## E ATTORNEY GENERAL

AURTIS. TFExaw %Tii7ll November 24,1970
Rep. JohnAllen, 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 projects andwater 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 projectwhich the Congress has authorized a Federal agency to build? "(21 What is the Federal-State relationship in connectionwith the releaseby FederalAuthorities of water behind Federal dams?"
We must fir8t review the general principles of law relating to Federal-Statenavigation powers. Article I, Section 8, Clause 3 of the United States Constitution (theComaeroe **Clause),** reads in part as follows:

"TheCongress shall have power...to regulate commeroe...amongthe 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 unqualifiedvested rights under State law in the appropriation and use of water of a "navigablestream" where suchwater rights obtained through the state conflictwith Federal laws adopted pursuant to the powers delegated to the Congress. This overriding Federal supremacy inwater matters telating to navigation, or other Federal action pursuant to the cosuaerce

clause of the U.S. Constitution, exists 

### not only as to thooe streamspresently used for navigation, **but** also ss to any streamwhich might be made navigable, and to a non-navigable tributarywhich flows

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Rep. JohnAllen, Chairman, page 2 (M-735)

into a navigable streamwhere diminution of the tributan? flowmiaht affect the naviaablepart thereof. United States v. Appalachian Electric-PowerCo., 311 U.S. 377 (1940);First Iowa Hydro-ElectricCo-op v. Federal Power Commission, 328U.S. 152 (1946)

. Federal power as to navigation encomPasse8plenary 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);SanitaryDistrict 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 recognitionof the superiorityof the United States over navigationhas 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 (TheAllen Smith Company Publishers), Sec. 101.1(C), the Susanary at pages S-9 reads as follows:

"The scome of consressionalDower 

### an it
1.

2. oaergk3 from Ciese 

### ca8e8is:
**All** navigable streams are subject to the navigation power. 'Navigable', means: gable: I;; ;n,; having been navigable in factr (c) navigable after reasonable improvemerits. Nonnavigable streamswhich affect the navigable capacity of navigable ltre2bnware rubject to 

## the eXpY388 

### eserciaeof theregulatorygwwer. Thus any 

### streamsystem could be subjected to federal control by m&ring any portion 

### of it navigabl e. Thim would bring within the scope of the navigationpower the nonnavigable

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stretches and tributaries of the' svstem if affectinamainstream capacity. Theoretically, therefore, fewwaters in the United States are immune from the navigationpower. Butwe see asain that the loaical and practicai limits of fedeial power are not necessarily co-extensive." (Emphasisadded). And at page 11, par. 101.2,we find:

"...Congressmay in effect use the waters of both navi able and nonnavigable streams forwh9atever purposes and inwhatever manner it wishes. In 1 so oin , override any statewater plan. It can prevent, intoto, state law frombeing appl' d to 'federal'waters; or, on a lesizr scale, it can prevent state law from being applied to federalwaters in a particular situationwhere its applicatzon conflictswith the federal interest. Finally as a matter of comity, It may subLit to state regulation." (Emphasisadded).
Unless Congress has manifested an intent to corn: pletely supersede the authorityof the state,navigable waters are subject to the control of both the state and federalgovernments. 65 C.J.S., Navigable Waters, Sec. 10, page 89. In the absence of legislationby Congress, a state statute authorizing erection of a dam across a navigable river locatedwholly 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 federalpower for itself when Congress has not done this. Pacific InterClub Yacht Associationv. 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 selfexecuting.

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The United Statesmay perform its functionsunder the commerce clausewithout conforming to the police regulationsof a State. Arizona v. California, 283 U.S. 423, 451 (1931). Itmay go up the tributariesof a stream and recover its costs of improving the stream by building, maintaining and operatinghydro-electricprojects. Oklahoma ex rel. Phillipsv. Atkinson Co., 313U.S. 508 (1941).

InU.S. v. Chandler-DunbarWater 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 iðer a construction in or ovur such a river is or is not an obstacle and a hindrance to navigation is conclusive. Such judgment and determlnatlon is the exercise of legislativepower in respect of a subjectwhdly within Its control." (Emphasisadded).

With the above legalprinciples of Federal preemption in mind, we now return to your two questions, the first of which is:
"Cana non-Federal entity construct a projectwhich the Congress has authorized a Federal agency to build?"
Our answer is "NO",unless some specific Federal law allows State action,because any permissionby the State of Texas to a permittee to build a Texas project in a manner different from that authorizedby our general national governmentwould be a state law in conflictwith a superior Federal law enacted pursuant to a constitutional power delegated to our national government.

