# Petitioners Brief — California v. Sierra Club > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2201%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1981 - **Citation:** 451 U.S. 287 ## Text ee — i = EUR Cry IRAP REP re ere eat ie das Se le st aes J 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 i 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? il 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 iv 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 36 37 39 48 51 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) 41 17 36 17 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. 2 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 3 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 4 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). 5 (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- 6 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 5 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. 8 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. 9 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). 10 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 I 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. 11 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. II 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. 12 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. IV 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. 13 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 14 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, 15 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. 16 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 17 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. 18 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, 19 —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. 20 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). — 21 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. 22 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 23 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- 24 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. 25 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. 26 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). 27 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- 28 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. 29 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 30 “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. 31 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 32 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 33 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). 34 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 * * * —————————— 35 “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). 36 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 37 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 38 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. 39 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. 40 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). 41 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). 42 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.) 43 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 44 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 45 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 46 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’ 47 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 broadl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2201%3A07. Public record. Not legal advice.