                 E ATTORNEY             GENERAL

                      AURTIS. TFExaw %Tii7ll
                          November 24, 1970

Rep. John Allen, Chairman               opinion Ho. M-735
Texas Water Resources Study
  Committee                             Re:   State and Federal
House of Representatives                      Relations as to
P. 0. Box 12236, Capitol Station              Texas streams --
Austin, Texas 78711                           both as to pro-
                                              jects and water
Dear Sir:                                     uses.
     The Texas Water Resourcea Study Committee (H.C.R.
12, Acts 61st Legislature, lot C.S., 1969, page 371,
ha8 requested our opinion in answer to the following
two questions:
     "(1)   Can a non-Federal entity construct a
            project which the Congress has author-
            ized a Federal agency to build?
     "(21 What is the Federal-State relationship
          in connection with the release by
          Federal Authorities of water behind
          Federal dams?"
     We must fir8t review the general principles of law
relating to Federal-State navigation powers. Article I,
Section 8, Clause 3 of the United States Constitution
(the Comaeroe Clause), reads in part as follows:
            "The Congress shall have power...to
            regulate commeroe...among the several
            states..."
     The United States Supreme Court has held that by
virtue of the power delegated to the Congress in the U.S.
Constitution to regulate interstate commerce (Art. I,
Sec. 0, Clause 3), there can be no unqualified vested
rights under State law in the appropriation and use of
water of a "navigable stream" where such water rights
obtained through the state conflict with Federal laws
adopted pursuant to the powers delegated to the Congress.
This overriding Federal supremacy in water matters te-
lating to navigation, or other Federal action pursuant
to the cosuaerceclause of the U.S. Constitution, exists
not only as to thooe streams presently used for naviga-
tion, but also ss to any stream which might be made
navigable, and to a non-navigable tributary which flows


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Rep. John Allen, Chairman, page 2      (M-735)



into a navigable stream where diminution of the tribu-
tan? flow miaht affect the naviaable part thereof.
United States v. Appalachian Electric-Power Co., 311
U.S. 377 (1940); First Iowa Hydro-Electric Co-op v.
Federal Power Commission, 328 U.S. 152 (1946). Federal
power as to navigation encomPasse8 plenary control over
all navigable streams, and,for the protection of these
streams, the Federal Government can control the flow of
their tributaries. Amory v. Commonwealth, 321 Mass. 240,
72 N.E.2d 549 (1947), 174A.L.R.           Anthony Falls
Power Co. v. St. Paul Water Commissioners, 168 U.S. 34g
(1897); Sanitary District of Chicago v. U.S., 266 U.S.
405 (1925): U.S. v. West Virainia. 295 U.S. 463 (193511
U.S..v. Appalacnian J!Z%ctric-Poweiz
                                   Co., 311 U.S. 377
(1940). The general recognition of the superiority of
the United States over navigation has been recognized in
our Texas Attorney General's Opinion8 M-389 (c1969),M-330
(1969), C-370 (19641, and M-87 (1967).
     In Waters and Water Righter,Vol. 2 (The Allen Smith
Company Publishers), Sec. 101.1(C), the Susanaryat pages
S-9 reads as follows:
          "The scome of consressional Dower an
          it oaergk3 from Ciese ca8e8 is:
          1.   All navigable streams are subject
               to the navigation power.  'Navigable',
               means : I;; ;n,; having been navi-
               gable:           gable in factr (c)
               navigable after reasonable improve-
               merits.
          2.   Nonnavigable streams which affect
               the navigable capacity of navigable
               ltre2bnw are rubject to theeXpY388
               eserciae of the regulatory gwwer.
               Thus any stream system could be
               subjected to federal control by m&ring
               any portion of it navigable. Thim
               would bring within the scope of the
               navigation power the nonnavigable




