addition to the “severance” doctrine, for state

control of water.

As this Court has often noted, the states’ control of their un-

appropriated waters under the “severance” and “equal footing”

doctrines is subject to paramount federal powers under the naviga-

tion servitude and the reserved rights doctrine. See California

Oregon Power Co, v. Beaver Portland Cement Co., supra at 159;

California v. United States, supra at 662; United States v. Rio

Grande Dam & Irrig. Co., supra at 703.11 Under the navigation

Ryartene

11. The Desert Land Act of 1877, by its terms, applies to waters that

are “not navigable.’’ 19 Stat. 377. The Mining Act of 1866, however,

contains no such limitation. See 14 Stat. 251, 253 (1866), as amended,

16 Stat. 217, 218 (1870). The Beaver Court appeared to suggest that

these acts, in conjunction, provide for state control of all unappropriated

waters, whether or not the waters are navigable; it stated that the severance

of water from public domain lands applies to “all waters upon the public

domain, not theretofore appropriated. . . .” 295 U.S. at 158.

The question whether the Desert Land Act of 1877 and related acts

are confined to nonnavigable waters is now largely moot. Subsequent con-

gressional statutes, particularly in the reclamation area, provide for broad

state control of water regardless of the navigability of the water. See, ¢.g.,

Reclamation Act of 1902, §8, 43 U.S.C. §§ 372, 383; Federal Water

Supply Act of 1958, 43 U.S.C. § 390(b). Moreover, as noted above,

this Court has held on several occasions that the “equal footing” doctrine

provides a basis for state control of navigable waters. See, e.g., Pollard’s

Lessee v. Hagan, 44 U.S. (3 How.) 212, 224-229 (1845). These

various doctrines and developments make clear that state water laws extend

to all waters, whether navigable or not, to the extent not inconsistent with

the navigation servitude and the reserved rights doctrine. Accord, Cali-

fornia v. United States, supra at 662.

servitude, the federal government has power to protect the naviga-

bility of the nation’s waterways, to ensure that such waters can

continue to serve as the great highways of commerce. See e.g.,

California Oregon Power Co. v. Beaver Portland Cement Co.,

supra at 159-162; California v. United States, supra at 662.'? Under

the reserved rights doctrine, the federal government has power to

use waters, navigable or otherwise, to the extent necessary to serve

the needs of federal lands withdrawn from the public domain. See,

e.g., United States v. New Mexico, 438 U.S. 696 (1978) ; Cappaert

v. United States, 426 U.S. 128, 138-42 (1976); Arizona v. Call-

fornia, 373 U.S. 546, 595-601 (1963). As this Court recently noted

in California v. United States, supra:

“TE}xcept where the reserved rights or navigation servitude

of the United States are invoked, the State has total authority

over its internal waters.” 438 US. at 662.

We do not, of course, argue that Congress lacks power under

the navigation servitude or reserved rights doctrine to override

state water rights laws. Instead, we argue that Congress, under the

“severance” and “equal footing” doctrines, has established a clear

policy of deferring to state water rights laws where important

federal interests are not at stake. This policy results in an historic

accommodation of federal and state interests with respect to

control of water resources in the West. It should not be presumed

12. In Kaiser Aetna v. United States, 100 S.Ct. 383 (1979), this Court

recently reaffirmed the distinction between the navigation servitude and Con-

gress’ regulatory power over commerce. As the Court noted, the navigation

servitude involves the limited power to protect navigation. 100 S.Ct. at 389-

392. Congress’ regulatory power over commerce, however, is much broader;

it applies whether or not navigation, or even water, is involved. Id. Since

the Court has traditionally held that state control of navigable waters

is limited only by the navigation servitude and the reserved rights doctrine,

it has made clear that such state control is not limited a Congress’

regulatory power over commerce. This is apparently the reasoning behind

the Court’s widely-quoted comment in Kansas v. Colorado, 206 US. 46,

92 (1907), that federal laws cannot “override state laws in respect to the

general subject of reclamation.” See California v. United States, supra

at 663.

that Congress means to depart from this policy unless it speaks

with reasonable clarity, or unless important federal interests are

at stake. No such clarity is found in the Rivers and Harbors Act

of 1899, for the Act provides no indication that Congress meant

to restrain the western states’ right to control the allocation of

their waters. Moreover, important federal interests are not at

stake in this case, for the water diversions by the SWP and CVP

do not substantially affect actual commerce dependent on the

Delta’s waters. Therefore, it is unlikely that Congress meant for

the 1899 Act to apply to the water diversions in this case.

3. Federal Reclamation Laws.

Congress, beyond establishing a general policy of deferring to

state water rights laws, has specifically applied this policy in the

context of land reclamation. It has thus upheld the right of the

western states to allocate their waters as a means for achieving

economic growth and prosperity. This conclusion is significant

here because the primary purpose of water exports from the

Delta by the CVP and SWP is to reclaim the semiarid lands of

California, and thus utilize California’s limited water supply for

varied public purposes. Hence, Congress has deferred to state

water rights laws in the very context presented in this case.

Congress initially addressed the subject of reclamation in the

late nineteenth century. In 1891, Congress provided for the acqui-

sition of rights-of-way across public lands by “any canal or ditch

company formed for the purpose of irrigation.” Act of March 3,

1891, 26 Stat. 1101, as amended, 43 U.S.C. §946.* This Act

13. Congress had earlier adopted laws, such as the Homestead Act

of 1862, 12 Stat. 392, to encourage settlement of the West’s unpopulated

lands. To avoid the possibility that settlers would acquire sites that are

suitable for reclamation, Congress provided in 1888 that lands selected

or designated as reservoir sites by the federal government would be

reserved from settlement. Act of October 2, 1888, 25 Stat. 527. The Act

was repealed, however, when it became clear that the Act reserved all

western public lands from settlement. Act of August 30, 1890, 26 Stat.

391. Congress passed the 1891 Act to fill the void created by its repeal

of the 1888 Act. See California v. United States, 438 U.S. 645, 661 (1978).

specifically provided, however, that “the privilege herein granted

shall not be construed to interfere with the control of water for

irrigation and other purposes under authority of the respective

States or Territories.” 26 Stat. 1101. Congress amended the Act

in 1897 to make clear that the Act does not preclude construction

of reclamation works on sites surveyed by the federal govern-

ment. Act of Feb. 26, 1897, 29 Stat. 599. The 1897 amendment

expressly authorized the states to control the management and

pricing of water developed by reclamation works built under

authority of the Act. Id. The 1890 Act and its 1897 amendment

thus provided that reclamation shall be carried forth in con-

formity with state laws. See California v. United States, 438 US.

645, 659-662 (1978).

This Court recently noted that “it was clearly the opinion of a

majority of the Congressmen who spoke on the bill [which became

the 1897 amendment] . . . that such an amendment was unneces-

sary except out of an excess of caution.” California v. United

States, supra at 661. According to Congressman Lacey, Chairman

of the House Committee on Public Lands and a principal sponsor

of the bill:

“The water [through which the reclamation would be ac-

complished} does not belong to the [ Federal} Government.

The reservoirs in which the water is stored belong to the

Government, but the water belongs to the States and will

be controlled by them. The amendment proposed by the

gentleman from Illinois [ Mr. Cannon] relieves this measure

from all possible doubt upon that subject. I think there could

be no doubt anyhow, but this amendment takes away the

possibility of any question being raised as to the right of

the States and Territories to regulate and control the man-

agement and the price of the water.” 20 Cong. Rec. 1952

(1897). See California v. United States, supra at 662"*

Thus, the 1891 Act and its 1897 amendment made clear that

state law controls the reclamation of land in the West, at least

to the extent that reclamation is undertaken by private enterprise.

Significantly, the 1891 and 1897 Acts were adopted after the

Rivers and Harbors Act of 1890 which, as noted earlier, was the

forerunner of the Rivers and Harbors Act of 1899. If Congress

had intended that the 1890 Act would limit state control of

reclamation under the 1891 and 1897 Acts, Congress would surely

have so indicated. To the contrary, the legislative history of the

1891 and 1897 Acts makes clear that the states were to have

exclusive control of the reclamation process.

A few years later, Congress embarked on its own program to

reclaim the arid lands of the West. It enacted the Reclamation

14. The Court in the California case cited the following statements

made during the congressional debates:

“A reservoir site without water is entirely useless. The water is

the particular thing in question, and the waters are controlled by

the States through which they flow, and not by the United States of

America. These ate surface waters, the waters of small streams not

navigable, and the States control them.