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In this connection,your attention is also invited to the positive statutorydelegation **of** the Federal approval power to certain federal officers set forth in the National Rivers and HarborsAct, 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 navigablewater of the United States until the consent of Congress to the building of such structures shallhave been obtained and until the plans for the same shallhave been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: PROVIDED, That such structuresmay be built under authority of the legislatureof a State across rivers and other waterways the navigableportions of which liewholly within the limits of a single State, provided the location and plans thereof are submitted to and approvedby 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 structurehave been approvedby 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 PcuerAct where federal consent is a prerequisite. 16 U.S.C.A. 817. This old federal lawwas interpretedby Texas courts to require federal consentby our court8 as

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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, 101Minn. 197, 112 N.W. 395, 11 L.R.A. (N.S.) 105 (1907). Any State of Texas project on a-Te,xas stream must be approved not only by Texas but by the Federal Government under 33 U.S.C.A. 401, as amendedby 49 U.S.C.A. 1655g (ifbridges are involved),or later Federal action could require removal of such an unapprovedprojectwithout compensation therefor. Projects in the Texas Water Plan thus approvedpursuant to federal lawwould prevent the State of Texas from thereafter developing the stream in a manner different therefromwithout federal approval. If the project should include any hydro-electricpower, 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 Congressional legislation asserting the reserved authority of the general government over all navigable streams including even thosewholly 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 governmentwhen such a, structure is built imposesno obligation on the~U.S.not to subsequentlyexercise its paramount authority. People v. Hoard of Supervisorsof 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

. (192

4), 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 "navigablewaters" is now expanding to includenrotection of fish andwildlife and to achieve protect& of the environment. Zabel and Russell v. Tabb, 430 F.2d 199 (5thCir. 1970).

In answer to your first question. then,we hold that a project authorizedby the United States Congress preempts a state project on the same river site. Anderson v. Seeman,

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252 F.2d 321 (5thCir., 1958, cert. den., 358 U.S. 820).' Before building a statewater project on a Texas river site where a federalprojecthas been authorizedby the national Congress, the State of Texas, or its permittee, must obtain a repealby Congress of its authorization,and must then complywith 33 U.S.C.A. 401, as amendedby 49 U.S.C.A. 1655g, if any such Congressional act repealing federal approval of the project does not otherwisewaive such requirementsas to the particularproject.
Your second question asks:
"What is the Federal-State relationship in connectionwith the releaseby Federal .uthoritiesof water behind Federal dams?"

In light of the foregoingdiscussion of authorities which demonstrate the Federal superiority in navigation matters where State laws conflictwith the superior commerce powers of Congress, the United States can build a project to impoundwater on a Texas stream and hold the water so as to recover its costs of improving the stream. This Federalpower extends to entire tributaries andwatersheds and includesbasin control. Oklahoma v. Atkinson, 313 U.S. 508 (1941),affirming 37 Fed. Supp. 93. For example, one case holds that the Federal Power Act supersedes state lawswhich conflict therewith and that the federalplan of regulation leaves no room for conflicting state controls. In this case it was held that the applicant to the Federal Power Commission need not show compliancewith state laws relating to water rights. First Iowa Hydro-ElectricCooperative v. F.P.C., 328 U.S. ln (1946)

. It should be said in fairness to the Congress that such general legislationas the 1944 Federal Flood Control Act (33U.S.C.A.791-1)used by such agencies as the United StatesArmyCorps of Engineers contains a "go-day clause"whereby the Governor of Texas is given time to review a proposed flood controlproject. The Texas Legislaturehas enactedArt. 7472e,V.C.S.,which requires the Governor of Texas to forward any engineering report as to any project "submittedby a Federal agency seeking the Governor's approval of a Federal project" to the Texas

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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 authorizedby Section 6 af Article 7472e, supra, to be the approval agency for the ~ Federal Department of Agriculture. Texas laws also require a reclamationproject to be consideredby Texas Water Development Board. Art. 8280-9, Sec. 21(l). Thus,where the Governor of Texas is allowed by a Federal law to expresshis comments as to his opinion on the feasibilityof a federallyproposed project, action by the Governor of Texas favorable to the projectwould present at least an equitable issue that the State had approved retention of waters behind such a federaldam. Where no state approvalhad been given to a project, the issue in a suit to obtain release of the State-ownedwaters would be whether the federal officerswere exceeding th&ir authority in operating and maintaining the impounding facility. Federal authority to retainwater may well depend on the particular law of the federal agency in control of the project. For example, the ReclamationAct 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 Engineersmay well depend on whether the water is being retained in aid of navigation. So long asa reasonable explanation could be givenby federal officers or employees in charge of a dam and reservoir to explain and justify their official actions in retaining the water a federal courtwould not order a release of the water behind a federaldam. Anderson v. Seeman, 252 F.2d 321 (5thCir. 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 retainedbehind a dam, a full hearing would be requiredby 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 Courtwould be sought by the Federal Government andwould be upheld as a matter of right since federal agencies and * federal interestswould be involved. 28 U.S.C.A. 1442 and 1446-1450, inclusive. As to those claimingwater rights under Texas lawwho are below a Federal dam, their claims in courtwould depend on the same inquiry into the particular Federal law involved in the case.

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

SUMMARY s--m---

Federal navigationpowers under the Commerce Clause of the U.S. Constitution (Art. I, Sec. 8, Clause 3) are superior to any State of Texas powers or rightswhere the waters and streams involved formpart of the navigable waters of the U.S., or where alteration of the flow of non-navigable tributaries thereof would affect such navigablewaters of the U.S. Federal authorization of a Texas water project preempts a Stateproject on the same river site unless Federal consent is obtainedby 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. underthe Federal Commerce Clause. Suits over Federal projects in Texas could be removed to a Federal District Co@. ,' YOI+ truly,

Preparedby 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 LegalAssistant

ALFRED WALKER ExecutiveAssistant
NOLA WHITE FirstAssistant

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