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Rep. John Allen, Chairman, page 3          (M-735)



         stretches and tributaries of the'
         svstem if affectina mainstream
         capacity. Theoretically, therefore,
         few waters in the United States are
         immune from the navigation power.
         But we see asain that the loaical
         and practicai limits of fedeial
         power are not necessarily co-exten-
         sive." (Emphasis added).
And at page 11, par. 101.2, we find:
        "...Congress may in effect use the
        waters of both navi able and nonnavi-
        gable streams for wh9ateverpurposes
        and in whatever manner it wishes. In
        1
        so oin ,                    override
        any state water plan. It can prevent,
        intoto, state law from being appl' d
        to 'federal' waters; or, on a lesizr
        scale, it can prevent state law from
        being applied to federal waters in a
        particular situation where its appli-
        catzon conflicts with the federal
        interest. Finally as a matter of
        comity, It may subLit to state regu-
        lation." (Emphasis added).
     Unless Congress has manifested an intent to corn:
pletely supersede the authority of the state, navigable
waters are subject to the control of both the state and
federal governments. 65 C.J.S., Navigable Waters, Sec.
10, page 89. In the absence of legislation by Congress,
a state statute authorizing erection of a dam across a
navigable river located wholly within a state is not uncont
stitutional. Pound v. Turck, 95 U.S. 459 (1877); Woodman
v. Kilbourn Mfg. Co., Fed. Cas. No. 17,978 (1867).Tb1~ same
rule applies to bridges, and a federal court is not at
liberty to assert that paramount federal power for it-
self when Congress has not done this. Pacific Inter-
Club Yacht Association v. Morris, 197 F.Supp. m%C.
 a .   60). This is true because the orovisions of the
commerce clause of the U.S. Constitutibn are not self-
executing.



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    Rep. John Allen, Chairman, page 4   (M-735)


         The United States may perform its functions under
    the commerce clause without conforming to the police
    regulations of a State. Arizona v. California, 283 U.S.
    423, 451 (1931). It may go up the tributaries of a stream
    and recover its costs of improving the stream by building,
    maintaining and operating hydro-electric projects.
    Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508
    (1941).

         In U.S. v. Chandler-Dunbar Water Power Company_,229
    U.S. 53 (19131, at page 64, the United States Supreme
    Court held as follows:
             "So unfettered is this control of
             Congress over the navigable streams Of
             the country that Its Judgment as to
             i&ether a construction in or ovur
             such a river is or is not an ob-
             stacle and a hindrance to navigation
             is conclusive. Such judgment and
             determlnatlon is the exercise of
             legislative power in respect of a
             subject whdly within Its control."
             (Emphasis added).

         With the above legal principles of Federal pre-
    emption in mind, we now return to your two questions,
    the first of which is:
         "Can a non-Federal entity construct a
          project which the Congress has author-
          ized a Federal agency to build?"
         Our answer is "NO", unless some specific Federal
    law allows State action, because any permission by the
    State of Texas to a permittee to build a Texas project
    in a manner different from that authorized by our general
    national government would be a state law in conflict with
    a superior Federal law enacted pursuant to a constitutional
    power delegated to our national government.




.

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Rep. John Allen, Chairman, page 5    (M-735)


     In this connection, your attention is also invited
to the positive statutory delegation of the Federal ap-
proval power to certain federal officers set forth in the
National Rivers and Harbors Act, 33 U.S.C.A. 401, which
reads as follows:
          "It shall not be lawful to construct
         or commence the construction of any
         bridge, dam, dike, or causeway over or
          in any port, roadstead, haven, harbor,
          canal, navigable river, or other navi-
          gable water of the United States until
          the consent of Congress to the building
          of such structures shall have been ob-
          tained and until the plans for the same
          shall have been submitted to and approved
         by the Chief of Engineers and by the
          Secretary of the Army: PROVIDED, That
          such structures may be built under auth-
         ority of the legislature of a State
          across rivers and other waterways the
         navigable portions of which lie wholly
         within the limits of a single State,
          provided the location and plans thereof
          are submitted to and approved by the Chief
         of Engineers and by the Secretary of the
         Army before construction is commencedr
         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 Anay.
         Mar. 3, 1899, c. 425, 0 9, 30 Stat. 1151."
Likewise, there are special statutes such as the Federal
Pcuer Act where federal consent is a prerequisite. 16
U.S.C.A. 817. This old federal law was interpreted by
Texas courts to require federal consent by our court8 as