* * * * *#

“The United States does not control the water. It controls

only the reservoir sites in which the water may be collected. The

water is under the control of the States.’ 29 Cong. Rec. 1948-1949

(1897) (Cong. Lacey). ‘It is the State alone that owns and controls

the water, under the constitution of our States; and I suppose that is

true under the laws of every State.’ Id. at 1951. (Cong. Bell). “The

amendment which has been proposed by the gentleman from Illinois

{Mr. Cannon}, and adopted, really serves no ee , because it

merely reenacts the existing law. It would be the law even if the

act of 1891 were not in existence. The waters belong to the States.

The United States Government has always recognized that, and the

States have enacted legislation directly controlling the use of the

waters.’ Id., at 1952 (Cong. Shafroth). Only Congressman Terry,

who unsuccessfully op the bill, suggested the contrary. In his

view, the Federal Government could use its control of the land to

regulate the price of the water stored. See /d., at 1949-1950.” 438

USS. at 661 n. 16.

Act of 1902, 32 Stat. 388 (1902), as amended, 43 U.S.C. $§ 371

et seq., which provides for federal construction and operation of

reclamation dams and other works in the West. Importantly,

Congress continued and extended the principle of state control

of water under the Act. Section 8 thereof provides that the Act

shall not be construed as interfering with state laws respecting

the “‘control, appropriation, use, or distribution” of water, and

that the Secretary of the Interior, who is to operate the facilities

built under the Act, must “proceed in conformity with” such

state laws. 32 Stat. 390, 43 U.S.C. §§ 372, 383. In California v.

United States, supra, this Court held that section 8 authorizes the

states to control both the appropriation and distribution of water

developed by the federal government under the Act, except

where state laws are inconsistent with “clear congressional direc-

tives.” 438 U.S, at 665-668. It is anomalous that, although this

Court now recognizes the states as having broad control of water

developed by federal projects, the Court of Appeals’ decision rec-

ognizes the federal government—through the Corps—as having

broad control of water developed by state projects.

Even though the Reclamation Act of 1902 was passed shortly

4fter the Rivers and Harbors Act of 1899, nothing in the 1902

Act indicates that state control of water thereunder is subject to

Corps approval. Nor is such an indication found in the congres-

sional debates relating to the 1902 Act. During these debates,

several congressmen emphasized that section 8 of the Act followed

the principle of state control established under the “severance”

and “equal footing” doctrines. Congressman Mondell of, Wyo-

ming, for example, who led the House debate, stated:

“Section 8 follows the well-established precedent in national

legislation of recognizing local and State laws relative to

the appropriation and distribution of water, and instructs the

Secretary of the Interior in carrying out the provisions of the

act to conform to these laws.

ie SS -e- =e

“Every act since that of April 26, 1866, has recognized local

laws and customs appertaining to the appropriation and

distribution of water used in irrigation, and it has been

deemed wise to continue our policy in this regard... .

“Now, as to State control over appropriation and distribu-

tion of water, I will say to the gentleman that there is no

reasonable ground for disagreement on that point. We began

to legislate in regard to the use of water in irrigation in 1866.

We have legislated continuously along one line.” 35 Cong.

Rec. 6676, 6679.

This Court, commenting on the congressional debates, recently

stated:

“Once the waters were released from the dam, their distribu-

tion to individual landowners would again be controlled by

state law. As explained by Senator Clark of Wyoming, one

of the principal supporters of the reclamation bill in the

Senate, ‘the control of the water after leaving the reservoirs

shall be vested in the States and Territories through which

such waters flow.’” California v. United States, supra at

667.8

15. Congressman Sutherland, later a member of this Court, stated

during the House debate:

“But it is said, further, that the laws of the State or Territory re-

lating to the control, appropriation, and use of the water are not

to be interfered with, and this will result in still further confusion.

The confusion is in the mind of the objector and not in the bill.

No more confusion will result from the use of these waters under

the local laws and regulations of the State than have resulted by

the use of other waters or property.

* * * * *

“The fact that the title to a lake is in the public, the title and owner-

ship and control of the canals leading from it is in the proprietors

of the water, and that the appropriation and use of the water is

under the State law has never resulted in any sort of confusion. On

the contrary, if the appropriation and use were not under the pro-

visions of the State law the utmost confusion would prevail. The

full domination and complete ownership of a tract of land is in no

manner injuriously affected, because its title must be acquired and

disposed of and it must be occupied and held under and in accord-

ance with the law of the State.” Id. at 6770.

Significantly, no suggestion was made during the congressional

debates that the states’ authority under section 8 was limited by

the Corps’ authority under the Rivers and Harbors Act of 1899.

Indeed, no member of Congress even referred to the Corps’

authority under the 1899 Act.

Thus, Congress has provided for broad state control of recla-

mation in the West, whether the reclamation is carried out by

the federal government or by private enterprise. Congress pro-

vided for state control of private reclamation efforts by the 1891

and 1897 acts, which in turn reaffirmed the principle of state

control established under the ‘‘severance” and “equal footing”

doctrines. Congress extended this principle to federal reclama-

tion efforts by the 1902 Act. Congress has thus consistently, and

unequivocally, deferred to state laws on the subject of reclama-

tion. Since a primary purpose of state reclamation laws is to

develop the West’s arid lands for economic and other purposes,

Congress has thus placed itself on the side of the economic

growth and development of the West.

This Court has clearly indicated that the reclamation of west-

ern lands is to be carried forth under state law. In Kansas v. Colo-

rado, 206 U.S. 47 (1907), this Court stated:

“As to those lands within the limits of the States, at least

of the Western States, the National Government is the most

considerable owner and has power to dispose of and make

all needful rules and regulations respecting its property.

We do not mean that its legislation can override state laws

in respect to the general subject of reclamation... . [E]ach

State has full jurisdiction over the lands within its borders,

including the beds of streams and other waters.” Id. at 92,

93. (Emphasis added.) See also California v. United States,

supra at 663.

The historic congressional policy of providing for state control

of reclamation is not consistent with the notion that the Corps

has authority to override all state reclamation schemes that affect

“navigable capacity,” as that term is used in the 1899 Act. As

noted earlier, virtually every state reclamation effort affects “navi-

gable capacity” in the sense that it may affect hypothetical com-

merce. See pp. 15-16, supra. Therefore, if the Act applies in this

context, the Corps would have veto power over virtually every

reclamation scheme undertaken by the western states. Concom-

itantly, the Corps would have broad supervisory control of the

water rights systems of the western states. It would control the

distribution of water to cities, farms, industries, powerplants, and

other entities that receive their water supply under authority of

state water rights laws. In short, the Corps would have unimagined

influence over the economic growth and environmental quality of

the West. This result goes far beyond that contemplated by Con-

gress in enacting the 1899 Act.

Moreover, if the Corps has authority to veto state water alloca-

tions under the 1899 Act, it could effectively curtail state reclama-

tion schemes that have been in existence for many years. In this

case, for example, the SWP has exported waters from the Delta

since 1967, and the CVP has exported such waters since 1951.

Pet. Supp. App. 8. Under the lower decision, the Corps would

have the power to halt further water deliveries by these projects,

even though water users in central and southern California have

relied on these deliveries for many decades. The Corps would

thus have the power to overturn a massive water delivery system

that has been a major cause of California’s modern growth, and

thus turn the economic clock back to an earlier age. Nothing in

the 1899 Act indicates that such broad authority was to be vested

in the Corps.

4. Miscellaneous Federal Laws.

In the twentieth century, Congress has enacted many other

laws reaffirming the right of the western states to allocate watet

among competing interests.’° For instance, the Flood Control Act

of 1944, 58 Stat. 887, which authorizes the Corps to build projects

for navigation and flood control purposes, expressly provides

that such projects cannot interfere with the states’ primary

authority to control the allocation of their waters. The Act states:

“Tt is hereby declared to be the policy of Congress to recog-

nize the interests and rights of the States in determining the

development of the watersheds within their borders and

likewise their interests and rights in water utilization and

control as herein authorized to preserve and protect to the

16. See, e.g., Act of June 4, 1897, § 1, 30 Stat. 36, 16 U.S.C. § 481

(authorizing use of federal lands for forest purposes); Act of February

1, 1905, § 4, 33 Stat. 623, 18 U.S.C. § 524 (granting rights-of-way for

the construction of dams and reservoirs); Warren Act of February 21,

1911, § 2, 36 Stat. 928, 43 U.S.C. §524 (authorizing sale of surplus

reclamation water); Federal Power Act of June 10, 1920, §§9(b) and

27, 41 Stat. 1068, 1077, 16 U.S.C. §§ 302(b), 821; Boulder Canyon

Project Act, § 18, 45 Stat. 1063 (1928), 43 U.S.C. § 617q; Taylor Grazing

Act, 43 Stat. 1270 (1934), as amended, 43 U.S.C. § 315b; Water Con-

servation Act, 53 Stat. 1419 (1939), as amended, 16 U.S.C. § 590z-

1(b) (2); Boulder Canyon Project Adjustment Act, 54 Stat. 779 (1940),

43 U.S.C. § 618; National Parks Act, 60 Stat. $85 (1946), 16 US.C.

§ 17j-2 (1952); Submerged Lands Act, § 3(€), 87 Stat. 30 (1933), 43

US.C. §1311(e); Act of July 28, 1954, § 3(c), 68 Stat. 577 (Santa

Margarita Project in California); Act of August 4, 1954, § 4(4), 68

Stat. 667 (protection of watersheds from floods); Act of July 23, 195

§ 4(b), 69 Stat. 368, 30 U.S.C. § 612(b) (providing for multiple use

the surface of tracts of public lands) ; Colorado River Storage Project Act,

§ 7, 70 Stat. 109, 43 U.S.C. § 620; Reclamation Project Act of 1939, § 4,

70 Stat. 483, 43 U.S.C. § 485h-4; Small Reclamation Projects Act of 1956,

§ 4(b), 70 Stat. 1044, 43 U.S.C. § 422d(b); Act of July 22, 1965, 79

Stat. 244, 42 U.S.C. $1962 (providing for optimum development of

nation’s water and related land resources); Act of September 2, 1965, § 4,

79 Stat. 618, 43 U.S.C. § 616ddd (Auburn-Folsom South Project in Cali-

fornia); Act of December 31, 1970, § 111, 84 Stat. 1821, 33 US.C.

§ 595a (authorizing construction, repair and preservation of certain public

works on rivers and harbors for navigation, flood control, and other

purposes ).

Also, the Mexican Water Treaty, which allocates waters between the

United States and Mexico, provides that the treaty shall not be construed

as authorizing federal officials to “‘directly or indirectly alter or control

the distribution of water to users” within the United States. Mexican

Water Treaty, Reservation (c), U.S. Treaty, ser. no, 994, 39 Stat. 1265

(1945).

fullest possible extent established and potential uses, for all

purposes, of the waters of the Nation’s rivers. . . .

ee a

“The use for navigation, in connection with the operation

and maintenance of such works herein authorized for con-

struction, of waters arising in States lying wholly or partly

west of the ninety-eighth meridian shall be only such use

as does not conflict with any beneficial consumptive use.

present or future, in States lying wholly or partly west of

the ninety-eighth meridian, of such waters for domestic,

municipal, stock water, irrigation, mining, or industrial pur-

poses.” 58 Stat. at 888, 889. (Emphasis added.)

Similarly, the Federal Water Supply Act of 1958, 43 U.S.C.

§ 390(b), reaffirms the congressional policy of deferring to state

water allocation laws. The Act provides:

“It is declared to be the policy of the Congress to recognize

the primary responsibilities of the States and local interests

in developing water supplies for domestic, municipal, in-

dustrial, and other purposes and that the Federal Government

should participate and cooperate with States and local inter-

ests in developing such water supplies in connection with

the construction, maintenance, and operation of Federal

navigation, flood control, irrigation, or multiple purpose

projects.” 43 U.S.C. § 390(b). (Emphasis added.)

An eloquent expression of the historic congressional policy is

found in the legislative history supporting the McCarran Amend-

ment, 43 U.S.C. § 666(a), which subjects the federal government

to the jurisdiction of state courts for general stream adjudication

purposes. According to this legislative history:

“In the arid Western States, for more than 80 years, the law

has been the water above and beneath the surface of the

ground belongs to the public, and the right to the use thereof

is to be acquired from the State in which it is found, which

State is vested with the primary control thereof.

kok * * *

——————————

“Since it is clear that the States have the control of water

within their boundaries, it is essential that each and every

owner along a given water course, including the United

States, must be amenable to the law of the State, if there is

to be a proper administration of the water law as it has

developed over the years.” S. Rep. No. 755, 82d Cong., 1st

Sess. 3, 6 (1951). (Emphasis added.) See California v.

United States, 438 U.S. 645, 678-679 (1978).

Indeed, the subsequent history of the Rivers and Harbors Act

of 1899 provides a clear example of how Congress has deferred

to state water allocation laws even with respect to the Corps’

powers under that Act. Section 13 of the 1899 Act, in its original

form, authorized the Corps to control waste discharges into navi-

gable waters. 33 U.S.C. § 407; United States v. Republic Steel

Corp., 362 US. 482 (1960). In 1972, the Corps’ powers under

section 13 were transferred to the Administrator of the Environ-

mental Protection Agency when Congress amended the Clean

Water Act, 33 U.S.C. §§ 1251-1376. See 33 U.S.C. § 1342(a) (5).

The 1972 amendments to the Clean Water Act, however, ex-

pressly provide that the Administrator's authority to control waste

discharges shall not be construed to interfere with “the authority

of each State to allocate quantities of water within its jurisdic-

tion... .” Id. at § 1251(g). See id. at § 1370(2).”7 In short,

Congress transferred part of the Corps’ authority under the Rivers

and Harbors Act of 1899 to the Administrator, but made clear

that the Administrator's authority is sbordinate to state water

17. Section 101(g) of the Clean Water Act provides:

“It is the policy of Congress that the authority of each State to allo-

cate quantities of water within its jurisdiction shall not be super-

seded, abrogated or otherwise impaired by this Act. It is the further

policy of Congress that nothing in this Act shall be construed to

supersede or abrogate rights to quantities of water which have been

established by any State.” 33 U.S.C. § 1251(g).

Section 410 of the same Act provides:

“Except as expressly provided in this Act, nothing in the Act shall

_. . be construed as impairing or in any manner affecting any right

or jurisdiction of the States with respect to the waters (including

boundary waters) of such States.” Id. at § 1370(2).

allocations. The clear implication is that the authority retained

by the Corps under the 1899 Act is also subordinate to state

water allocations.

C. THE COURT SHOULD CONCLUDE EITHER THAT (1) THE

RIVERS AND HARBORS ACT OF 1899 IS NOT APPLICABLE

TO WATER ALLOCATIONS ADOPTED UNDER STATE WATER

RIGHTS LAWS OR (2) THE ACT, IF APPLICABLE, APPLIES

ONLY WHERE IMPORTANT FEDERAL NAVIGATION INTER-

ESTS ARE SUBSTANTIALLY IMPAIRED.

; We have seen, to this point, that Congress has established an

historic policy of deferring to state water rights laws, a policy

which has been instrumental in western economic development.

Congress has also established a policy, in the Rivers and Harbors

Act of 1899, of preventing obstructions to navigation. These con-

gressional policies, as we have seen, are in conflict if the 1899

Act is construed as authorizing the Corps to control state water

allocation schemes established under state water rights laws. This

conflict is exacerbated rather than reconciled by the lower decision.

That decision, in holding that the Corps can control state water

allocations, achieves the congressional policy of preventing ob-

structions in navigable waters. It achieves this end, however, at

the expense of the congressional policy of deferring to state

water rights laws. Moreover, the decision holds that the Corps

can control state water allocations that, as here, have no substan-

tial effect on actual navigation and are essential to the develop-

ment of California’s semiarid lands. The decision, by literal con-

struction of the 1899 Act, thus serves marginal navigation aims

at the expense of important reclamation aims.

This Court has often held that, in resolving potential con-

flicts between statutes, the statutes should be interpreted, if pos-

sible, in a way that harmonizes and accomodates their purposes

and meaning. See, e¢.g., Cox v. Roth, 348 U.S. 207, 208-209

(1955); 2A Sutherland, Statutory Construction § 53.01, at 342-

343. Further, this Court has often developed common law rules

to fill the interstices of a congressional regulatory scheme. See,

e.g., Illinois v. City of Milwaukee, 406 U.S. 91 (1972). Thus,

there is ample precedent for reconciling the potential conflict

between the 1899 Act and other federal laws deferring to state

water rights laws. In our view, there are two possible ways in

which this conflict can be reconciled, which we now set forth as

alternative arguments.

1. Inapplicability of 1899 Act to State Water Allocations

Adopted Under State Water Rights Laws.

Preferably, the 1899 Act should be construed as not applicable

to state water allocations adopted under state water rights laws.

