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 projects 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 authorized 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 telating to navigation, or other Federal action pursuant 

to the cosuaerce clause of the U.S. Constitution, exists 

not only as to thooe streams presently used for navigation, 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 tributan? 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 Susanary at pages 

S-9 reads as follows: 

"The scome of consressional Dower an 

it 

1. 

2. 

oaergk3 from Ciese ca8e8 is: 

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 streams which affect 

the navigable capacity of navigable 

l tre2bnw are rubject to the eXpY388 

eserciae of the regulatory gwwer. 

Thus any stream system could be 

subjected to federal control by m&ring 

any portion of it navigabl e. 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-extensive." (Emphasis added). 

And at page 11, par. 101.2, we find: 

"...Congress may in effect use the 

waters of both navi able and nonnavigable streams for wh9atever purposes 

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 applicatzon conflicts with the federal 

interest. Finally as a matter of 

comity, It may subLit to state regulation." (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 itself when Congress has not done this. Pacific InterClub 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 selfexecuting. 

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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 

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 

legislative power in respect of a 

subject whdly within Its control." 

(Emphasis added). 

With the above legal principles of Federal preemption 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 authorized 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 approval 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 navigable water of the United States until 

the consent of Congress to the building 

of such structures shall have been obtained and until the plans for the same 

shall have been submitted to and approved 

by the Chief of Engineers and by the 

Secretary of the Army: PROVIDED, That 

such structures may be built under authority of the legislature of a State 

across rivers and other waterways the 

navigable portions of which lie wholly 

within the limits of a single State, 

provided the location and plans thereof 

are submitted to and approved by 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,xas stream 

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 without 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 Congressional 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 (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 "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 

.uthorities of 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 commerce 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 watersheds 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 supersedes 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 applicant to the Federal Power Commission need not show compliance 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 Legislature 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 Development 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 approved 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 facility. 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 his authority. 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 particular 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. Constitution (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 obtained 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 projects 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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