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Rep. John Allen, Chairman, page 6    (M-735)


early as 1909. Gulf C. & S.F. Ry. Co. v. Meadows, '120
S.W.521 (Tex.Civ.App. 1909, Error Ref). This statute
was also construed in the case of Minnesota Canal & Power
Co. v. Pratt, 101 Minn. 197, 112 N.W. 395, 11 L.R.A. (N.S.)
105 (1907). Any State of Texas project on a-Te,xasstream
must be approved not only by Texas but by the Federal
Government under 33 U.S.C.A. 401, as amended by 49 U.S.C.A.
1655g (if bridges are involved), or later Federal action
could require removal of such an unapproved project with-
out compensation therefor. Projects in the Texas Water
Plan thus approved pursuant to federal law would prevent
the State of Texas from thereafter developing the stream
in a manner different therefrom without federal approval.
If the project should include any hydro-electric power,
the Federal Power Commission must act in the case. 16
U.S.C.A. 817. Federal law in each case will determine
navigability. Hoard of Hudson River Regulating Dist.    v.
Fonda, J. & G.R. Co., 217 N.Y.S. 781 (1926).
     State power depends solely on the absence of Congres-
sional legislation asserting the reserved authority of the
general government over all navigable streams including
even those wholly within a state. Egan v. Hart, 165 U.S.
1SS (1897). While only the United States government can
raise the question that a contract is in violation of Federal
law, mere inaction of the Federal government when such a,
structure is built imposes no obligation on the ~U.S. not to
subsequently exercise its paramount authority. People v.
Hoard of Supervisors of Whiteside County, 122 Ill. App. 40
(1905); City of Newark v. Central R. Co. of New Jersey, 287
F. 196 n923), affirmed in 297 F . 77 (1924) , and 267 U.S.
377 (1925); 2 A.L.R. 1694.
     Rather than receding to a state system of control over
waters, use of the Federal Commerce Clause by the federal
courts in regard to "navigable waters" is now expanding to
include nrotection of fish and wildlife and to achieve
protect&   of the environment. Zabel and Russell v. Tabb,
430 F.2d 199 (5th Cir. 1970).
     In answer to your first question. then, we hold that
a project authorized by the United States Congress preempts
a state project on the same river site. Anderson v. Seeman,




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Rep. John Allen, Chairman, page 7     (M-735)


252 F.2d 321 (5th Cir., 1958, cert. den., 358 U.S. 820).'
Before building a state water project on a Texas river
site where a federal project has been authorized by the
national Congress, the State of Texas, or its permittee,
must obtain a repeal by Congress of its authorization, and
must then comply with 33 U.S.C.A. 401, as amended by 49
U.S.C.A. 1655g, if any such Congressional act repealing
federal approval of the project does not otherwise waive
such requirements as to the particular project.
     Your second question asks:
     "What is the Federal-State relationship
      in connection with the release by Federal
       .uthoritiesof water behind Federal dams?"
     In light of the foregoing discussion of authorities
which demonstrate the Federal superiority in navigation
matters where State laws conflict with the superior com-
merce powers of Congress, the United States can build
a project to impound water on a Texas stream and hold the
water so as to recover its costs of improving the stream.
This Federal power extends to entire tributaries and water-
sheds and includes basin control. Oklahoma v. Atkinson,
313 U.S. 508 (1941), affirming 37 Fed. Supp. 93. For
example, one case holds that the Federal Power Act super-
sedes state laws which conflict therewith and that the
federal plan of regulation leaves no room for conflicting
state controls. In this case it was held that the appli-
cant to the Federal Power Commission need not show compli-
ance with state laws relating to water rights. First  Iowa
Hydro-Electric Cooperative v. F.P.C., 328 U.S. ln (1946).
     It should be said in fairness to the Congress that
such general legislation as the 1944 Federal Flood Control
Act (33 U.S.C.A.791-1) used by such agencies as the
United States Army Corps of Engineers contains a "go-day
clause" whereby the Governor of Texas is given time to
review a proposed flood control project. The Texas Legis-
lature has enacted Art. 7472e, V.C.S.,which requires the
Governor of Texas to forward any engineering report as to
any project "submitted by a Federal agency seeking the
Governor's approval of a Federal project" to the Texas