As noted earlier, Congress has delegated broad authority to the

western states to control the allocation of their waters, and there

is no indication in the 1899 Act, or in its legislative history or

the historical circumstances that led to its adoption, that Con-

gress meant to abridge this delegation of authority. Under the

navigation servitude, Congress can, of course, rescind or modify

this delegation of authority by providing that state water alloca-

tions cannot impair the navigability of water. See, e.g., California

Oregon Power Co. v. Beaver Portland Cement Co., 295 US. 142,

159 (1935); California v. United States, 438 US. 645, 662

(1978). Therefore, if Congress determines that our suggested

approach impairs important federal navigation interests, it can

enact legislation to protect those interests. In enacting the 1899

Act, however, Congress did not limit state control of water allo-

cations, and thus apparently perceived that such state control has

no significent impact on important federal navigation interests.

Further, other federal remedies are available to protect import-

ant federal navigation interests affected by most state water allo-

cations. In Wéilliamette Iron Bridge Co. v. Hatch, 125 US. 1

(1888), as noted earlier, this Court held that, although the fed-

eral common law does not generally bar obstructions to navigable

waters, the federal common law bars obstructions to navigable

waters that impair the rights and interests of other states in such

waters. 125 U.S. at 15-17. Accord, New Jersey v. New York, 283

USS. 336,342-343 (1931); Pennsylvania v. Wheeling & Belmont

Bridge Co., 54 US. (13 How.) 518 (1852)."° Therefore, al-

though the federal common law does not apply to intrastate

waters, it does apply to interstate waters. If a state obstructs

interstate waters in the process of reclaiming its arid lands, the

federal common law provides a remedy to prevent the obstruction.

This conclusion is particularly significant here because federal

navigation interests are primarily linked to interstate waters, ot

intrastate waters. The federal power to control navigation derives

from the federal power to regulate interstate commerce, which

in turn is primarily affected by interstate rather than intrastate

waters. See, ¢.g., Gilman v. Philadelphia, 70 US. (3 Wall.) 713,

724-725 (1886) ; In re Debs, 158 U.S. 564, 586 (1895). Indeed,

it is questionable whether the 1899 Act even applies to waters

that do not flow between states.”° In any event, federal navigation

18. The Williamette Bridge decision also held that the federal common

law prohibits a state from discriminatorily regulating access to navigable

waters, and from imposing duties on such access. 125 U.S. at 10. Accord,

Cardwell v. American Bridge Co., 113 U.S, 205, 212 (1885).

19. As this Court stated in Gilman v. Philadelphia, supra:

“The power to regulate commerce comprehends the control for that

se, and to the extent necessary, of all the navigable waters of

the United States which are accessible from a State other than those

in which they lie.” 70 U.S. at 724. (Emphasis added.)

20. The District of Columbia Circuit recently ruled that the 1899 Act

is applicable only to navigable waters that form part of a “continued high-

way over which commerce is or may be carried on with other States or

foreign countries in the customary modes in which such commerce is con-

ducted by water.” See National Wildlife Federation v. Alexander, 613

F.2d 1054, 1059, 1060-1061 (D.C.Cir. 1980). Under the decision, the

Act is thus mg ne to intrastate waters.

In this case, although the waters of the Delta and its tributary rivers are

wholly located in California, these waters are apparently part of a con-

tinuous link with the waters of the Pacific Ocean. In this sense, the Delta

is apparently part of an interstate network of waters. Under our analysis,

the United States, as well as other states, may thus have the right to bring

a common law action against the State of California, claiming that Cali-

fornia’s diversions are causing navigation obstructions that interfere with

commerce among the states.

interests are primarily tied to interstate waters, and the federal

common law already affords a remedy to prevent navigation ob-

structions in such waters. Therefore, federal navigation intvzests,

at least to the extent affected by interstate waters, are fully pro-

tected even though no similar remedy is found in the 1899 Act.

2. Inapplicability of 1899 Act Except Where Federal Navigation

Interests Are Substantially Impaired.

Alternatively, if the Court rules that the 1899 Act is applicable

to state water allocations adopted under state water rights laws,

it should accomodate and harmonize the Act’s purposes with the

historic congressional policy of deferring to state water alloca-

tions, These purposes and policies can be accommodated if the

1899 Act is construed as applicable only to state water allocations

that substantially impair actual navigation, or otherwise render the

waters unusable for commerce. Under this approach, the states

cannot, in the process of reclaiming their arid lands, substantially

interfere with actual commerce or destroy potential commerce

without obtaining congressional authorization. As explained

earlier, the water diversions in this case do not have this effect.

Therefore, the diversions are not violative of the 1899 Act.

Our suggested approach accommodates the purposes of

Congress’ laws on the subjects of navigation and reclamation,

because it protects the most important objectives of each. On

the one hand, this approach prevents the states from imposing

significant burdens on navigation, and thus from significantly

limiting commerce. It thus protects the important federal naviga-

tion interests that underlie the 1899 Act. On the other hand, this

approach enables the states to allocate water in a way that does

not impair important federal navigation interests, and thus pro-

vides that the states are otherwise free to pursue reclamation

efforts that are vital to the efficient use of the West's sparse water

supply. This approach thus protects the states’ reclamation inter-

ests without impairing important federal navigation interests.

It ensures that the major aims underlying one interest will not

be ignored in favor of minor aims underlying the other.

This approach, in accommodating congressional policies relat-

ing to navigation and reclamation, is consistent with the approach

which this Court has taken in other cases involving the delicate

interrelationship of federal and state powers. This Court has

often balanced federal and state interests in cases involving issues

of federalism, whether the issues involve constitutional or statu-

tory interpretation.*? This balancing approach, for example, un-

derlies the preemption doctrine. See Rice v. Santa Fe Elevator

Corp., 331 US. 218, 230 (1947); New York State Dept. of So-

21. In the field of labor law, for example, the Court has determined

that, although federal law controls the interpretation of collective bar-

gaining contracts, “state law, if compatible with the p of” federal

law, “may be resorted to in order to find tne rule that will best effectuate

the federal policy.” See Textile Workers v. Lincoln Mills, 353 U.S. 448,

456-457 (1957).

In the field of antitrust law, the Court has held that the applicability

of the federal antitrust laws to the states, and to private individuals acting

under a state regulatory scheme, depends on the nature of the state interest

and the availability of alternative means by which that interest can be

achieved. See Parker v. Brown, 317 U.S. 341 (1943); Cantor v. Detroit

Edison, 428 U.S. 579, 595-598 (1976).

In the field of Indian law, the Court recently held that the applicability

of state law to on-reservation Indian activities depends on “an accommoda-

tion between the interests of the Tribes and the Federal Government, on

the one hand, and those of the State, on the other.” See Washington et

al. v. Confederated Tribes, 100 S.Ct. 2069, 2083 (1980).

In balancing the imperatives of the Tenth Amendment against Congress’

constitutional powers over commerce, the Court has held that the states

are subject to congressional laws adopted under the commerce power

except where such laws infringe on activities that are within the tradi-

tional and inherent province of the states. See National League of Cities v.

Usery, 426 U.S. 833 (1976).

In interpreting the states’ sovereign immunity under the Eleventh

Amendment, the Court has held that the states may waive their sovereign

immunity under the Eleventh Amendment if they engage in activity regu-

lated by Congress under its commerce powers, but that the states are not

deemed to thus waive their immunity unless Congress so indicates “ ‘by

the most — language or by such overwhelming implications from the

text as [will] leave no room for any other construction.’ ” Edelman v.

Jordan, 415 U.S. 651, 673 (1975). See also Employees v. Department

of Public Health & Welfare, 411 U.S. 279, 285 (1973).

cial Services v. Dublino, 413 U.S. 405 (1973).” This approach

has been particularly followed in determining the responsibility

of federal and state agencies for control of the West's water

resources. See, ¢.g., United States v. New Mexico, 438 U.S. 646

(1978); California Oregon Power Co. v. Beaver Portland Cement

Co., 295 US. 142 (1935).

Indeed, this balancing approach was taken in one of the lead-

ing cases that govern this controversy. In California v. United

States, 438 U.S. 645 (1978), as noted earlier, this Court held that

section 8 of the Reclamation Act of 1902 provides for state control

of federal water uses except where this result is inconsistent with

“clear congressional directives.” Section 8, on its face, contains

no limitation relating to congressional directives. Nonetheless, the

Court, acting on California’s suggestion, did not literally interpret

section 8. Instead, it interpreted section 8 in light of the vast

array of laws and policies which Congress has adopted in the

field of reclamation. The Court thus harmonized the principle

of state control, as provided in section 8, with substantive reclama-

tion policies established by Congress in other legislation. We urge

the same approach here. That is, section 10 of the 1899 Act,

which prohibits obstructions to navigation, should not be read

literally in the context of state water allocations. In this context,

the section should be read in light of the broad congressional laws

and policies applicable in the fields of navigation and reclamation,

particularly the laws and policies deferring to state water alloca-

tions. This approach is the essence of federalism, for it balances

and accommodates both national and local goals relating to

control of water resources in the West.

Our suggested approach is consistent with this Court’s only

decision in which the 1899 Act has been arguably considered in

22. Under the preemption doctrine, congressional laws are not deemed

to have a preemptive effect except where such is the ‘clear and manifest

purpose”’ of Congress. Rice v. Santa Fe Elevator Corp., supra at 230.

One commentator has noted that this Court, in applying the preemption

doctrine, now appears to have a “flexible conception of federal-state

relations rather than one of absolute federal supremacy.” See Note, “The

Preemption Doctrine: Shifting Perspectives on Federalism and the Burger

Court,” 75 Colum. L. Rev. 623, 641 (1975).

the context of state water rights laws. In United States v. Rio

Grande Dam & Irrig. Co., 174 U.S. 690 (1889), an irrigation

district attempted to build a dam for irrigation purposes on a

non-navigable tributary of the Rio Grande River, which is a

navigable river flowing through several states. Although the dis-

trict “had complied with all the laws of that Territory [New

Mexico] in reference to the construction of reservoirs and dams

and the diversion of waters of public streams,” 174 U.S. at 692-

693, there is no indication that the dam had been approved by

the territory in the kind of administrative or judicial proceeding

which is the pivotal feature of modern state appropriation laws.

It is thus unlikely that the State had the kind of interest in that

case which the states now have under their appropriation laws,

and which California has here. In any event, the United States

brought an action to enjoin construction of the dam. This Court

granted injunctive relief on grounds, repeated at several places in

the opinion, that the dam threatened to “destroy” the navigability

of the Rio Grande River. Id. at 706, 708. The Court held that

Congress, in passing the Desert Land Act of 1877 and other

_legislation delegating authority to the western states to control

their unappropriated waters, did not mean to authorize the states

to “destroy” the navigability of navigable waters. The Court

23. The Court, referring to the Mining Act of 1866 and the Desert

Land Act of 1877, stated:

“Obviously by these acts, so far as they extended, Congress recog-

nized and assented to the appropriation of water in contravention

of the common law rule as to continuous flow. To infer therefrom

that Congress intended to release its control over the navigable

streams of the country and to grant in aid of mining industries

and the reclamation of arid lands the right to appropriate the

waters on the sources of navigable streams to such an extent as to

destroy their navigability, is to carry those statutes beyond what

their fair import permits. . . . To hold that Congress, by these

acts, meant to confer upon any State the right to appropriate all

the waters of the tributary streams which unite into a navigable

watercourse, and so destroy the navigability of that watercourse in

derogation of the interests of all the people of the United States, is

a construction which cannot be tolerated.” 174 U.S. at 706. (Em-

phasis added.)

also held that the Rivers and Harbors Act of 1890, which is the

antecedent of the 1899 Act, was intended to ensure that the states

would not be able to “destroy” the navigability of such waters.

Since the Court ruled that Congress had not delegated authority

to states to destroy navigability, its comments on the effect of the

1890 Act appear to be dictum. In any event, the Court made clear

that the states cannot “destroy” navigability in the process of

reclaiming their arid lands. The decision is thus fully consistent

with our alternative argument that the states cannot destroy

potential commerce, or substantially impair actual commerce. The

decision thus suggests, as we urge, that the Court should accomo-

date congressional laws and policies on the subjects of naviga-

tion and reclamation.

Finally, our suggested approach is consistent with this Court's

decisions interpreting the 1899 Act. In Wisconsin v. Illinois, 278

U.S. 367 (1929), this Court declared: ‘““The true intent of the

Act of Congress [Rivers and Harbors Act of 1899] was that

unreasonable obstructions to navigation and navigable capacity

were to be prohibited. . . .” 278 U.S. at 413. (Emphasis added.)

The Court thus made clear that the 1899 Act, even in contexts

unrelated to state water aflocations, applies only where there is

an “unreasonable” effect on federal navigation interests. A for-

tiori, the Act applies only to state water allocations that sub-

stantially impair commerce.”

24. The Court, referring to 1890 Act, stated:

“Evidently Congress, perceiving that the time had come when the

rowing interests of commerce required that the navigable waters

of the United States should be subjected to the direct control of

the National Government, and that nothing should be done by any

State tending to destroy the navigability without the explicit assent

of the National Government, enacted the statute in question.” Id.

at 708 (Emphasis added.)

25. In Wisconsin v. Illinois, supra, as well as the related case of Sani-

tary District v. United States, 266 U.S. 405 (1925), the Court dealt with

the effect of the 1899 Act upon diversions by the State of Illinois for

sewage disposal purposes. In Sanitary District, the Court held that the

3. Traditional Roles of States and Army Corps of Engineers.

Our alternative arguments are consistent with the historic roles

which have been assumed by the western states and the Corps

in the fields of reclamation and navigation. In response to the

congressional policy of deferring to state water rights laws, the

western states, as noted earlier, have developed elaborate ad-

ministrative and judicial machinery to administer these laws.

The machinery developed by the State of California is illustrative.

In California, the State Water Resources Control Board (“State

Board”) conducts noticed hearings in response to water rights

applications, and competing water users and others are authorized

to testify and present evidence at the hearings. Cal. Wat. Code

§§ 1340, 1350; 23 Cal. Admin. Code § 733(h). After the hearing,

the State Board either grants or denies the application; if iv grants

the application, it can affix conditions on the water right to ensure

the reasonable and beneficial use of water and to protect the public

interest. Cal. Wat. Code §§ 1255-1257, 1390, 1391. The State

Board’s decision is subject to judicial review. Id. at § 1360. The

State Board’s decision typically results in an allocation of water,

in that it determines the applicant’s right to appropriate water

diversions—which had not been approved by the Secretary of the Army—

were in violation of section 10 of the 1899 Act, and in Wisconsin the

Court held that—as the diversions had been subsequently approved by the

Secretary—the diversions were vot in violation of section 10. Neither case

involved the allocation of water under state water rights laws, and thus

neither case is fully opposite here.

Moreover, both cases involved substantial effects on actual navigation,

unlike the instant case. In both cases, the State of Illinois diverted water

from a tributary of Lake Michigan, thus causing substantial reductions

in lake levels that obstructed actual commerce. See 266 U.S. at 423; 278

U.S. at 400, 408-409.

Finally, in both cases, the rights of other states bordering on Lake

Michigan were adversely affected by the diversions. Id. As noted earlier,

the federal common law prohibits a state from interfering with the rights

of other states in interstate waters. See, e.g., Williamette Iron Bridge Co,

v. Hatch, 125 US. 1, 15-17 (1888). Therefore, the results in both cases

could have been sustained under common law rules. Indeed, the Rio Grande

decision might have also been sustained under common law rules, since

the Rio Grande River is an interstate river.

. ., +s 4...

| ae

that otherwise would be available for competing uses. In this case,

for example, the State Board issued a landmark administrative

decision, Decision 1485, that authorizes the diversion of water

from the Delta under several enumerated conditions, many of

which are intended to protect the Delta’s environment and water

quality. See p. 6, supra. The decision thus results in a major

allocation of water among economic, domestic, and environmental

interests in northern, central, and southern California.

Thus, California and other western states, under their water

rights laws, have historically exercised the function of distributing

and allocating water among competing users and uses. They have

traditionally controlled the reclamation of their arid lands. They

have developed administrative and judicial machinery to carty

out this function. They have developed abundant expertise on

the subject of water allocations and reclamation.

Conversely, the Corps has not traditionally controlled water

allocations or reclamation. It has no significant, demonstrable

expertise in this area, The Corps’ historic role has been confined

to navigation. In view of the Corps’ historically limited role, it

is not likely that Congress meant for the Corps to act as the final

arbiter on the subject of water allocation and reclamation in the

West. Congress surely did not mean for the Corps to exercise

supreme authority in an area that has been under traditional state

jurisdiction and control.

Indeed, the very breadth of the Corps’ authority under the

1899 Act militates against the view that the Act was intended to

encumber state water allocation schemes. The broader the Corps’

authority under the Act, the greater the potential conflict between

the Corps’ authority and the congressionally-delegated authority

of the states. This Court has held on several occasions that the

Corps’ authority under the Act is very “broad.” See United States

v. Republic Steel Corp., 362 US. 482, 487, 488, 489 (1960) ;

Wyandotte v. United States, 389 US. 191, 201 (1967). The

Corps’ jurisdiction under the Act, as noted earlier, extends to

structures that affect hypothetical navigation, not just actual naviga-

tion. See p. 16, supra. Further, lower courts have held that the

Act, in conjunction with recent federal environmental laws,

authorizes the Corps to deny permits on environmental rather than

navigation grounds. See Zabel v. Tabb, 430 F.2d 199 (Sth Cir.