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Rep. John Allen, Chairman, page 8    (M-735)



Water Rights Commission, the successor to the old Board
of Water Engineers. Art. 7477, Sec..9, V.C.S. The State
Soil Conservation Board is authorized by Section 6 af
Article 7472e, supra, to be the approval agency for the    ~
Federal Department of Agriculture. Texas laws also require
a reclamation project to be considered by Texas Water De-
velopment Board. Art. 8280-9, Sec. 21(l).
     Thus, where the Governor of Texas is allowed by a
Federal law to express his comments as to his opinion
on the feasibility of a federally proposed project, action
by the Governor of Texas favorable to the project would
present at least an equitable issue that the State had ap-
proved retention of waters behind such a federal dam.
Where no state approval had been given to a project, the
issue in a suit to obtain release of the State-owned waters
would be whether the federal officers were exceeding th&ir
authority in operating and maintaining the impounding faci-
lity. Federal authority to retain water may well depend
on the particular law of the federal agency in control of
the project. For example, the Reclamation Act has always
required conformity to state laws and the water due a state,
or its permittee, might be released if the Federal officer
has exceeded hisauthority. Projects by the U.S. Corps ',
of Engineers may well depend on whether the water is being
retained in aid of navigation. So long as a reasonable
explanation could be given by federal officers or employees
in charge of a dam and reservoir to explain and justify
their official actions in retaining the water a federal
court would not order a release of the water behind a
federal dam. Anderson v. Seeman, 252 F.2d 321 (5th Cir.
1958, cert. den. 358 U.S. 820). And even under Texas
rules of law as to forcing release of water which it is
claimed is being unlawfully retained behind a dam, a full
hearing would be required by the courts. L.C.R.A. v. Gulf
Coast Water Co., 107 S.W.Zd 1101 (Tex.Civ.App., 1937,
no writ). Removal of such a case to a Federal District
Court would be sought by the Federal Government and would
be upheld as a matter of right since federal agencies and *
federal interests would be involved. 28 U.S.C.A. 1442 and
1446-1450, inclusive. As to those claiming water rights
under Texas law who are below a Federal dam, their claims
in court would depend on the same inquiry into the particu-
lar Federal law involved in the case.




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     Rep. John Allen, Chairman, page 3      (M-735)


                         SUMMARY
                         s--m---

              Federal navigation powers under the
              Commerce Clause of the U.S. Consti-
              tution (Art. I, Sec. 8, Clause 3)
              are superior to any State of Texas
              powers or rights where the waters
              and streams involved form part of
              the navigable waters of the U.S.,
              or where alteration of the flow of
              non-navigable tributaries thereof
              would affect such navigable waters
              of the U.S. Federal authorization
              of a Texas water project preempts
              a State project on the same river
              site unless Federal consent is ob-
              tained by law. The Federal
              Government can retard, impound
              and use waters behind Government
              dams in Texas so long as such use
              is reasonably related to powers of
              the U.S. under the Federal Commerce
              Clause. Suits over Federal pro-
              jects in Texas could be removed
              to a Federal District Co@.
                                     ,'
                                YOI+ truly,




     Prepared by Roger Tyler
     Assistant Attorney General
     APPROVED:
     OPINION COMMITTEE
     Kerns Taylor, Chairman
     W. E. Allen, Co-Chairman




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Rep. John Allen, Chairman, page 10    (M-735)


Houghton Brownlee
John Grace
Bob Flowers
Joseph Sharpley
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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