1970); see n. 34, infra. Following this approach, the Corps has

adopted regulations that authorize it to deny permits whenever it

believes that the “public interest” is not served by the diversions;

factors related to the “public interest” under the regulations

include ‘“‘conservation, economics, aesthetics, general environ-

mental concerns, historic values, fish and wildlife values, flood-

damage prevention, land use, navigation, recreation, water supply,

water quality, energy needs, safety, food production, and, in

general, the needs and welfare of the people.” 33 C.F.R. § 320.4

(a), 40 Fed. Reg. 31326-31327 (1975).

If, as the Corps’ regulations provide, the Corps has authority

to consider factors such as ‘“‘conservation,” “‘aesthetics,” “general

environmental concerns,” “historic values,” “food production,”

and related factors, it has authority to consider the same factors

that the western states typically evaluate in considering water

rights applications. Under this hypothesis, Congress would have

effectively delegated authority to the western states and the Corps

over the same subject matter. The Corps would have authority

to override a state water allocation scheme by rejecting the state's

evaluation of the very policy factors that underlie the scheme.

If the Corps has this authority, it would effectively supplant the

western states as the dominant jurisdictional body that is ultimately

responsible for determining allocation of the West's water

resources among competing economic, agricultural, domestic, and

other interests. It would exercise a breadth of control over the

economy and environment of the West far beyond that ever con-

templated by Congress. Thus, the very breadth of the Corps’

authority under the 1899 Act in other contexts indicates that, in

the context of state water allocations, the Act does not apply.

Importantly, we do not oppose the view that the Corps has

broad authority under the Act where state water allocations are

not involved. In this context, the Corps is usually regulating an

area that is not otherwise subject to congressional regulation.

The Corps’ authority should be interpreted broadly in these areas,

to serve the purposes of the 1899 Act in filling the federal

regulatory void caused by the absence of a federal common law.

On the subject of water allocations in the West, however, there

is no such void. Congress has delegated broad authority to the

western states over this subject matter. To broadly construe the

Corps’ authority in this area would thus invite a substantial

conflict between congressional policies on the subjects of naviga-

tion and reclamation. It would authorize the Corps to exercise

a function which has been traditionally exercised by the states,

and not by the Corps.”°

26. If the Corps has authority to approve or disapprove a water allo-

cation scheme adopted under state water rights laws, it would be required

under other federal laws to prepare and issue an environmental impact

statement (EIS) before approving such a scheme, if the Corps’ approval

constitutes a “major” federal action “significantly affecting the —_

of the human environment.” See National Environmental Policy Act of

1969 (NEPA), 42 U.S.C. §§ 4321 ef seq., 4332(C). It is doubtful if

Congress ever intended that water allocations established under state

water rights laws would ~e subject to the EIS requirements provided

under NEPA. Such, however, is the result of the Court of Appeals’ de-

cision.

This is not to suggest that the western states, in allocating water under

their water rights laws, are or should be oblivious to environmental con-

cerns. Indeed, California has adopted its own environmental laws applic-

able to such allocations, which requires the preparation and issuance of

an environmental impact report prior to major state actions that signifi-

cantly affect environmental quality. See California Environmental Quality

Act (CEQA), Cal. Public Resources Code §§ 21000-21174. The State

Board prepared and issued an environmental impact report under CEQA

in conjunction with its issuance of Decision 1485, and this fully

considered environmental values both within and without the Delta. See

n. 3, supra.

For the foregoing reasons, we conclude that the 1899 Act is

not applicable to state water allocations adopted under state water

rights laws or, in the alternative, is applicable only to state water

allocations that destroy navigability or substantially impair actual

navigation. The allocation of water among statewide interests

provided by the State Board does not have any substantial effect

on actual navigation in the Delta, or otherwise render the Delta's

waters unusable for commerce. Therefore, the allocations are not

violative of the 1899 Act.

ll. THE RIVERS AND HARBORS ACT OF 1899 DOES NOT APPLY

FULLY, IF AT ALL, TO DIVERSION WORKS OWNED AND

OPERATED EY THE STATES.

We have argued that the 1899 Act does not apply to water

diversions authorized under state water rights laws, at least where

substantial federal navigational interests are not affected. We

now argue, independently of that ground, that the Act is not

applicable to water diversions from reclamation projects that are

owned and operated by the states, at least to the same extent

that the Act is applicable to other projects and activities.

Under section 12 of the 1899 Act, any “person” or “corpora-

‘ tion” who violates the Act is subject to penal sanctions or

injunctive relief. 33 U.S.C. § 406. The Act thus apparently applies

only to structures or activities of a “person” or “corporation.”

This Court has held that a state is not a ‘‘person” or “corporation”

within the meaning of federal laws unless Congress clearly in-

dicates otherwise. See Parker v. Brown, 317 US. 341, 351 (1943).

As the Court stated in Parker:

“In a dual system of government in which, under the Con-

stitution, the states are sovereign, save only as Congress

may constitutionally subtract from their authority, an un-

expressed purpose to nullify a state’s control over its officers

and agents is not lightly to be attributed to Congress.”

317 US. at 351.

In Parker, the Court held that the federal antitrust laws, which

apply only to a “person” or “corporation,” see 15 U.S.C. §§ 1, 2,

4, 7, do not apply to the states. Id. In our view, the same result

follows under the Rivers and Harbors Act of 1899, which also

applies only to a ‘‘person” or “corporation.” :

Moreover, nothing in the 1899 Act or its legislative history

indicates that Congress meant to inhibit reclamation activities

undertaken by the states themselves. As noted earlier, the legis-

lative history indicates that Congress was concerned only with

bridges or other structures built by private entities, such as a

“railroad company” or other “corporation.” See n. 9, supra.

Accordingly, the 1899 Act is not applicable to reclamation projects

owned and operated by the states.

At the minimum, the 1899 Act should not be applied to state

projects to the same extent that the Act applies to private projects.

This Court has often held that federal laws are not always applic-

able to states on the same terms as to private entities, and has

balanced federal and state interests in determining whether such

federal laws are applicable to the states. In Cantor v. Detroit Edi-

son, 428 U.S. 579, 595-598 (1976), this Court, refining its earlier

decision in Parker v. Brown, supra, followed such an approach in

determining whether the federal antitrust laws are applicable to

the states? A similar approach has been followed in determining

whether a state imposes an unconstitutional burden on interstate

commerce. See, ¢.g., Dean Milk Co. v. Madison, 340 US. 349

(1951); Florida Lime & Avocado Growers, Inc. v. Paul, 373 US.

132, 152-156 (1963). The same approach should be followed

here, if it is determined that the 1899 Act applies to state projects.

That is, assuming that the state project serves important public

27. In Cantor, the Court held that (1) the federal antitrust laws are

not applicable to the states at all, and (2) the applicability of such laws

to private entities acting under a state regulatory scheme depends on the

nature of the state interest and the availability of alternative means by which

the state interest can be achieved. 428 U.S. at 595-598.

needs, the Act should apply only if the project has a significant

impact on federal navigation interests, in that it substantially

impairs actual navigation or otherwise renders the waters unusable

for commerce. Thus, under principles of federalism formulated

elsewhere, the Court should harmonize federal laws relating to

navigation and reclamation.” |

28. The United States noted, in its reply to our petition for writ of

certiorari, that the reference to a “person” or “corporation” in section 12

appears in the first sentence, which relates to penal sanctions; this refer-

ence, it is noted, does not appear in the second sentence, which provides

for injunctive relief, Brief for the Federal Respondents (“U.S. Br.’”),

15 n. 11. The implication, the United States argues, is that states are

subject to injunctive relief but not penal sanctions. Id. The more likely

implication, we believe, is that injunctive relief was meant to be comple-

mentary to penal sanctions, and thus that injunctive relief can be applied

only to entities that are otherwise subject to penal sanctions. In any event,

in light of the principles of federalism articulated in Parker and other

cases cited above, the language of section 12 is sufficiently unclear to

warrant the conclusion that the states are subject to the same constraints

that apply to others.

Indeed, the United States’ argument would support the conclusion

that the states are subject to injunctive relief but not penal sanctions under

the federal antitrust laws. The federal antitrust laws provide, similarly

to the Rivers and Harbors Act of 1899, for penal sanctions against a

“person” or “corporation,” but make no similar reference with respect

to injunctive remedies. See 15 U.S.C. $§ 1, 2, 4, 7. This Court ruled in

Parker that the states are not subject either to penal sanctions or injunctive

relief under the federal antitrust laws, thus rejecting any distinction be-

tween those two kinds of remedies.

The United States also argues that the United States’ enforcement

powers ate not limited to those provided in the 1899 Act, citing this

Court’s decision in Wyandotte Transportation Co. v. United States, 389

U.S. 191, 202-203 (1967), and United States v. Republic Steel Corp.,

362 U.S. 482, 491-492 (1960). U.S. Br. 15 n. 11. In those cases, how-

ever, it was clear that Congress had meant to regulate a particular activity

under the 1899 Act, but had failed to provide the necessary enforcement

remedy. This Court ruled that, under these circumstances, the U.S. Attorney

General has inherent enforcement powers. These cases do not suggest,

however, that the Attorney General has inherent enforcement powers with

respect to activity that Congress did not mean to regulate under the 1899

Act. The Attorney General cannot, under his inherent enforcement powers,

restrain conduct that is beyond the scope of the Act. Indeed, under the

Attorney General's view of his inherent enforcement powers, he would

have the power to enforce the federal antitrust laws against the states,

notwithstanding this Court's decisions in the Parker an Detroit Edison

cases.

lll. THE RIVERS AND HARBORS ACT OF 1899 IS NOT APPLI-

CABLE TO WATER ALLOCATIONS FROM FEDERAL RECLA-

MATION PROJECTS BUILT AND OPERATED UNDER THE

RECLAMATION ACT OF 1902.

Both the State of California and the United States argued

below that the 1899 Act is not applicable to water diversions from

reclamation projects built and operated by the federal govern-

ment under the Reclamation Act of 1902, 32 Stat. 388, as

amended, 43 U.S.C. §§ 371 et seq.*® Our views have been set forth

earlier in this brief in another context. See pp. 28-31, supra. We

argued that Congress has delegated broad authority to the states

to control water allocations, as evidenced inter alia by the states’

authority to control water allocations from federal projects, and

hence the states have the right to control allocations from their

own reclamation projects. We now briefly repeat our views in

the context of arguing that the states have the express right to

directly cumtrol water allocations from federal reclamation proj-

ects, and thus that such allocations are not subject to the Corps’

authority under the 1899 Act. Therefore, the Act does not apply

to water exports from the federal CVP to water districts which

have contracted for delivery of the water.

As noted earlier, Congress, in enacting the Reclamation Act

of 1902, undertook to reclaim the West’s arid lands by developing

a water supply for local agricultural and other needs. Sections 2

and 10 of the Act provide that the projects are to be operated by

the U.S. Water and Power Resources Service (WPRS). 43 U.S.C.

8§ 411, 373. Section 8, as noted earlier, provides that state law

controls the appropriation and distribution of project water except

to the extent inconsistent with “clear congressional directives.”

Id. at $372, 383; California v. United States, 438 US. 645

29. The State of California has an interest in whether the Corps is

authorized to control water diversions from federal reclamation projects

because (1) under section 8 of the Reclamation Act of 1902, the states

are authorized to control such diversions, and (2) such projects provide

economic and other benefits to the state in which the projects are located.

(1978). Thus, Congress provided a comprehensive regulatory

scheme that divides regulatory authority between the WPRS and

the states, a division of authority that was clarified by this Court

in California v. United States, supra. Nothing in the 1902 Act

or its legislative history; as discussed earlier, indicates that Con-

gress meant for the Corps to share in this division of authority.

See pp. 28-31, supra. Indeed, nothing in the 1902 Act or its legis-

lative history even makes reference to the 1899 Act, or the Corps’

powers thereunder. Id. It is thus clear that Congress meant for the

states and the WPRS to exercise exclusive regulatory control over

the federal reclamation program. This result is inconsistent with

the notion that the Corps has authority to control federal water

diversions under this program.”

IV. SECTIONS 9 AND 10 OF THE RIVERS AND HARBORS ACT

OF 1899 ARE NOT APPLICABLE TO STRUCTURES OR AC-

TIVITIES THAT DO NOT OBSTRUCT NAVIGABLE CAPACITY.

The Court of Appeals held that sections 9 and 10 of the 1899

Act authorize the Corps to prohibit structures that have no effect

on navigable capacity. Pet. App. 24-27; see n. 7, supra. In our

view, the sections do not apply to such structures, regardless of

the merits of our other arguments. We have deferred our dis-

30. The Court of Appeals stated that the Reclamation Act of 1902

is inapplicable here because that Act applies in “the context of reclama-

tion,” Pet. App. 37, thus overlooking the fact that the water diversions

in this case are part of a reclamation scheme adopted for both federal and

state projects.

The Court of Appeals, relying on this Court’s decisions in City of

Fresno v. California, 372 U.S. 627 (1963), and Ivanhoe Irrig. Dist. v.

McCracken, 357 U.S. 275 (1958), stated that section 8 of the Reclama-

tion Act of 1902 is primarily intended to allow state law to define the

value of water rights for which compensation must be paid when the

water rights ate seized for reclamation purposes. Pet. App. 35. The

Court misread the impact of this Court’s recent decision in California v.

United States, supra, where this Court, reversing parts of its earlier de-

cisions in City of Fresno and Ivanhoe, ruled that section 8 provides the

states with broad control of federal water allocations and uses under the

1902 Act. See 438 U.S. at 670-674.

cussion of this matter because it is not material to the outcome

of this case. Our argument is that sections 9 and 10 do not apply

fully, if at ail, to water diversions authorized under state water

rights laws, particularly where the water is diverted by a project

owned and operated by the state. We concede, however, that the

diversions in this case have an effect, however insubstantial, on

“navigable capacity” of the Delta. Therefore, if sections 9 and 10

fully apply to water diversions authorized under state water rights

laws, we concede that the sections apply here. The Court of

Appeals’ conclusion, to the effect that the sections apply even

where navigable capacity is unaffected, is thus dictum. This

dictum may have a broad impact upon western water law in other

contexts, however. The dictum is also contrary to the plain mean-

ing and statutory history of sections 9 and 10. For these reasons,

we now analyze this dictum more closely even though it will not

affect the outcome of this case.

A. STATUTORY ANALYSIS OF SECTIONS 9 AND 10.

As noted earlier, the first clause of section 10 prohibits any

“obstruction” to “navigable capacity” in the absence of congres-

sional authorization. 33 U.S.C. § 403. The second and third

clauses of section 10, as well as section 9, provide methods for

legitimizing such obstructions without the necessity of obtaining

congressiona! approval. Section 9, which applies to structures such

as bridges and dams, effectively requires approval both by the

Corps and the legislature of the affected state. The second clause

of section 10, which applies to structures such as wharves and

piers, requires approval only by the Corps. The third clause of

section 10, which applies to activities such as excavations and fills,

also requires approval only by the Corps. Therefore, the first

clause of Section 10 establishes a general prohibition against

obstructions to navigable capacity without Congress’ consent,

and the other provisions qualify the general prohibition by pro-

viding methods for legitimizing such obstructions without Con-

gress’ consent. See pp. 14-15, supra.

The Court of Appeals, however, ruled that the other provi-

sions, rather than qualifying the general prohibition against

obstructions to navigable capacity, impose prohibitions that are

in addition to the general prohibition. Pet. App. 24-27. Accord-

ing to the lower court, the second and third clauses are operative

even though the general prohibition contained in the first clause

of section 10 is not strictly operative. Id. The Court held that

structures and activities mentioned in the second and third clauses

are “presumed” to obstruct navigable capacity within the meaning

of the first clause. Jd. Under its analysis, for example, the third

clause, which makes it unlawful to “alter or modify” the “condi-

tion” of navigable waters without Corps approval, prohibits any

such alteration or modification regardless of whether it strictly

affects navigable capacity. Id. Under the court’s analysis, section 10

thus authorizes the Corps to control structures and activities that

have no effect on navigation or navigable capacity.”

This Court has never determined, at least in any exhaustive

analysis, whether the 1899 Act was intended to apply to obstruc-

tions which have no effect on navigable capacity. In Wisconsin

v. Illinois, 278 U.S. 367, 413 (1929), however, this Court upheld

the analysis of this issue provided by the Maine Supreme Court

in Maine Water Co. v. Knickerbocker Steam Towage Co., 99 Me.

473, 59 Atl. 953 (1905). In the Knickerbocker Steam Towage

case. the Maine Supreme Court noted that the first clause of

section 10 of the 1899 Act originated in section 10 of the Rivers

and Harbors Act of 1890, 26 Stat. 454. See 59 Atl. at 956-957.

This provision, in its original form, prohibited an “obstruction” to

31. Conversely, the district court in the case below construed the

second and third clauses as inoperative unless there has been an “obstruc-

tion” of “navigable capacity” within the meaning of the first clause. Pet.

Supp. App. 25-27.

“navigable capacity” unless ‘affirmatively authorized by law’’. Id.”

As the Maine Supreme Court noted, it is infeasible to require

congressional approval of every structure or activity that might

pose an obstacle to the nation’s navigable waterways. Id. Congress

thus provided, in section 7 of the 1890 Act, methods for legiti-

mizing certain such obstacles short of congressional approval. Id.

The provisions of section 7 have been re-codified in sections 9

and 10 of the 1899 Act. Id. Specifically, in the part of section 7

now found in section 9 of the 1899 Act, Congress provided that

any “bridge” or “causeway” is lawful if approved both by Con-

gress and the Secretary of the Army, although Congress’ consent

is not necessary if the structure is approved by the legislature of

the affected state. 26 Stat. 454 (1890) .®* Second, in the part of

section 7 now found in the second clause of section 10 of the

1899 Act, Congress provided that any “wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other structures” is

lawful if approved by the Secretary of the Army. Id. Third, in

the part of section 7 now found in the third clause of section 10

of the 1899 Act, Congress provided that any activity resulting in

an alteration or modification of the waters, such as an excava-

tion or fill, is lawful if approved by the Secretary of the Army. Id.

Once the 1899 Act is analyzed in terms of the meaning of the

1890 Act, the meaning of sections 9 and 10 is eminently clear.

The first clause of section 10—which originated in section 10 of

the 1890 Act—generally prohibits any interference with “nav-

igable capacity’ without congressional approval. The other clauses

of section 10, as well as section 9—which were originally grouped

in section 7 of the 1890 Act—provide methods for legitimizing

—s

32. In the 1899 Act, the phrase “affirmatively authorized by law,”

as originally contained in section 10, was changed to “affirmatively author-

ized by Congress” to make clear that an obstruction is not lawful under

section 10 simply because it is approved by a state. Wisconsin v. Illinois,

supra at 412.

33. In enacting the 1899 Act, Congress added a “dam” and “dike”

to the category of structures now listed in section 9.

such interferences without the necessity of obtaining congressional

approval. Section 9 provides that structures such as bridges and

dams, which often have a major impact on navigability, are lawful

if approved both by the state legislature and the Secretary of the

Army. The second clause of section 10 provides that structures

such as wharves and piers, which often have a lesser impact on

navigability, are lawful if approved simply by the Secretary of

the Army; the consent of Congress and the state legislature is

not necessary to legitimize such structures. Finally, the third clause

of section 19 focuses on non-structural activities, such as excava-

tions and fills, that also usually have a lesser impact on navigabil-

ity; it legitimizes such activities if such ate approved by the Sec-

retary of the Army. The congressional scheme is thus lucid and

logical. It forbids any impairment of navigable capacity without

congressional approval except that (1) certain types of major

structures can be approved jointly by states and federal officials

and (2) certain types of lesser structures and activities can be

approved simply by federal officials. See Wisconsin v. Illinois,

supra at 412-413; United States v. Republic Steel Corp., supra

at 486-487; Maine Water Co. v. Knickerbocker Steam Towage

Co., supra at 956-957.

It is thus clear, as the Maine Supreme Court ruled in the

Knickerbocker Steam Towage case, that the second and third

clauses of section 10, as well as section 9, are “qualifications”

of the general prohibition contained in the first clause of sec-

tion 10. See 59 Atl. at 957. These qualifications limit the scope

of the general prohibition against obstructions to navigable

capacity, rather than impose additional prohibitions beyond the

scope of the general prohibition. The purpose of the qualifications

is to provide a means to obtain administrative relief from the

Act’s broad constraints without enlisting the aid of Congress,

not to impose additional constraints. The qualifications are

exceptions to the general rule that navigable waters must be

unobstructed. As exceptions to the general rule, they cannot

apply to activity that is beyond the scope of the rule.

Therefore, the qualifications in sections 9 and 10 are not

applicable unless there has been an interference with “navigable

capacity” within the meaning of the first clause of section 10.

If such an interference exists, the Corps has authority to sanc-

tion the structure or activity. In the absence of such an interference,

the Act simply does not apply, and the Corps has no jurisdiction

in the matter. In short, the Corps can authorize that which is

otherwise prohibited by the Act, but—contrary to the Court of

Appeals’ decision—cannot prohibit that which is otherwise beyond

the scope of the Act.

B. CONSTITUTIONAL ANALYSIS OF SECTIONS 9 AND 10.

The above conclusion is supported, and indeed compelled, by

this Court’s decisions respecting federal and state powers over

navigable waters. As noted earlier, this Court has often held that,

under the “equal footing” doctrine, the states have broad control

of their navigable waters, subject to the paramount federal power

to protect navigability of navigable waters. See e.g., Pollard’s

Lessee v. Hagan, 44 US. (3 How.) 212, 224-229 (1845) ;

Shively v. Bowlby, 142 U.S. 1, 49-50 (1894) ; United States v.

Oregon, 295 US. 1, 14 (1935) ; United States v. Texas, 339 US.

716-717 (1950). Certainly the federal power to protect navig-

ability is, by definition, unaffected where a structure or activity

has no effect on navigable capacity. Therefore, sections 9 and 10

would be unconstitutional if construed as applicable to structures

or activities that have no such effect. It follows that the second

and third clauses of section 10, as well as section 9, must be

construed as applicable only to structures of activities that

obstruct navigable capacity within the meaning of the first

clause of section 10. They limit the scope of the general prohibi-

tion against navigation obstructions, rather than impose prohibi-

tions against structures or activities that have no such effect.*

34. The Court of Appeals also ruled that recent federal environ-

mental laws expand the Corps’ authority under the Rivers and Harbors

Act of 1899 by authorizing the Corps to deny permits thereunder on

solely environmental rather than navigational grounds. Pet. App. 16 n.

13, 22. Such authority, the court ruled, was conferred by the Fish. and

Wildlife Coordination Act, 16 U.S.C. §§ 661-666(c) (1976), and the

National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347

(1970 and Supp. V 1975). Pet. App. 16 n. 13, 22. A similar result was

reached by the Fifth Circuit in Zabel v. Tabb, 430 F. 2d 199, 213-214

(Sth Cir. 1970), cert. denied 401 U.S. 910 (1971).

We do not address the question whether these federal environmental

laws authorize the Corps to dang a permit on solely environmental grounds,

since this case does not involve the denial of a permit. It is clear from

the above constitutional analysis, however, that these federal environmental

laws cannot constitutionally authorize the Corps to exercise jurisdiction

over structures and activities that have no navigational impacts, at least

to the extent that the Corps acts contrary to state law. Therefore, whether

or not these federal environmental laws authorize the Corps to deny

permits on non-navigational grounds, they cannot be construed as author-

izing the Corps to exercise permit-issuing authority over state-approved

structures and activities that have no navigational impacts. In other words,

if a structure has no navigational effect, the builder is not required to

seek Corps approval; if the structure has a navigational effect, the builder

must Corps approval, and the question remains whether the Corps

can deny the permit on grounds unrelated to the navigational effect.

CONCLUSION

In keeping with the federal tradition that molded our con-

stitutional order, the Court should interpret the Rivers and Har-

bors Act of 1899 in a way that accommodates the historic congres-

sional policy of deferring to water allocations based on state water

rights laws. This historic policy has been a pivotal feature in the

reclamation of the arid western lands, which has been a major

cause of the West’s economic advancement. Under our suggested

accommodation, the 1899 Act either does not apply in this context

at all, or alternatively applies only to the extent that the water

allocations substantially impair actual commerce or otherwise

render the waters unusable for commerce. This policy is not

consistent with the notion that the Corps has broad authority to

override water allocations adopted under state water rights laws.

As Justice Holmes has commented, the life of the law is not

logic but experience. See Holmes, The Common Law 1 (1881).

Under our nation’s historical experience, the control of water

allocations in the West has been the responsibility of the states

whose economies and environments are most affected, not the

Corps. This historical experience is the lamp that illuminates the

issues raised here. We urge reversal of the Court of Appeals’

decision.

Respectfully submitted,

GEORGE DEUKMEJIAN

Attorney General of the

State of California

R. H. CONNETT

Assistant Attorney General

RODERICK WALSTON

GreGORY K. WILKINSON

Deputy Attorneys General

By RODERICK WALSTON

Attorneys for Petitioners

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